I am not physically well enough to attend the hearing, so my only response can be via this blog.
This entire procedure and process has been one of the most partial, biased and bent procedures I have ever had the misfortune to witness.
The Employment Tribunal case involving Mr. Clive Potter and the Prison Service was, I thought then, a nadir in the ethical collapse of the British judicial system where the bent nature of the Tribunal at all stages of the process was shameful.
This case is worse.
I have never witnessed before such a disgusting state of affairs.
At every stage of the process the entire process was rigged against Richard.
From the initial hearing of the Standards Sub Committee where a Mr. Qureshi, who had previously attacked Richard on his blog, was allowed to sit on the committee and recommend that the case goes to a full hearing, using a procedure not authorised in law, to the moment Mr. Qureshi withdraw from the procedure, at every stage the procedure has worked against the interests of Richard.
We provided legal submissions months ago that Mr. Qureshi should not have been allowed, due to impartiality and bias issues based on his clear bias against Richard based on his own invective directed against both the BNP and Richard, to sit at any time on the standards committee and that his doing so had in fact ensured the entire process should have been scrapped. This was especially true as his vote was one of the three that sent the case against Richard to an investigation and hearing.
This legal submission was ruled against. Then a week ago Mr. Qureshi withdrew as he had recieved legal advice that his continued presence on the committee may give Richard a grounds for appeal. Who gave him this advice we do not know. The GLA wont tell us.
They will also not tell us the name of the 'leading legal counsel' in the case and whether they also work for the GLA.
When Qureshi did withdraw from the procedure his grounds for doing so were not to protect the rights of richard and ensure a fair hearing, but to simply to protect the interests of the GLA and to ensure richard had no grounds for appeal - signifying that even before the hearing had been held that the decision had been made to find richard guilty and that they did not want him to have grounds to appeal.
At the time he withdrew Qureshi also made public comments on issues of fact that were for the hearing to decide. These 'facts' he mentioned were sub judice issues and which, by saying what he did, should have ensured the entire case was struck out for prejudicing the process. When we asked for a suspension of the procedure until the standards committee sat to rule on the issue of the comments made by Qureshi when he withdrew in order to ensure to get a ruling on whether the comments did not prejudice the hearing, guess what, this was again refused.
The 'impartial' legal officer that was making the rulings re legal submissions on behalf of Richard was employed by the GLA, represented the interests of the GLA in GLA legal cases, also represented the interests of the Standards Committee, members of the standards committee and yet was also supposed to be able to 'impartially' represent the interests of richard in the process.
The GLA at every stage of the process ruled in favour of itself.
After we pointed out the inherent conflict of interest in this situation, where an employee of the GLA was also supposed to be an 'impartial' person in relation to ruling on legal submissions from Richard, this was again struck out - regardless of the case law and ECHR requirements in relation to a fair hearing under Article 6.
The entire legal submissions we have made in relation to the systemic failures of the GLA in relation to their duties under the Disability Discrmination Act in relation to Richards dyslexia were also ruled against.
Then two weeks before the hearing the GLA announced that every point we raised in relation to procedures required to fulfill the legal duty under the Disability Discrimination Act were suddenly imposed without any notice by the GLA standards committee as a result of 'legal advice'. This was once again in order not to provide richard grounds of appeal after they find him guilty.
Are you seeing the pattern yet ?
When we queried where this legal advice came from that related to the duties of the GLA under the Disability Discrimination Act that changed their earlier legal stance on the issue, we were told we were not entitled to know.
So much for transparency in order to ensure probity.
When I asked if the so called 'leading legal counsel' in this case who was the legal 'mastermind' behind the scenes who was making all these mysterious rulings on our legal submissions, and if they were also working for the GLA, I was also told we were not entitled to know.
So juch for transparency and probity.
At every level of this procedure this has been a farce.
Therefore to illustrate just how much of a farce, and to reveal to those in the legal profession in Britain how the GLA operates, I am releasing below some of the legal submissions we have put forward on behalf of Richard and the responses we have recieved.
That way you can see for yourself the entire sham process of this farsical show trial.
You may hate the BNP and despise Richard - but the moment we as a nation tolerate this sort of Stalinist show trial we surrender our democracy.
First they came for the BNP.
Next they will come for you.
---------------------------------------------------------------------------------
First submission to GLA regarding impartiality and bias of Mr. Qureshi sent 9th July 2009 ;
FORMAL COMPLAINT.
WITHOUT PREJUDICE.
Independence and Impartiality of the GLA Panel
Article 6 of the ECHR states ;
ARTICLE 6
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Article 14 - UN international covenant on civil and political rights
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
The law itself states nemo judex in causa sua potest (no man can be a judge in his own cause), which will be breached where the decision-maker has a direct financial interest or has acted both as prosecutor and judge, or where there is a real danger of bias. See:
R v Altringham Justices ex parte Pennington (1975)
Article 6 (1) provides that "everyone is entitled to a fair and public hearing..by an independent and impartial tribunal".
An independent tribunal was defined in Ringeisen v Austria[21] as meaning "independent of the executive and also of the parties -
Ringeisen v Austria (No 1) (1971) 1 EHRR 455, para 95
In Ringeisen the European Court set out a number of factors to determine whether or not a tribunal was independent, namely:
1) the appointment process for tribunal members
2) guarantees offered against outside pressures
3) whether there is an appearance of independence
Impartiality was defined by the European Court in Fey v Austria[as:
"[A] subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect".
The fact that the members of the panel in the GLA have expressed opinions hostile to both Mr. Barnbrook and the BNP directly means that the issue of impartiality is of utmost relevance.
Therefore those within the GLA hearing panels who have expressed hostility towards Mr. Barnbrook or the BNP should be barred from participating in any hearings as regards Mr. Barnbrook.
