This is a case that offers a warning lesson to every reader, judge, counsel and litigant. And it is particularly relevant to everyone struggling to come to terms fully with the ways that the coronavirus pandemic affects the practice of law. The UK judge at the heart of this matter was dealing with a difficult case of possible child abuse arising from the death of a baby, and had to decide what arrangements should be made for the care of the remaining child. She decided to hear some of the trial remotely by Zoom, and some of it with witnesses physically present in court. But problems arose at the end of a 'live' court session when the judge, thinking her laptop had been switched off, had a conversation with someone in her chambers about the parties – and a number of people still in court were able to hear what she said as the computer had not been disconnected. The result was an application for her recusal on the basis of remarks critical of the mother and, after she refused to stand down, the issue went on appeal.
The case before Judge Frances Judd was a very sensitive and distressing family matter. A, the older of two young children in a family, had died aged 18 months from what the court heard was ‘a catastrophic head injury accompanied by significant bruising.’ What was to happen to the younger brother, E, now aged 16 months? Was it safe for him to stay with his mother?
The court had to conduct a fact-finding hearing to establish whether A had died of ‘inflicted injuries’ and, if so, to try and identify the person who might have caused the injuries that led to the child’s death.
Judge Judd began the trial on 1 July, using a ‘hybrid’ hearing system, specially developed during the Covid-19 pandemic to enable trials to take place safely. The idea is to avoid delays that could cause harm to any children involved but at the same time to ensure that the parties have a fair trial.
So, from 1 – 13 July, when medical evidence was presented to the court, all the proceedings were conducted remotely by Zoom. After that the mother gave evidence ‘live’, physically present in court with her legal team, all observing the correct physical distance from each other.
On 13 and 14 July, the mother gave evidence wearing a mask that she pushed down when she was speaking. The next day she said she did not feel well and cross-examination was not completed. On 16 July, she told the court she had a cough and was thus not going to remove her mask while she answered questions. She did not, however, ask to leave court. As the appeal court would later say, it came as no surprise to find that the judge, with the agreement of counsel, sent the mother home. It was further agreed that, as the mother had already given two days of evidence ‘live’, the remaining part of her evidence would be dealt with remotely.
This having been decided, the court rose. The judge’s associate took the judge’s closed laptop through to her room. However, no one knew that the remote link to the court room was still open – no-one had disconnected it.
The judge then had a private conversation in her chambers with her clerk about the mother and it was heard by a number of people who were still in court.
During that phone conversation, Judge Jubb’s frustration at the situation that was developing became clear. She made a number of critical comments about the mother, including ‘that she was pretending to have a cough’ and that she was trying ‘every trick in the book’ to avoid answering difficult questions.
None of her comments, however, expressed a view about the circumstances of the child A’s death, which was the central issue to be decided.
Realising what had happened and that others had heard her conversation, the judge had all the parties re-join the hearing and told them she would understand if an application were to be made for her recusal. And indeed, the mother brought a recusal application the next day. Having considered the matter, the judge refused to stand down.
Four days later, the court of appeal heard a challenge to the judge’s decision not to recuse herself. The three appeal judges commented: ‘What happened is an example of the hazards of such hearings. It would appear that the judge’s laptop was taken into her room closed, but with the call not having been exited. It is to the credit of those that overheard the judge’s conversation with her clerk that they did everything they could both to draw the judge’s attention to the situation and indeed to speak over and distort the conversation. It was a couple of minutes however before the usher’s attention was gained, who then immediately left the court and made the judge aware that she could be heard in court.’
What would the appeal judges say about recusal in this case?
Judge Judd's remarks were undoubtedly 'negative observations' about the mother and the mother’s honesty. In the view of the judge, her comments were ‘robust’ and ‘critical’, but she felt they ‘did not cross the line’. She said she greatly regretted what had happened and the hurt that her comments must have caused the mother. But, as the appeal judges noted, her comments did not refer to the substantive issues or suggest that she might have made any premature conclusion about the outcome of the case.
The appeal judges also said there were no suggestions that before this, Judge Judd had shown any bias or conducted the hearing with anything less than scrupulous fairness. They said that judges were operating under tremendous pressure at the moment. ‘All over the country judges are trying against powerful odds, to “keep the show on the road” during the pandemic for the sake of the children involved. They are faced daily, as are the court staff and practitioners, with all the difficulties, technological and otherwise, presented by remote hearings generally and hybrid hearings in particular.’
Judge Judd had expressed her great regret at what happened. She had conducted the trial in an exemplary way over the previous three weeks, and the appeal judges said they had ‘considerable sympathy’ with her. But the fact that the comments were intended to be private did not help the situation.
‘The case could not be more serious. [The mother] is accused of either causing the death of her toddler or of failing to protect him from the man who caused his death. The judge made highly critical remarks about [the mother’s] honesty during the course of her evidence, remarks which we believe a person looking in from the outside could not do other than think would colour the judge’s view of that witness and demonstrate a real possibility of bias.’
The appeal judges said they found ‘real ground for doubt’ and that the doubt should thus have been resolved in favour of recusal.
Following their decision, the case has been sent back to the Family Division for directions about how the matter will go forward ‘before a fresh judge’ of that division.