DUANE SHEPPARD v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2002] EWCA Civ 1921

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON COUNTY COURT

(HIS HONOUR JUDGE RICH QC)

[2002] EWCA Civ 1921

Case No Case No: B3/2002/0934

Venue Royal Courts of Justice, Strand, London, WC2

Between

DUANE SHEPPARD

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Before

Lord Justice Waller

Lord Justice Tuckey

Lord Justice Laws

MR S SIMBLETT (instructed by Fisher Meredith, London SW4 6TA) appeared on behalf of the Appellant

MR I ASHFORD-THOM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent

Date 11 December 2002

LORD JUSTICE LAWS:

This

[1]is an appeal with permission granted by Brooke LJ on 28 May 2002 against the judgment of His Honour Judge Rich QC given in the Central London County Court on 19 April 2002, when he dismissed the appellant's claim against the respondent Home Office for damages for assault and misfeasance in public office. The appellant's case was that he was viciously attacked by prison officers in the afternoon of 23 April 1996 in Highdown Prison (to which he had been remanded in custody by the Bexley magistrates on that day) and in consequence that he suffered bruising to the right eye and fractures to the jaw, nose and cheekbone and is left with some reduced sensation and facial deformity.

[2]There are three grounds of appeal which are, of course, much elaborated in the appellant's counsel's skeleton argument. Since they are very crisply expressed in the notice of appeal it is convenient to set them out now before looking at the facts somewhat more closely:

"1. The learned judge misdirected himself as to the approach where an injury has been sustained whilst in custody and failed to draw the appropriate and/or necessary inferences from the pleaded cases and the evidence called. 2. The learned judge's finding that the applicant had fractured his own jaw deliberately was perverse and could not properly be found on the parties' pleaded cases and the evidence called. 3. The learned judge's improper resolution of the facts arose in part from his bias against the applicant's case and/or legal representation. The learned judge showed, by his demeanour and approach to the case, a hostility that went outside the proper judicial rôle and amounted to bias such that the applicant's case did not receive a proper hearing."

The second of these grounds is, so to speak, specific and limited to the particular facts arising here. The other two grounds, 1 and 3, may be said to raise somewhat wider issues, as Brooke LJ may have considered when he granted permission. The first ground engages consideration of the question whether, in a case where an inmate in custody has sustained injuries while in custody, there are particular principles which ought to govern the court's approach to the proof of misconduct by State officials, not least given learning of the European Court of Human Rights in Strasbourg. The third ground engages issues concerning the standard of judicial decision-making against a background of case law here and in Strasbourg on the subject of judicial bias. While it is elementary and uncontentious that every litigant is entitled to an unbiased tribunal, there are issues touching the question whether bias is shown in any particular case. I should note that in granting permission to appeal Brooke LJ directed that if the complaints against the judge were to be pursued there would have to be a transcript of what was said in the trial which is claimed to support the case of bias. Several volumes of transcript are now before us.

[3]I must describe the facts more closely. The account which follows is intended to be uncontentious save where I indicate the points of contention which were and are important for the issues in hand. After his remand to Highdown Prison by the magistrates' court the appellant, then being uninjured, was required to undergo the normal reception procedure at the prison and be strip-searched. He was told by Prison Officer Welford to remove a chain from around his neck. He declined do so. That was at about 4.25 pm. There was what may be described in neutral language as an altercation between the appellant and the prison officer. The whole question in the case was to what that led.

[4]The appellant's case required the court to be satisfied to the appropriate standard that he had been wantonly attacked by prison officers. The respondent's case was that the appellant himself became aggressive and was lawfully restrained by officers who took him to the segregation unit. There is no doubt that he found himself in the segregation unit. There, at 4.45 or 4.50 pm, he was examined by Dr Angela Williams, a prison doctor. She made a note of her examination on Form 213 as follows. I translate the acronyms in the note itself:

"Complains of pain right hand. On examination nothing abnormal detected. Nose deviated to left -- old deformity he says but some bleeding."

