Where they are now

Recent thoughts of the formal investigations that we have referred to on this blog prompted our curiosity to find out more as to the whereabouts of the judges who acted as chairmen in those unfortunate inquiries.

Sir David Steel, for instance, is no longer judge at the Commercial and Admiralty Courts in London. David Steel was involved twice with the FV Gaul: first in a partisan position as lawyer for the Insurance Company, then in a neutral position as chairman of the 2004 RFI.

Although not yet arrived at the age when, as a poet said, passions relax their hold, or when expired judges are customarily wheeled out of HM’s Courts, in October 2011, Sir David Steel quietly left his judicial position and returned to the bar in a less demanding, though no less cushy role of Arbitrator at 10 Fleet Street. Simultaneously, he was also appointed Appeal Arbitrator for the London insurance market. Quite surprising!!! The commercial literature advertising the nobleman’s services now refers to Sir David Steel in terms of “the retired judge”.

The other honourable judge, Sir David Young – the former Sheriff Principal of Grampian, Highland and Islands – who presided over the more recent public inquiry into the sinking of FV Trident has also left his judicial position early, that is immediately after the conclusion of the Trident inquiry.

Justice Anthony Coleman, who chaired the MV Derbyshire investigation, in his turn, left the High Court in 2001, immediately after the MV Derbyshire inquiry had ended, and set out to the Czech Republic to advise the Ministry of Justice there on procedure with a view to the Czech Republic’s accession to the EU. Sir Anthony Colman then went on to become an International Arbitrator for that temple of austerity which is the Dubai International Financial Centre.

So, all these three former inquiry chairmen are no longer judges. The Brotherhood, it seems, has its own, discreet code of honour. Still, we are left with the feeling that these three judges fared far better than the victims of their judgments. This is Britain today – long live the Queen!

More to come

Payment in nature

On the 18th of February 1974, in an interview with ITN News, David Shenton, the National Fisheries Officer for the Transport and General Workers Union, said that lack of evidence [1] about what had happened to the Hull trawler Gaul on the day it disappeared could cost the families of her 36 crewmen as much as £312,000 each [2] .

His statement [3], made just 10 days after the loss of the vessel, managed to crystallise, in a few words, the crux of the matter, which, for the next 35 years, would deny the general public the facts behind the vessel’s loss, and the families of the crew the right to know what happened to their loved ones.

It is now evident that it was not a submarine, a cold war spy-ship encounter, official secrets or hijack and capture by the Russians that had prevented the truth about this tragedy from emerging (these were just convenient ‘red herrings’ made up for the excitement of the public); it was money - purely and simply - and the British Establishment’s unwillingness to pay what amounted to a considerable sum, even though this was proper, fair and legally due to the victims’ families.

The reluctance of both governments and private companies to pay legal damages to injured parties is well-known, and has a long and colourful history in the maritime business world; what is particularly sickening, however, in the Gaul and other recent cases is the shoddiness of the tactics employed to circumvent the law: the cynical setbacks, the unnecessary delays, the long and costly legal battles, the blatant lies and, despite the recent disclosures, the persistent suppression of the truth, all of which go far beyond reasonable prudence and concern for the interests of shareholders and taxpayers.

But what is, perhaps, even more disturbing is the ease, the audacity and the extent to which the ‘cartel’ of politicians, businesses, insurers, civil servants, law firms and the judiciary are nowadays prepared to collude in order to prevent the payment of lawful compensation to those who have suffered such terrible losses.

In the Gaul case, this collusion led to a dubious but costly public inquiry, which, contrary to the available evidence, laid the blame for the tragedy with the crew.

A decade ago, in the debate about the limitation of liability for the maritime industry, justice David Steel placed himself firmly on the side of the shipping and insurance industries, whose financial interests he considered more important than fair compensation to claimants for damages caused by shipping mishaps.

The same justice Steel was then appointed to chair the 2004 Re-opened Formal Investigation into the sinking of the Gaul, which, surprisingly, found no fault with the vessel and, therefore, no grounds for subsequent compensation claims by the victims’ families.

Of course, a fine balance between safety and profitability has to be struck, no one wants the shipping or the insurance industries to go bust, but “at no time should any innocent party be expected to subsidize any business by their personal loss”, [4] nor should a formal legal process to be turned into a farce.

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[1] Simply put, as long as there was no firm evidence concerning the loss of the Gaul, liability could not be established and there could be no compensation for the dependents.

[2] About £3.5million in present day worth

[3] Unfortunately the families were soon to lose their champion as Mr Shenton passed away shortly thereafter. Mr James Johnson paid the following tribute to Mr Shenton in the House of Commons on 5 April 1976: “The late David Shenton, National Fisheries Officer for the Transport and General Workers' Union—whose untimely death is a great loss to the industry—did a great deal for the fishermen in Hull.”

