Sunday, November 16, 2008

Potter under investigation again

I've asked the question before: should Sir Mark Potter, President of the Family Division, have given a character reference for Bruce Hyman, the barrister who was found guilty of perverting the course of justice in connection with a case involving family proceedings? As we all know, the Office for Judicial Complaints dismissed the complaint against him by Simon Eades, Hyman's 'victim', finding that the reference had been given by Potter "in his personal, not judicial, capacity, without any reference to his judicial position". What the OCJ did not know, however, was that the reference was originally made by Potter on his official headed stationery (see above). As The Observer reports today, the OCJ has now reopened the investigation.


  1. I'm much more sympathetic to Sir Mark than many readers will be. I've a little with Hyman too, in that I think it'd be cruel beyond belief if people who'd done things wrong were supposed never to be given references, and so become practically unemployable. Of course whether the President of the family Divisions should give a reference on his headed papers is another matter, I suppose.

    I'm inclined to think there's nothing wrong with it, though. I think a reference is a personal matter: the only important thing is what Sir Mark thinks of Hyman's qualities. On the headed paper question, I think it's only wrong in this case if giving references on headed paper is always wrong, even for the most amazingly meritorious great, good and posh person. But we know those people always get "headed paper" references.

    Which last thought perhaps reveals partly where I'm coming from. I'm not defending Hyman, whose behaviour was scandalous, but on a larger scale we need to be aware that people are regularly stymied by vindictive, unfair employers who refuse to give references or who give nasty references, even to people who've worked hard and conscientiously for them. Doocing employers, say. There's no come back, of course, against an employer who refuses to give references, and if you've worked for them a long time, that can effectively cancel half your CV.

    So I admire Sir Mark, in a way, for being prepared to support someone who no doubt has considerable qualities, and who should be employed in some useful role, but who now has a massive unemployability hurdle to jump.

    Call me a bleeding heart if you like.

  2. Hi Carl,

    Interesting viewpoint. I would agree with you that Potter could have made an exception if Hyman had no other suitable 'character referees', but I hardly think that that was the case. I seem to recall that he had a large number of character references, and if that was so then he would hardly have been prejudiced if Potter had said "sorry, but I don't think it would be appropriate".

  3. Head of Legal's remarks are odd, to say the least. I take the point that it may be unfair to deny a person the benefit of a character reference just because the person best able to give it is a judge. And that's reflected in the Guide to Judicial Conduct. But Potter's intervention was in clear breach of the provisions of that Guide, which is (in the relevant parts) intended to preserve and protect not just the independence of the system of justice but the appearance of independence. Before Head of Legal goes off on an issue perhaps he could take time better to inform himself and consider.

  4. I agree that it is all about appearance - how does it look to the 'average man in the street' that the President of the Family Division has given a character reference to a barrister convicted of perverting the course of justice in a family matter?

  5. What I read into Potter's reference, the full text of which is here that if you want someone you can trust to pull off a good wheeze to get someone stitched up in the family court, then Hyman's your man. And that's from the man who heads up the Family Division of the High Court. Did anyone expect anything different? Did anyone think Potter would be told off or fired for such a monumental lack of judgment. No way, we all know that judges who lack judgment end up in the family division anyway. Where else would you expect them to go? Doesn't this case prove it anyway? Case proven, m'lud.

  6. Thanks for that. I'll make no further comment of my own...


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