As I have said, this note was set out on an Injury Report Form 213. Such a document is required by prison procedures to be completed when control and restraint techniques are used on a prisoner. In the same document the incident reporting officer had entered "nil" under the heading "Nature of injury". At all events, Dr Williams made no reference whatever to any injury to the jaw or cheekbone or of any complaint of pain other than in the respondent's hand.

[5]There was a debate at trial, as one might expect, about how quickly evidence of such injuries would appear. There was also a dispute as to the thoroughness or perfunctoriness of Dr Williams' examination. The appellant said that the doctor at all times stood 6 feet or 2 metres away from him in the segregation unit, he being required to stand behind a white line. As to that, there was a written memorandum made on 24 April 1996 by Prison Officer Calvert, part of which read:

"I was present on 23.4.96 at 16.50 hrs in special cell Number one when the above mentioned prisoner was examined by Dr Williams. The examination was a proper hands on examination and was not conducted from a distance of five feet away as claimed by the prisoner."

[6]As regards the question when the injuries suffered by the appellant might show themselves, there was an agreed view expressed in writing by two experts (who were not called to give oral testimony). That is to be found in a letter dated 12 December 2001 to the appellant's solicitors from Mr Stewart, the consultant oral and maxillofacial surgeon who had been instructed for the appellant. He had held a discussion with the respondent's expert, Dr Rouse. The letter contains this passage, referring to a paragraph in an earlier report which had been prepared by Dr Rouse:

"Paragraph 5 [that is a reference to Dr Rouse's report]: the first sentence states that one would expect the bruising to the right eye to be present immediately, ie within a few minutes, following the impact to the side of the face because of the comminuted nature of the fracture of the zygoma. Following discussion we agree that the bruising could come up within a few minutes or may take up to an hour to occur in this setting."

As I have said, Dr Williams examined the appellant at 4.45 or 4.50 pm, which was just under half an hour from the time of his admission to the prison.

The judge in his judgment was to say this (transcript 5F):

"The experts did not attend court to comment on whether the emergence of bruising would, if not immediate, be a gradual process. Doctor Williams told me, however, and I accept, that some discolouration of the cheek would be observable, at least normally, within the period of 20 to 25 minutes after a blow which eventually caused a black eye such as is observable on the photographs of the claimant on the next day."

[7]It was not I think in dispute that at about 9.30 pm on 23 April the appellant was seen in his cell by, amongst others, Nursing Officer McGinley, who had been called by Officer Tancred. Mr McGinley examined the appellant. In his statement he says this:

"I entered the cell and examined the Claimant. I saw there was a right peri orbital bruising. His right jaw was [asymmetrical]. I saw that his nose was out of alignment but when asked he told me this was an old injury. During the examination I palpated his jaw and cheeks. He was in discomfort. I informed Governor Burton that I suspected a fractured jaw and fractured cheekbone on his right side. The Claimant said to he me that he had been assaulted by prison staff."

Nursing Officer McGinley, as I understand it, spoke to the truth of the statement when he gave evidence. He was shown it in chief and it was not suggested that this testimony was false.

[8]There was evidence before the judge that a document called the "Inmate medical record", which would have documented all of the medical examinations undergone by the appellant in prison, had been destroyed although the appellant's solicitors had asked for it (or at least asked generally for copies of the appellant's medical records) at a time when it was still available. The judge described the loss of this document as "reprehensible" (transcript 6C) and so it was. But I do not think there is any scope for suggesting that the document would have shown the appellant's injuries appearing earlier than 9.30 pm on 23 April; and in that case the judge was right to treat its disappearance as ultimately being of no significance.

