This story has generated a lot of interest, so its only right that I should note that Bruce Hyman was sentenced to 12 months in prison yesterday for perverting the course of justice. As I understand it (from a few hastily snatched snippets from the papers whilst being crushed on the central line!) Mr Hyman pleaded a breakdown in his mental health in mitigation. Whilst this unfortunate personal crisis for Mr Hyman no doubt helped to reduce the length of sentence, nonetheless, in view of the seriousness of the offence – and no doubt the extent to which this type of conduct brings the legal system into disrepute – a custodial sentence followed. It is the first custodial sentence to be passed against a barrister for perverting the course of justice.
An unhappy story for all concerned. I hope everyone concerned can move on and rebuild their lives before long.
[…] Aug 26th, 2007 by familoo NB Update here […]
Do you think Sir Mark Potter was wise to have written a character reference for Hyman that was used by the defence as part of Hyman’s mitigation on Wednesday? Potter is Head of the Family Division, i.e. the top family court judge. Do you think it gives off the right signal to let it appear that he is allowing his personal friendship with Hyman to get in the way of leading the family court system in a nice clean manner? Or does Potter, along, no doubt, with a number of his cronies, think it was jolly bad luck that Hyman got caught and that what he did was just the sort of regular jape that adds a bit of welcome fun and games to an otherwise dismal trade?
In answer to your plainly rhetorical question: Evidently he knows more than either you or I do about Bruce Hyman and so I would suggest he is best placed to judge.
So Hyman’s fiction in the form of a faked Appeal Court judgment was a double fiction. In the imaginary case he describes, the appeal is successful, not on the basis that the judge whose order is being appealed was at fault, but that he gave the perception of being at fault. Clearly now that is a consideration that could not in reality apply and an appeal could never win on such grounds. How judges are perceived would never occur to some of them as something worth considering. And clearly now Mark Potter is one such. The fact that Potter made an argument that Hyman’s barristers thought worth presenting in mitigation of his crime, for whatever reason or whatever grounds, indicated that Potter wanted to sway the court against giving the maximum sentence for a crime that has done more to bring the family courts into disrepute than any crime for 800 years. That Potter is the head of said courts is presumably irrelevant.
You can read Hyman’s fiction at http://tinyurl.com/2hm984
I think Potter’s intervention is absolutely indefensible. But it is indicative of the corrupting influence that secrecy has – and the immunity from scrutiny that goes with it – that he should imagine it acceptable.
The contempt for justice that Potter has shown by this intervention is mind-boggling.
Who will censure him? No one – bar the few of us who actually care about justice in the family courts.
(Excellent and fascinating entry in Wikipedia, Matthew)
But as my ex’s barrister told me at the time, justice is not what the family courts are for. They are for usurping the role of parents in deciding what is in the best intereste of their children, often by people who actually don’t have a clue what they’re talking about, and don’t care anyway.
The only benefit, if it can be called that, might be to deter caring parents from going anywhere near such courts. But that is a specious argument because the courts are only used where at least one parent doesn’t care about or perhaps even relishes what they are putting their partner through and doesn’t care about the effect on their children. That doesn’t necessarily mean the applicant, because frequently the only option a parent has, by virtue of the unreasonable behaviour of the other parent, is to go to court. And of course the courts never take on board the view that they are themselves the obstacle.
A footnote to the above: I was re-reading O (a child) [2003] EWHC 3031 (Fam) recently. The case is unusual simply because the judge (Wall) decided to make it public. I was put in mind of a scientist who cannot accept that the fact of his observation of an experiment must also influence its outcome. Wall thinks he merely observes, God-like, but he also influences and must therefore be held accountable for the outcome (the complete destruction of a child’s relationship with his father). Wall notes that over the course of the case (some 5 years) the father has become somewhat irrational, even paranoid; it provides Wall with an easy way to evade responsibility – he cannot comprehend what any reasonable person can: that his actions, and the 5-year process, have contributed substantially to the father’s state. Every man has his limits, and the father in the case reached his when he presented a document titled ‘Enough is Enough’ and applied to withdraw his application. It is a desperately sad case, not merely for the boy and his father, but also for what it reveals of the system and its judges. The fundamental error the Court makes each time the mother breaks a contact order is to ask, ‘with what quantum of contact will she comply?’ It then makes a new order for this reduced amount. And so on, ad infinitum. The more appropriate response would have been an order early on for shared residence or a transfer of residence. The final result is not, as Wall justifies it to himself, the consequence of poor parenting, but the product of monumental judicial incompetence and arrogance.