Also should be removed are all those who have expressed statements hostile to both the British National Party and Mr. Barnborok in the past both in their personal and professional roles.
Case law below confirms that this is required ;
Metropolitan Properties Ltd v Lannon: CA (1969) 1 QB 577
Lannon, a solicitor and chairman of the Rent Assessment Committee, had indirect connections with one party to the proceedings before him. His father was the tenant of a flat where the landlord was an associate company of the landlords of the property in question. Lannon lived with his father.
HELD: The decision was quashed. It is not enough that justice is done. It must be seen to be done. Any suggestion of bias would jeopardise this, although it must be a real likelihood of bias. Surmise or conjecture is not enough.
Lawal v Northern Spirit Ltd: [2003] UKHL 35 HL
In an appeal to the Employment Appeal Tribunal, the appellant objected to leading counsel for the
employers who had previously sat as a part-time judge in the EAT with one of the lay members then sitting.
HELD: That there was no difference between the test of bias at common law and the requirements of A6 ECHR. The issue was whether a fair-minded and informed observer would think that there was a real possibility of subconscious bias on the part of the lay member or members.
R (Al-Hasan) v SS for the Home Department; R (Carroll) v Same: 16/02/05 HL
HELD: An informed and fair minded observer might infer that a deputy prison governor who was present, and had not dissented, when the governor approved an order for a squat search of prisoners, had tacitly accepted that the order was lawful. It therefore gave the appearance of bias when the same deputy governor subsequently adjudicated in disciplinary proceedings where the issue was the lawfulness of the squat search order.
Per Lord Brown: that the common law test for bias was whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased. By the very fact of his presence when the search order was confirmed, the deputy governor gave it his tacit assent and endorsement. When thereafter the order was disobeyed and he had to rule upon its lawfulness, a fair-minded observer could all too easily think him predisposed to find it lawful. Both once proceedings had been successfully impugned for want of independence and impartiality on the part of the tribunal, the decision itself must necessarily be tainted by unfairness and could not be permitted to stand. Accordingly, the findings of guilt against the prisoners must be expunged. Both adjudications took place before the Human Rights Act 1998 came into force. The non-retrospectivity of the Act was now firmly established. Therefore there could be no question of any award of damages even supposing, which was doubted, that, had a successful challenge been available under the Act, there would have been.
Boyd, Hastie and Spear Saunby and Others (Appellants)
v.
The Army Prosecuting Authority
and
The Royal Air Force Prosecuting Authority
and
The Treasury Solicitor
(Respondents)
ON 18 JULY 2002
[2002] UKHL 31
8. The European Court has defined with great clarity and consistency the meaning of the article 6(1) requirement that a tribunal be independent and impartial. It is enough to quote paragraph 73 of the court's judgment in Findlay v United Kingdom (1997) 24 EHRR 221 at 244-245:
"The court recalls that in order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.
As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.
The concepts of independence and objective impartiality are closely linked and the court will consider them together as they relate to the present case."
In the document “ In the matter of part 111 of the local government act 2000 and local authorities (model code of conduct)(England) order 2001 and the draft local authorities (model code of conduct) order 2007 “ at paragraph 2 it states,
“ The basic legal position is that a councillor may not be a party to decisions in relation to which he is either actually biased ( in the sense that he has a closed mind, and has pre-determined the outcome of the matter to be decided irrespective of the outcome of the matter to be decided irrespective of the merits of any representations or arguments put to him ) or gives an appearance of being biased, as judged by a reasonable observer. The test in relation to appearance of bias is that laid down by the House of Lords in Porter V Magill (2002) 2 AC 357, at para. 103 per Lord Hope “ The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.
In para 3. it further states, “ It is only if a councillor is, or gives the appearance of being, on the wrong side of the dividing line, that it would be unlawful for him to participate in a decision.
This is further clarified in the Standards Board for England, Issue 1, August 2007 Occasional Paper page 2 which states under the heading ‘How can predetermination or bias arise’, where the example listed applies exactly to the circumstances of Mr.Barnbrook and Mr.Qureshi in relation to the official complaint made by Mr. Barnbrook against Mr. Qureshi.
“ Example a) A district councillor also belongs to a parish council that has complained about the conduct of an officer of the district council. As a result of the complaint the officer has been disciplined. The officer has appealed to a member panel and the councillor seeks to sit on the panel hearing the appeal. The councillor should not participate “.
On these grounds as stated above therefore, the original decision to allow Mr. Qureshi to sit as a member of the panel that decided to refer the complaint against Mr. Barnbrook to a full disciplinary hearing was unlawful.
Mr. Qureshi should have excused himself from sitting on the panel on the following grounds ;
A) He had been a person Mr. Barnbrook had made a formal complaint about via the disciplinary procedure previous to the hearing.
B) The various blog postings by Mr. Qureshi on his The Qureshi Report (attached ) both before and after the hearing reveal real and actual hostility, bias and impartiality towards both Mr. Barnbrook and the BNP.
C) The posting of Mr. Qureshi on October 23rd 2008 shows extreme hostility towards Mr. Barnbrook personally. Note that this posting was before Mr. Qureshi sat on the panel that chose to refer the complaint against Mr. Barnbrook to a full hearing.
On the evidential grounds provided above and various duties under the law as regards impartiality and the appearance of bias, it is clear that the original decision to allow Mr. Qureshi to sit on the panel and for him to participate in the decision to refer Mr. Barnbrooks case to a full disciplinary hearing invalidates the entire process.
It was incumbent upon Mr. Qureshi to self remove himself from the panel hearing the complaint in order for the hearing to be lawful and the rights of Mr. Barnbrook protected.
