Autumn / Winter 2016

No 18 Chambers eBulletin

American Bar Association Conference, San Francisco, California

In the summer of 2016, I was fortunate to be able to attend the American Bar Association (ABA) Conference in San Francisco, California. The opportunity to mix with lawyers from different jurisdictions was an honour and I was grateful to receive the grant from the Bar Council and FLBA.

The American legal system has always been of interest to me and the opportunity to interact and liaise with lawyers not only from the United States but also from around the world was a privilege. However, what made this visit even more special was that it fell in election year, one of the most talked about events around the globe.

The event was vast. This is a significant date in the calendar for American lawyers and the organisation was superb. The main focal point was the Moscone Centre West, home for a number of talks, meetings and the EXPO- a chance for attendees to connect, visit exhibitions, purchase materials and potentially win prizes (sadly my golf skills were lacking for the virtual golf tournament!). From here, attendees could walk between the respective venues, allowing the chance to absorb the buzz of the city. Contained within the EXPO was an exhibition from the Library of Congress on the Magna Carta, discussing its enduring legacy from 1215 to 2015. It was fascinating to discover the impact that the Magna Carta had on the Declaration of Independence, Constitution and Bill of Rights in the United States.

The conference had numerous events ongoing at the same time. Along with the meetings, the ABA produced a CLE schedule, showcase talks that were held during the week. Topics were diverse including discussions in technology, immigration and criminal justice. The quality of panelists was evident. On the Friday, FBI Director James Comey was in attendance discussing issues in national security and enforcement.  Friday also saw the attendance of screenwriters Jonathan Shapiro and David E Kelley (writer of American legal sitcoms Ally McBeal and Boston Legal).

The event saw the appointment of the new President of the ABA, Linda Klein. Ms. Klein was ‘passed the gavel’ from the outgoing President Paulette Brown. One of the key initiatives that she announced was the Veterans Legal Services Initiative, a commission, which would aim to build an online resource for veterans of legal issues. The idea is to include the incorporation of law schools for a pro bono service alongside extending National Pro Bono Week to Veterans Day. With the recent changes to funding in family law cases, it was interesting to hear about such an initiative and the discussions around legal aid. A personal highlight was witnessing a panel on corruption in international sport, particularly pertinent given that the Rio Olympics started hours later that same day. This panel included discussion about the impact of legal aid in cases in the Court of Arbitration. It was interesting to consider the same arguments made in relation to funding in an entirely different legal field.

One of my favourite talks was in relation to advocacy, expectations of both Judges and lawyers. The comments from the Judges here was identical to that of the Judiciary in the UK. The talk focused on appellant cases but the discussion points were of use to any family law advocate. Use of tone, connection of arguments and control of submissions were important focus points. The criticisms of both lawyers and Judges were the same as in the UK. There was a clear willingness for Judges at the conference to give time to make better advocates, a similar theme to the English Bar and something junior barristers are grateful for. I was fortunate to be able to speak to Randy Smith, a federal Judge on the United States Court of Appeals, in the Ninth Circuit. Judges asked for advocates to put themselves in the seat of the Judge, a comment I have heard on numerous occasions at training events for the Junior Bar.

It was evident in many of the discussions and seminars that America is gearing up for a fascinating election contest, which would have an impact on their legal system. This was reflected in almost every session I attended. There has been much political debate in the UK following the referendum on Europe. However, the impact that politics has on the American legal system is considerable. Personal discussions involved comments about Clinton and Trump. However with lawyers, discussions focused on the current vacancy in the Supreme Court. Following the death of Justice Antonin Scalia, the Supreme Court has only 8 sitting Justices. In addition, there is likely to be a further potential appointment during the four-year term. The next President will therefore have the opportunity to dictate the direction of the court following their election. Merrick Garland is a name that was brought up on numerous occasions, with his recent nomination by President Obama. However, such nomination is yet to be passed by the Senate. The election will have a huge impact on the dictation of the law in America.

In addition, given the current balance on the Judging panel, I was informed of pending decisions that the Supreme Court are yet to decide. In United States v Texas, the Court was asked to consider an issue as to the President’s Immigration Plan in allowing immigrants, who were the parents of citizens or lawful residents, to apply for a work permit. The decision of the court was just nine words long: “The judgment is affirmed by an equally divided court.” Cases are therefore in limbo until the new President takes office and a Judge is appointed. There were numerous similarities between the two jurisdictions. The work ethic and passion was clear. However, what struck me was the political nature that the Supreme Court has and how politics has a huge impact on the American legal system.

The week spent in San Francisco was enjoyable and informative. The city itself was quite simply stunning and the people of San Francisco were welcoming. Rudyard Kipling said that "San Francisco has only one drawback- 'tis. hard to leave". From the week I spent there I could understand why.