I am a practising criminal barrister and my thoughts for what it is worth are :
1. Presumably Potter gave a character reference -the basic rule of a character ref in criminal proceedings i that one can only give generalised character refs (though this is for trial but broadly the principle applies for sentence as well). If so it is likely to have been of the ilk (without knowing) of “i am shocked that D did this at is is totally out of character as he is a decent man and it must hav been a moment of madness” with an element of “am deeply saddened and know that it is a one-off that will not be repeated”. However (1) this was a prolonged planned moment with considerable efforts to conceal it (2) in my experience these refs are of limited use as judges have heard them a million times and generally it is for an ordinary person where such information may well add add to the knowledge of the judge – it is difficult to imagine a judge would not expect any barrister in this situation to have been a decent person, etc before.
2. Hyman was apparently 3rd six pupil/squatter taking on a case of a friend in a jurisdiction he did not normally practice – the implication of Potter giving him a ref (given we do not know what he actually said) doing this is to legitimise his status and knowledge as a barrister. In my opinion he had neither (and possibly breached the competence rule).
3. The victim (the father) has stated on radio 4 when the story broke that he sees Hyman’s actions as an example of how family barristers and courts work – trying to trick people and in particular to work purely on the basis of attacks on credibility. As contact and residence are basically matters of trust as to what is and will be in the child’s best interest there will obviously be an element of this (on both sides) but in light of the victim’s belief (I hope he doesn’t mind me using this word but I am using it in the criminal law sense of one who has had a criminal offence done to them) it was important for the judiciary. the Bar Council, the Law Society et al to recognise that many people believe this, believe the Hyman case confirms their belief and believe there is no actual value to the system or lawyers. Potter has helped foster this belief when everybody associated with the law should be trying to counter it.
4. I try (in my tiny way) to wage a guerilla campaign to get the Bar Council to be more active in the media and otherwise to try to persuade the public that barristers actually do a job (and what it is ) and that public funding is needed for that job. e.g. what effort is made to explain implacable hostility cases (clearly in favour of fathers save in extreme situations) and the difficulty of imposing contempt fines or imprisonment which are clearly going to affect a child in the custody of a mother (in many cases where the father does not want custody, shared or otherwise)? What figures are there on any of these things (anecdotally the cast majority of mum’s comply with orders). What about domestic violence (in my experience in criminal courts far more frequently committed by fathers than mothers) and contact issues (frequently ordered even after a custodial sentence) “in the best interests of the child”. I hope I am not going out of my jurisdiction but if you do not explain things to an increasingly cynical public then they will not even try to understand – of course how you get the information over is more complicated. (I should say my general gripes are obviously about explaining the criminal justice side of things).
5. My pet theory about Hyman is that he was blinded by his perception of the glamour of the bar (ha!) and assuming he was not clinically mentally ill, that he had an American TV view of what lawyers did (like many of my clients who seem convinced from TV that I can tell them what to say in cross-examination and are bemused when I say I cannot as it is against my professional rules). Clearly his pupillage had not given him an understanding of the Bar Code of Conduct. However I am torn between deciding if he was a complete idiot or had entered some kind of altered mental state blinded by his pomp as a Barrister of England and Wales.