The issue of potential bias and impartiality as regards the members of the panel hearing the case was never even raised within the panel, nor was advice sought or obtained by the panel as regards their duties under the law as regards impartiality or bias, therefore the panel had no regard either to Mr. Barnbrook's rights or their own public and legal duties.
In order for the disciplinary hearing and all resulting legal procedures to be lawful, then the entire procedure must be stopped immediately and the whole case sent back for a new hearing with new panel members to ascertain whether the case should go to a disciplinary hearing.
If this request for an immediate cessation of the formal disciplinary process is not granted then we will have no choice but to seek an immediate Judicial Review of this decision of the GLA not to refer the case back to a hearing with a new panel.
----------------------------------------------------------------------------
Copy of legal letter sent to lawyers at Standards Board for England concerning the wrongful procedure used by the GLA and Barking and Dagenham Council to send complaint to an investigating officer via s standards sub committee rather than via a standards commitee as required under the Standards Committe Regulations 2008 ;
I have been reviewing my legal notes and the facts below will clarify the issue.
The issue is clearly defined and stated in Regulations 13 and 14 and the explanatory notes of the SCER Regulations 2008.
The explanatory notes of the SCER regulations 2008 expressly state that the role of any assessment sub committee set up under Regulation 6 is to undertake an 'initial assessment' of any complaint.
Regulation 6 does not state that any sub committee may refer a request to a monitoring officer for an investigation.
Regulation 6 is further explained in the explanatory notes of the SCER 2008 where the explanatory notes only state that an assessment sub committee may only undertake 'initial assessments' of complaints. The explanatory notes relating to Regulation 6 do not state anywhere that an sub committee may refer a complaint to an monitoring officer or that an assessment sub committee may request an monitoring officer begin an investigation and not notify the person complained of, or the person making the complaint, that the investigation in underway. Only a Standards Committee under Regulation 14 (2) has the power to request an monitoring officer keep an investigation secret.
The SCER regulations 2008, as the latest statutory authority, is the statute in operation from May 2008.
Regulation 14 states in section 14 (2) that 'the monitoring officer shall, unless otherwise directed by the ethical standards officer or the standards committee' inform the member and the person that made the complaint that the matter has been referred for investigation.
Regulation 14 of the SCER 2008 gives no authority for the proposition that any body other than a Standards Committee can refer a request for an investigation to a monitoring officer or issue a request to a monitoring officer to take steps to conceal an investigation.
Neither does the explanatory notes that define the remit of Regulation 14 give any authority to the proposition that an assessment sub committee may refer a request for an investigation to a Monitoring Officer.
As stated at Regulation 14 (2) ' The monitoring officer shall, unless otherwise directed by the ethical standards officer or Standards Committee ' inform the member or the person making the complaint ' that the matter has been referred for an investigation'.
This is clear and unequivocal statement that only an ethical standards officer or Standards Committee can refer a complaint for an investigation to a monitoring officer.
This can be contrasted with Regulation 13, as read with the explanatory notes, which reveals that an assessment sub committee operating under Regulation 13 may refer a matter to a monitoring officer with a direction to take steps other than an investigation. The explanatory notes regarding Regulation 13 expressly mentions the fact that an assessment sub committee may issue recommendations for sanctions other than an investigation.
Regulation 16 (1) also states that a monitoring officer must refer an investigation back to the Standards Committee, not the assessment sub committee. The phrase 'refer that matter BACK to the Standards Committee' if new evidence is discovered confirms that the initial request for an investigation must come from the Standards Committee.
Nowhere does the SCER regulations 2008 disclose any authority for an assessment sub committee or review committee to issue a request to a monitoring officer for an investigation.
Neither is there any authority disclosed to allow a monitoring officer to accept a request from an assessment sub committee for an investigation either under the Local Government Act 2000 (as revised ) or in the SCER Regulations 2008.
There has been no regulations issued under Section 66 (2) (a) or section 66 (3) (a) of the Local Goverment Act 2000 by the Secretary of State to amend the existing powers of the monitoring officer to authorise them accepting a request for an investigation from an assessment sub committee.
Neither does Section 54 of the Local Government Act 2000 disclose any authority for the proposition that a monitoring officer may accept a request for an investigation from a monitoring officer.
The explanatory notes of the SCER Regulations 2008 clearly state that Regulation 6 (b) simply allows an assessment sub committee to undertake an 'initial assessment of allegations under section 57 A of the act'.
Nowhere in the Regulations or the explanatory notes does it disclose any authority for the proposition that an assessment sub committee may request an Monitoring Officer to commence an investigation in relation to Regulation 14.
The phrase 'initial assessment of allegations under section 57 A of the act' means that an assessment sub committee may undertake an initial assessment of any allegations. If the assessment sub committee recommends under Regulation 13 to issue directions other than an investigation then it must communicate this to the monitoring officer. Then the monitoring officer under Regulation 13 (4) (b) notifies the person who is the subject of the complaint what the findings of the Assessment sub committee are. The assessment sub committee can only recommend the punishments as defined in Regulation 13 (3) (a, b, c).
But if after the initial investigation of the allegations by the assessment sub committee the assessment sub committee recommends that the complaint be the subject of an investigation by a monitoring officer then the assessment sub committee must pass their findings and recommendation for an investigation to the Standards Committee who will then issue an order under Regulation 14 and 14 (2) (b) to the monitoring officer to initiate a formal investigation.
The monitoring officer then under Regulation 14 (3) commences a formal investigation. Once the investigation is finished then the monitoring officer under Regulation 14 (8) (a) (1) may find that the Code of Conduct has been breached and then under Regulation 14 (8) (b) the monitoring officer prepares a report of his findings and under Regulation 14 (8) (c) sends a copy to the person who is found to have breached the Code of Conduct and then under Regulation 14 (d) (1) refers his findings to the Standards Committee.
