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War on secrecy in the English family courts II

UK ATTORNEY-GENERAL SEEKS TO IMPRISON DR MICHAEL J.PELLING

"Cet animal est méchant: quand on l'attaque, il se défend!"

AN ACCOUNT OF DR PELLING'S TRIAL 8,9 FEBRUARY 2005

1. The trial commenced on 8 February 2005 in Court 3 Royal Courts of Justice (Lord Denning MR's old court) before Lord Justice Laws and Mr Justice Pitchford. The presiding judge originally allocated was Lord Justice Pill, mysteriously switched at the last minute to the most pro-Government pro-secrecy Lord Justice on the Bench. No satisfactory explanation for this change has been given by the Crown Office. Private Eye 1113 (20/8/04) reports how in August 2004 Laws LJ ruled that evidence obtained under torture can be used in British courts and states: "Laws' former colleagues at the Bar say he has never really shaken off the mantle of being senior Government treasury counsel; he has always been a believer in that old friend of secrecy, the public interest immunity certificate and he used them regularly...". Not the most promising start to a trial where a litigant in person is defending against the Attorney-General and the issue is secrecy of court judgments.

2. Dr Pelling had other reasons to object to Laws LJ sitting on his case. In 2000 Laws LJ on appeal had upheld a Divisional Court decision rejecting his application for Leave to take criminal contempt proceedings against His Honour Judge Goldstein for doing essentially what Dr Pelling is now accused of by the Attorney-General - publishing or using without leave of the court judgments in Family proceedings. The corrupt Goldstein had filched from Dr Pelling's Family proceedings court files at Bow County Court documents which he sought to use in his defence to a Judicial Review brought against him by Dr Pelling for refusing to allow him to act as a McKenzie Friend (see R v. Bow County Court ex parte Pelling [1999] 1WLR 1807, [1999] 2FLR 1126, CA). Naturally Laws LJ protected his fellow judge and when Dr Pelling gave a reasoned speech pointing out that not all might be as holy and righteous in the ranks of the English Judiciary as some like to think, Laws LJ condemned this as a "tirade of abuse against the English Judiciary". You can read an account in CONTACT 5, but the point here is that Laws LJ had manifested bias on that occasion.

3. Dr Pelling tangled with Laws again in January 2001 when he refused Leave to Appeal against the Divisional Court's decision in R v. Bow County Court (No.2) [2001] UKHRR 165 DC which declined to quash Civil Procedure Practice Direction 39PD §1.5(2) which permits and initially requires landlord and tenant possession cases for non-payment of rent to be heard in secret in the County Courts. This was one of the Open Justice Campaign test cases. The typical possession case continues to be heard in total secrecy, in violation of the fundamental Common Law rule of Open Justice. Thus Laws LJ certainly has no respect for this aspect of the Common Law and cannot be considered a fit and fair judge to try a case where court secrecy is the issue.

4. On these grounds Dr Pelling asked Laws LJ to stand down from his case, but he refused to recuse himself and the case went ahead.

5. The Attorney-General then raised a preliminary issue of whether the case should be heard in camera at least to the extent of preventing any reference to the Children Act Judgment in issue published in CONTACT 5 and preventing any reference in open court to the Websites where CONTACT 5 and the Judgment are freely available. Dr Pelling countered that such restriction was futile since the Judgment was well and truly in the public domain and anyone could find it in a few minutes searching on the Internet. He further cross-applied for the case to be fully public like any criminal trial, where all the evidence must be communicated publicly so that people can see what the case is against the accused and see that justice is done. Dr Pelling insisted that the A-G's affidavit evidence must be read out in open court before he cross-examined and that the sundry exhibits must at least be available for public inspection. This was his, and the public's, fundamental right at Common Law in a criminal trial [criminal contempt, which is the charge against Dr Pelling can equally be prosecuted in the ordinary criminal courts by way of indictment or information]. It was also a right under Article 10 ECHR. Article 10(1) is obviously engaged but the A-G refused to state his case for an exception under Article 10(2) despite his duty to do so.

6. This took up most of the day and concluded with the Court making the Order that the A-G had drafted, preventing mention in open court of the details of the Judgment and of the Website addresses, and going on to make an order under s.11 Contempt of Court Act 1981 forbidding publication of any of this information in connection with the proceedings. Fortunately, the Order only referred to Website addresses, not Email addresses, so the next morning 9 February Dr Pelling began by announcing in open court that the Judgment and CONTACT 5 are believed to be available on request from paulmw@ji-net.com in Thailand. [*] Laws LJ then got very hot and accused Dr Pelling of contempt of court, until he was forced to admit that there is a difference between a website address and an email address. The Court then amended its Order to cover Email addresses too BUT note that s.11 Orders cannot prohibit publication of something already stated in open court (only things that have been withheld from the public in the proceedings), so anyone can lawfully report that that the Children Act Judgment in issue is available on request from Paul Warren at paulmw@ji-net.com.

