In November 2018 The House of Lords discussed the recent investigation of Lord Lester of Herne Hill. The Senior Deputy Speaker, Lord McFall of Alcluith, set out in brief the relevant background: that Lord Lester had been accused of sexual harassment of the complainant Ms Sanghera, by offering her the ‘corrupt inducement’ of a peerage if she had sex with him. The events complained about were alleged to have occurred some 12 years ago.
I would like to consider what was said by the noble Lords about due process; and in particular about the impact of not being able to cross examine a person who makes serious allegations against you. This is a matter of huge significance in family cases, given the horrible consequences of the withdrawal of legal aid in private law disputes which may see the alleged perpetrator attempting to directly question the alleged victim of abuse. The courts have been frequently critical of this state of affairs – but at the time of writing there is still no resolution in sight.
The investigation of Lord Lester
The Independent Commissioner for Standards, a former President of the Law Society and serving member of the judiciary, investigated and found Lord Lester in breach of the code of conduct requiring that all members must act on their personal honour. The Sub-Committee on Lords’ Conduct approved the findings and recommended Lord Lester’s expulsion from the House of Lords.
Lord Lester appealed to the Committee for Privileges and Conduct who considered a detailed set of papers on appeal and heard from Lord Lester in person. The appeal was dismissed save that a period of suspension until 3rd June 2022 was recommended in place of expulsion.
Lord Pannick did not agree with the conclusions of the Committee and requested that the matter was remitted for further consideration on the basis that the Commissioner failed to comply with paragraph 21 of the Code of Conduct, which required her to act in accordance with the principles of natural justice and fairness.
This argument had been a central part of Lord Lester’s appeal and already unanimously rejected by all 14 members of the Committee, at paragraph 12 of their report.
What are the procedures followed by the Commissioner?
Lord McFall set out the procedure. Para 124 of the guide to the code is clear that such proceedings are inquisitorial not adversarial. Para 127 sets out:
“Complainants have no formal locus once an investigation is under way: they have no right to be called as a witness, though they are expected to co-operate with any investigation and to supply all the evidence in their possession when asked to do so. Nor do members accused of misconduct have any entitlement to cross-examine complainants, though they are given an opportunity to review and, if they so wish, challenge the factual basis of any evidence supplied by complainants or others”.
Lord Lester’s response had been:
I do not consider that there is a breach of the principles of natural justice or fairness, which are flexible principles. They are not conceivably breached in this case, and the penalties are in my judgement entirely proportionate”.—[Official Report, 20/5/09; col. 1412.]
Lord Pannick’s arguments – challenge to credibility is the very concept of fairness
At the very outset Lord Pannick was careful to declare his personal interest in the matter; Lord Lester was a close friend of 40 years standing. He was clear he did not wish to comment on the truth or otherwise of the allegations against his friend – but would be ‘surprised’ if they were true. I will raise here briefly on my considerable unease that anyone should seek to make representations about ‘procedural fairness’ on behalf of such a dear and long standing friend. It is difficult to see how objectivity can remain uninfluenced by such deep personal feelings.
However, regardless of his personal position, Lord Pannick asserted the procedure followed by the Commissioner was ‘manifestly’ unfair.
If you are going to assess the credibility of competing contentions as to what occurred nearly 12 years ago, apply a very serious sanction against someone and destroy their hitherto unblemished reputation, you have to allow them, through their counsel, to cross-examine the person making the allegations, which turn on credibility. At the very least, the commissioner should appoint independent counsel to perform that cross-examination; that would also be acceptable.
He asserted that paragraph 21 of the code is very clear. He found it ‘astonishing’ that the House – which lays down the law for everybody – does not comply with these basic standards of fairness. This is not about the qualities of the Commissioner or the diligence with which she carried out her role, but it is a question of principle – can she fairly determine an issue that turns on credibility when she did not allow for any possibility of cross-examination?