It is then for the Standards Committee to hold a hearing and decide on the punishment that the person is given for breaching the Code of Conduct.
This is in accord with the law under Article 6 ECHR as regards the right for a fair hearing as the punishments that a Standards Committee may decide to impose include the sanction of suspension without pay for a period of six months, and therefore as this relates to the fundamental human rights of the individual facing such a sanction then the Standards Committee must review both the investigation of the monitoring officer for legality and procedural fairness and also to ensure that the rights of the individual have not been damaged or undermined during the investigations process.
That such an authority to refer an investigation to a monitoring officer lies only with a Standards Committee is evident in Regulation 14 (2) where it states that the Standards Committee may request that the monitoring officer not disclose to the person who made the complaint, and the person that who is the subject of the complaint, that the matter has been referred to the monitoring officer for an investigation. Therefore it is the Standards Committee who must make the decision to not inform the member complained of, or not inform the person who made the complaint, that the complaint is the subject of an investigation and the Standards Committee can only make that that decision to not disclose the fact that an investigation is underway AFTER the assessment sub committee has passed its 'initial assessment of the allegations' to the Standards Committee and they have assessed the 'initial assessment' of the assessment sub committee and reached the decision that in the circumstances defined in the assessment sub committee’s report, that the person who is the subject of the complaint or the person who made the complaint should not be informed an investigation is underway.
It is not for the assessment sub committee nor for the monitoring officer to make the decision to not inform the person complained of or the person who makes the complaint that an investigation is underway by the monitoring officer That power to order the investigation by the monitoring officer remain 'hidden' is a power held only by the Standards Committee as defined under Regulation 14 (2) as they must issue the order to the monitoring officer to keep hidden the fact that an investigation is underway by the monitoring officer.
Therefore the power to initiate an investigation by a monitoring officer, and the power to order the investigation be secret, can only come from the Standards Committee after the initial assessment by the assessment sub committee has been passed to it and they have reached the decision, after reading the initial assessment report drafted by the assessment sub committee, that the investigation undertaken by the monitoring officer must remain hidden from the person who made the complaint or the person who is the subject of the complaint.
At all times the power of initiative in relation to ordering the commencement of an investigation, and the power to define the nature of an investigation in relation to the secrecy of that investigation, lies with the Standards Committee.
This is also required in order to ensure the assessment sub committee and the monitoring officer act lawfully and that the rights of the individual are protected when they undertake secret investigations. Without the Standards Committee supervising both the activities of the assessment sub committee and the monitoring officer then the whole process would remain beyond any legal review in the event of any wrongdoing.
An assessment sub committee may make arbitrary and unlawful decisions and the individual would have no recourse as no oversight of their actions by the Standards Committee would have been undertaken. When a body delegates its powers it must ensure those powers are not abused by reviewing the decisions of that inferior body to ascertain if they are lawful.
The explanatory notes are clear - the function that may be delegated to an assessment sub committee under Regulation 6 is simply to undertake ' an initial investigation of allegations under section 57 A of the act', and nowhere either under Section 54 of the Local Government Act 2000 or SCER Regulation 6 does it disclose any authority for the proposition that an assessment sub committee may request an monitoring officer to commence an investigation, to define the nature of that investigation nor to define what punishment or sanction may be imposed upon a member who breaches the Code of Conduct (except under Regulation 13).
The lack of any clearly defined sanctions available to a monitoring officer under Regulation 14 in the event of a finding of a breach of the Code of Conduct after they have completed the investigation reveals that it for the Standards Committee to decide the sanction.
Regulation 13 discloses both a power for an assessment sub committee to issue a request to a monitoring officer for an investigation and also for a monitoring officer impose the sanction imposed by the assessment sub committee - a fundamentally different approach to that under Regulation 14.
In order for an assessment sub committee to be able to issue a request for an investigation to a monitoring officer then it must have been given the power to do so under the regulations, but no such authority is disclosed.
In order for an monitoring officer to accept a request for an investigation then such an authority must be established in law, and so such authority has been given.
Regulation 14 (2) clearly states that it must be an ethical standards officer or a Standards Committee that must refer an investigation to a monitoring officer.
If the SCER Regulations 2008 under Regulation 6 authorised a change in relation to the power of an Standards Committee under Regulation 14 then the explanatory notes relating to Regulation 14 would have stated that an assessment sub committee had the power to issue a request for an investigation to a monitoring officer and to ensure that the investigation be kept secret from the person who made the complaint or the person complained about, just as the explanatory notes as regards Regulation 13 make explicit provisions for an assessment sub committee to refer a case to a monitoring officer with a direction to take steps other than an investigation.
The fact that no such explicit provision for an assessment sub committee to issue a request to a monitoring to start an investigation exists or to issue an order to a monitoring officer to keep secret the investigation neither in Regulation 14 or in the explanatory notes means that the Standards Committee, as defined in Regulation 14 (2), is the only body that can issue a request for an investigation to a monitoring officer and to order that the investigation be hidden.
The fact that the explanatory notes regarding Regulation 13 expressly states that an assessment sub committee may refer a request to a monitoring officer to take steps other than an investigation means that if Parliament had intended Regulation 6 and Regulation 14 to authorise an assessment sub committee to issue a request for an investigation or to order an monitoring officer to keep the investigation secret, then just as Parliament did as regards Regulation 13, then both in Regulation 6 and Regulation 14, and the explanatory notes regarding Regulation 14 and Regulation 6, then it would have stated that as well as re-defining in the regulations the powers of a monitoring officer to accept such a request from an assessment sub committee.
It did not do that though.
Regards,
L. J. Barnes LLB (Hons)
===============================================================================
response to this e mail was the pathetic reply here ;
Dear Mr Barnes
Thank you for your email of 12 August.
