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Accusations in judgments of misconduct

A social worker has recently been awarded damages by the European Court of Human Rights for unfair accusations of professional misconduct. Charlotte Gilmartin analyses the ruling.

In S.W. v United Kingdom 22 June 2021 the United Kingdom was ordered by the European Court of Human Rights to pay damages and legal costs to a social worker who was unfairly accused of professional misconduct by a Family Court judge.

Facts

The applicant was a social worker who was called to give evidence in childcare proceedings concerning the alleged sexual abuse of a number of siblings.

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The Family Court rejected the allegations of sexual abuse. The judge also found that the applicant was the principal instigator in a “joint enterprise to obtain evidence to prove the sexual abuse allegations, irrespective of the underlying truth and relevant professional guidelines”; that she had lied to the court about important aspects of the investigation; and that she had subjected one of the children involved to emotional abuse.

The applicant first became aware of these adverse findings at the end of the hearing when the judge gave a summary oral judgment. Prior to finalising the judgment, she was able to make some submissions, including in respect of the decision not to grant her anonymity. However, the adverse findings and the decision not to grant her anonymity were maintained. The judge also directed that the judgment be sent to the authority to which the applicant had since been re-assigned, and advised that his findings should be shared with other local authorities where she had worked and with the relevant professional bodies.

Her local authority assignment was then terminated without notice.

The local authority and the applicant sought to appeal against the Family Court judgment. Before the Court of Appeal, the case was argued as a procedural violation, namely that the highly adverse findings “came out of the blue” and had the potential to impact adversely on her employment prospects and personal life, yet she had not been given any opportunity to know of or meet the allegations during the course of the trial process. The Court of Appeal found that the criticism would breach her rights under Art. 8 of the Convention if the judgment were allowed to stand. The process by which the judge arrived at the criticisms was “manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art.8.” His findings were set aside, in the sense that “they no longer stood and had no validity”. The effect was to be “as if those findings, or potential findings, had never been made in any form by the judge” (§§ 16 – 20).

The applicant considered bringing a claim for compensation, either under the Human Rights Act, or in misfeasance in public office; however, she was advised that her claim for compensation would have no real prospect of success as she was unlikely to establish an absence of good faith on the part of the judge.

Meanwhile, the Health Care Professions Council concluded that there was no evidence to suggest that her fitness to practice was impaired. In April 2015, she was diagnosed with fibromyalgia caused by her being under “a great deal of stress”. She continues to be unable to work due to her ill health.

Before the European Court of Human Rights, she complained under Articles 6 and 8 of the Convention that the proceedings were not “fair” and did not ensure that her right to respect for her private life was adequately safeguarded. She further complained under Article 13 that she was unable to claim damages at the domestic level for the violations: pursuant to section 9(3) of the Human Rights Act 1998 she was unable to claim damages for a judicial act done in good faith.

Applicability of Article 8

The Court considered that the gravamen of the applicant’s complaint under Article 8 was that the Family Court judge, having made the adverse findings without affording her the opportunity to meet them during the trial process, nevertheless directed that those findings be sent both to the local authorities where she had been assigned and to the relevant professional bodies (§ 43). The Court held that the interference had reached a sufficient level of seriousness and caused sufficient prejudice to her enjoyment of that right for Article 8 to come in to play (§§ 47 – 48).

The question of victim status

The Government argued that the applicant was no longer a victim as the findings of the Court of Appeal constituted an acknowledgment of the wrongs that would have been done if the findings had been allowed to stand. It was said that the adverse judicial findings were rendered invalid for all and any purpose: no public statements could be made about the applicant, and it would be as if the original judicial findings had never been made. This was said to be sufficient redress.

The Court disagreed. It held that the judgment did not address the “gravamen” of the applicant’s complaint and did not provide her with redress for the loss or damage allegedly caused by the disclosure of the judge’s findings to other local authorities and to professional bodies (§ 54).  

Violation of Article 8 – reasoning

Whilst Article 8 of the Convention contains no explicit procedural requirements, in the specific context of court proceedings, the Court held that it is “first and foremost the responsibility of the presiding judge to ensure that the Article 8 rights of persons giving evidence are adequately protected” (§ 61). The Court noted that it had previously found that the failure to inform, question, summon or otherwise notify an individual of a complaint against him before he was identified in a judgment, coupled with the failure to afford him anonymity, violated Article 8 of the Convention because the interference with the applicant’s private life was not accompanied by effective and adequate safeguards (see, the decision in Vicent del Campo §§ 50-55).

In the present case, the interference with the applicant’s Art. 8 rights was neither in accordance with the law nor necessary in a democratic society. The case that the judge found to be “proved” against the applicant fell entirely outside the issues that were properly before the court and it had not been put to the applicant – or even mentioned – during the hearing. Moreover, these procedural shortcomings were not offset by any effective counter-balancing measures. Although the applicant was able to make some submissions to the judge after she became aware of his criticism of her, this only happened after the judge had reached and announced his concluded decision. This process was wholly incapable of protecting the applicant’s right to respect for her private life and reputation (§ 62).

Article 13

The Court held that the judgment of the Court of Appeal did not afford appropriate and sufficient redress the applicant’s complaint under Article 8. She had been advised that a claim for compensation would have no real prospect of success as she could not establish an absence of good faith on the part of the judge, and it had not been suggested that any other remedy was available to her (§ 72).

Outcome

The Claimant had claimed £40,000 in non-pecuniary damages and £1,057,406 in pecuniary damages, representing her loss of earnings and additional care and assistance that she had required as a result of the violations. The Court found that it was unable to establish a causative link between the pecuniary losses claimed and violations found, given that the applicant’s argument before the Court of Appeal was primarily procedural and the Court of Appeal had not analysed the evidence underpinning those findings, nor had it determined whether or not the judge was justified in criticising the applicant as he did (§ 82). She had, however, been denied the opportunity to bring a claim for a substantial quantum of damages, which warranted monetary compensation. She was awarded €24,000 in non-pecuniary damages, assessed on an “equitable basis” (§ 83).

Comment

This is an interesting case which highlights the expectation of the Strasbourg court that members of the judiciary, whatever the area of law under consideration, ensure that the Article 8 rights of those giving evidence are protected. Practitioners should be alert to the hallmarks of unfairness identified by the Court of Appeal and the Strasbourg court in this case.

The decision is also significant at a deeper level. The applicant was prevented from obtaining a monetary remedy before the national courts because of her inability to establish “bad faith” on the part of the judge.  At the time, section 9(3) of the Human Rights Act limited the availability of damages “in respect of a judicial act done in good faith” to cases where a claimant had been detained or imprisoned contrary to Article 5 of the Convention. As noted by the Court, this was amended following the ECtHR decision in Hammerton v. the United Kingdom (no. 6287/10, § 146, 17 March 2016) by a Remedial Order; however, the Joint Committee on Human Rights expressed concern that the terms of the Order “were drawn too tightly and would not do enough to prevent future similar violations of Article 13 of the Convention by the operation of section 9(3) of the Human Rights Act” (§§ 35 – 37). The decision is therefore an important illustration of the power of the European Court of Human Rights to ensure that an adequate remedy is available to those within its jurisdiction, notwithstanding domestic limitations.

Charlotte Gilmartin is a barrister at 1 Crown Office Row. This article first appeared in the set’s UK Human Rights Blog.

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