[9]Nursing Officer McGinley gave evidence in cross-examination that on the evening of 23 April he left it up to the doctor, who would be seeing the appellant the next morning, to make any necessary arrangements for an X-ray. On the next day at 9.00 am the appellant was again seen by Dr Williams. She noted that he had developed a black eye and was complaining of pain in his jaw too severe to allow examination, and also of pain in his right hand. She also apparently certified the appellant fit for adjudication and indeed on that same morning he underwent a disciplinary adjudication arising out of charges laid against him which arose from his encounter (if I may so put it) with Prison Officer Welford. Thereafter he was transferred to the health care centre and on 25 April 1996 he was taken to Queen Mary's University Hospital, Roehampton where his injuries were treated.

[10]I turn to the first ground of appeal. It is convenient at the beginning to recall that the standard of proof in cases like this, where serious wrongdoing is alleged by a claimant, was described by Lord Hoffman in Rehman

[2001] 3 WLR 877

, 895 at paragraph 55 as follows:

"By way of preliminary I feel bound to say that I think that a 'high civil balance of probabilities' is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 , 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not."

That then is the way our law stands in relation to the standard of proof upon a claimant in a case where serious wrongdoing is alleged against a Defendant.

[11]In this case Mr Simblett for the appellant submits, first, that his case on the facts, if good, established a violation of

Article 3 of the European Convention on Human Rights

which as is well-known provides "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." For my part I accept without difficulty, certainly for the purposes of the argument in this case, that the unjustified assault alleged by the appellant would plainly constitute a violation of Article 3. Mr Simblett proceeded to submit in his skeleton argument that authority of the court at Strasbourg, not least Ribitsch v Austria 21 EHRR 573 and Aksoy v Turkey 23 EHRR 553, established the proposition that where it is shown that a claimant has suffered injuries while in custody it is incumbent upon the state to provide a plausible explanation of how he came by the injuries. Pressed before us, he formulated his submission first in this proposition: when considering a civil claim for damages in which it is not disputed that the claimant has sustained injury while in custody, the proper approach and presumptions that the judge needs to take to the facts is that there must be a plausible explanation supported by cogent evidence.

[12]But then he went further and was inclined to submit that the state of the law had gone this far: that in these cases it is actually for the defendant to disprove his responsibility; that is to say, that the burden of proof rests on the defendant to show that he has not committed the tort alleged. In that connection he relied on Salman v Turkey 34 ECHRR 425, in particular at paragraphs 99-100. I should say that this was a case in which there had been an extremely unsatisfactory domestic investigation of the facts in hand, so much so that the European Commission of Human Rights had conducted its own factual enquiry and heard witnesses in Ankara about the circumstances in which the applicant's husband had been detained by the police and subsequently died. The court said:

"99. In the light of the importance of the protection afforded by Article 2 [that of course is the article which guarantees the right to life] the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, among other authorities Selmouni v France [GC], no 25803/94 [paragraph] 87, ECHR 1999 -- V). The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies. 100. In assessing evidence, the Court has generally applied the standard of proof 'beyond reasonable doubt' (see the Ireland v United Kingdom judgment of 18 January 1978, Series A no 25, pp 64-65, [paragraph 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation."

[13]As a pragmatic approach to the very difficult issue how courts or tribunals should resolve questions of responsibility for death and injuries in custody, with very great deference to the Strasbourg court I have no difficulty in following this line of reasoning. But it does not seem to me to produce the result that we are obliged by the Human Rights Act 1998 to elaborate in personal injury cases of this kind a burden of proof now resting upon the shoulders of the defendant. What cases like Salman demonstrate, with respect, is the proposition that on facts such as those arising here, and most certainly such as those that arose in Salman , there will be a powerful evidential burden resting upon the authorities to demonstrate that responsibility for the injury or death does not lie at their door. It must be so as a matter of common sense. Death or injury occurring when a person is in the custody of servants of the State plainly calls for an explanation. It does not follow, as I have said, that when it comes to a civil suit for damages the adjectival law relating to the burden of proof is changed; but the position is, of course, that a State defendant in such a case will virtually inevitably be required to put forward a substantial positive case on the facts if he is to avoid the conclusion that the claimant's case is proved. I would disavow any suggestion that there is any sort of dislocation between the approach taken in the Strasbourg jurisprudence and the law relating to the burden and standard of proof in tort cases in our domestic jurisdiction.