Regulation 9 of The Standards Committee (England) Regulations 2008 provides an interpretation of Part 3 of the Regulations which includes Regulation 14.
Regulation 14(2) refers to a "standards committee." Regulation 9 says that in Regulation 14 "standards committee" means the standards committee, or sub-committee of a standards committee.
Interpretation of Part 3
9. In this Part—
“standards committee” means the standards committee, or sub-committee of a standards committee, which exercises functions in relation to an authority under Part 3 of the Act.
I trust I have answered your query.
Yours sincerely
----------------------------------------------------------------------------------
Legal submission after we discovered that Qureshi had withdrawn from the case ;
Please find below further submissions that demand that the entire case be thrown out due to ;
1) The comments made about Mr. Barnbrook and the BNP by Mr. Qureshi prior to his sitting on the Sub Standards Committee that reveal prejudice, bias and impartiality which should have ensured he excused himself from sitting on the panel at any time
2) Case law concerning the issue of potential and actual bias which states quite clearly that the entire process from the original decision of the sub standards commitee to refer the complaint with Mr. Qureshi sitting on the panel was unlawful
3) That the public statement and comments of Mr. Qureshi on withdrawing from the hearing have clearly prjudiced Mr. Barnbrroks right to a fair hearing and thereby ensured that the case should be thrown out.
4) That the failure to provide independent legal counsel not employed by the GLA to rule on procedural points relating to Mr. Barnbrook was a breach of his civil rights, the ECHR and associated case law.
Article 6 of the European Convention on Human Rights guarantees you a fair and impartial hearing before an independent and impartial tribunal.
Justice must not only be done but must be manifestly and undoubtedly be seen to be done.
The test for bias should be taken from the case of Porter v. Magill [2002] and the question is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
A man may not be judge in his own cause and this is not limited to automatic disqualification in pecuniary advantage cases but is equally applicable if a judge's decision would lead to promotion of a cause with which he, together with one of the parties, has an interest.
From Hutton (in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 2) [2000]):- "There could be a case where the interest of the judge in the subject matter of the proceedings, arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings, could shake public confidence in the administration of justice."
The matter must be determined objectively as well as subjectively. However strongly the decision maker's own confidence as to his ability to decide the matter impartially, the decisive issue must be the impression that would be made on a fair minded informed observer.
In a House of Lords decision delivered on 22 October 2008 (Helow v Secretary of State for the Home Department [2008] UKHL 62) Lord Hope set out the attributes of the hypothetical fair-minded and informed observer in whose position the Committee must place themselves to make this decision.
The fair-minded observer reserves judgment on every point until she has fully observed both sides of the argument. She is not unduly sensitive or suspicious but she is not complacent either. She knows that fairness requires that a judge must be and must be seen to be unbiased and she will not shrink from the conclusion, if it can be justified objectively, that things a judge may have said or done, or associations they may have formed may make it difficult to judge the case before them objectively.
In Helow the appellant was a Palestinian claiming asylum. Her family was involved with the Palestine Liberation Organisation. She appealed against a decision to the Court of Session. The judge was a member of the International Association of Jewish Lawyers and Jurists and was a founding member of the Scottish branch of that association. Some articles in the association journal were considered hostile to the PLO. The House of Lords had to consider whether or not that judge could give the appellant a fair hearing. The Judges decided that the Judge could give a fair hearing. Crucially, however Lord Hope commented:-
"Had there been anything to indicate that (the judge) had by word or deed associated herself with these views so as to indicate that they were her views too, I would have no difficulty in concluding that the test of apparent bias...was satisfied."
On this basis there seems little room for argument that Mr Qureshi was right to withdraw. Indeed one has to question why those selecting the panel thought him suitable in the first place and why alarm bells did not ring for Mr Qureshi himself.
The withdrawal of Mr Qureshi and his extraordinary statements on exiting raise further questions. Some now argue that the case is so tainted that the prospect of Mr Barnbrook getting a fair hearing is extremely unlikely. Mr Qureshi in his recent comments again publicly reiterates his antipathy towards the BNP and describes Richard Barnbrook as belonging to a ‘fascist’ party that holds ‘racist’ policies. Both these adjectives are contentious and highly subjective. To use such language in the context of a yet to be determined case is inherently prejudicial. The appointment of Mr Quereshi and the tenor of his statements create a strong suspicion that we are witnessing a kangaroo court motivated by political spite.
Mr Qureshi comments on an issue of fact which is a fundamental point in issue and should therefore be considered ‘sub judice.’ In written evidence already submitted, Mr Barnbrook seeks to persuade the panel that the factual issues and circumstances pertaining to his alleged misstatement are not clear-cut, and in any event, have no bearing on the issue of ‘disrepute.’
For Mr Qureshi to pronounce at this stage what he believes or does not believe to be ‘true’ is not only a blatant statement of bias, but displays an apparent complete lack of understanding of the impartiality required of his judicial role. Such comments might also be taken as an attempt to prejudice the remaining Panel members.
Mr Qureshi states that he has only withdrawn as a result of legal advice because Mr Barnbrook might have grounds for appeal if the standards committee were to find against him. He states “There may be legal grounds for an appeal if the Sub-Committee were to uphold the complaint against Mr Barnbrook. For that reason (our emphasis), I have decided to withdraw.” Surely the proper motivation for withdrawing should be on the basis that he might be biased or seen to be biased and a concern for Justice, rather than because he wishes to deny Richard Barnbrook grounds for appeal?
It seems to us at that whatever the rights and wrongs of the original complaint against Mr Barnbrook the process has been so badly mishandled that there is now no possibility of conducting a fair-hearing. The case should be dismissed.
