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.
_____________________________________________________________________
- 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.
- 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) |
