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The high price of justizzzzz
If you are a fan of John Travolta films, you might remember Broken Arrow.
It's one of those films in the generously titled "action" genre, involving a terrorist (played by Travolta) who steals a nuclear weapon from the American military.
The title of the film, it seems, is taken from a military term used to describe such an eventuality.
Fittingly, one of the other characters in the movie - played by Christian Slater - remarks that he is uncertain what is more disconcerting: the fact that it is possible that someone might steal a nuclear weapon, or the fact that it apparently happens so often that there is a specific term for the phenomenon.
The same sentiment might be held about the issue at the heart of a recent decision of the English Employment Appeal Tribunal.
The case, Fordyce v Hammersmith & Fulham Conservative Association (Employment Appeal Tribunal, 13 January 2006) was an appeal from a decision of a three person tribunal that had heard an employment claim. The appeal related not to the substance of the earlier tribunal's decision - but to the manner in which it had reached its findings.
During the second morning of the hearing, the lawyer for the Conservative Association observed, while he was leading evidence, that one of the three tribunal members appeared to have fallen asleep. The point was drawn to the attention of the chairman of the tribunal, who asked the [sleeping] member "if he was well" (from which it might be assumed that he woke him up).
There followed a brief discussion between the chairman and lawyers for both parties about what they thought it best to do. There was agreement that the case could carry on - and it did.
In due course, however, the unfortunate event occurred again!
Later in the day it appeared once more that the same tribunal member had fallen asleep. This time, however, neither the lawyers, nor the chairman, did anything about it.
The tribunal finished its hearing, and issued its decision. Ms Fordyce lost her case, and sought to appeal - on the basis that the decision was unsound because one of the three judges had been asleep while the case was being heard. As she put it, she felt like there had been a decision of "two and a half".
Remarkably - just like the revelation experienced by the character in Broken Arrow - there is a reasonable body of law covering a situation such as this.
Quite simply, there are a number of cases about Judges who have either fallen asleep or appeared to have been unable to conduct themselves in an adequate manner (for example, because of alleged intoxication). The Appeal tribunal applied that law to the facts of this case.
The "bottom line", as the tribunal described it, was whether there had been a "proper" hearing. In essence, that required the tribunal to ask itself whether justice had not only been done - but whether it had been seen to be done.
The Appeal Tribunal made the point that no objection could be raised to the first incident of apparent slumber. That matter had been raised, considered - and concluded because of the discussion with the chairman.
There was some comment that, against that background, the second incident of apparent sleeping should have been brought to the attention of the chairman - and, because it was not, it was a little disingenuous for either party to make complaint about it. Overall, however, the Appeal Tribunal's concern on this aspect was outweighed by the greater need for the public to feel that justice has been served in a proper manner.
On balance, it concluded that Fordyce was justified in feeling concern that she had not received the benefit of a "fair hearing". The Appeal Tribunal ordered the case to be heard again.
On one hand, it may come as a surprise - and a point of concern - for people to read about a case such as this. We expect nothing less than the best from our judiciary - and it is disconcerting when we read about a decision maker who might not have conducted him or herself in a way that we would expect.
On the other hand, however, there can perhaps be some comfort in this decision - because it confirms that, in any case where justice may not be seen to be done, a decision will be overturned – and the case heard again.