[14]Mr Simblett sought to support his case by extended reference to Ribitsch v Austria to which I have already referred in passing. It is not, with respect, necessary to go further into it. I understand Mr Simblett at the end to have accepted that the Strasbourg approach is met if one accepts (as for my part I certainly would) that in these cases there is, as I have made clear, a powerful evidential burden of proof requiring, as the cases put it, cogent evidence to be advanced by the authorities. In those circumstances, provided that the judge trying a domestic case of this kind is aware of these approaches that are to be made, there is no special rule that ought to be applied and taken from the Strasbourg cases.

[15]Here it seems to me that the judge was plainly aware of the need to look for a viable explanation of what had happened. He was plainly aware of the difficulties that were inherent in the defendant's account of events and whatever else may be said about his approach to the case (and I shall deal with ground 3 in due course) he was, as it seems to me, at pains to see whether in truth the explanation put forward by the defendant Home Office, namely that the claimant must have caused the injuries himself, serious as they were, was a viable explanation. It does not seem to me that there is any force in ground 1 taken as a separate ground from the complaint made in ground 2, which was to the effect that on all the evidence and facts here the judge was simply not entitled to conclude against the claimant.

[16]Turning then to that ground, here are the views and relevant findings of the judge.(1) He accepted Dr Williams' evidence that some discolouration of the appellant's cheek following a blow which broke his jaw would be apparent within 20 to 25 minutes.

(2) He accepted that the possibility that the appellant's severe injuries were caused by self-harm was indeed unusual and improbable. That was the effect of the agreed medical evidence. It included the doctors' answers to questions specifically put to them by the lawyers on the issue of probability. It seems to me, with great respect, one hardly needs a medical man to tell one that it is very unlikely that a person is going to break his own jaw by banging his head against a floor or wall.

(3) The judge found that Dr Williams conducted a proper examination (transcript 11C), "on which the injury to the face ought to have been observable unless its development in terms of discolouration was quite freakish".

(4) The judge concluded:

".... so far as conclusions can be drawn from the nature of the injuries [it is] equally likely that the cause was a single self-injury or a series of blows or punches."

For this conclusion he relied on agreed medical evidence, which he set out (transcript 11G-12C). I need not set it out again. (5) The judge rejected a submission for the appellant that the evidence of a psychiatrist, Dr Kennedy, to the effect that the appellant suffered from post-traumatic stress disorder corroborated the appellant's account of the attack upon him. The judge found (14G) that Dr Kennedy's diagnosis was wrong because it was based on inaccurate and misleading information supplied by the appellant to the doctor. It seems to me that the judge was perfectly entitled so to conclude. (6) The judge opined that Dr Williams after seeing the appellant next morning on 24 April 1996 ought to have been alerted to complete the appropriate self-harm report form; but this, said the judge, was merely a failure "to think through the obvious conclusion of her observations". (7) The judge bore in mind these further matters: (a) inaccurate accounts of his life or history which the appellant had given to various doctors, showing a propensity for self-deception (transcript 17A-B); (b) some evidence of an earlier willingness to harm himself (17B-D); (c) although it was to a degree improbable that he would have assaulted Prison Officer Welford, who was six foot two to his five foot seven, the appellant did not, on the respondent's case, in fact assault this officer. It was clear that he was abusive on arrival at the prison and at that stage, said the judge, the appellant was willing "to do almost anything, including self-injury, to get back at the system". (8) Against a background in which the respondent called 16 witnesses of fact, many going to the specific live events alleged by the appellant which either happened or did not happen between 4.25 and 4.45 or 4.50 pm on the 23rd and the appellant was the only witness of fact in his own cause,

the judge said this (16F):

"I should add that overall I have been impressed by the evidence called from the prison and by the thoroughness with which the claimant's case has been addressed and in my judgment, rebutted."