To record or not to record professionals in care cases?

How often do we advise clients they can’t use recordings they have made? Especially when the recording is done without the other person knowing they are being recorded. After Re F (A Minor) [2016] EWHC 2149 (Fam) will recordings become more important than ever?

In care proceedings a Consultant Clinical psychologist Dr Ben Harper was instructed by the Court to assess the mother. Unknown to Dr Harper, the mother tape-recorded their sessions. When the parties received Dr Harper’s report, he had made recommendations against the mother and she alleged that certain quotes Dr Harper had attributed to her, she had not actually said. The tape recordings were transcribed and the transcript showed that she was correct.

The court found that the assessment distorted mother’s responses and the fundamental failures in Dr Harper’s report meant it should be withdrawn from the proceedings. Dr Harper in giving his evidence had conceded that in parts his report was inaccurate. He was an experienced psychologist having completed approximately 170 court reports and given oral evidence to the court around 30 times.

The Judge said that the expert should have known the profound consequences of such distorted reporting given phrases directly attributed to parties are inevitably given much greater forensic weight in the courts. The fundamental failures the Judge found meant that no judge could fairly rely on it and a new expert should be instructed in the case. Extensive parts of the report, which purport to be direct quotations from the mother were in fact nothing of the kind. The report is heavy with apparent reference to direct speech when in truth almost none of it is.

As Mr Justice Hayden said “the overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at very least, falls far below the standard that any court is entitled to expect of any expert witness” [para 26].

Dr Harper had been recorded in 2 out of 3 sessions and in the two recorded sessions none of the mother’s quotes appeared and as the Judge said it was not possible to have got all the mother’s alleged quotes, which included her sexual issues, childhood experiences and domestic abuse from the remaining 15 minute meeting. For Dr Harper to have covered a total of 13 topics, which included the mother’s sexual issues, childhood experiences and domestic abuse would have been done with a level of brutality and gross insensitivity not expected of him.

Mr Justice Hayden described Dr Harper as genuinely motivated to help but found on this occasion that his disregard for the conventional principles of professional method and analysis displayed a zealotry, which he should recognise as a danger to himself and his clients.

Following this case representatives are more likely than not to request professionals to be recorded given the stark reality of care cases. If adoption is the only alternative to children returning home to their parents it is more important than ever that professionals and parents alike are truthful in their dealings with each other. I certainly would not be so quick to advise a client not to record a professional following this case and would always add the caveat that the professional must be on notice they are being recorded. Therefore any refusal to be recorded can be noted.

Let them eat Cake?

The recent decision of Lee v McArthur, McArthur and Ashers Baking Company Ltd [2016] NICA 29 concerned the question as to whether the Respondent had been directly discriminated against on grounds of sexual orientation and on the ground of religious and political belief.

The Appellants were Christian and opposed the introduction of same-sex marriage, believing it would be against God’s law. In 2014, the Respondent (Mr Lee) placed an order for a cake, selecting the type of cake and the colour of the icing, he then handed to the Appellants an A4 sheet with a colour picture of his organisation (‘QueerSpace’)’s logo with a headline caption of ‘Support Gay Marriage’.

A few days later the Appellants contacted Mr Lee and advised him that they could not fulfil the requested order as the bakery was a ‘Christian business’ and proceeded to cancel the order, clarifying the reason to be due to their religious beliefs and opposition to a change in the law regarding gay-marriage and because the message was in support of gay marriage.

District Judge Brownlie in Lee v Ashers Baking Co Ltd [2015] NICty 2 in the Court below had found Mr Lee’s support for same-sex marriage was a political opinion. He found the Appellants to have treated him ‘less favourably by refusing to provide him with a service sought’ and thereby directly discriminating, contrary to the Fair Employment and Treatment (NI) Order 1998. The Appellants submitted that they would have refused to serve the same cake with the slogan ‘Support Gay Marriage’ to a heterosexual person, stating that a comparator would have been treated no differently. They further accepted that they would have put ‘Support Marriage’ or ‘Support Heterosexual Marriage’ on a cake, and it was the use of the word ‘gay’ that prevented them from commissioning the cake.

Morgan LCJ in the Court of Appeal noted the importance that ‘the LGBT community should feel  able to participate in the commercial life of this community freely and transparently,’ and found that there was direct discrimination due to the Respondent’s association with the gay and bisexual community, which amounted to direct discrimination on the grounds of sexual orientation under regulations 3 and 5  Equality Act (Sexual Orientation) Regulations (NI) 2006.