Not every case will require cross examination. However, where credibility is in issue, para 21 must permit the Commissioner to allow it. This is no mere ‘lawyer’s point’ – ‘It is inherent in the very concept of fairness’.
Lord Lester wanted to right to cross examine to explore what he saw as ‘gaps and inconsistencies’ in the case against him
- when was the harassment said to have occurred?
- What meetings were Ms Sanghera denied access to?
- the disparity between her allegations and her own conduct
An example of that latter point was that one week after the alleged event, Ms Sanghera signed a book for Lord Lester in affectionate terms saying: “Anthony … Thank you so much for your love and support. It has been my pleasure to meet you … Love and admiration.”
Lord Pannick emphasised that he was not attempting to persuade anyone of the truth or otherwise of the allegations against Lord Lester, but rather to grapple with this essential point of fairness. He quoted approvingly John Henry Wigmore (Dean of the Northwestern University School of Law, who single-handedly modernised the jury trial with his 1904–5 Treatise on the Anglo-American System of Evidence in Trials at Common Law) who said that cross examination was “the greatest … engine ever invented for the discovery of truth”.
I don’t agree with that assertion and I will explain why at the end of this post.
Lord Pannick commented
Sexual harassment and abuse of power are serious wrongs and nothing that I say is intended to diminish their gravity, but those who are accused of such offences are entitled to have their cases fairly and properly considered. The more serious the allegation and the more severe the penalty, the greater the obligation on us to act fairly. The noble Lord is facing suspension for nearly four years and his reputation has been destroyed.
The commissioner made mistakes. For example, her approach to the evidence was in my view to reverse the burden of proof and to apply a standard of proof which did not reflect the severity of the consequences of her findings. I remind the House that the guidance at paragraph 128 states that in order to find against a Member,
“the Commissioner will require at least”—
“that the allegation is proved on the balance of probabilities”.
That means that in appropriate cases, the standard of proof should be higher than a mere 51 to 49. There are other flaws of forensic analysis which I will not trouble your Lordships with.
This is a very interesting comment and would certainly appear to be in direct contradiction to the very clear remarks of the (then) House of Lords in Re B (Children) 2008 UKHL 35
Baroness Hale remarked at para 70 of the judgement:
….I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.
Re B is of course a case in care proceedings rather than an investigation into misconduct by a peer – but the remarks made about the civil standard of proof are universal. Lord Thomas is attempting a return to the ‘bad old days’ where the standard of proof shifted about depending on the perceived ‘seriousness’ of the allegations.
Lord Thomas is perhaps on firmer ground in objecting to the fact that the Commissioner made herself a party to the appeal process – the first time he had ever come across a judge ‘making herself the respondent to an appeal against her own judgement’.
He made a passionate plea which is apparently offering current venerable old age as a factor against prosecution for historic offences.
The proceedings before the Committee for Privileges and Conduct were remarkable. Any Member who is brought before it on a charge of not acting on his or her personal honour should bear in mind that, however ancient the allegation, however old you are—the noble Lord, Lord Lester, is 82—however much you may have been touched by dementia like Lord Janner, whatever stress or illness you may be suffering—and the noble Lord, Lord Lester, was defending the potential ruin of a lifetime’s reputation—you, every one of you, will be on your own. You cannot have anyone speak for you, much less present your case—and the noble Lord, Lord Pannick, was there ready to do it.
If what their Lordships are attempting to do is to put elderly men with hitherto good reputations into a separate category of people who require allegations against them to be tested on a higher standard of proof than would be applied to the ‘ordinary’ man, then any such argument should be strongly resisted. No one is above the law, all of us should face the same legal tests to consider whether or not we have committed an offence and should be punished. While our fall from grace may be more tragic the higher we have risen, that by itself should utterly irrelevant to the investigation and prosecution of offences. It may become relevant when considering punishment, as loss of reputation will usually have a devastating impact.
Also, while conceding that it is more difficult to investigate and prosecute when an offence was committed many years ago, the simple passage of time, save for the imposition of any statutory limitation period, is not by itself a proper reason for refusing to proceed to investigate serious offences.
