The common law in England is the accumulated wisdom of the judiciary distilled in decisions and preserved in law reports. I think there is something quite magical about depending on a judgment handed down in the 18th century. But now I will never know whether a breach of the peace in Hampstead, London – settled in the House of Lords on 28 November 1893 – may have helped in a quest for freedom of thought and conscience in the United Kingdom today.
Findings of fact are the monopoly of Employment Tribunals. Their decisions would be completely arbitrary if claimants were unable to challenge the reasoning of the judges and their application of the law. Errors in these areas give rise to points of law that transcend issues of fact. Appeals may only be made on points of law.
It is for this reason that the dispute between James Loxham Browne and solicitor Cecil W. Dunn in Hampstead more than a century ago matters. It gave rise to the ‘rule in Browne v Dunn’ enshrined in the Bars Standards Board’s code of conduct for barristers. In fairness – and sensibly enough – witnesses must be given an opportunity to answer any attack on their evidence.
In Maistry v BBC (2012) the judge found I had failed to challenge the BBC witnesses about their claim to be unaware of my belief in the BBC Values and the higher purpose they served. By default the witnesses were found to be telling the truth. Consequently the Tribunal drew an adverse inference against my credibility which underpinned many of its findings of fact. All evidence in my favour was swept aside.
I could not dispute the Tribunal’s finding but I raised as a point of law the exceptions to the ‘rule in Browne v Dunn’ identified by the Lords Herschell and Morris themselves in their celebrated judgment.
Lord Herschell says a failure to cross examine a witness upon a point would not be unfair where it is “perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.” In my skeleton argument exchanged before the trial I said the BBC could not claim to be ignorant of a belief it actively encourages.
Lord Morris provides authority for a second exception to the rule saying that “a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box”. In short fantastic evidence that BBC managers did not understand the Values they have to apply did not even have to be challenged.
If these exceptions were considered there’s good reason to believe I would have won my case. This submission (paragraphs 32 and 33) was one of nine points of law raised in my appeal- all backed by persuasive and substantial legal authority. Others included the need for a Tribunal to base findings on evidence – why else bother to hold a trial – and to apply the law.
Lady Stacey heard these arguments in the Employment Appeal Tribunal. She summarises them usefully in her judgment but makes no comment on the merit of any of these points of law. She dismisses them without giving any specific reason. Her view is that I was generally disputing the Tribunal’s finding of facts. Her judgment is silent about the exceptions identified by the Lords Herschell and Morris.
The Rt. Hon. Lord Justice Christopher Clarke rejected these points of law in the Court of Appeal on much the same grounds. “The ET found against the appellant after an exhaustive consideration and analysis of the facts and there is no realistic prospect of establishing that its conclusions were perverse.”
And then Lord Justice Underhill found he did not have to consider these points of law as there was effectively no protection of freedom of thought and conscience in the UK.
These were all serious arguments crafted from the memory banks of the judiciary. They crumbled to dust in the neo-liberal atmosphere. Curiosity killed the cat, perhaps. But I still wonder what Lords Herschell and Morris would say.