Our love affair with recitals

I recall, some years ago, being challenged by the legal adviser at a Family Proceedings Court (as they then were) to cite the statutory source of the power to use recitals. I told him that the suggestion that Magistrates could not incorporate recitals in their orders was tosh (I did it sort of politely, honest). I don’t remember now whether he relented, but I do remember that this did (momentarily at least) threaten to jeopardise our carefully constructed agreed order – an order that depended, as so many consent orders do, upon the nuanced and deliberately plotted acknowledgments and soft commitments that can be an essential condition precedent to reaching an agreed way forward.

Recitals, I told him, are discussed in the PLO and clearly anticipated as a working tool for courts to use. Recitals are a record of an accord reached with no binding force, but no less important for that matter. I suspect he capitulated out of weariness at my tiresome banging on about it, rather than out of any recognition of my evident rightness.

Since then we have continued to rely upon recitals more and more, although we now have to squeeze them into the straight jacket of a CAP or CMO form and nobody seems quite to know when recital ends and the real order begins. The blur seamlessly into one another, waiting quietly for the moment when they can unleash an unexpected and novel enforceability problem. Some critics of the CMO and CAP might say they demand us to recite the redundant and the blindingly obvious slavishly hearing after hearing ad infinitum. But I obviously would not say such a thing.

But having a dig at the templates that rule our lives is not what this post is about. Another thing struck me recently, whilst perusing (as one does) the terms of s12 Administration of Justice Act 1960. I suppose I had known, but the penny had never really dropped (or perhaps I had filed it under “interesting but rarely relevant”) : that the terms of our orders are not covered by s12 privacy protection unless the court specifically orders (which it almost never does).

S12(2) provides that :

Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

It set me to thinking about the sorts of detailed and personal information that is sometimes contained in the recitals, for example the mandatory statements of the parties’ positions in care proceedings as the case unfolds, the concessions by the parents that theirs has been a “volatile” relationship, the threshold that is sometimes (not often) set out in full in the body of the order.

All this is publishable. Assuming that is that no person takes a point about a recital not being part of “an order” for the purposes of s12 AJA 1960 – which I think would be a bad point, but I suspect has never arisen. What about documents annexed to an order (for example an agreed or found threshold, a contact schedule, a contract of expectations)? Are they “the text or summary of the whole or part of an order”? Who knows. I suspect it depends on how the order is worded.

One could in some cases glean quite a lot of information about a case and about a family from the recitals in their orders, and I wonder how many lawyers (or judges) have thought about this when drafting?

Witchhunts and Whispers

Christopher Booker writes in the Telegraph today (online not in print it seems – wonder why?) about paedophilia and witchhunts:

The greatest abuse would be to indulge in a witch hunt

He prefaces his piece with the Heath affair – I have no beef with that. I too am profoundly uneasy about the hunting down of the already dead and the invitations to make allegations – what a forensic gloop that is. How can one ever distinguish between the true and the fabricated allegation against that background? There is no presumption of innocence for the dead it seems. The Telegraph have published some good stuff about that this week.

But this article isn’t really about Heath. It’s about the trial of Marie Black and others, many of whom were recently convicted of assorted child sex offences (although in an uncharacteristic moment of coyness, Booker does not name the defendants, it is plainly that case same case that he is describing). And the cautionary byline : “in our rage we must not throw out due process” relates as much to the Norwich case as to the current frenzy around a deceased ex PM.

This is an opinion piece, and Booker’s opinion is self-evidently that the Norwich convictions are not sound: Of the paedophile ring that a jury have found to the criminal standard existed (albeit that some of the many defendants were acquitted) he attaches a prefatory “alleged” by way of preliminary signal. He makes liberal use of quotation marks, to indicate his sardonic disgust and to distance himself from the meaning of the words. Christopher Booker, a “journalist” has allegedly written an “article” in the Telegraph today. You see how that works? Who needs content when you can manipulate punctuation with such skill? (Look into my eyes only in my eyes).

If you are short for time I can save you the trouble. That’s it. The whole article boils down to : “Christopher Booker doesn’t believe the convictions are sound. The end”. This isn’t an expose. It’s a longwinded statement of Mr Booker’s unevidenced opinion. Fin.

