" Cet
animal est méchant: quand on l'attaque,
il se défend!"
UPDATE 02 MARCH 2004
UK ATTORNEY-GENERAL SEEKS TO IMPRISON
PELLING
|
SUCCESSFUL APPEAL ON ISSUING OF DR PELLING'S COUNTER-SUMMONS
The Appeal against the refusal of the Family Division to issue
the Counter-Summons (produced again below) was heard on 12
February 2004 and was successful. Mr Justice Coleridge allowed
the Appeal and ordered that the Summons be issued in the Family
Division, not Queen's Bench, to be heard on Tuesday 6 April
2004 at 1030 O'Clock. Further details of judge and court at
the Royal Courts of Justice can be obtained from the Daily
Cause List published on 5 April after 2pm at www.courtservice.gov.uk.
The matter is expected be heard in open court: indeed if it
isn't then Dr Pelling will not be taking part. Support welcome
and needed on 6 April 2004.
The A-G has issued his own summons for directions to be heard
on 6 April. He wants an order requiring Dr Pelling to file
and serve his evidence within 14 days so he can put in further
evidence in reply - notwithstanding this is a criminal matter
and notwithstanding that so far Dr Pelling has been unable
to obtain Legal Aid. The latter is one of the applications
on the Counter-Summons: it raises a novel point of law under
the Access to Justice Act 1999 as to whether Criminal (as opposed
to Civil) Legal Aid can be granted by the Court in criminal
contempt.
JUDGE ALREADY DECIDES SOME POINTS IN DR PELLING'S FAVOUR
Mr Justice Coleridge took the opportunity on 12/2/04 to decide 2 points on the
Counter-Summons straight away in Dr Pelling's favour: the misconceived order
of District Judge Angel on 12/12/03 to transfer the case to the Queen's Bench
Division for hearing was set aside as made without jurisdiction, and the Part
of the Attorney-General's Summons alleging contempt in publishing the Bow County
Court Judgment of 1996 on Residence of Dr Pelling's son, was struck out. That
complaint by the A-G would have to be made in the Queen's Bench Divisional Court
and Leave of the Court would first have to be obtained (next).
A-G OBTAINS LEAVE IN THE DIVISIONAL COURT FOR 2ND CONTEMPT CASE
On 30 March 2004 the Attorney-General did obtain the leave of the Queen's Bench
Divisional Court to issue a second criminal contempt motion based on the publication
in CONTACT No.5 of the 1996 County Court Residence Judgment. This was the Judgment
of which the Court of Appeal refused to order public pronouncement in 1996 (see
Re Pelling-Bruce (A Minor)(Child Cases: Hearings in Open Court) [1997] 1AER 58
CA), subsequently affirmed by the European Court of Human Rights in 2001: Bayram,
Pelling v. UK [36337/97, 35974/97] 24 April 2001 (reported e.g. at [2001] 2FLR
261 ECHR). As Dr Pelling observed to the Divisional Court [Gage & Silber
JJ] on 30/3/04, Article 6(1) of the Convention does mandate without qualification
or exception that "Judgment shall be pronounced publicly". He said
that the ECHR decision was wrong, in conflict with earlier ECHR decisions, and
ought not to be followed by the English Courts which should interpret Article
6 according to its plain meaning. To do otherwise would be to violate Articles
17,18 of the Convention. However, the Court held that the A-G did have a "reasonably
arguable" case and therefore granted Leave.
PELLING v.JOHNSON: DR PELLING WINS ASSAULT CLAIM AGAINST TIPSTAFF
It will be recalled that in the course of the events of 23 January 2003 in Matin
v. Ali, which have led to the A-G's first contempt case, Dr Pelling was assaulted
by the Assistant Tipstaff Mr Philip Johnson when he sought to talk to and comfort
the distressed child Forhad Matin. Dr Pelling sued the Asst.Tipstaff [Claim HQ03X00730]
for assault, violation of right to respect for privacy [Art.8 ECHR], and misfeasance
in public office. After a 4-day trial in February 2004 Mr Justice Leveson in
the High Court found for Dr Pelling on the assault head of claim, but that violation
of privacy and misfeasance in public office were not made out. He awarded Dr
Pelling damages of £50 for assault, and part of his costs. Aggravated and
exemplary damages were not awarded. Dr Pelling has filed an Appeal to the Court
of Appeal in relation to the decision on privacy and misfeasance and in relation
to the quantum of damages & refusal of aggravated/exemplary damages. The
damages of £50 have been paid by the Lord Chancellor's Department, which
employs the Tipstaves, and Dr Pelling donated this sum to Fathers 4 Justice in
appreciation of the substantial support received from F4J members.