On this issue of independent legal counsel ;
The fundamental principal of English law clearly gives considerable weight that an
appellant has the fundamental right to present his or her case in court and to have
unfettered access to a fair hearing by an independent and impartial tribunal. This has
been further re-enforced by ECHR 1950 (Article 6 and 13) and re-emphasised in
HRA,1998 (Arts 3, 6, 14 and 17).
In Lobo Machado v. Portugal Mr Lobo Machado alleged a breach of Article 6 para. 1 (art 6-1) of the Convention, which
provides: "In the determination of his civil rights and obligations..., everyone is entitled to a
fair ... hearing ... by an independent and impartial tribunal ..."
In Ocalan v Turkey 2003 (Application No. 46221/99) the Court reiterated that under the
principle of equality and arms one of the features of a fair trial is that “each party must be
afforded a reasonable opportunity to present his case under conditions which do not
place him under a disadvantage vis a vis his or her opponent.”
We would argue that the present situation where the GLA employed a legal officer who is employed to represent the legal interests of the GLA, Mr. Qureshi, the other GLA members and also the GLA in this process, ensured that the interests of Mr. Barnbrook were damaged to an extent that a fair hearing was impossible.
Mr. Barnbrook has been placed at considerable disadvantage, as the fundamental conflict of interest inherent in the fact that as a paid employee of the GLA tasked to represent the legal interests of the GLA and GLA members on the GLA standards committee means that the interests of Mr. Barnbrook are, and have been, subordinate all through this process - as evidenced by the failure to abide by the requirements of the law re impartiality and to ensure that Mr. Qureshi was not allowed to sit in on the original committee that referred the allegation against Mr. Barnbrook for investigation and the failure to remove him at the time we provided evidence of his impartiality and bias and further by the statement of Mr. Qureshi which revealed that he was asked to withdraw from the hearing not to protect the rights of Mr. Barnbrook or to ensure a fair hearing but because he was asked to leave in order to avoid legal problems for the GLA.
At every stage of the process Mr. Barnbrooks rights and legal interests have been subordinate to those of the GLA and the panel members.
In Re: O’Connelll and others {CA 22nd June 2005] LJ Wall and Thorpe stated [para 28] that ‘directions appointments are important occasions, at which important decisions are taken.’
Therefore the fact that important procedural decisions relating to the protection of the legal rights and interests of Mr. Barnbrook have been taken by legal counsel employed by the GLA means that these decisions should have been taken by independent counsel in order to ensure no prospect of a conflict of interest, impartiality or bias could possibly occur.
In the CASE OF KYPRIANOU v. CYPRUS (Application no. 73797/01) 15 December
2005 Para 118. The Court reiterates at the outset that it is of fundamental importance in a
democratic society that the courts inspire confidence in the public ...Article 6 requires a
tribunal falling within its scope to be impartial. Impartiality normally denotes
absence of prejudice or bias and its existence or otherwise can be tested in
various ways.
The Court has thus distinguished between a subjective approach, that is
endeavoring to ascertain the personal conviction or interest of a given judge in a
particular case, and an objective approach, that is determining whether he or she offered
sufficient guarantees to exclude any legitimate doubt in this respect (see Piersack
v. Belgium, judgment of 1 October 1982, Series A no. 53, § 30 and Grieves v. the United
Kingdom [GC], no. 57067/00, § 69, ECHR 2003-XII). As to the second test, when
applied to a body sitting as a bench, it means determining whether, quite apart
from the personal conduct of any of the members of that body, there are
ascertainable facts which may raise doubts as to its impartiality. In this respect
even appearances may be of some importance (see Castillo Algar v. Spain, judgment
of 28 October 1998, Reports 1998-VIII, p. 3116, § 45 and Morel v. France, no. 34130/96,
§ 42, ECHR 2000-VI).
Being employed by the GLA to represent the interests of the GLA and GLA members in a process run by the GLA are ascertainable facts that raise doubts as to the ability of such a legal counsel being able to excercise impartiality.
When it is being decided whether in a given case there is a legitimate reason to fear that
a particular body or individual lacks impartiality, the standpoint of those claiming that it is not impartial
is important but not decisive. What is decisive is whether the fear can be held to be
objectively justified (see Ferrantelli and Santangelo v. Italy, judgment of 7 August
1996, Reports 1996-III, pp. 951-52, § 58, and Wettstein v. Switzerland, no. 33958/96, §
44, CEDH 2000-XII).
Where in any particular case the existence of such partiality or prejudice is actually shown, the litigant has irresistible grounds for
objecting to the trial of the case by that judge (if the objection is made before the hearing) or for applying to set aside any judgment given.
That impartiality is a live issue is proven by the fact that Mr. Qureshi has been required to withdraw from the case on the grounds that it may give Mr. Barnbrook leave to appeal if he remained.
The fact that Mr. Qureshi should have not been allowed to sit on the standards sub committee that decided to refer the case to a hearing and investigation is also caught therefore, as the impartiality and bias issue must logically relate to the decision of the first sub standards commitee that Mr. Qureshi sat on and which referred the case to an investigation.
The issue of impartiality and bias therefore applies to this initial referral hearing as well as the final hearing as the comments which reveal impartiality and bias on behalf of Mr. Qureshi were made prior to the first hearing, and therefore this first hearing is also contaminated. This means the whole case must now be thrown out.
The comments made by Mr. Qureshi further compounded the harm by ensuring that a fair hearing is now impossible.
The comments were made in public, publicised and would have been read by any and all person on the panel or those who would sit on future panels, and as they contained statement of fact on issues which were sub judice have ensured that a fair hearing is now impossible.
Mr. Qureshi made statements of fact regarding live issues for the standards committee still to hear and rule on, and therefore his comments have ensured that a fair hearing is now impossible.
