England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(HIS HONOUR JUDGE MCINTYRE)

		Royal Courts of Justice Strand London, WC2 Monday, 7th October 2002

1. LORD JUSTICE THORPE: Mr Baker represents the mother on this appeal from findings made by His Honour Judge McIntyre in the Reading Crown Court on 10th July. He is here with the leave of Hale LJ given on paper on 22nd August. One of the slight deficiencies in the case is that no orders were drawn in the county court on 10th July but had orders been drawn I think that they would have been more or less to this effect, that on an issue directed for trial on 25th June 2002, the court finds that on 25th February 2002 the mother, Mrs W, was the passenger in a Citroen car driven by the father, GW, on a journey from Hungerford High Street to the Kintbury turning on the edge of the Common, or something to that effect.
2. The issue arose in care proceedings which have a long history. The parents are the parents of two young boys who have been in the interim care of the local authority for some time and placed with foster parents, an arrangement driven by universal professional concerns at the father's violence and dangerousness, which has precipitated the breakdown of the family and which has necessitated protection for both the mother and the two children, the mother and certainly the elder boy having been victims of the father's violence.
3. As the professional assessments demonstrate, the father is an agricultural worker who has been brought up from his earliest boyhood to regard rough shooting as the prime recreation in life. He has always had, until police removal, a series of shotguns. Much of the professional concern hinges around his access to guns, his experience in using them and his repeated wild threats to do away with family members, himself, professional people (particularly social workers), the guardian and the experts should he lose his children at the end of the case. This dimension of violence and of threats to kill has led to repeated changes in the social work responsibility. The present social worker, Mr Elliott, seems to have inherited responsibility for the final stages of this contested case.
4. The anticipation of the local authority was that these children would move to adoption. That position was taken in the autumn of 2001, but in the spring of 2002 an independent social worker thought that there was a realistic chance that mother and the two children could be rehabilitated if supported by and cohabiting with Mrs Ellis, the maternal grandmother.
5. When the care proceedings came on for final hearing before Judge McIntyre at the end of May, an order was made by consent for a residential assessment of this possibility over a period of five weeks in an establishment called Tadpole Cottage run by Dr. Hibbert. The court set a date of 23 October for a resumed hearing, reserved to Judge McIntyre. At that date at the end of May a place at Tadpole Cottage had not yet materialised although a vacancy was anticipated in the summer. However, by chance a social worker who had had earlier involvement with the mother attended a training course on 13 June 2002 conducted by Mr Elliott. This social worker has been identified throughout these legal proceedings as Miss X. A statement which she was subsequently to make on 10 July reveals that she first met the mother professionally in March 2001 after the mother had moved to a refuge with the two children. Her task was to advise the mother in general as to how to manage on a day to day basis. Three or four subsequent meetings took place between them, as Miss X sought to support the mother in protecting herself and the children from the father. The last meeting was on 6th April. On that occasion Miss X was present with the mother at a school when there was general anxiety that the father was going to come and wreak havoc. The doors were locked, curtains drawn and the school closed down. This was obviously an alarming experience for everybody.
6. When Mr Elliott conducted the training session on 13 June he selected this case as a training model, although not identifying the family by name. During the coffee break, Miss X approached Mr Elliott and revealed her past involvement with the case. They discussed the possible future rehabilitation which led Miss X to say that Mrs W, the mother, was with a man. This set alarm bells ringing for Mr Elliott, since all the arrangements made at the end of May at the court hearing had been on the premise that the mother was having absolutely no contact or communication with the father. Mr Elliott arranged for a member of the local authority's Legal Department to attend on Miss X on 17th June at the Maidenhead office. There Miss X gave a statement in which she recalled the circumstances in which she had seen the mother with a man earlier in the year. Her brief statement reveals that she and the mother were both enrolled at a Weight Watchers club in Hungerford. They had attended and queued for weighing one evening in the spring. They had left the meeting at about the same time. Miss X had picked up her car on the other side of the street, driven over to the side of the premises where the meeting had been held and paused to give precedence to another car about to join the carriageway, travelling in the same direction. She observed that the car to which she was giving precedence was a dark coloured Citroen. As it pulled out to proceed in line ahead, she recognised the mother sitting in the passenger seat and noted that the driver was a male unknown to her. She informed the lawyer taking the statement that all this had occurred on 17th March. But when on 25th June she was asked to approve her statement and to be certain of the date, she made inquiries of Weight Watchers to find that there was no record of her attendance after 25th February. Accordingly, she revised the date of the episode to 25th February. In relation to that she said in her second statement:

"I believe I made a genuine mistake when I gave the first date of 17 March."