Mr Lee submitted that ‘in commercial activity legal certainty was of the first importance’. To provide the cake with the message was not found to be forced speech and Morgan LCJ found that there had been no requirement for the Appellants to promote or to be associated with the particular message supporting gay marriage. The bakery had made an offer to the public at large that they would transfer an image onto a cake at a customer’s request, subject to their terms and conditions; which in this case did not exclude a cake of this type. The placed order did not lie outside the normal range of products offered by Asher’s Baking Co Ltd, and therefore amounting to discrimination under regulation 3 of the 2006 regulations.

Morgan LCJ determined that where there are competing rights the court needs to strike a balance, which in this case would be the Appellants religious and political beliefs against Mr Lee’s  sexual orientation and political beliefs. There is currently no provision for same sex marriage in Northern Ireland and at the time of the contract there was ongoing political debate surrounding this.

District Judge Brownlie had also found that the Appellants were not required to promote or endorse a viewpoint, the Appellants submitted on appeal to Morgan LCJ that they were entitled to respect for their beliefs and were protected from coerced speech under Articles 9 and 10 ECHR. Morgan LCJ considered District Judge Brownlie’s conclusion was however ‘undoubtedly correct’ and further likened this to the provision of a Halloween cake with witches and how the provision of such a cake did not indicate support of witchcraft. Morgan LCJ further commented that requiring the Appellants to bake or print something ‘in which they did not believe, is not how compelled speech works’. Morgan LCJ further concluded that any limitation as to the Appellants right to freedom of thought, conscience and religion under Article 9 and freedom of speech under Article 10, was in accordance with pursuing a legitimate aim under section 3 of Human Rights Act 1998.

It was found that Mr Lee had been treated less favourably as the Appellants were conducting business for profit and are not a religious organisation, therefore this was no exemption under Regulation 16, despite their genuinely held religious beliefs. The legislation is clear and ‘prohibits the provision of discriminatory services on the ground of sexual orientation’. The Appellants were found to be providing a discriminatory service as they sought to distinguish between those who will or will not receive their services based on a religious or political belief.

The Court of Appeal in Northern Ireland found that District Judge Brownlie had been correct as a matter of law, to hold that the Appellants had discriminated against the respondent directly on grounds of sexual orientation and on grounds of their political believes.

Reliability of Documentary Evidence and the Strange Case of the African Grey Parrot.

On 29th June 2016, the Daily Telegraph reported on the pending prosecution in Michigan, USA, of Glenna Duram for the murder by shooting of her husband. 

Since the killing, the couple’s African Grey Parrot, which was apparently present, has been repeating in two different voices “Get out”…”where will I go?”….Don’t shoot!”

The claim was that the parrot was reproducing the words spoken at the time of the killing.

Clearly, the parrot cannot take an oath and be a witness.  The material might be considered, however, as physical evidence, or in the nature of a voice recording.  Voice recordings (of for instance 999 calls) are routinely used in cases.  The recording is regarded as a document (for the definition of “document” in civil cases see CPR 31.4.1) .  Even a fleeting reading on the screen of a speed camera, which was not able to be reproduced was a document (Darby v DPP (1995) 159 JP 533).  Arguably, the parrot’s voice was a “document”

The parrot issue is essentially one of the reliability of the evidence.  Since the words were “transmitted” via a parrot, one may think that it is impossible to say whether it is an accurate repetition of the event in question, or a coincidence, or even whether the parrot has been coached by somebody to use particular words after the event..

I suspect that the parrot will not feature in the trial.  It is not the first time that the “evidence” of a parrot has been considered.  According to the Telegraph, not surprisingly, a North Carolina Judge in the murder trial  of Gary Joseph Rasp in 1993, held the evidence of what another parrot “said” was not admissible.  In that case, the Defence submitted that the parrot’s repetition of the words “Richard… No!...No!.. No!” tended to identify the murderer as somebody called Richard rather than the Defendant.  The jury evidently did not hear from the parrot, and Mr Rasp was reportedly convicted.

The reliability of indirect or documentary evidence is a central concern in many cases.  Where there is a question over whether a document’s signature is genuine, it is usually essential for the original to be available to any handwriting expert instructed.  Indentations from tracing marks, and fine detail on the pen stroke and its pressure, and even complete erasures are not necessarily discernible from a photocopy. Where the original of a vital and questioned document is not available, extreme caution is called for, especially if there are originals of virtually all the other documents.

Even where a signature is not in issue, it is good practice to examine originals of relevant contracts and invoices.  We have seen documents where a photocopy in a bundle has cut off the words at the bottom “for conditions see overleaf”, and the conditions have not been reproduced because only the front of the document was copied.  We have also seen cases where the original showed different coloured inks on alterations, indicating that they may have been done at different times.

We hope that you may be able to take two learning points away from this brief piece- always examine disputed documents as originals, and don’t rely on the evidence of parrots!