Hazards of Remote Hearings: Perceived Bias
The hazards of remote hearings and perceived bias are well illustrated by the recent Court of Appeal decision in C (A Child) [2020] EWCA Civ 987. This so-called hybrid hearing concerned the death of an 18-month old child, the son of the Appellant, as a result of a catastrophic head injury and significant bruising. The hearing before the judge was to establish whether the child had died of the inflicted injuries and who had caused the fatal injuries.
The hybrid hearing commenced on 1 July through to 13 July when it heard numerous medical witnesses wholly remotely by Zoom. The hybrid hearing provided for the Appellant to be present in court, although some others attended remotely, and to give her evidence in person before the judge.
On 13 and 14 July the Appellant gave evidence wearing a mask which she pushed down when speaking. The cross-examination was not completed on 14 July as the Appellant said she felt unwell and complained of back pain and blurred vision. Although the Appellant did not ask to leave court, the judge with the agreement of counsel – and as the appeal Court observed ‘completely appropriately’ – sent the Appellant home, and it was agreed that she could complete her evidence remotely.
The court rose to allow arrangements to be made and an associate took the judge’s closed laptop through to her room. Unknown to the judge, however, the remote link to the court room remained open. The judge’s private conversation with her clerk about the Appellant was then overheard by a number of people who remained on the call.
The case was already substantially overrunning its three week time estimate and the judge’s frustration manifested itself in a number of pejorative comments about the Appellant including that she was pretending to have a cough and was trying every trick in the book to avoid answering difficult questions (although the judge did not express a view about the circumstances surrounding the death of the child).
The judge was alerted to what happened, the parties re-joined the hearing and the judge indicated it would be understandable if an application were made for her to recuse herself from the case. The following day the Appellant applied for the judge to recuse herself, the Local Authority, father and Children’s Guardian were each neutral but the Intervenor opposed the application. On Monday 20 July the judge gave her reasons for refusing the application, refused a stay pending appeal and directed the Appellant to resume giving her evidence which she did. On 21 July the single judge granted permission to appeal and a stay pending appeal. The appeal took place on 24 July.
The well-known test for actual or perceived bias is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased: Porter v Magill [2002] 2 AC 357. Furthermore, Waller LJ adopted a list of 10 points in Ansar v TSB Bank PLC [2006] EWCA Civ 1462 which included “6. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or a witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection; 10. In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal.”
Allowing the appeal, Lady Justice King (with whom Lady Justice Nicola Davies and Lord Justice Bean agreed) had no hesitation in concluding that the judge’s comments fell the wrong side of the line. Although the comments were intended to be private, it did not salvage the situation in circumstances where those comments were broadcast across the remote system and were made during the course of the Appellant’s evidence. It was only necessary to go back to the objective test. The case could not be more serious. The Appellant was accused of either causing the death of her toddler or failing to protect him from the man who caused the death. A person looking in from the outside could not do other than think that the judge’s highly critical remarks about the Appellant’s honesty would colour the judge’s view of that witness and demonstrated a real possibility of bias. There was, in the words of Ansar ‘real ground for doubt’ and that doubt should have been resolved in favour of recusal.
The lesson to be learned here, perhaps, is that judges and counsel should never consider themselves to be out of court and, although a counsel of perfection, it is better to keep opinions to oneself until speeches and judgment. The dangers are obvious. This case now has to go to the Acting President of the Family Division to give directions for the future conduct of the proceedings before a fresh judge with all the additional costs and upset that involves.