Then at 18F:

"The case, which he [the appellant] does make, that his injuries were caused by a deliberate attack by the prison officers, is one which I reject. I do not merely say that it is not proved, I say that on the balance of probability I am satisfied that the injuries, which were observed and which have been proved, were caused by the claimant bringing his own head against the cell wall or floor at some time between Officer Tancred coming on duty at about 8.30 in the evening of 23rd April and his calling her to his cell by pressing the alarm at about 9.00 to 9.15 on that same evening."

[17]Mr Simblett complains that the judge does not set out narrative findings of fact as to the precise account of events which he accepts; and it is true that he does not. Perhaps in this particular case and cases like it it would be better if he did, but as Mr Simblett accepts it is entirely plain that the judge found the prison officers to be truthful and the appellant not to be truthful. It seems to me that in the end, difficult though the fact-finding exercise was, the judge was entitled to decide as he did.

[18]Mr Simblett makes a number of complaints in light of the proposition that the defendant must have produced a plausible explanation of what happened with cogent evidence. First, the judge made no positive finding that the injuries were occasioned as the respondent contended. But it is the necessary implication of the judge's conclusions that the appellant must have harmed himself on the evening of the 23 _ rd. Secondly it is said that the judge should not have brushed aside the destruction of the Inmate Medical Record as he did, and Mr Simblett criticises Dr Williams for certifying the appellant fit for adjudication on the 24_th. He points to the fact that she wrote her findings on the morning of the 24 _ th on the same 213 report form as she had used the previous day. Mr Simblett suggested before us that this might mean that Dr Williams in fact believed that the appellant had no new injuries on 24 April. The implication of that would have been an acceptance by her that the injuries were or may have been caused before she had seen him the previous day. However, it is clear that Dr Williams was not cross-examined to that effect. It is useful to notice a short passage in the transcript for 16 April 2002 when the doctor was being questioned by the judge (16 April, 42C-D). This is a passage to which my Lord, Lord Justice Waller pointed in the course of argument:

"Q. It is right that you concluded in the afternoon that he had no such injury as you observed that he did have by 9.00 the following morning? A. Yes. Q. And it doesn't need to be a detective to conclude that if he had no injury at 5.00 but he did have an injury at 9.00 the following morning it had occurred between those times? A. Yes."

[19]Thirdly Mr Simblett as a point of detail asserts that the judge made no findings about the presence of bleeding from the appellant's nose. So far as it goes that I think is true. Fourthly he says generally (and this is in reality the gravamen of his appeal on the merits of the case) that there was no or at best a wholly insufficient basis for the judge to find that these very grave injuries were self-inflicted. This morning he submitted further to us that a document not considered by the judge shows that on a later occasion when the appellant was in prison he complained that he had earlier been assaulted by prison officers.

[20]In my judgment these criticisms are not capable of going the length required to establish that the appellant is entitled to judgment or a new trial. The judge was entitled to be impressed by the quality of the respondent's evidence notwithstanding the difficult context in which the issue arose. He was entitled to conclude that Dr Williams conducted a proper examination at 4.45 or 4.50 pm. He was entitled to rely on inaccurate accounts of other events given by the appellant. He was in short entitled to reject the appellant's case, even though it meant the implicit acceptance of the inherently improbable fact that he had broken his own jaw and cheekbone. On the agreed medical evidence the injury could have been sustained in consequence of three separate blows but (and I quote the judgment at 12B of the transcript where the judge is citing the agreed medical evidence):

"Equally all these injuries could have been caused by an impact between the right side of the face and the hard smooth planar surface such as a wall or a floor. In this case the mandible, the right zygoma and the nasal bones would have been injured at almost precisely the same instant. Unfortunately it is not possible to distinguish between these two possibilities on the basis of the medical evidence alone."