I am the father in the Hyman case, and having just seen the post by crimnaloo feel compelled to respond. I’m misrepresented by crimnaloo in his (I assume it’s a him) para 3. I neither said nor believe that family barristers or courts “work purely on the basis of attacks on credibility”. What I said on R4 was that under certain circumstances certain cases appear to be conducted on the basis of smears. My own experience suggests that while it might very well be the case that family lawyers are inclined to try to pour oil on the troubled waters surrounding separating parents, still many are–when faced with intractable clients–ready to stretch to robust advocacy. So robust, indeed, that they cross a line that most would suggest to divide the proper from the improper.
Those family lawyers who would respond that such cases are rare, and with the suggestion that my own view is perhaps clouded by the Hyman affair, should know that I expect the Bar Standards Board shortly to lay charges against Hyman’s predecessor,
[…I have edited this post here Familoo…]
And it is to be regretted, too, that a character reference was provided in favour of Hyman–who, as the only barrister to have been jailed for perverting the course of justice in a case in which he was instructed and to have attempted to incriminate another, surely committed the grossest ever contempt before an English court–by Sir Mark Potter. Potter having been, as you lawyers might know, put in to the Family Division to clean up its image. What could Potter have been thinking? More generally, where do you have to check your common sense and humanity before climbing on board with the family court system?
Am I angry? You bet!
I think he did it because he thought he could get away with it. Perhaps his cocaine taking (used by his defence in court as a mitigating factor) blinded him from seeking to understand one notable feature of his plot, that of how email works. He could so easily have checked that beforehand, and if he had successfully cloaked his identity then it would be Simon Eades in prison today. But isn’t law in some part of to do with the extent to which one can get away with things supposedly within whatever framework of law applies? Is that always an effective environment in which to handle family cases where parents have fallen out?
My apologies to abc – obviously I was remembering broadly what was said some time previously but understood “conducted on the basis of smears” to mean allegations are made to undermine the credibility of those parties which are difficult to judge in purely evidential terms and that this was being implied to be at least a common tactic (which if abc is saying that was not his intention then I am wrong). In any event my point was that Hyman (in my experience) is not representative of any barrister (see my comments on the Bar Code of Conduct) and indeed all the lawyers i have spoken to are shocked, not only that he did it, but also that he even thought of doing it!
Unfortunately the adversarial system and the code of conduct (to fearlessly promote the best interests of your client) may lead to what appears to be crossing the line. As part of my job (thankfully not family) I frequently have to put inherently unlikely possibilities to people who may well be telling the truth if those are my instructions from my client. It is not up to me me to assess their truth – I can however say that when I say something appears unlikely it is my assessment on the evidence – and I, like many barristers, have been surprised when something apparently unlikely suddenly turns out to be exactly what happened – my client was right.
Explaining this should be the job of the courts or one’s lawyer – it is not a personal attack by a barrister (excepting Hyman who I find incomprehensible – though cocaine…) as they should be following their instructions. Frequently your instructions will mean putting something unpleasant to a witness – and you have to do it, even if you have advised against it if it remains your client’s instructions. Familoo is helping to demystify a complex system of checks and balances where an adversarial approach may not always be the best one for certain situations to which the legal system has not adjusted with the safeguards that exist in the current system.
None of the above does not mean there are exceptions or that all barristers are above reproach. It does mean that I would like there to be an informed debate where lawyers are explaining what they do. I should also say that while I think Hyman was a one-off, that is not going to help abc in his particular situation recover from what was a very disturbing situation (and allegation) or be tempted to recover any trust he may have had in lawyers or the legal system. My point is we do a pretty bad job of addressing those issues (trust in lawyers) irrespective of incidents like Hyman.
[…] became the first barrister in 800 years to be sent to jail for perverting the course of justice. Pink Tape, another serious blawger on Family Law, reported the story – with some justification. It was a […]
Is it significant that Potter ended his character reference for Hyman with the words: “So far as I am concerned, [Hyman] will remain a trusted friend.” ? The text of Potter’s reference and his response to an observer article about it is at http://tinyurl.com/98qpw4