To continue…

Christopher Booker has “followed the trial in detail”. Did he follow it remotely by means of emails from his chums? Did he follow it on the BBC? Did he attend the trial, sitting through weeks and weeks of it, hunched over typewriter each night in the Norwich Travel Lodge? (I did not). Far be it from me to “allege” he did not, I merely ask. If he did he seems to have come away with little to show for it.

There were, says Booker, lots of “odd” things about this trial. Firstly, that a number of the defendants were acquitted. This is, I imagine, a function of the high standard of proof and the inability of the prosecution to prove its case beyond reasonable doubt in respect of all charges. This sometimes happens, Mr Booker. The jury were, it seems, satisfied so they were sure in respect of the convicted defendants, so one can infer that they thought some of the evidence was pretty damn compelling.

There was, says Booker, little or no medical evidence or corroboration, but the case rested on evidence from the children themselves by way of foster carer notes and ABE interviews. In itself not an uncommon situation for cases involving CSE – something that makes them harder but not impossible to prove. That the defence counsel attempted to rubbish the evidential value of this evidence is hardly a surprise. One would be rather more surprised if defence counsel had not bothered.

That there had been suggestions that the professionals had somehow tampered with or edited the records of the disclosures made by the children has already been widely reported. It is a matter of public record that there was a police enquiry into these matters, and that the social worker involved was cross examined on the issue in the criminal trial (I note, incidentally that none of the social workers named in the press reports appear to have any disciplinary sanctions against their name on the HCPC website and that the police investigation into this was NFA’d). I anticipate that this “doctoring of the evidence” was a significant aspect of the defence, but it appears that it was not successful and the jury believed the children who (presumably) gave evidence by video link at the trial. Again, the jury heard the evidence, including the cross examination of the social worker involved, and assessed it in the knowledge that there were some procedural failings – they still thought it was strong enough to convict. (Of course it is concerning to hear that this issue arose at all – it is the sort of thing that can undermine a prosecution, causing injustice to victims and, on the flip side, which can lead to injustice to defendants. This was no doubt why the police took it sufficiently seriously to mount an investigation. But again, Booker’s article gives us no reason to think the decision to discontinue this investigation and proceed with the CSA prosecution was wrong – and the jury took the view that they could rely on the evidence of the children in spite of these issues.)

Booker tells us that “defence counsel were not happy at the judge’s ruling that they could not call as an expert witness the country’s leading academic authority on “false recovered memories’’ and how interviewees can be led by persistent questions into recalling events which never happened.” There is no information in the public domain about why this application may have been refused, but it is a controversial area and one man’s “leading academic authority” is another’s hired gun or lone soldier. If there are appeals from the conviction perhaps this will feature. A well founded appeal does not inevitably follow however, from the disappointment of defence counsel. Unless and until there is an appeal it is as well not to speculate. At the moment the judge and jury know a hell of a lot more than we do.

“We can only hope” says Booker, that “as the police set out to tackle their “greatest challenge of the 21st century”,… any evidence they come up with is put to the most rigorous test of reliability, and has only been acquired strictly according to the rules.” 

A “most rigorous test of reliability”, you say? Perhaps you have in mind something like…ooh, I dunno…a full criminal trial spanning many weeks of evidence, involving highly skilled advocates employed to test the evidence for both defence and prosecution, a jury of twelve of the good men and women of Norwich, and a judge to give them careful direction on the law? Something, it is worth reminding ourselves, is not available to dead men like Edward Heath, but was afforded to the defendants in the Norwich case. Alternatively, we could rigorously test the reliability of convictions by just seeing if Christopher Booker floats? After all, his opinion does seem to derive from some magical knowledge that he has not shared with us – and I am pretty sure he is made of wood.

It appears that Booker has something he wants to say, but he can’t say it “for legal reasons”. The result is an article that discloses no sort of basis at all for supposing that the convictions are not sound. Wrongful convictions do happen, and these may in due course be appealed and overturned, but I don’t have a crystal ball and I wouldn’t suggest that the jury were wrong on the strength of an insinuation of something sinister (conveyed primarily by means of an exorbitant use of quote marks) from Mr Booker.

If even the Telegraph’s lawyers won’t let him say it, it is probably just as well they have “legalled” him (perhaps the article was still being butchered by the lawyers when the print edition went to press).

Whatever has gone on behind the scenes, this article is a pointless puff as a result. But it has at least afforded us the opportunity to visualise Christopher Booker in a pointy hat and long black frock. And that has cheered me right up.