Should Judge Fraser recuse himself from the current trial as requested by Post Office Ltd (POL)?
I am sure that is the question in everybody’s minds at the moment but to answer that we need to consider the rationale behind the request and the consequences of whatever decision the Judge makes on this matter.
First though, thanks to Nick Wallis as ever for pointing out the financial consequences of this recusal application and to Mark Baker for a very revealing legal observation.
The rationale is perfectly obvious and if it is obvious to me it is obvious to the judge also particularly after yesterdays evidence and that is to delay this trial as long as possible and to squeeze the claimants source of funding for this trial dry. From what I have read in the application for recusal there is no merit at all in what it claims because the outcome of the trial is now beyond any doubt whatsoever, given yesterday’s shocking revelations in court, and that will be complete and utter victory for the claimants.
There can be no doubt in anybody’s mind now that even a replacement Judge will come to the same conclusions that Judge Fraser has reached and will reach. If the trials are rerun then the same questions will be put and the same answers given. There is little point in rerunning the trials in the hope that the decision will be different with a different judge – it cannot be. (I have just re-read this while checking the document and it just sticks out like a sore thumb – recuse the Judge by all means but where in your application does it point out why you think the decisions would be any different – ABSURD)
So taking the above into account the Judge has to consider whether an honest and independent observer would consider whether or not the Judge has behaved in a biased way during the course of the trial and if this would affect the decision of the court. But this is no ordinary trial, this is a Group Litigation Order to be heard over the course of several years and in several different trials. In an ordinary trial there could be a recusal request at any stage of the proceedings prior to the decision of the court being made. AFTER the decision you can’t recuse the Judge! You can appeal the decision. You can ask for another judge to hear the sentencing trial but you can’t ask for a recusal after the trial has been completed.
In this case though there are several trials and a decision has been made in the first one. That stands and POL say they are contemplating appealing the decision. Judge Fraser cannot be recused from it because that trial is over. He is being asked to recuse himself from this and future trials in the GLO on the grounds that he has displayed bias and has predetermined his decisions based on part on evidence that POL suggest should not have been part of the common issues trial. POL, it should be pointed out, do not suggest that that very same evidence should not form part of future trials.
The fact is though that this GLO consists of several trials, the first one has been heard and a decision has been made. No matter who presides over the trial the outcome is the first in several decisions and the decision in the first trial will ALWAYS and HAS TO influence the Judge in the outcome of the future trials. THAT IS THE PURPOSE OF THE TRIAL and why the sequencing of them is so important. POL are not saying the Judge did not have an open mind going in to the first trial they are saying he has a biased opinion at the end of it. He is meant to for God’s sake although Bias implies unfairness which it is not.
So here is a real problem for POL and the Judge to consider (enter Mark Baker stage left). This recusal application wasn’t written in 10 minutes although it was dated and signed yesterday by the applicant. POL could not have known what was to transpire in evidence yesterday before they wrote it and bias or no bias the same honest and independent individual who would consider whether bias had been displayed by the Judge would at this stage in the trial have reached a conclusion on whether or not POL were guilty as claimed. All the evidence has been produced and the only witnesses to come were the experts who can only talk on what has been produced in court already.
More to the point though, has the Judge displayed any bias in the court towards the claimants during this second trial? No. None. He has been completely impartial and treated Ms VdB for example with the respect that she doesn’t deserve.
Moving on, there is no doubt that this is a seriously smart Judge. He knows the game and he takes everything, even the smallest piece of seemingly innocuous evidence in to his brain and cogitates on it. He wasn’t born yesterday either and he will have been perfectly aware as all judges must be that a recusal application could be made at any time so in carrying out his duties as a judge he will have gone to great lengths to maintain his impartiality. He will have taken this into consideration when reviewing his decision before publishing it for sure. Therefore to accuse a Judge of Bias is an extremely serious and possibly career damaging charge if it is upheld. On the other hand the Judge can determine that the application was wilful in that its purpose was mainly to delay the proceedings for what appears to be financial reasons that would be particularly injurious to the claimants. Justice cannot be bought and I am sure he will consider this carefully. As an addendum to that, how many recusal applications can you make? Will POL do the same with the next Judge? By their very action at this stage in the trial if a new Judge comes in he will see the tactics of POL and be biased against them from the very start! No the only reason behind this is tactical and not based on any overwhelming evidence that the Judge is biased.
I understand he has said to both parties that they may appeal whatever decision on the recusal he takes which is unfortunate and of course POL will appeal if he decides to carry on. Whatever happens the timescale of this GLO has been lengthened considerably which brings me to Nick’s point about costs. Perfectly true what he says but even though the timescale is lengthened the additional costs will only amount to the rerunning of this current trial because the costs of the subsequent trials will have been accounted for anyway. In addition the Claimants sponsors will be even more confident that their support package will bear fruit after yesterday’s revelations regardless of who the sitting Judge is.
The consequences though of yesterday’s actions by POL will come back and hit them hard. As Nick has pointed out the slightest increase in costs will detract from the amount of damages the claimants will receive. POL relies on the support and trust of the great British public and I am certain that they, the public, will inspire the media to admonish and ridicule this organisation for what they have done. As I have said before only a complete and utter fool would now buy a post office and that has severe financial implications for all those SPMRs who own one. They need to sit up and take notice and I think they will.
I have no idea what the Judge will do like all of us. He is in a horrible place at the moment but having seen the man in action I know he will make the right decision.
Finally a wee word to Sir Tim. Flashing blue lights may appear before your eyes in the near future and it won’t be as a result of a migraine it will be as a result of something you have completely overlooked.