[4] Serge Killingbeck, SCU Law Review Volume 3 November 1999

The culture of callousness

It is common knowledge that the measure of a civilised society is given by the way in which it cares for its weakest members. Judged by that measure, I’m afraid, today’s Britain would not score very high - the sympathetic activities of our so-called social-democratic regime being more declamatory than real.

A culture of callousness seems instead to have pervaded Britain, the latest and most shocking example of which being the disgraceful treatment of the soldiers wounded in combat in Iraq and Afghanistan.
As if possessed by some ungodly avarice, the government has adopted the moral philosophy of the money-changers, and has now the audacity to take those wounded in war to Court, for the purpose of minimising their injury compensations.

Taking from the most deserving and giving to the least - this is what the squandering of public money on frivolous schemes and dubious contracts, rather than paying for the state’s most basic obligations, equates to.

The whole charade of leaving the MOD to handle competing financial obligations on a fixed, limited, budget is just an unseemly subterfuge; the government could very well set up a separate, special, fund to settle the claims of the military and avoid this ugly and ungenerous quarrel.

Also nowadays there appears to be a stigma attached to any search for compensation – as if all those seeking to obtain financial redress for their losses were some kind of system spongers or benefit cheats.
The so-called ‘culture of compensation’ that many within the British Establishment often decry is, in fact, the normal application of the law; it is not charity.
The right to compensation represents one of the principal checks and balances that society has created so as to ensure that its weakest members have some protection against the might of the strong.
What is more, the prospect of litigation can make both governments and private employers much more careful when dealing with human lives.

Our government should be able to recognize these factors and strike a fair balance between ethics and their various financial priorities.

Lord Woolf’s concerns

In December 2004, at the time when the Gaul RFI concluded and produced its final report, Lord Woolf, then Lord Chief Justice, was clashing with the government, an article published in the Times informed us, over a “matter of principle”.
The matter in question was Lord Woolf’s view – a view shared by other judges apart from the Lord Chancellor – that the final decision as to whether or not High Court judges should chair public inquiries, and who should be appointed to such duties, must necessarily rest with the head of the judiciary.

Lord Woolf was concerned that “public confidence in the judiciary’s independence could be harmed if judges were drawn into politically sensitive public inquiries” [*] where they could be seen as siding with the government, and that the separation of powers might be consequently compromised.

Lord Woolf was of the opinion that not all public inquiries were apt to be chaired by judges and that, from some cases of a “politically sensitive nature”, judges ought to stay well away.

Lord Woolf’s objections had been sparked, we were told, by the negative public reaction to the conclusions of Lord Hutton’s inquiry into the circumstances surrounding the death of the Government weapons expert David Kelly.

The Times article also listed the 13 inquiries which had been chaired by judges since 1997, and which included the sinking of the MV Derbyshire, FV Gaul and the Marchioness.

What struck us about Lord Wolf’s arguments, however, was the fact that his Lordship appeared more in favour of the judiciary skirting the politically sensitive cases rather than accepting the challenges they presented, giving thus the impression that the judges wanted both to have their cake and eat it… that is to remain both virtuous – preferably through non-exposure rather than as a result of personal endeavour - and on good terms with the government of the day.

And, reverting to the unfortunate case of the Gaul RFI, one feels tempted to ask, why is it that some of our judges, whose righteousness Lord Woolf was so keen to protect, having already sided with the government and having already been seen doing so, are still unwilling to make amends?

Are not our judges supposed to be the heroic defenders of the law’s basic commitments against the encroachments of politics? Is judging no longer concerned, as judge William E. Werner once explained, “with the romance of perseverance, of pluck and back bone”?

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[*] Woolf wants final say over inquiries, The Times, December 15, 2004

Pressure Sores

The newspapers have recently informed us that "irresistible pressures” ended an investigation by the Serious Fraud Office into alleged high-level bribery and corruption. In the strange WMD intelligence dossier case, as well as in several other notable affaires, the same sort of pressures seem to have played their part, blocking inquiries or driving them towards a convenient, pre-ordained outcome.

These histories bring to mind the “pressures” applied on the protagonists in another failed governmental investigation: the 2004 Gaul RFI. I recall now that, following the publication of the Gaul RFI final report, a participant in the formal investigation commented that the Wreck Commissioner (justice David Steel) seemed to have his own agenda when probing the reasons for the tragedy; the implication being that outside “pressures” might have weighed upon His Honour more than the available evidence and testimonies.

Having tried for almost two years now to have the conclusions of the 2004 RFI re-examined, we have realised that the bodies responsible for dealing with the concerns that had been raised also seemed to be under some kind of nocuous “pressures” from which they couldn't escape.