7. During the course of the process of taking the statement The lawyer asked if she would be able to identify the male driver from a photograph. She replied that she would try. The lawyer then produced to her a photograph which she identified as being the male driver. It was of course a photograph or rather a photocopy of a photograph of the father, together with the two children. Miss X said that she could not, however, recognise or identify the children.
8. Armed with this material the local authority applied to the judge without notice to revisit the order for residential assessment. The judge adjourned the application to be heard on 23rd July. Hence, the hearing that gives rise to this appeal.
9. The statement of Miss X was filed with the court on 25th June and served on the other side. The mother's solicitors wrote at once to the local authority for disclosure of the identity of the witness. The response from the head of Legal Services dated 1st July ends with this paragraph:

"I can confirm that X will be attending the court on 10th July. Arrangements are being made for X to give evidence from behind a screen if required to give oral evidence."

When the issue was raised with the judge he directed that a further statement should be taken from the witness. That led to the production of the manuscript statement of 10th July from which I have quoted. That statement ends with this paragraph:

"Although I understand the court may permit me to give my oral evidence from behind a screen, should this not be permitted I do not feel I would be able to go ahead as I am very frightened for my own safety and my family."

10. The application for the witness to testify anonymously from behind a screen was opposed but the opposition failed. The judge gave a brief ruling in which he said that he had looked at the corresponding passage in Archbold in relation to the criminal jurisdiction, and he said this:

"It seems to me that this again is a balancing exercise that I have to do, balancing the risk of possible prejudice to [the parents] in particular if the witness remains anonymous, against the risk of possible harm to the witness if her identity is disclosed.

Those are the risks I have to balance, and I have to reach a conclusion in balancing those interests one against the other which ... will better serve the interests of the children."

11. Mr Baker accepts that any attack upon the evidence of Miss X would be essentially an attack on the accuracy and reliability of her recollection rather than upon her credibility. But he relies heavily on what seems to be the leading case in the criminal jurisdiction which received a transient report, both in the Criminal Law Review and also in The Times for 17th August 1994. Mr Baker has obtained a transcript which shows that the first judgment was given by Evans LJ. He gave general guidance, saying that whether in a particular case a witness should be entitled to give anonymous evidence was always a matter for the judge's discretion. Evans LJ continued to analyse the factors relevant to the exercise of the discretion. He said:

"First and foremost, there must be real grounds for being fearful of the consequences if the evidence is given and the identity of the witness is revealed. ....

Secondly, the evidence must be sufficiently relevant and important to make it unfair to the prosecution to compel them to proceed without it. But the greater its importance, the greater the potential unfairness to the defendant in allowing the witness to remain anonymous. In this context, it seems to us, that a distinction can properly be drawn, as the learned judge drew it here, between cases where the creditworthiness of the witness is or is likely to be in issue and others where the issue for the jury is the reliability and accuracy of the witness rather than credit.

Thirdly, the prosecution must satisfy the court that the creditworthiness of the witness has been fully investigated and the results of that inquiry disclosed to the defence so far as is consistent with the anonymity sought.

Fourthly, the court must be satisfied that no undue prejudice is caused to the defendant. 'Undue' is a necessary qualification because some prejudice is inevitable if the order in question is made, even if that prejudice is only the qualification placed on the right to confront the witness as one of the defendant's accusers. ....

Finally, the court can balance the need for protection, including the extent of any necessary protection, against the unfairness or appearance of unfairness in the particular case. By referring to the extent of protection, we have in mind other courses which can be taken short of allowing anonymity to the witness. These include, for example, screening, a voice camera, a hearing in camera or whatever it may be."

12. Mr Baker also refers us to European authority and particularly to the decision of the court in Doorson v Netherlands [1996] 22 EHRR, 330. He points to the general statements which appear from paragraphs 68 to 76. In paragraph 76 he emphasises that the court held that:

"Even where 'counterbalancing' procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements. ...

Furthermore, evidence obtained from witnesses under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care."