FORHAD MATIN WINS HIS APPEAL: HIS CLAIM REINSTATED
It will also be recalled that Forhad Matin had his own Claim [HQ03X01005] for
damages against Mr Justice Singer, CAFCASS Reporter Mrs M.Raleigh, and the 2
Tipstaves P.Johnson and S.Cheesley - but that this was struck out by the Senior
Master of the QBD, one Master Turner. Forhad appealed against that strike-out
and the Appeal was heard on 25 March 2004 before Mr Justice Newman. It was successful
in that the Claim against Raleigh and Johnson is reinstated [Forhad and his advisers
decided not to proceed against S.Cheesley as her rôle was comparatively
peripheral], while Mr Justice Newman has reserved his judgment in relation to
Mr Justice Singer. The question to be decided there is whether or not Singer
J has judicial immunity from suit - whether being a High Court Judge of the Family
Division carries with it the prerogative of bullying, threatening, and intimidating
children to the extent of threatening the child to put him into public care,
depriving him of his father, and reducing him to tears of despair, all because
the child refused to comply with the Judge's order sending him back into an environment
where he had suffered serious abuse from his mother.
DR.PELLING'S COUNTER-SUMMONS (HEARING 6-4-04)
IN THE HIGH COURT OF JUSTICE No.FD97P02101 FAMILY DIVISION – PRINCIPAL
REGISTRY
IN THE MATTER OF AN ACTION TO PUNISH FOR CRIMINAL CONTEMPT
B E T W E E N:-
H.M. ATTORNEY-GENERAL Applicant AND
DR.MICHAEL JOHN PELLING Respondent
BROUGHT IN EXISTING PROCEEDINGS:
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF FORHAD MATIN (MINOR)(b.15 MARCH 1992)
B E T W E E N:-
ABDUL MATIN Applicant AND
RUQIA ALI Respondent
_______________________________________________________________
SUMMONS
(INTERLOCUTORY): FPR 1991 & RSC 1965 _______________________________________________________________
LET ALL PARTIES concerned attend the Judge in Chambers at
the Royal Courts of Justice, Strand, London WC2A 2LL on Tuesday
6 April 2004 at 1030 O'Clock, on the hearing of an Application
on the part of the Respondent Dr Michael J.Pelling FOR THE
FOLLOWING ORDERS:
0. That the Originating Summons issued by the Attorney-General
herein on 12 December 2003 be struck out in part by the striking
out of Count II(2) [publishing the Judgment of HHJ Goldstein
21 August 1996] as a nullity, the Court having no jurisdiction
to hear this part of the Summons, and for other fatal irregularity.
1. That the said Summons be further struck out in part by
the striking out of Count II(1) [publishing information relating
to Children Act 1989 proceedings heard in private in Matin
v. Ali FD97P02101] as disclosing no offence known to English
law.
2. In regard to the preceding Order sought appropriate directions
be given for the trial of the question of the existence of
the offence as a Preliminary Issue, the directions to ensure
in particular that the Issue be not tried by a Judge of the
Family Division.
3. That the final trial of Count I [interfering with the administration
of justice in regard to proceedings in Matin v. Ali] and of
Count II(1) be stayed pending the determination of the Application
for Leave to Appeal and of the Appeal if Leave be granted of
Abdul Matin [CA Ref.2003/1734] against the Declaration made
by the President on 17 July 2003 in Matin v. Ali that the interests
of the child Forhad Matin are not such as to preclude the institution
of proceedings for contempt against Michael John Pelling.
4. That the application by Dr M.J.Pelling in Matin v. Ali
issued 14 July 2003, which was adjourned generally by the President
on 17 July 2003, be now heard.
5. That the Court grant the Respondent Dr M.J.Pelling Legal
Facilities and Assistance and Representation, or otherwise
give directions in relation to the obtaining of such Facilities
and Assistance and Representation, to guarantee the Respondent
his rights under Article 6(3)(b)(c) ECHR as now enacted by
the Human Rights Act 1998.
6. That the Order of District Judge Angel herein made on 12
December 2003 be set aside as made without jurisdiction and
a nullity.
7. That the Cause herein, that is to say Family Division Case
Matin v. Ali FD97P02101, be transferred to the Queen's Bench
Division.
8. That pursuant to RSC Order 32 Rule 13(1) this Interlocutory
Summons be heard in Court or be adjourned into Court to be
so heard. (i.e. it should be heard in open court)
AND THAT the Costs of the said Application be paid by the
Attorney-General to the Respondent to be assessed summarily
on an indemnity basis.
THE GROUNDS of this Application are as follows (see in full
in the attached Word Document).
DATED this 6th Day of January 2004.
THIS SUMMONS was taken out by the RESPONDENT DR M.J.PELLING
of 3 Avenue Road, Forest Gate, London E7 0LA.
TO H.M. ATTORNEY-GENERAL by the Treasury Solicitor, Queen
Anne's Chambers, 28 Broadway, London SW1H 9JS (Ref.LT31338G/CPW/D1),
Tel.020 7210 3282; Fax 020 7210 3410
AND TO THE COURT.
