Lady Butler Sloss, a former and eminent senior judge, with significant experience through a child abuse inquiry (Cleveland) of matters of child protection has been appointed to lead an independent inquiry into historical child abuse. Interestingly, she relinquished the Diana inquest when forced to have a jury trial. The Telegraph story at the time reported:
‘These inquests now require a jury, and I do not have the degree of experience of jury cases that I feel is necessary and appropriate for presiding over inquests of this level of public interest.’
It’s not immediately clear to me what form the child abuse inquiry will take or whether it would prove as challenging forensically and managerially as a jury inquest of that import. My immediate concern is with the issue of whether Lady Butler Sloss should conduct the inquiry given the possibility that the same inquiry may investigate a matter her deceased brother had some involvement in. According to the Telegraph:
Baroness Butler-Sloss told the BBC she was unaware of her brother’s link to the controversy and said she will not resign.’
‘I know absolutely nothing about it,” she said. ‘If people think I am not suitable, then that’s up to them.’
Now I think this interesting on number of fronts. The first is that she has indicated an unwillingness to resign. This is totally unsurprising. She is batting the issue back to the Prime Minister’s office who appear to have made an unfortunate error in the vetting of their preferred candidate to lead the Inquiry. I don’t think we should read too much into it from the judge’s perspective. She has time to reflect and change her mind and, as the Diana inquest shows us, she is not afraid to respond to new events.
The second element of interest is of more concern. She indicates an intention not to resign even though she knows nothing about the allegations around her brother’s involvement. This is a position which I think will become difficult to defend unless (somehow) a clear line can be drawn – and quickly – around the events that involve the former Attorney General, Sir Michael Havers. To draw that line, one would need to know the facts of the case Mr Havers is said to have looked at and decided not to prosecute, and one might also have to know the extent to which this event was an important example (or not) of the kind of establishment behaviour that the judge is required to investigate as part of her Inquiry. Suggesting a kind of Chinese wall around that issue within the inquiry is, I think, untenable.
The third element is the idea that it is first for others, not Lady Butler Sloss, to decide if she is suitable. She plainly did not take that view in the Diana case, and I do not doubt that she does not really take that view in this case. I would suggest it is axiomatic that any judge, particularly a judge of Butler Sloss’ calibre and experience, is the first consider whether to recuse themselves from hearing a case (or an Inquiry).
The normal test for a forced recusal in a court hearing is whether there is a real or apparent bias. As it was put in the Pinochet case:
…if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.
I should caution here that bias does not connote some sinister conspiracy. The rather simple question is whether a reasonable and fair minded individual would be likely to perceive that the judge may not be impartial. Reasonable people may differ on the view but I would suggest that, as Lady Butler Sloss reflects on the unfolding situation, she will return to the point that no judge who knew material allegations were to be made concerning a relative of his or hers in a trial – even if that relative were not a defendant – would sit on that trial. She cannot yet know whether or how material her brother’s involvement is in the handling of child abuse allegations within the ‘establishment’. But the risk that she will find herself in an impossible situation is significant enough for her, on reflection, I suspect, to step back.
And nor should anybody criticise her for that, quite the contrary. She will have respected the dignity of her office, the needs of the immediate inquiry, indeed the reputation of her brother as a senior barrister and Attorney General. The seeds of the problem almost certainly lie elsewhere. This passage, again from the Telegraph, are instructively vague. The Government does not appear to have thought through the problems which have been placed in the judges lap:
Asked if the Prime Minister knew that her brother was the former attorney general, the spokesman said: “I’m not sure that piece of information is a particular secret.”
Asked if her brother’s role was discussed, he said the ‘focus was on finding the right person.’
Asked whether the Prime Minister shared the concerns of lawyers who fear it will create a poor perception among victims of abuse, the spokesman said: ‘His view is she does command widespread respect and confidence.’
Lady Butler-Sloss may need to investigate her brother’s role in the Peter Hayman affair, the spokesman indicated. The terms of reference will be published shortly.
Asked if she would be recused from that part of the inquiry, he said: ‘This inquiry will be able to look at every area that is deemed relevant.’
Again, it may be understandable that the Government is working out the details as it goes along. Lady Butler Sloss was in many ways a, perhaps the, commendable choice, but the scope of the investigation almost certainly rules her out of handling the inquiry.
Richard Moorhead is a professor of law and ethics at UCL, you can read his blog here