But what is most interesting to me from the point of view of the family justice system is Lord Pannick’s elevation of the process of cross examination as the ‘greatest engine’ for the delivery of truth. I disagree with that entirely, and part of the reason is touched upon by Lord Thomas in his criticism of the standard of proof to be applied in civil proceedings.
However ‘great’ your engine it requires a firm road on which to run. The situation Lord Lester found himself in is analogous to the situation faced daily by family lawyers – allegations of misconduct by one person against another, often with no evidence offered other than the statements of each party. The allegations are usually pretty stale by the time the matter gets to a finding of fact hearing, if not by years then certainly by many months. Memories degrade, are ‘re-written’ at every re-telling and people may genuinely come to believe a reconstructed version of an event.
All family lawyers will recall the desperate cross examination of ‘I put it to you that…’ in the face of an alleged perpetrator who simply denies that X or Y ever happened or that X and Y did happen but certainly didn’t involve hands on the throat but rather a gentle push to a shoulder etc, etc.
How is ‘cross examination’ to find the ‘truth’ in such cases, absent any supporting information from doctors, police, independent third parties etc, etc? I heard Ms Sanghera interviewed on Radio 4, giving an impassioned defence of her affectionate ‘book inscription’ . She was just trying to make everything ‘normal’.
I do think this is a real and serious problem for our society – that women are socialised to ‘make nice’ and even appalling behaviour from men may be met with a weak smile and apparent acquiescence. it is little wonder that so many men appear to be puzzled about later objections to their behaviour when at the time it is met with affection. But the work that needs to be done here is not interfering with due process and refusing to allow allegations to be properly challenged. What we have before us is the immensely difficult task of turning around cultural expectations of women and teaching men to do better; allowing our daughters to grow up confident that they can and will call out bad behaviour when it happens, not 12 years later when the evidence – such as it is – is very stale.
While I agree that everyone accused must know the allegations against them and have the opportunity to challenge them, there is no doubt that bad cross examination is very dangerous and can end up obscuring more than it reveals. Presumably Lord Pannick and John Henry Wigmore are cheerleaders only for cross examination which is carried out by somebody both trained AND skilled in the art. And in the post LASPO family court environment, that is increasingly less likely.
Rallying cries to establish ‘the truth’ also make me uneasy when we are talking about proceedings which apply the civil standard of proof. I have commented about this previously on the TP site. ‘The greatest ever engine for discovery of a situation where the Judge is prepared to say that he’s 51% convinced something happened’ is a rather less rousing quote – but its the reality. So I share Lord Thomas’s unease that the trashing of a reputation (and indeed, the removal and adoption of a chlld) can be allowed to take place on a balance of probabilities.
These discussions by the noble Lords raise for me some very worrying issues about privilege and entitlement. Not least because we see pleas for due process made by a person with strong ties of affection to the alleged perpetrator but also Lord Pannick’s entirely unreflecting admiration of cross examination as the best way to establish ‘the truth’ . If this is really so, then the Government needs to reflect long and hard about why it continues to deny ever growing sections of the population any access to it. And also why decisions of immense gravity – the removal and adoption of your child – may be made on 51% of the truth.
My unease was mirrored by some of the comments made by the audience and panel members at the Transparency Project Event on 22nd November which examined allegations of domestic abuse: are family courts working for children & families? All agreed that the system needed to be more effective in dealing with allegations of abuse and to look at lessons from other jurisdictions about pooling resources. However, the overall pessimistic view was that lack of resources would continue to be an obstacle to reform.
If cross examination is NOT in fact the gold standard of establishing truth – which is certainly my view – we urgently need more discussion about how we can deal with allegations better. Simply operating from a starting point of ‘I believe’ and permitting no challenge to an allegation is as dreadful as permitting an alleged abuser to subject an alleged victim to lengthy questioning and neither state of affairs is permissible in any society with pretensions to civilisation.