In September 2012, Rehana Hussain made a claim of homelessness to the London Borough of Waltham Forest, her local authority. She had been renting a housing association property where she lived with her young daughters.
From early 2012, she had become the victim of persistent harassment and serious anti-social behaviour from the son of a neighbour, who habitually spat at her, racially abused her, made throat-slitting gestures towards her and, on ten occasions, smeared faeces on her car and front door. Despite repeated reports to the housing association and to the police, her nightmare continued.
This led to her applying to the council under the homelessness provisions of the Housing Act 1996, on the grounds that it was unreasonable to expect her to continue to live at that address in such conditions. She said she feared that to stay there would cause her and her daughters severe psychological harm amounting to violence. The council’s reviewing officer adopted a narrow interpretation of the definition of “violence” in the legislation, and rejected her application.
Hussain successfully appealed this decision in the county court. However, the local authority did not back down. Instead, it took the case to the Court of Appeal (Civil Division).
This court’s three judges’ decision was stark: the local authority had got it wrong. Its interpretation of “violence” was too narrow, and ought to have been construed so as to include threatening or intimidating behaviour or abuse that may give rise to psychological harm, such as that which had befallen Hussain. The council’s appeal was dismissed, and it was forced by the Lord Justices of Appeal to conduct a fresh review of the decision.
Who, you may wonder, were these shadowy robed figures standing up for the rights of the disenfranchised Hussain against the institutional callousness of the establishment? Who forced the council to look again at the suffering of a vulnerable single mother in its charge?
The name of the presiding judge may be familiar. Lord Justice Moore-Bick, as he then was, prior to his retirement from the Court of Appeal and his reversion to the much more mundane Sir Martin. He shared in the unanimity of that judgment, handed down on 20 January 2015 (Hussain v Waltham Forest London Borough Council [2015] EWCA Civ 14), one of the later cases in his career before he retired in December last year.
I raise this because Sir Martin has, since his appointment as chair of the inquiry into the Grenfell Tower fire on 29 June, found himself an unlikely figure of controversy. David Lammy, Labour MP for Tottenham, immediately declared that the retired judge is a “white, upper-middle class man who I suspect has never, ever visited a tower block”. Emma Dent-Coad, Labour MP for Kensington, has never met Sir Martin but felt well-placed to inform Radio 4 that he did not “understand human beings” and called for him to stand down. And this was echoed by shadow fire services minister Chris Williamson, who asserted that “local people are saying they don’t have faith in him”.
The bulk of this objection, it appears, arises out of a rapidly cultivated image of Sir Martin as an establishment Mr Whitewash, best exemplified by the one case that you will have heard about: Nzolameso v City of Westminster. In this case, the Supreme Court overturned his Court of Appeal ruling upholding a council’s decision to rehouse a resident many miles out of the locality. This, combined with his attempt to manage expectations as to the scope of the enquiry – a matter which is ultimately out of his hands – has fuelled opposition to him on almost every verifiable personal characteristic. Race, gender, class, his specialism in commercial law, a highly selective biography of his 20-year judicial career; all have been swirled together by campaigners and politicians to reach the conclusion begged by Lammy’s leading question:
“I think the victims will also say to themselves: when push comes to shove, there are some powerful people here – contractors, sub-contractors, local authorities, governments – and they look like this judge. Whose side will he be on?”
At a time when so many vulnerable people who have been failed by the state are understandably anxious about the bona fides of the inquiry, it is regrettable that some of their representatives have taken it upon themselves to turn the fear up to 11, instead of offering some basic calming truths.
Let’s start with the objection that the inquiry will be headed by a “commercial judge”. This is a particularly strange disadvantage to have alighted upon, as the first thing to know about commercial law is that it is hideously complex. Judges in this field, particularly those who rise through the ranks of QC, High Court judge, Lord Justice of Appeal and Vice-President of the Civil Division of the Court of Appeal, are terrifyingly bright. The types of issues that are likely to arise in the course of the Grenfell inquiry – contractual obligations, property interests, competing allegations of liability – will be Moore-Bick’s bread and butter. But his expertise does not end there. A quick trawl of his judgments at the Court of Appeal shows that he also turned his hand to housing law, family law, employment law, local government law, immigration and asylum law, landlord and tenant law, intellectual property, personal injury, human rights, industrial accidents and criminal law. To present his knowledge base as somehow narrow is to misunderstand the fare of an experienced Court of Appeal judge.
