Sir Ernest Ryder, the Senior President of Tribunals, delivered a speech at The Expert Witness Institute, in which he invited the public to offer their views about what they think a functioning justice system should look like. The President also outlined pioneering projects focusing on big data, judicial training and evidence based practice.
Sir Ryder, who was tasked with modernising the family courts in 2011, opened his speech with some insights on a case called Re W, which involved allegations of non accidental injury, and which came to the media’s attention because the court wrongfully removed the child in question from his parents. The decision led to the mother having to choose between supporting her partner, who was innocent, and losing her child. She also terminated the pregnancy of her subsequent child after the allegations had been accepted by the court, knowing that her unborn child would have been removed at birth.
In that case, Sir Ryder, sitting in the Royal Courts of Justice observed:
“In the reading of complex medical materials these essential facts may become obscured. They should not be forgotten. This is not a case where there is ‘no smoke without fire’, this is a case where a family court and the expert who advised it got it wrong. The parents have no case to answer but their son spent 12 months of his very young life away from their care while the family courts acted to correct the error. K’s parents deserve an explanation as will K when he is older. It is not surprising in these circumstances that there are lessons to be learned.”
Sir Ryder made a formal apology to the parents during the hearing. Their son had been separated from them for the first two years of his life.
The case raised some very important questions about evidence, particularly medical evidence: how evidence is gathered, the absence or presence of consensus on the findings and best practice in relation to how the courts process and interpret that evidence.
Ryder’s speech pointed out these issues and also flagged up the inherent conflicts within medical and judicial processes: how we understand medical thresholds within the context of legal ones, and also how the courts combine medical data and fact together. Ryder mentioned that the multi faceted nature of hearings like the ones in Re W, framed within an adversarial system, can lead to some very serious, life changing errors.
On the adversarial nature of courts, Ryder said this:
“The traditional adversarial mechanisms we use are the well tested methods of the lawyer and judge. We derive principles from the interstitial conclusions of cases that identify or give rise to good practice. We create rules and practice directions to govern procedure so that there is consistency around the application of those principles and we permit those conclusions to be challenged, so that by the process of giving evidence in guideline cases and the process of appeal on points of principle, better practices can be identified, errors of practice can be condemned and replaced and new or alternative investigative techniques and processes of decision making can be approved, including our own. This is second nature to all of you but it is neither innovative nor swift and does not provide the litigant who has a point but as yet nothing to justify their funding with a means of getting your assistance.”
Ryder goes on to talk about the need for judges to receive specialist training when working within fields which require expert witnesses, and he mentioned a number of projects which are designed to invite best practice and improve judicial decision making in this area.
This takes Ryder over to the digital sector. He explained:
“I want to make the debate about the outcomes of justice more sophisticated and informed so that our practices and processes keep pace with scientific developments, the settled law is informed by the best of what you know and do with the ultimate consequence that we can use the data we collect to analyse what works.”
Ryder announced that his advisory council, the Administrative Justice Council, had been developing an agenda of issues relating to good practice and that the council now had four seminal projects it was working on. These projects will produce advice on best practice.
Ryder also confirmed that the council was working with the Legal Education Foundation and the Nuffield Foundation to develop several major projects. These projects include the Nuffield Family Justice Observatory which will work with the council to gather family research from across the world, and the newly created What Works centre for civil justice issues which will look into what works when it comes to access to justice, fair process and remedies available. The council will also be working with an HMCTS data lab which Ryder says will provide access to justice data for researchers.
The Tribunal President also mentioned what he said was pioneering work being done in data ethics and research methodologies being carried out by the Alan Turing Institute and the new Ada Lovelace Institute, and in his speech he urged lawyers to get involved in this area to help shape its use and effectiveness within the justice system.
And although he does not offer the public a place to reach out to him, or the Administrative Justice Council, Ryder’s final thought is an invitation to the public, to share their views on what they think a justice system should be. If you would like to share your thoughts, you can contact the council on 020 7329 5100, or email them at firstname.lastname@example.org. For those of you who use Twitter, follow the council or find them over on Facebook.