13. Those authorities are of direct application in the criminal jurisdiction but they offer some parallel in public law proceedings. First, I think it is to be emphasised that the consequences for the parents of the court admitting and accepting the evidence of Miss X were quite as dire as the consequences of a conviction, certainly in the lower end of the criminal jurisdiction. For the realistic consequence of the disproof of the mother's assurances that she had severed all communication with the father would be the complete loss of trust so necessary if the local authority, and indeed the court, were to regard her as sufficiently responsible to provide primary care and to protect these two boys from a dangerous father. As a generalisation, I think it must be recognised that social workers up and down the country, day in day out, are on the receiving end of threats of violence and sometimes of actual violence from adults who are engaged in bitterly contested public law cases at the end of which the parents face permanent separation from their children, at least during their childhood and adolescence. Social workers generally must regard this as a professional hazard. I have not myself ever had experience of a local authority seeking anonymity for a professional worker in these circumstances. I am unaware of any previous ruling to this effect. Obviously the court must exercise a discretion, and it is quite impossible to set any useful bounds on the exercise of that discretion. Perhaps it is enough to say that cases in which the court will afford anonymity to a professional social work witness will be highly exceptional.
14. Was the judge right to afford that protection in this case? I think not, for two reasons. First, I do not think that he reflected fully within his ruling the very exceptional nature of the procedure that he was asked to adopt. I dare say that he was not referred to Doorson during the course of the argument.
15. Authority apart, I think that there were good practical reasons here which should have given the judge pause. The first and most obvious is that the identity of the witness was known or ought obviously to have been known to the mother. After all, she had extensive dealings with Miss X in her professional capacity, the last of them some 15-months earlier. The second consideration is that an option that was perfectly open to the local authority was to call Miss X, not to give evidence of identification of the father whom she had never met, but only to give evidence of recognition of the mother, whom she knew very well and whom she had only parted from minutes earlier after spending half an hour in her close proximity at the club. It was open to Miss X to go into the witness-box and say: "I had absolutely no difficulty in recognising the mother. I am in absolutely no doubt that she was the passenger in the car. I have no idea who the driver was." That would have raised all the local authority's concerns and would have provided an issue of first importance for investigation by the professionals entrusted with any residential assessment.
16. Obviously a third alternative, less attractive, was for Mr Elliott to have given hearsay evidence of Miss X's report and to have invited the judge to say that that was something that needed to be closely investigated during the course of any residential assessment. For all those reasons I think that the judge was plainly wrong to have taken the course that he took.
17. That leads to a consideration of the second submission advanced by Mrs Baker, namely that the judge was wrong to have relied upon Miss X's identification of the male driver as the father. Again, Mr Baker relies on authority from the criminal justice system, the case of Turnbull, which Mr Baker reminds us has been the constant authority for the direction of juries since its reporting in [1977]QB 224. Mr Baker particularly reminds us of the words of the Lord Chief Justice at page 228:

"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his appearance."

18. That is an authority in relation to the function of the judge in directing juries in crime, but there are obviously considerations that can usefully be extracted to assist a judge who has to decide whether an identification in public law proceedings is reliable, particularly an identification with such crucial consequences as the present. Judge McIntyre did have regard to the Turnbull considerations. He concluded that the evidence of Miss X alone would not have been enough to satisfy him that the male driver was the father. However, he looked to the fact that the mother had given evidence to the effect that she had herself been the driver and that she had always driven herself away at the end of her Weight Watchers visits. He rejected that evidence as being deliberately untruthful testimony. He said that the only reason she was lying was because the man in question was the father and that she knew the consequences of telling the truth. He then concluded thus at paragraph 24:

"Taking the lie and the reasons for it together with the identification evidence which, as I say, of itself would not have been enough to satisfy me that the man was Mr M, I am nevertheless satisfied that it was, on all the evidence."

