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Update 2004 04 04

War on Secrecy in English Family Courts

UK Attorney General seeks to imprison Dr. Michael J. Pelling for opposing secrecy in courts


 "Cet animal est très méchant. Quand on l'attaque il se défend."
[This animal is very malicious.  When attacked it defends itself. — from La Ménagerie, by Théodore P.K., identity unknown (1868)

SUCCESSFUL APPEAL ON ISSUING OF DR PELLING'S COUNTER-SUMMONS

The Appeal [by Dr. Pelling] against the refusal of the Family Division to issue the Counter-Summons (produced again below) was heard on 12 February 2004 and was successful. Mr Justice Coleridge allowed the Appeal and ordered that the Summons be issued in the Family Division, not Queen's Bench, to be heard on Tuesday 6 April 2004 at 10:30 hrs. Further details of judge and court at the Royal Courts of Justice can be obtained from the Daily Cause List published on 5 April after 2pm at www.courtservice.gov.uk. The matter is expected be heard in open court: indeed if it isn't then Dr Pelling will not be taking part. Support welcome and needed on 6 April 2004.

The A-G has issued his own summons for directions to be heard on 6 April. He wants an order requiring Dr Pelling to file and serve his evidence within 14 days so he can put in further evidence in reply - notwithstanding this is a criminal matter and notwithstanding that so far Dr Pelling has been unable to obtain Legal Aid. The latter is one of the applications on the Counter-Summons: it raises a novel point of law under the Access to Justice Act 1999 as to whether Criminal (as opposed to Civil) Legal Aid can be granted by the Court in criminal contempt.

JUDGE ALREADY DECIDES SOME POINTS IN DR PELLING'S FAVOUR 

 Mr Justice Coleridge took the opportunity on 12/2/04 to decide 2 points on the Counter-Summons straight away in Dr Pelling's favour: the misconceived order of District Judge Angel on 12/12/03 to transfer the case to the Queen's Bench Division for hearing was set aside as made without jurisdiction, and the Part of the Attorney-General's Summons alleging contempt in publishing the Bow County Court Judgment of 1996 on Residence of Dr Pelling's son, was struck out. That complaint by the A-G would have to be made in the Queen's Bench Divisional Court and Leave of the Court would first have to be obtained (next).

A-G OBTAINS LEAVE IN THE DIVISIONAL COURT FOR 2ND CONTEMPT CASE

On 30 March 2004 the Attorney-General did obtain the leave of the Queen's Bench Divisional Court to issue a second criminal contempt motion based on the publication in CONTACT No.5 of the 1996 County Court Residence Judgment. This was the Judgment of which the Court of Appeal refused to order public pronouncement in 1996 (see Re Pelling-Bruce (A Minor)(Child Cases: Hearings in Open Court) [1997] 1AER 58 CA), subsequently affirmed by the European Court of Human Rights in 2001: Bayram, Pelling v. UK [36337/97, 35974/97] 24 April 2001 (reported e.g. at [2001] 2FLR 261 ECHR). As Dr Pelling observed to the Divisional Court [Gage & Silber JJ] on 30/3/04, Article 6(1) of the Convention does mandate without qualification or exception that "Judgment shall be pronounced publicly". He said that the ECHR decision was wrong, in conflict with earlier ECHR decisions, and ought not to be followed by the English Courts which should interpret Article 6 according to its plain meaning. To do otherwise would be to violate Articles 17,18 of the Convention. However, the Court held that the A-G did have a "reasonably arguable" case and therefore granted Leave.

PELLING v.JOHNSON: DR PELLING WINS ASSAULT CLAIM AGAINST TIPSTAFF

It will be recalled that in the course of the events of 23 January 2003 in Matin v. Ali, which have led to the A-G's first contempt case, Dr Pelling was assaulted by the Assistant Tipstaff Mr Philip Johnson when he sought to talk to and comfort the distressed child Forhad Matin. Dr Pelling sued the Asst.Tipstaff [Claim HQ03X00730] for assault, violation of right to respect for privacy [Art.8 ECHR], and misfeasance in public office. After a 4-day trial in February 2004 Mr Justice Leveson in the High Court found for Dr Pelling on the assault head of claim, but that violation of privacy and misfeasance in public office were not made out. He awarded Dr Pelling damages of £50 for assault, and part of his costs. Aggravated and exemplary damages were not awarded. Dr Pelling has filed an Appeal to the Court of Appeal in relation to the decision on privacy and misfeasance and in relation to the quantum of damages & refusal of aggravated/exemplary damages. The damages of £50 have been paid by the Lord Chancellor's Department, which employs the Tipstaves, and Dr Pelling donated this sum to Fathers 4 Justice in appreciation of the substantial support received from F4J members.