There was also the evidence of Mr Baskind, an expert in control and restraint procedures to this effect:

"The Claimant's facial injuries are, in my opinion, consistent with being struck (whether by another person(s) or through self-injury)."

Moreover it is to be remembered that whatever criticisms might be made of Dr Williams, there is no sensible suggestion that the notes she wrote on Form 213 on the afternoon of 23 April did not represent her own belief as to what she had found on examination. And as I have shown, that note showed no complaint of any pain whatever except in the hand or wrist.

[21]In the result I would hold that applying the appropriate standard of proof in civil cases, the judge was entitled to dismiss the appellant's claim on the merits. The accusation of a vicious assault was of course a very grave accusation. The suggestion that the appellant had injured himself so very severely was also a very grave matter and certainly an improbable one. I wholly accept, as I have made clear, that there was a heavy evidential burden on the respondent. On all the evidence the judge was entitled in my judgment to find it discharged.

[22]I turn then lastly to ground 3. The case put forward is that the judge by his rude and intransigent interventions displayed a prejudice against the appellant's case such that the appellant did not have a fair trial. It is important in my view to recognise that a claim of that sort may fall into either or both of two categories. It may be said that the judge has descended so far into the arena that one party has really been disabled from putting his case. Most regrettably that sometimes happens but that is not what is said here. The other mode in which complaints of this kind may be advanced is to say that the judge's conduct evinces a bias against one party as compared with the other. As is very well known the appearance of bias may of itself be enough to vitiate a judicial decision. But when the material relied on is misconduct by the judge in court evincing a prejudice against one of the parties, that would amount in my view to actual bias; and Mr Simblett confirms that that is the case he makes here. He says that the findings arrived at by the judge being in themselves surprising, when taken together with the judge's interventions show bias. I understood him to put the case on the footing that really his complaints about the nature of the judge's findings on the facts is to be taken together with his complaints about the judge's conduct so that the two of them display, in the end, bias by the judge. In putting his case that way he relied on a similar approach taken by Hale LJ in Montanaro

[2002] EWCA Civ 462

at paragraphs 25-26. Perhaps, with respect, I may be forgiven if I do not set out the passage.

[23]Turning then briefly to the complaints themselves, it is first said generally that (I quote the supplementary skeleton argument):

"The judge adopted a hostile and unpleasant tone from the start of the case and refused to hear submissions/explanations of issues that he held (wrongly) against the [Appellant] and his legal representatives on several occasions"

. Then there are six particular complaints. The first is that the judge was rudely and in the event unjustifiably critical of the plan and photographs produced. This was in the course of Mr Simblett's opening. The passages are in what is called extract (i) 3A-4G and 14A-D and extract (ii) 5A-F. I do not propose to take time reading them all out. I have of course read and considered all the references that are relied on. I will just take an example. There is a point (extract (i) 4B) where the judge dismissively said, "Well in that case the photograph is totally useless isn't it?" and there is another point where he castigated what was being said by Mr Simblett about a particular point relating to the plan as "rubbish": that is at extract (i), 14B. It is plain that these passages reveal some bad-tempered exchanges. Mr Simblett does not suggest that on their own they would go so far as to show bias. His case is a cumulative one.

[24]So I turn to the second complaint. Referring to a document produced before trial by the appellant's counsel which set out some of the issues and referred to the evidence, it is said that the judge was rude about the fact that some of the medical evidence had not been flagged and in relation to a reference in the document to Strasbourg authority he said, "Let's not waste time on esoteric European law which is of no effect". Mr Simblett accepts that this misquotes what the judge said. Mr Simblett is not to be criticised, however, because as I understand it when he was drafting his skeleton he did not have the advantage of the transcript. What the judge in fact said (extract (i)) was as follows (I just take the critical words). After argument and submissions about the burden of proof and reference to Strasbourg authority, the judge said this (17C):

"JUDGE RICH: Yes, I've grasped that and what I am anxious to understand is whether you are submitting that the burden of proof is on the defendant to prove that, and I understand that you are not. MR SIMBLETT: No. "