The House of Lords' decision in R. v. Gough, above. The gist of that decision is to be
found in extracts from the leading speech of Lord Goff. This is at page 668
where he said: "In my opinion, if, in the circumstances of the case (as ascertained by the court), it
appears that there was a real likelihood, in the sense of a real possibility, of bias on the
part of a justice or other member of an inferior tribunal, justice requires that the decision
should not be allowed to stand. I am by no means persuaded that, in its original form,
the real likelihood test required that any more rigorous criterion should be applied.
Furthermore the test as so stated gives sufficient effect, in cases of apparent bias, to the
principle that justice must manifestly be seen to be done, and it is unnecessary, in my
opinion, to have recourse to a test based on mere suspicion, or even reasonable
suspicion, for that purpose."
Neutral Citation Number: [2006] EWCA Civ 242 PETER SMITH and KVAERNER
CEMENTATION FOUNDATIONS LTD- and -THE BAR COUNCIL
In Para 20 it is stated Metropolitan Properties v Lannon [1969] 1 QB 577 at p. 600 Lord
Denning stated a proposition which has never been challenged:
"No man can be an advocate for or against a party in one proceeding, and at the
same time sit as a judge of that party in another proceeding. Everyone would agree
that a judge, or a barrister or solicitor (when he sits ad hoc as a member of a tribunal)
should not sit on a case to which a near relative or close friend is a party. So also a
barrister or solicitor should not sit on a case to which one of his clients is a party. Nor on
a case where he is already acting against one of the parties. Inevitably people would
think he would be biased. " Paragraph 20.
Therefore as Denning clearly states a barrister or solicitor working for the GLA who is taking this case forward, who also represents GLA staff, who also represents the interests of the GLA in this case, who also represents the interests of GLA members such as Mr. Qureshi cannot represent Mr. Barnbrook at the same time, as this is a fundamnetal conflict of interest.
The fact that rulings made by Mr. Macarthur, who is employed by the GLA, have damaged the interests of Mr. Barnbrook and assisted and protected the interests of the GLA and its staff in a process run and controlled via a remit authorised by the GLA should have ensured that Mr. Macarthur should have never been allowed to make rulings on issues related to this case.
In order to ensure a fair hearing as defined under Article 6 ECHR and Mr.Barnbrooks rights and interests were protected legal counsel not employed by the GLA should have been employed to hear and make rulings on procedural issues during the process of the investigation and hearing.
Therefore we demand that the entire case be thrown out on the grounds above.
------------------------------------------------------------------------------------
Further submission to the response from GLA lawyers as below ;
Thank you for your response.
A few questions ;
1) Who is this 'leading counsel' ?
2) Can we see a copy of their legal advice on the issues you state below ?
3) Can they provide us with a detailed legal argument re the points you assert below including a point by point rebuttal of the European case law submissions made by us on this issue ?
4) Who does 'leading counsel ' work for ?
5) Are they employed by the GLA perchance ?
6) Do they do work, have worked or undertaken work for the GLA in the past ?
7) What company do they work for and does their company, or have their company, undertaken work for the GLA at any time ?
8) Are you an employee of the GLA ?
9) What are the terms of your contract with the GLA - is it to represent the interests of the GLA ?
The problem we see it is this.
The formal complaint has not been heard against Mr. Qureshi yet.
Therefore in the event that the hearing of the complaint does find that his comments, which were sub judice and referred directly to the case on which he sat, were a breach of the expected standards and could have prejudiced the hearing then it would be too late for Mr. Barnbrook to do anything about it re issuing a request for a striking out on the basis of the comments prejudicing his right to a fair hearing.
The fact that the hearing on the 24th may find against Mr. Barnbrook, and therefore leave him having to appeal the findings, and then the latter hearing re Mr. Qureshi finds his comments were such as to be breaches of the standards expected and could have prejudiced the hearing, would place Mr. Barnbrook in the position of having to fight against a finding which, if the standards committee had been aware of, would have enabled Mr. Barnbrook to apply to have the whole case thrown out.
Therefore this means Mr. Barnbrook would have been severely prejudiced ;
1) By the comments of Mr. Qureshi
2) The findings of the standards committee involving the negative publicity of such a finding
3) The fact that he would have been able to avoid a hearing if the comments of Mr. Qureshi were accepted as being prejudicial and therefore he would not have suffered undue detriment and a false finding of fact by the standards committee
4) That Mr. Barnbrook would then have to employ legal counsel to begin an appeal based on the findings of the hearing, which would incur considerable expense to him and therefore he would not be in an 'equality of arms' position
5) That the right to a fair hearing requires in such circumstances a hearing not just on what Mr. Qureshi said and how it may be a breach of the standards commitee duties but also a separate hearing as to whether the comments could, did or may have prejudiced Mr. Barnbrooks case
6) That the other standards committee members must give evidence in the hearing of Mr. Qureshi that the comments did not prejudice them and the way that they will run the hearing or that they were not aware of the comments
7) Therefore to allow the hearing to go ahead when the fundamental issues are unresolved will not allow Mr. Barnbrook to have a fair hearing on september 24th
Therefore the simple Rules of Natural Justice requires that the hearing be suspended until after the hearing involving Mr. Qureshi hears the evidence and decides on the facts, and then after any potential appeals, a resolution on the issue is decided.
The issue at stake in the Qureshi hearing is whether his comments which related to questions of fact in issue in the hearing of Mr. Barnbrook were breaches of the standards expected by a member of a standards commitee and also whether those comments could have prejudiced the case against Mr. Barnbrook.
Further, the fact that to allow the case against Mr. Barnbrook to go ahead prejudices the hearing involving Mr. Qureshi, in that the Standards Committee by allowing the case against Mr. Barnbrook to go ahead will be sending a signal to the committee hearing the case against Mr. Qureshi that what he said and did not and were not able to impact upon the rights of Mr. Barnbrook in the hearing of Mr. Barnbrook.