7. As Dr Pelling observed, the Order is defective for another reason - it fails to state under which limb of CPR r.39.2(3) it was being made - which one of the listed categories (a) - (g). Arguably this is fatal. But the Court refused to state the basis of its Order! The Court also refused to allow Dr Pelling to address Article 10(2), as obviously his Article 10(1) point had failed in the Court's view, and even refused to say whether they considered Article 10(1) was engaged! On the cross-application for full public communication of the Prosecution evidence, the Court ruled that was dismissed so far as conflicting with its s.11 Order, but otherwise the matter would be kept under review as the case progressed - obviously utterly unsatisfactory from the public's point of view who would not know when or if at all they would ever get to hear or inspect the evidence against Dr Pelling.

8. The A-G's counsel, Mr Andrew Caldecott QC, then gave his opening speech and craftily advanced a very different case from the one originally made in his Particulars of Claim against Dr Pelling. Dr Pelling was originally charged with "serious interference with the administration of justice". Now the A-G was saying that this did not have to be proved at all and that the mere fact of the publication was enough since the court sitting in chambers carried an "implied prohibition" against publication, and so publication must be a contempt. Essentially he was now arguing for a special privacy right for children which they have for their protection, which Dr Pelling was said to have infringed, but that is not the same as interfering with the administration of justice, as the classic case of Scott v. Scott [1913] AC 417 has long shewn. Dr Pelling's Skeleton said that the alleged offence of criminal contempt does not exist at all except in Wardship (and that it is a myth created by the Family Division in order to justify and bolster secrecy). Even if it did exist he had further serious defences. The arguments are difficult and cannot be gone into further here. Mr Caldecott QC finished his speech at 1 pm and the Court adjourned to 2 pm.

9. However one looks at it, Dr Pelling had pertinent questions to ask of the A-G's 2 witnesses and was naturally expecting as of right to cross-examine them at 2 pm. He was amazed to find that the Court considered he had to apply for leave to cross-examine! Under protest he formally requested Leave. On questioning by Lord Justice Laws he declined to disclose in advance his lines of cross-examination - why should the A-G have that advantage? In a normal criminal trial (unless of course the defendant pleads guilty) it goes without question that one has a right to confront and cross-examine one's accusers. Dr Pelling claimed the right at Common Law to cross-examine the witnesses against him and stated that the purpose was to elicit facts which would help the defence case, but declined to give any further information.

10. The Court retired to consider and then returned and ruled that Dr Pelling would not be allowed to cross-examine the Attorney-General's witnesses. Dr Pelling then stated he would not take any further part in the case. On his Solicitor's prompting he asked for a 1/2 hour adjournment to confer, which was granted [Dr Pelling has Criminal Legal Aid but was appearing as his own advocate, with his excellent Solicitors Kingsley Napley responsible for the conduct of litigation. This procedure is permitted under Criminal Legal Aid]. However, after discussion, and ascertaining also the views of members of the public present, Dr Pelling was of the opinion that it would only be more damaging to continue in an unfair trial which had turned into a charade of justice. So he declined to take further part and merely stated he would attend for the Court's sentence and they would not need to send the Tipstaff to arrest him.

11. The Court has reserved its Judgment and meanwhile Dr Pelling prepares his applications for Leave to Appeal to the House of Lords against the above adverse decisions. The result of the trial will be a conviction on Prosecution evidence none of which was ever communicated to the public and with none of the Prosecution's case permitted to be tested in cross-examination.

_____________________________________________________________________

  1. A summary of the constitutional laws that Lord Justice Laws violated in deciding that Dr. Pelling would not be allowed to cross-examine the Attorney General's witnesses called to testify against Dr. Pelling.
  2. The circumstances that caused Dr. Pelling to be brought to trial involved him publishing in CONTACT 5 the Children Act Judgment from 1996 in his own son's residence (custody) case before Judge Goldstein at Bow County Court.

"It remains unclear why it is necessary in a democratic society to suppress Dr Pelling's identity"

Dr. Michael J. Pelling, UK — Main Page

One man's fight for justice and against secrecy in the courts

____________________
Posted 2005 02 14
2005 02 21 (corrected reference to circumstances that led to Dr. Pelling being put on trial)