JUDGE RICH:

Then let's not waste time on esoteric European law which doesn't apparently [the transcriber has the word 'write' but the judge must have said 'bite'] on anything I have to decide." There is another short reference in the transcript for 18 April 2002 later in the case (15B) when the matter was referred to again. Mr Simblett was closing his case and said:

"I think when I had cited in my skeleton argument the case of Ribitsch v Austria and another case your Honour said 'I don't think I need esoteric principles of European law to tell me that' .... "

And then Mr Simblett proceeded to refer to the judgment of Crane J in McNamee v the Home Office , to which I need not go.

[25]So although it seems to me gratuitous for the judge to have used the adjective "esoteric", he is not simply side-lining the law of Strasbourg altogether. He is rather making it clear that he does not need authority from Strasbourg to accept the proposition being put forward. There is nothing, I think, therefore in that complaint.

[26]Thirdly it is said that more than once the judge rudely intervened to say "Let's get on now" (the references are extract (i) 10D-G and transcript 16 April 2002 8F-9F). Again I have to say it is plain that the judge showed a certain amount of ill-temper, but this is far too flimsy a basis to call into question the integrity of the proceedings on bias grounds.

[27]Fourthly the judge stated that he would not hear live evidence from certain experts and in doing so read a case management order to the effect that permission to call any of the expert witnesses live was contingent on their producing a statement of agreement (the passages at extract (i) 12E-13E). The judge in fact indicated that he would not hear the expert psychiatrists live until or unless they had complied with a particular provision in the case management order that had been made by the Recorder on 15 March 2002. I have not seen it suggested in the papers that the judge was actually wrong to take that position nor has it been submitted by Mr Simblett that justice was not done for a failure to call the psychiatrists live to the witness-box. It does not seem to me there is any force in that.

[28]The fifth complaint is that on day 2 of the trial, after the appellant's case had been closed, the judge required an explanation from the appellant of a document (which was in the bundle at page 203) suggesting that he had taken a drugs overdose. He required such an explanation because it had been put on the appellant's behalf that there was no evidence to support another document in the bundle (page 54) which referred to a history of self-harm. There was some exchange between the judge and Mr Simblett as to whether Mr Simblett had been putting his questions advisedly on instructions or possibly on a mistaken basis. In the end the complaint is that the judge cut off counsel's argument and said "The claimant will be recalled", and indeed he was recalled. Mr Simblett helpfully made it plain in the course of his submissions today that he made no complaint of the fact of the appellant being recalled to the witness-box but only of the rude or sharp, or at least brusque, manner in which the judge dealt with the matter.

[29]Lastly, on the third day of the trial, the judge interrupted cross-examination of a witness shouting loudly, it is said, that counsel must get on. I need not deal with the details.

[30]Now overall -- and I accept that the matter has to be looked at overall -- it does seem to me, unfortunately, that the judge behaved badly. He was from time to time discourteous; he may have raised his voice. His conduct of the case may have to an extent created a disagreeable atmosphere. All of that is much to be regretted and is just cause for criticism. But I find it impossible to say that the judge was biased so as to deny the appellant a fair trial. As I have already made clear, this is not a case in which the judge interrupted so greatly as to dislocate and undermine the trial process. Having looked through all the transcripts -- I do not pretend to have read every word -- it is clear that both parties' cases were fully developed and deployed. As regards the judge's manner, I have already disapproved of it. It did not, however, in my judgment, go the length of evincing a prejudice or bias against the appellant. That being so, there is nothing in the third ground.

[31]For all the reasons I have given, for my part I would dismiss the appeal.

LORD JUSTICE TUCKEY: I agree.

LORD JUSTICE WALLER: I also agree.

ORDER

Appeal dismissed with costs to be determined under the provisions of the Community Legal Services (Costs) Regulations 2000, the appellant's liability assessed as nil. Permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)