Social worker and police officer win challenge over criticisms by judge

A social worker and a police officer have successfully crossed what McFarlane LJ called “legal landmines” to secure deletion of criticisms made of them by a judge.

The Court of Appeal said there had been “a wholesale failure to achieve a fair trial” in a case in which they were witnesses.

This arose from a case concerning sexual abuse allegations, none of which were subsequently proven.

In his judgment, a deputy High Court judge, who cannot be named, “felt driven to include in his fact-finding judgment a range of criticisms and findings as to the actions of the local authority, the wider group of professionals involved and, in particular, an individual social worker and an individual police officer, both of whom the judge proposed to name”.

The social worker (SW), the employing local authority and the police officer (PO) - none of whom can also be named - sought to challenge the judge’s right to make these criticisms since these matters had surfaced only in an oral ‘bullet point’ judgment at the conclusion of the hearing.

In W (A Child), Re [2016] EWCA Civ 1140 McFarlane J said: “The route that these appellants must follow in order to satisfy the Court of Appeal that it is in a position to afford them the remedy that they seek is a route which is strewn with substantive and procedural legal landmines, the detonation of any one of which is likely to prevent the appellants reaching their goal.”

He said SW and PO had established ‘intervenor’ status in the case since the original judge had said they would be named in his published judgement, and so they were entitled to appeal.

The original judge had found SW and PO engaged in a “joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines”, the judgement said.

SW was “the principal instigator of this joint enterprise” and had drawn the other professionals in. The first judge also found that both SW and PO had lied to the court and had subjected the original complainant C “to a high level of emotional abuse over a sustained period as a result of their professional interaction with her”.

McFarlane LJ said the transcript of oral evidence of the original case demonstrated “the ground for the criticisms that the judge came to make of SW, PO and the local authority, was simply not covered at all during the hearing”.

He added: “At no stage did the judge give voice to the very substantial and professionally damning criticisms that surfaced for the first time in the bullet-point judgment.

“It can properly be said that by keeping these matters to himself during the four week hearing, and failing to arrange for the witnesses to have any opportunity to know of the critical points and to offer any answer to them, the judge was conducting a process that was intrinsically unfair.”

McFarlane LJ said this had been “a fundamental and extreme example of 'the case', as found by the judge, not being 'put' to SW and PO”.

The judge should have alerted them to his intention to criticise them and canvassed submissions on the appropriate way to proceed.

There had been “a wholesale failure to achieve a fair trial”, the Court of Appeal ruled, and the relevant parts of the original judgement should be “set aside on the basis that they are to have no further validity and are to be regarded as if they had never been made”.

Mark Smulian