Further as the same standards committee will be hearing the case of Mr. Qureshi, then it is essential in relation to the ruling on impartiality and percieved bias that the hearing on September 24 th is suspended so as to ensure no conflict of interest can be said to have occurred.
Therefore you are well aware that the hearing on September 24 th must now be suspended until after the hearing involving Mr. Qureshi clears him, or does not clear him, of potentially prejudicing the case as well as him being in breach of the behaviour, standards and duty of care expected by a member of a standards committee.
This is essential as the comments made by Mr. Qureshi relate to questions of fact which the hearing against Mr. Barnbrook must determine.
Failure to abide by simple procedural requirements and Natural Justice and for you to allow the hearing on the September 24 th to go ahead will demonstrate that you are not 'impartial' and are simply acting solely in the interests of the GLA, regardless of what 'leading counsel' - whoever they are - states.
Therefore this is a formal submission for the hearing on the 24th september to be suspended until after the hearing against Mr. Qureshi rules on whether his comments were in breach of the standards expected of a standards committee member and were likely, or could have, damaged the right to fair hearing of Mr. Barnbrook.
I would expect that this legal advice is obvious to anyone, though of course I could draft up a long and complex legal argument stating this in case law and precedent both in UK law and ECHR law, though an impartial legal adviser would not require such arguments due to the obvious nature of the issues in this case.
Please provide me with the information as above,
Please let me know if you require a formal legal submission re the suspension of the hearing against Mr. Barnbrook on the 24 th sptember,
Though one does have to wonder if it would do any good seeing as you are employed by the GLA to act in their interests and not those of Mr. Barnbrook, and so far you have ruled on every point against Mr. Barnbrook, and then appear to have allowed new legal submission to be made which caused Mr. Qureshi to withdraw from the case.
I still have not recieved your answer to the following questions ;
1) Who issued the legal advice to Mr. Qureshi to withdraw from the hearing
2) When was this legal advice given to Mr. Qureshi
3) Under whose authority was the advice given to Mr. Qureshi, was it legal advice from yourself ?
4) Please provide us with a copy of the legal advice given to Mr. Qureshi
5) Why was our legal submission to require Mr. Qureshi to withdraw from the hearing due to potential impartiality issues ignored by yourself, and then this later legal submission which was based on similar legal argument we had provided to you, acted upon ?
6) Please provide us with legal argument that explains in a logical manner why the issue of impartiality meant Mr. Qureshi was forced to withdraw from the hearing but that the issue of Mr. Qureshi who sat on the original panel that referred the complaint for investigation, not relevant to impartiality and that point ?
Can you please provide us with a legal argument that explains why impartiality is an issue re a possible appeal but impartiality is not an issue in relation to the original decision of the sub standards commitee to refer the case for a hearing when Mr. Qureshi was a member of that committee.
Regards,
L.J. Barnes LLB (Hons)
--------------------------------------------------------------------------------
Sent: Tuesday, 22 September, 2009 17:28:09
Subject: FW: Re The Hearing- Legal Submission
Dear Mr Barnbrook,
I refer to the submissions you forwarded to me from your legal advisor Mr Barnes, and set out my response below. To be helpful I have also copied Mr Barnes in.
Following your complaint in relation to my role and activities in connection with this case, and the subsequent review by Leading Counsel (of which you have been advised), I am now in a position to answer the points raised by Mr Barnes in his e-mail dated 21 September 2009.
With regard to your points one and two: the GLA has now received Counsel's opinion which confirms that Mr Qureshi's role on the sub-committee, before stepping down, will not have tainted the proceedings prior to his recusal.
Point 3: Mr Qureshi made his comments at the point when he was stepped down from his position on the GLA’s Hearing Sub-Committee. The meeting of the Sub-Committee has not yet taken place, and so there has, to date, been no consideration of the Investigating Officers’ report by the two sub-committees. I do not know whether the members of the two sub-committees are even aware of Mr Qureshi’s comments and have nothing to suggest that, even if they are , their personal views will be affected in any way. I cannot, therefore, agree with the assertion that Mr Qureshi’s comments have “clearly prejudiced Mr Barnbrook’s right to a fair hearing”. You have submitted a formal complaint, alleging breaches of the GLA’s Code of Conduct by Mr Qureshi in relation to those remarks. This complaint will be assessed in the normal way – and I cannot comment now in relation to the likely outcome of that process, nor, in light of that, will I comment further in relation to this point until such time as that process is concluded.
Point 4: Leading Counsel has confirmed that my role as legal advisor to the committee, and an employee of GLA, does not raise the possibility of bias and does not provide grounds for a claim of unfair treatment to Mr Barnbrook AM.
Regards,
----------------------------------------------------------------------------------
Response to the e mail I sent above recieved today ;
Dear Mr Barnes,
Thank you for your e-mail.
It appears to me that it is only after the Hearing, and only if the sub-committees find against Mr Barnbrook, that most of the matters you have raised could be considered further by you.
Furthermore, you were advised yesterday that Counsel has advised that the fact that Mr Qureshi has stepped down from the Committee does not have the effect that the whole proceedings should be treated as null and void. Mr Qureshi is now the subject of a separate complaint from Mr Barnbrook in relation to alleged breaches of the Code of Conduct. I said, via email to you yesterday, that I do not agree with your assertions that there is “clear evidence” that the proceedings have been prejudiced by Mr Qureshi’s comments.
As to your other questions, we not currently prepared to release details of the Counsel's Opinion or Counsel used nor the details of my employment.
Regards,
---------------------------------------------------------------------------------
Make your own mind up - is this an 'impartial procedure' or a Kangaroo Court for Boris and his lackeys ?
Who is Richard anyway?
ReplyDeleteWho is Richard anyway?
ReplyDelete