There have been calls from residents for a criminal judge instead. This would not necessarily result in a greater or broader working knowledge; worse, it would risk feeding an apparently prevalent misapprehension as to the inquiry’s function. It cannot, as a matter of law, determine criminal or civil liability. Whatever recommendations may follow, decisions as to prosecutions remain for the Crown Prosecution Service.
But the idea of a criminal judge as superior in this context raises a further issue relating to the disparity in judicial roles in our legal system. Criminal judges do not in the main engage in fact-finding. That is the role of the jury. Criminal judges presiding over trials simply direct the jury on the applicable law. By contrast, in jury-free civil courts, judges are entrusted to apply the law and find facts.
Sir Martin is a fact-finder. And, as leading legal blogger Gordon Exall has pointed out, that is exactly what the brief calls for. The inquiry will not be a parade of well-meaning truth-tellers spilling their hearts and sharing their dreams. There will be bottom-covering and blame-shifting and deflection and sleight of hand and contradictory expert evidence and at least a handful of outright damned liars trying to wriggle free of culpability. This is the nature of inquiries where something terrible has happened. It’s the nature of courts. They call for someone trained to root out the truth. Someone who has spent years cutting through the sophistry of £1,000-an-hour QCs and the practised dishonesty of fraudulent company directors, and reaching conclusions based on forensic analysis of the evidence.
As for having had a judgement overturned on appeal, the significance is significantly diminished if you know how many judicial decisions are overturned on appeal. It is not a rare occurrence. Few judges in any field have an unblemished record. On occasion it will be because of a shocking error of law or judgment, and judges will be specifically criticised by their superiors. But more often, as in the case of Nzolameso, it is a rather more prosaic exercise of the higher court simply reaching a different decision.
But even if this case did betray an error in judgment, it is an enormous reach to suggest, as Dent-Coad has, that it amounts to grounds for disqualification. It no more automatically proves Sir Martin unfit than the Hussain case proves him a sworn social justice warrior. These are isolated decisions, from which it is impossible to divine a jurisprudential pattern. And, despite jaw-dropping suggestions by Dent-Coad to the contrary on last weekend’s Sunday Politics, the notion that the to-be-announced terms of reference would afford the inquiry the latitude, even if it were so minded, to recommend that Kensington be “socially cleansed”, is preposterous.
As for Lammy, even substituting his suggestion that the judge’s race or social class immediately gives rise to a perception of bias for the less objectionable observation that the members of the inquiry should be able to draw on sufficient understanding of the lives of those affected, this can be achieved without sacking the chair and starting again.
Assessors can be appointed to assist the inquiry panel and to remedy any deficit in representation or relevant direct experience. Alternatively, knowledge can be broadened by directly appointing complementary members to the panel itself.
This fascinating article by Richard Stone, who served on the Stephen Lawrence Inquiry, shows how a diverse panel can ensure that the voices of interested communities are heard by the inquiry judge at every stage. The Macpherson report, which came out of that inquiry, also demonstrated how a perceived “establishment figure” can be an effective messenger to deliver unpalatable truths that might otherwise be minimised as special pleading.
None of this, I emphasise, is to say that there can be no sensible objections to the Grenfell inquiry, its terms of reference, its members, its operation or even, once it has started to run if events so dictate, its chair. I do not know Sir Martin; he may prove himself to be a terrible choice. The terms of reference may be unacceptably restrictive. The panel may be stuffed full of lackeys boasting blatant conflicts of interest. If this comes to pass, criticism will not only be justified but essential. It is vital that the workings of the inquiry be properly scrutinised and that it retain the faith of those who are most directly affected.
But presently, what we hear circulated on the airwaves by Sir Martin’s detractors are complaints born not of evidence, but of half-truth and prejudice. Nothing that has been said amounts to a sustainable, reasoned critique. Criticism for this should be aimed not at the victims and families, but at those whose public duty is to represent, inform, counsel and champion their interests. It is those representatives, exploiting tragedy and encouraging misnomer in service of their own agendas, who should be asking whether they are truly suited to their role.
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