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Biography: Arts and Entertainment Stub‑class

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---Supplementary material: Text of the faked law report---

Note that genuine Appeal Court judgments carry the initials "EWCA", not "EWHC".

RE N (MINORS) (JUDICIAL BIAS) Court of Appeal (Civil Division) EWHC 2578 (Fam) HEARING-DATE: 15 September 2006

CATCHWORDS: Family proceedings - Final order in divorce proceedings granted residence to mother and contact to father - Subsequent residence order application made by father - Matter due to come before same judge who made order in divorce proceedings – Whether bias could be inferred as a result of judge having expressed adverse views of father at earlier hearing. HEADNOTE: In 2003 the mother had been granted sole residence for children in divorce proceedings. The father had been granted extensive contact. In his judgment, the judge had stated that the father had displayed an aggressive attitude towards the mother, which he had cited as an example of the father's lack of consideration for the children. In 2005 the father had re-married and applied for a variation of the order so as to be granted shared residence. The mother opposed this. The application was listed to be heard before the judge who had made the previous order in 2004. The father had made an application that the proceedings should not be heard by that judge, but this application had been refused. The father appealed. Held - granting the appeal (1) In dealing with family matters, a judge was under a particular duty to avoid not only actual bias but also perceived bias in proceedings. In the event of such potential bias occurring, the sensible course of action was for the judge in question to remit the case to a different judge. (2) Adverse findings of fact, in particular those which went to the character or conduct of a party were capable of giving rise to the perception of bias. Although it did not follow that a judge would be predisposed against the party in question, it was highly preferable in such circumstances for the judge to withdraw. (3) In such cases it was unnecessary for proceedings to be remitted to the High Court. It was perfectly acceptable for a judge in the county court to remit a case to a judge in the same court. Indeed it was undesirable that such cases be transferred up in all but the most exceptional circumstances. INTRODUCTION: APPEAL from an order made by Judge Jenkins in the Canterbury County Court COUNSEL: James Rattray for the father; Helena Marsden for the mother; PANEL: Wall, Moses LJJ