19. I have been in some doubt as to whether it could be said that there was evidence of identification other than that of Miss X. It seems to me that the judge's condemnation of the mother's credibility is not, strictly speaking, to be classified as independent evidence that could be said to be supportive of Miss X. However, Miss Mitchell says that in the criminal jurisdiction findings as to credit have been said to amount to other evidence sufficient to support sole identification evidence. She has referred to the case of Lucas 73 Crim App R 162. However, she has not brought the authority and we have not read it. Accordingly, I would not venture further in expressing an opinion on this question.
20. I am content to go back to Mr Baker's primary submission. Here, Miss X had what was at best a fleeting glance through her own car window as well as the Citroen's car window of another driver to whom she was giving precedence at night in a busy town's high street. The other driver was pulling out in front of her. She would therefore have had a diagonal view before he came into line ahead. There is then an interval of 15 weeks before she is asked to consider what is only a photocopy of a photograph. She is in no way assisted by the presence of the two children whom she says she does not recognise. It is the only image that is put in front of her for consideration. It is tantamount to or it is the parallel of a question in acutely leading form in the course of an examination in-chief. She had never seen the man before or since. To say that this lady was therefore incapable of error on this point seems a bold thing despite her integrity and sincerity, particularly having regard to the fact that she had been in error originally as to whether the episode had occurred on 17th March or 25th February. I conclude that the judge was plainly wrong to have made a positive finding that the male driver had been unerringly identified as the father by Miss X in the circumstances that I have described.
21. What the judge was fully entitled to find, without reserve or misgiving, was that Miss X had recognised beyond possibility of error that the lady sitting in the passenger seat of the dark Citroen was the mother. After all, Miss X had known the mother professionally over a period of weeks in the preceding year and she had spent the preceding 30 minutes in close physical proximity to the mother.
22. So I would myself accept Mr Baker's submissions on both points and allow this appeal, and set aside notionally the order that was notionally drawn on 10th July. It leaves a question mark as to what should happen, given that the seven day fixture to commence on 23 October is so imminent. Hale LJ, when she granted permission on 22nd August, gave a clear steer to the local authority, saying that, in order not to jeopardise the final hearing, the plan for assessment should proceed as ordered providing safeguards were in place. That did not happen. Mr Baker has handed in this morning what he has called a supplemental chronology which shows that the issue was incapable of agreement with the local authority. The mother was therefore obliged to return to the judge. On 13 September the judge, on an oral application by the local authority, stayed the implementation of the residential assessment pending the outcome of this appeal. That has not been challenged by the mother. Indeed, there would have been little opportunity to get that challenge on before today. There is a dire prospect that nothing will now happen until 23 October. On that day the local authority will say that it is now too late for a residential assessment. Tadpole Cottage has no vacancy until January. Between May and October the childrens' relationship with their mother has deteriorated. They are regularly objecting to contact or rejecting contact and their needs and their timescale demand an immediate disposal. In those circumstances, the mother's confidence in the fairness of the proceedings would hardly be maintained. She would see that her real prospect of rehabilitation lay in the order for assessment, an order which has never been set aside, an order which has received support from the single judge from this court when granting leave. I can see the spectre of a further return to this court on fresh grounds, a complaint that there had been an erroneous refusal of implementation of the assessment order, alternatively, a denial of a fair trial process. That would be a sad final chapter to what has been a flawed piece of litigation. So, the local authority must plainly think again. Judge McIntyre has only stayed the assessment against the possibility that the appeal would fail. After all, he himself refused permission to appeal on the grounds that the appeal had little prospect of success. But the appeal has succeeded. Accordingly, the order for residential assessment is once again on the table. Obviously, if there is to be a residential assessment it is likely to be conducted by someone other than Dr. Hibbert. There are two essential ingredients of any future arrangement. It must be swiftly commenced and obviously properly safe. But in assessing safety the local authority can obviously place reliance on the responsibility of the assessing unit and also on the presence of the maternal grandmother in the assessment. The second important ingredient is that the assessing team must investigate with the mother the disparity between the unchallengeable recognition by Miss X of the mother as not the driver but a passenger in her Citroen motor car on 17th February. The assessors will also have to probe with the mother why she could not admit that and what in reality was going on that night. Who was the man and what was she shielding?
23. There are many roads to final care orders and to orders for adoption. In this case, what seems to me to be the safest road is a road through the process of professional residential assessment. If that goes, as the local authority believe it will probably go, then the onward route to a final care order, and perhaps a freeing order or an adoption order, whichever is sought, will be much easier for them. I hope that they will bear all that in mind in reacting to this afternoon's appeal.
24. MR. JUSTICE BODEY: I agree. There is nothing I wish to add.
Order: Appeal allowed; no order as to costs.