Zoom in the court room
by Jerome Veldsman and Roxanne Ker
A Child (anonymised to protect the identities of the individuals involved), a decision of the Court of Appeal in England on 24th July 2020, concerned a fact finding hearing intended to establish whether the 18-month old Andy (name made up for convenience) had died of inflicted injuries, and, if so, to identify if possible the individual(s) who had caused the injuries to Andy which had led to his death. The cause of death was a catastrophic head injury accompanied by significant bruising. Andy’s mother was accused of either causing his death or of failing to protect him from the man who caused his death.
The hearing was conducted as a hybrid hearing: numerous medical witnesses were giving evidence remotely by Zoom, and the two witnesses (Andy’s mother and an unidentified individual) had to be physically present in court (with their legal teams) to give their evidence in person before the Judge.
Andy’s mother gave evidence in person on two consecutive days, wearing a mask which she pushed down when she was speaking. On the latter day, she stated that she felt unwell with back pain and blurred vision. After a break of one day, her testimony continued; she then told the Judge that she had developed a cough and was, for that reason, wearing her mask fully. The Judge sent Andy’s mother home, and ruled that she could conclude her evidence remotely.
We quote from the record of the appeal:
“The court accordingly rose to allow arrangements to be made. An associate took the judge’s closed laptop through to her room but, unbeknownst to the judge, the remote link to the court room remained open. The judge was therefore overheard having a private conversation on the telephone with her clerk about [Andy’s mother] by a number of people who still remained on the call.
“During the course of that conversation, the judge’s frustration at what represented a further delay in a case which was already substantially overrunning its three week time estimate, manifested itself in a number of pejorative comments made by her about [Andy’s mother] including that she was pretending to have a cough and was trying ‘every trick in the book’ in order to avoid answering difficult questions. It should be made clear that the judge at no time expressed a view as to the circumstances surrounding the death of [Andy].
“What happened is an example of the hazards of such hearings. It would appear that the judge’s laptop was taken into her room closed but with the call not having been exited. It is to the credit of those that overheard the judge’s conversation with her clerk that they did everything they could both to draw the judge’s attention to the situation and indeed to speak over and distort the conversation. It was a couple of minutes however before the usher’s attention was gained who then immediately left the court and made the judge aware that she could be heard in court.“
Once the judge was alerted to what had happened, the parties re-joined the hearing. The judge indicated that it would be understandable if an application were made for her to recuse herself. Andy’s mother duly so applied, but the Judge dismissed the application. Hence the current appeal by Andy’s mother.
The Appeal Court (all three Judges concurring) stated the well-established law that the test for actual or perceived bias is whether the fair minded and informed observer, having considered the facts, would conclude that there is a real possibility that the judge was biased. If so, the judge must recuse him or herself.
The Appeal Court then held that
The judge made highly critical remarks about [Andy’s mother’s] honesty during the course of her evidence, remarks which we believe a person looking in from the outside could not do other than think would colour the judge’s view of that witness and demonstrate a real possibility of bias. … Accordingly, the appeal must be allowed and the case remitted to the Family Division, for the Acting President of the Family Division to give directions for the future conduct of the proceedings before a fresh judge of the Division.
In similar circumstances, a South African Court would probably reach a similar conclusion.
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