JUDGMENT BY-1: WALL LJ JUDGMENT-1: WALL LJ: This is an appeal from an order of his Honour Judge Jenkins at the Canterbury County Court refusing an application for an order transferring the hearing of the proceedings from himself to another judge. The application was made in the course of proceedings which concerned the residence of two children, namely, A, born on 14 January 1999 and L, born on 3 October 2002. The parties lived together unmarried for seven years and during the fifth year A was born. They were married on 6 August 1999 and just over three years later L was born. The marriage appears to have disintegrated very rapidly after that and on 2 March 2002 they separated when the father left the matrimonial home and relocated to a village approximately 15 miles away. The father made an application for a shared residence order relating to A and L. In February 2003 a full hearing took place before his Honour Judge Jenkins who, having considered all the evidence, made an order on 17 February 2003 giving sole residence to the mother, with substantial contact to the father. Setting out his reasons for making the order His Honour Judge Jenkins found that the father’s conduct towards the mother after the separation had been unusually hostile and that shared residence was likely to aggravate the animosity between the parents to the detriment of the children. Judge Jenkins also made a number of adverse findings about the father’s treatment of the mother immediately prior to the separation which included threatening and abusive behaviour. The residence and contact arrangements continued without any serious incident for nearly two-and-a-half years until the father remarried on 1 June 2005. On 5 September 2005 the father applied for a shared residence order under the Children Act 1989. A number of directions hearings followed and finally the substantive hearing was listed for 27 March 2006 with an order by His Honour Judge Ashbroke that the hearing should remain in the Canterbury County Court to be heard by Judge Jenkins on the grounds that he had detailed knowledge of the case and would therefore be best placed to hear the new application. The father indicated his concern as to Judge Jenkins’s capacity to be impartial given his previous findings and Judge Ashbroke ordered that any application that Judge Jenkins should withdraw from the case would be heard by Judge Jenkins himself. On 18 January 2006 the father made just such an application before Judge Jenkins, unsuccessfully as it turned out, which then gave rise to the present appeal. The matter came before us this morning although it is a matter of regret that this the appeal has taken so long to be listed. No explanation has been forthcoming as to the reasons for this delay. The grounds for the fathers appeal have been eloquently put by Mr Rattray and we are also grateful for his helpful skeleton argument. During his submissions he referred us to just two authorities but in essence his argument is as follows: First, that the judge wrongly exercised his discretion in not remitting the case to a judge other than himself. In doing so, counsel argues, he failed to attach sufficient weight to the appellant’s concern that the matter could not be fairly heard by His Honour Judge Jenkins given the substantial number of adverse comments contained in the relevant judgment; and second, that even if the judge could be perfectly clear in his own mind that he was capable of deciding the matter impartially, there nonetheless remained a perception of bias which was such as to cast doubt in the mind of an objective third party and that in such circumstances the judge ought properly to have withdrawn from the case. The court has carefully considered Judge Jenkins’s judgment in detail and for my part it appears to be an entirely fair and balanced account of the issues. It is certainly true that he criticises the father on a number of occasions, but it is to be expected in family proceedings where emotions and tempers so frequently run high, that one or both of the parties will conduct themselves in ways which, although later they may regret, will attract disapproval. It is equally proper for a judge to draw attention to such conduct, in particular if it has some perceptible or likely effect on the children. In my judgment it was therefore entirely right for him to state, as he did, that he was nonetheless able to perform his duties in a fair and equitable fashion without in any way prejudicing the rights of either party to a fair trial. However, the difficulty arises when one considers the perception which Judge Jenkins’s criticisms might create in the mind of a third party. While it is almost inevitable that in such cases there will be strongly expressed views about one or both parties, a judge who may have been perfectly entitled to articulate such views must be wary of the impression of bias which might arise if the case is returned to him at some future date. It is axiomatic that in dealing with family matters, a judge is under a particular duty to avoid actual bias but he must also be astute to pre-empt any suggestion of perceived bias. Harsh criticism of the kind which has characterised this case (and regrettably, many others) is potentially a cause of such perceptions and if they occur then it is clear that the sensible course of action is for the judge in question to remit the case to a different judge, who in any event will be able to review the case with fresh eyes. In this particular case the father also applied to have the case transferred to the High Court. The basis upon which he did so was that he feared that another judge in the same court might be adversely influenced by Judge Jenkins’s comments about the case. I do not consider that this argument has any merit whatsoever. To suggest that a different judge, whether in the same court or another, will be tainted by suspicion simply by reason of his acquaintance or contact with another judge is simply untenable. If this were to be the case then the transfer of cases between judges, which is so much a feature of case management in our courts today, would become impossible and the civil justice system would collapse. I cannot conceive of any but the most exceptional circumstances in which any perception of bias might arise from such a transfer. I have in mind circumstances in which the other judge had a personal connection with the case or some stake in its outcome, which in any event will always be grounds for withdrawal as is well established in the common law. For these reasons, I would grant the appeal but would order that the case be remitted to another District Judge or Recorder. JUDGMENTBY-2: MOSES LJ JUDGMENT-2: MOSES LJ: I agree.

DISPOSITION: Appeal granted. No award of costs.

SOLICITORS: Wharton, Fletcher & Co; Stebbings. —Preceding unsigned comment added by 84.9.49.13 (talk) 22:59, 2 September 2007 (UTC)

Unsourced claims

Removed unsourced claims. He appears nowhere on the Doughty Street Chambers website--check out the "Our People" page. The Above the Title 'About Us' page makes no mention of him,so cannot be cited. Mambazi 16:23, 4 May 2007 (UTC)

But there is another Above the Title 'About Us' page. If no more he once was. Paul Beardsell 16:49, 4 May 2007 (UTC)

To the anon who removed the Wikiproject banner

Please leave it--it's not specific to Hyman because of the court case. It has lots of information on the state of the article eg that its a stub class article and the 'Biography of living persons' warning is standard and has to be adhered to, end of court case or not. 81.152.168.21 15:18, 10 August 2007 (UTC)

Get it right, OK?

I have removed the following:

"...by faking a judgement, anonymously sending it to a father seeking contact with his child, and then attempting to have the father prosecuted for attempting to pervert the course of justice when he subsequently presented this "fake" judgement in court"

Why? Because it is not accurate. He did not send the doc anonymously, he sent it in someone else's name. There is nothing to say he attempted to bring a prosecution. That the man involved would be prosecuted would have been foreseen by him, but the judge didn't need prompting, and was not so prompted.