FORHAD MATIN WINS HIS APPEAL: HIS CLAIM REINSTATED

It will also be recalled that Forhad Matin had his own Claim [HQ03X01005] for damages against Mr Justice Singer, CAFCASS Reporter Mrs M.Raleigh, and the 2 Tipstaves P.Johnson and S.Cheesley - but that this was struck out by the Senior Master of the QBD, one Master Turner. Forhad appealed against that strike-out and the Appeal was heard on 25 March 2004 before Mr Justice Newman. It was successful in that the Claim against Raleigh and Johnson is reinstated [Forhad and his advisers decided not to proceed against S.Cheesley as her rôle was comparatively peripheral], while Mr Justice Newman has reserved his judgment in relation to Mr Justice Singer. The question to be decided there is whether or not Singer J has judicial immunity from suit - whether being a High Court Judge of the Family Division carries with it the prerogative of bullying, threatening, and intimidating children to the extent of threatening the child to put him into public care, depriving him of his father, and reducing him to tears of despair, all because the child refused to comply with the Judge's order sending him back into an environment where he had suffered serious abuse from his mother.  

DR.PELLING'S COUNTER-SUMMONS (HEARING 6-4-04)

IN THE HIGH COURT OF JUSTICE
 

No.FD97P02101
 

FAMILY DIVISION – PRINCIPAL REGISTRY

 

IN THE MATTER OF AN ACTION TO PUNISH FOR CRIMINAL CONTEMPT

B E T W E E N:-

H.M. ATTORNEY-GENERAL 
 

Applicant
 

AND
 

 

DR.MICHAEL JOHN PELLING
 

Respondent
 

BROUGHT IN EXISTING PROCEEDINGS:

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF FORHAD MATIN (MINOR)(b.15 MARCH 1992)

B E T W E E N:-

ABDUL MATIN 
 

Applicant
 

AND
 

 

RUQIA ALI
 

Respondent
 


          SUMMONS (INTERLOCUTORY): FPR 1991 & RSC 1965

LET ALL PARTIES concerned attend the Judge in Chambers at the Royal Courts of Justice, Strand, London WC2A 2LL on Tuesday 6 April 2004 at 1030 O'Clock, on the hearing of an Application on the part of the Respondent Dr Michael J.Pelling FOR THE FOLLOWING ORDERS:

0. That the Originating Summons issued by the Attorney-General herein on 12 December 2003 be struck out in part by the striking out of Count II(2) [publishing the Judgment of HHJ Goldstein 21 August 1996] as a nullity, the Court having no jurisdiction to hear this part of the Summons, and for other fatal irregularity.

1. That the said Summons be further struck out in part by the striking out of Count II(1) [publishing information relating to Children Act 1989 proceedings heard in private in Matin v. Ali FD97P02101] as disclosing no offence known to English law.

2. In regard to the preceding Order sought appropriate directions be given for the trial of the question of the existence of the offence as a Preliminary Issue, the directions to ensure in particular that the Issue be not tried by a Judge of the Family Division.

3. That the final trial of Count I [interfering with the administration of justice in regard to proceedings in Matin v. Ali] and of Count II(1) be stayed pending the determination of the Application for Leave to Appeal and of the Appeal if Leave be granted of Abdul Matin [CA Ref.2003/1734] against the Declaration made by the President on 17 July 2003 in Matin v. Ali that the interests of the child Forhad Matin are not such as to preclude the institution of proceedings for contempt against Michael John Pelling.

4. That the application by Dr M.J.Pelling in Matin v. Ali issued 14 July 2003, which was adjourned generally by the President on 17 July 2003, be now heard.

5. That the Court grant the Respondent Dr M.J.Pelling Legal Facilities and Assistance and Representation, or otherwise give directions in relation to the obtaining of such Facilities and Assistance and Representation, to guarantee the Respondent his rights under Article 6(3)(b)(c) ECHR as now enacted by the Human Rights Act 1998.

6. That the Order of District Judge Angel herein made on 12 December 2003 be set aside as made without jurisdiction and a nullity.

7. That the Cause herein, that is to say Family Division Case Matin v. Ali FD97P02101, be transferred to the Queen's Bench Division.

8. That pursuant to RSC Order 32 Rule 13(1) this Interlocutory Summons be heard in Court or be adjourned into Court to be so heard.  (i.e. it should be heard in open court)

AND THAT the Costs of the said Application be paid by the Attorney-General to the Respondent to be assessed summarily on an indemnity basis.

THE GROUNDS of this Application are as follows (see in full in the attached Word Document). [Available in PDF format — 66kB]

DATED this 6th Day of January 2004.

THIS SUMMONS was taken out by the RESPONDENT DR M.J.PELLING of 3 Avenue Road, Forest Gate, London E7 0LA.

TO H.M. ATTORNEY-GENERAL by the Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS (Ref.LT31338G/CPW/D1), Tel.020 7210 3282; Fax 020 7210 3410

AND TO THE COURT.


See Also:

White RoseThe White Rose
Thoughts are Free

__________________
Posted 2004 04 04