Just get it right, OK? Paul Beardsell 10:20, 26 August 2007 (UTC)

The document was fraudulently sent in another's name, thereby providing anonymity for the true author. I would agree that when an author uses a different name to publish then that is not the same as publishing anonymously, but when there is fraud involved, the fact that the motive was to mislead and, obviously, to remain anonymous, then it is not misleading or innaccutare to report summarily that the message was sent anonymously. 84.9.48.125 18:55, 27 August 2007 (UTC)

It's English. Anonymously means "without a name". Find another word for what you mean. There is one. Paul Beardsell 22:26, 28 August 2007 (UTC)

edit reasoning

This link was to an outdated version of the wikinews page. If the reason for including the link was "text of the case", then it should be added to the latest version of the wikinews page. 86.136.27.106 20:20, 2 September 2007 (UTC)

The parsimonious people in wikinews took it out. It's the evidence in the case, received from a someone close to the case. There should be a link to it from the main article, as it's in the public interest. Could put it in wikileaks, but it's here (above) for the time being. I suppose one could argue that the more places it appears the better!. 84.9.49.13 23:07, 2 September 2007 (UTC)

Motive

There's speculation about Hyman's motive at http://legalfamily.wordpress.com/2007/08/26/badly-behaved-barrister/#more-42

There's noting libelous about speculating over why a criminal committed a dastardly deed that might seem to some somewhat out of character. Let's not forget that Hyman is a convicted criminal who has committed a crime that the Observer newspaper equated to "shittiness". Not a nice word to appear in wikipedia, I'm sure. But it's not libellous to say it because it is true - he was GUILTY. Hyman, incidentally, it is rumoured, is going to claim at his sentencing hearing that he was suffering from a nervous breakdown and has a 60-page psychologist's report to "prove" it. Whilst that might make a mark in a family court, it is to be hoped that the judge at the Crown Court takes the view that he did it for the money, as the deleted entry here suggested (but see the link above) and gives him the maximum sentence possible. The view of the legal establshment of the "first barrister in England to be successfully prosecuted for perverting the course of justice" is that 'scum' is far too nice a word to use in relation to him, as you can see from the stuff written about him by a fellow barrister in the wordpress link.147.114.226.175 16:24, 3 September 2007 (UTC)

I have no problem with the discussion about Hyman's guilt - he's a guilty scumbag. But I do have a problem with weasel-worded and probably libellous insinunations about his client. That's why I removed the section. Podder8 16:45, 3 September 2007 (UTC)

User Podder8's only contributions ever to wikipedia have been in relation to the Hyman case. See http://en.wikipedia.org/Special:Contributions/Podder8

A bit more discussion about the case

What is not in question is that Hyman's costs in the family case would under normal circumstances have had to be borne by his client. It is usual, when having totally discredited the opposition in a family court, to ask for costs. (In fact Hyman did do just that immediately after having perverted the course of justice). It's just normal procedure. Draw your own conclusions. Where would Hyman have sent his bill under usual circumstances? Where would he have sent his bill had his crime been successful? Is there anything libelous in answering that question? Whilst the mother has been totally exonerated, rather than made a co-defendent in the far more serious charge of conspiracy to pervert the course of justice, it is quite clear that she stood to benefit had Hyman been successful.

Incidentally, I add, for the record that I have been closely following this case, through FNF, am quite aware that the family courts are likely to victimise the father further the more publicity this case receives, and to say categorically that the father has nothing to do with what I am writing here. I believe it is in the public interest to publish as much information as possible about this case (whilst keeping within the Children Act requirement and the legal reporting restriction not to identify the child of the victim) to show up what can go wrong in our secret family courts, now that some facts have been made known. The fault with the system here is that lawyers' clients have a vested interest in besmirching the other side because if they besmirch them enough, they can get costs awarded against them.

If perhaps your objective is to bankrupt the other party in order to end litigation then it must be very galling to find that party acting as a litigant in person with no legal costs to speak of. Now there's some innuendo(!), and I'm not suggesting for a moment that the mother was the least concerned about whether her ex faced legal costs or not or indeed whether she cared at all landing her ex with a bill for £11,000.

Some of the facts are these:

• Hyman was a professional barrister acting for his client
• The father was a litigant in person with no legal representation in the family court
• Hyman attempted to perpetrate a fraud that resulted in the father in the family case being castigated at the time by the judge for having apparently presented a faked law case as evidence. Hear the father say that at http://www.bbc.co.uk/radio4/today/listenagain/ram/today5_barrister_20070829.ram
• It is usual in private family law cases covered by the Children Act 1989 for each party to bear their own costs
• The judge has the discretion to award costs against either party if one party has behaved badly
• The costs that Hyman incurred on behalf of his client would, under normal circumstances, be charged to his client
• I have been told that immediately after "exposing" his own material as a fake, Hyman asked the judge to award costs, as it usual in such circumstances. (It wouldn't be unreasonable to speculate that Hyman did this, even if you don't believe that I was told this, because it is standard procedure)
• Costs in a case like this, which had been dragging on, are likely to be considerable. Barristers of Hyman's erstwhile eminence don't come cheap.
• It is likely that there would have been an expectation at Hyman's chambers Doughty Street Chambers that he, as a professional, would have been earning fees
• Those fees would under normal circumstances have been borne by Hyman's client
• Under the circumstances that Hyman brought about at the time, costs likely would have been awarded against the father
• If the costs had been awarded against the father then the mother wouldn't have had to pay them
• After the case, if Hyman had got away with his crime, there would likely have been a celebration of the "win"
• The Guardian newspaper reported that Hyman was a friend of the mother and a close friend of the celebrity Clive Anderson
• The charge sheet against Hyman mentions financial gain as one of the objects of his crime
• There were no reporting restrictions in the Hyman case other than not to identify the name or gender of the child of the victim

Is it libelous to suggest that Hyman, his client and maybe some of their friends would have had a party to celebrate their victory? I don't think so. It might have been libelous to suggest that they would have been celebrating the success of his crime, but I didn't suggest that, only that they would have been celebrating their victory and that the mother would have been saved a considerable sum in legal costs. Wouldn't you celebrate in such circumstances? Matt Stan 20:18, 3 September 2007 (UTC)

Such is, I maintain, a plausible explanation of the motive for this crime; an explanation that, in the absence of any other, might have some merit. There are no insinuations. The mother is not the victim here; the father is. Whether or not the mother had any part in Hyman's crime (and it is interesting that the Observer reported that phone records show that Hyman called her at the time he set his trap), she didn't stand to lose if he had succeeded. She was, after all, his client. She would have been like a lottery winner. I am not suggesting that she either did or didn't have any part in planning or executing what Hyman did, only that she stood to gain from it.

Oh, one final thing, as far as we know the mother hasn't instituted civil proceedings against Hyman for messing up so. Why not? Perhaps User:Podder8 can throw some light on this. Matt Stan 20:18, 3 September 2007 (UTC)

'There are no insinuations'? How about this pearl of yours, Matthew Stannard, at http://legalfamily.wordpress.com/2007/08/26/badly-behaved-barrister/#more-42, your entry on 2 Sep 9.54pm:

"At least Hyman got away with making it appear that he acted alone." Podder8 21:39, 3 September 2007 (UTC)

If he had been done for conspiracy to pervert the course of justice, which the CPS were considering, particularly when it came to light that Hyman had phoned the mother just before and just after he visited the store in the Tottenham Court Road, then Hyman would have faced a more serious charge of conspiracy which carries a bigger prison sentence. Apparently there was not enough evidence to make that charge stick. Therefore Hyman got away with making it appear that he had acted alone, lucky chap! Matt Stan 23:07, 3 September 2007 (UTC)

And this edit of yours http://en.wikipedia.org/search/?title=Talk:Bruce_Hyman&diff=prev&oldid=155488259 is very illuminating about the way you are thinking ... Still care to claim that you're not making insinuations? Podder8 22:02, 3 September 2007 (UTC)

Whichever way one puts it, the facts are the same. Matt Stan 23:07, 3 September 2007 (UTC)

Misplaced Pages is not a scandal sheet or a reporter of original research. Unless you have verifiable reports from a reliable source which state that this purported "party" took place, it is absolutely forbidden to insert any mention of it into a Misplaced Pages article. Nor can we speculate as to the motive or synthesize new conclusions from otherwise unrelated information. This is a biography of a living person and it must be handled with the utmost of caution. This is not only a legal responsibility, it is an ethical and moral one as well. FCYTravis 21:22, 3 September 2007 (UTC)

This is a discussion page. Nobody knows what Hyman's motive was. Therefore one can only speculate and come up with plausible scenarios. It is quite legitimate to place in an article a reasonable claim together with a note to say that it is unverified. There are such tags all over wikipedia. In a discussion page one can discuss what ought to go in the article. We are here talking about a proven criminal who has perpetrated a dastardly deed, and have established that his client stood to gain (or looked at another way, her ex-husband stood to lose in equal measure) from what he did. There's noting controversial about that. You might think that what I've written is libelous because I don't provide references for what I know. But I am confident that what I write is not libelous because I know it is true. Something isn't libelous if it's true, now, is it? So let's stop all this nonsense and get to the heart of the matter so that what gets put in the article is neutral and reasonable. Matt Stan 23:07, 3 September 2007 (UTC)

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