Pressures, as we know from the laws of physics, can be harmful to a body when they outbalance the body’s ability to stand firm. Therefore, so as to prevent injury to our public bodies we must either restrain these terrible forces, or, somehow, invigorate the former’s ability to resist and respond.

The judge

Justice Steel, the Wreck Commissioner in the 2004 Gaul RFI, his term having recently expired, has stepped down from the Presidency of the Commercial Court.
In spite of our tenacious attempts, we have never managed to establish a direct contact with His Honour, as he has been very agile at avoiding us.
There is sparse data in the public domain about the life and career of justice Steel, so, for your information, we can only provide an extract from Who’s Who 2006 catalogue:

STEEL, Hon. Sir David (William), Knighted in 1998; Hon Mr Justice Steel; a judge of the High Court of Justice, since 1998; Presiding Judge, Western Circuit, since 2002; born 7 May 1943; son of Lincoln Steel and late Barbara (née Goldschmidt); [In January 1998, on the recommendation of the Lord Chancellor (Lord Irvine, Tony Blair’s former mentor) he was appointed High Court Judge]; Judge Admiralty Court 1998-; Judge Commercial Court 1998-; a Wreck Commissioner for England and Wales 1982-1998; Chairman, Commercial Bar Association, 1990-1991; Member, Lord Chancellor’s Advisory Committee on Legal Education and Conduct, 1994-1998; Chairman, OUBC Trust Fund Committee, 1990-1993

Mr Steel has represented the Government on a number of memorable occasions:

In 1987, he represented the Department of Transport and had conduct of the Formal Investigation into the Herald of Free Enterprise disaster at Zeebrugge. (188 lives lost with the casualty attributed to serious negligence by the crew)

In 1989, he again represented the Department of Transport and had conduct of the Formal Investigation into the loss of the MV Derbyshire. (44 lives lost with the vessel considered to have been overwhelmed by the forces of nature – not a design fault as alleged by the families of the victims)

Mr Steel’s involvement in the Gaul legal case started in 1978 when A.M. Jackson & Co., Solicitors for the Insurance Company, engaged Michael Thomas QC and David Steel to advise on the defence on the negligence charge that had been brought against the Gaul Owners and Builders.[1],[2]
In 2000, the guiding hand of fate brought David Steel once again at the epicentre of the Gaul saga - this time as Wreck Commissioner in the Re-opened Formal Investigation (RFI).
The victims’ families - I have been informed - as if possessed by a sombre premonition, tried to recuse him from the RFI on the basis of his previous involvement in the case.
However, although it is stated in law that a judge can be recused by opposition of either party or disqualify himself on grounds of prejudice or personal involvement, and despite the fact that there were certainly many others capable of sitting as Wreck Commissioner for the Investigation, the families’ resistance to justice Steel’s appointment did not succeed, and they had to contend themselves with the Commissioner chosen by the government.

Having always held the judges of this country in some kind of veneration, after our disclosures, we expected Sir David to show some last-minute sympathy towards the idea of putting right what he had obviously let go wrong. As Admiralty judge and head of for the 2004 Investigation, he was in a good position to recommend a re-opening of the case.

We were, however, to be disappointed: justice Steel decided to hide and stay quiet.
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[1] The Loss of the Motor Trawler Gaul, by John Nicklin, 1998
[2] The owner of the shipyard in 1978 was British Shipbuilders (a State Corporation), hence Mr Steel was effectively acting for the Government of the day (i.e. Labour)

Meanings

Some of those who have read our previous POST may wonder whether the definitions used in the 2004 Gaul RFI were tailored to suit the conclusions of the investigation or whether they were just an unfortunate mistake that, it so happened, had a serious impact upon the outcome of the inquiry.

We cannot provide an answer in this respect, but we can supply some additional information:

- The definitions for ‘watertight’ and ‘weathertight’ are common knowledge amongst marine professionals, so it would be unreasonable to assume that the panel of experts in the Gaul RFI were not familiar with these classifications.

- Justice David Steel, the Admiralty judge, who conducted the formal investigation into the loss of MV Herald of Free Enterprise (1987), seemed, at the time, to be well aware of the correct meanings of the terms:

“[the term]…Watertight is applied to doors and bulkheads where there is the possibility of water accumulating at either side. Weathertight applies to doors or openings, which are only required to prevent the ingress of water from the side exposed to the weather.”[1]
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[1] David Steel Q.C., mv Herald of Free Enterprise, Report of Court No.8074

Investigation on behalf of the Attorney General

Body language

While waiting for an answer to our question about the ‘missing evidence’ (which, between us being said, was somewhat rhetorical), we decided to address another query to justice David Steel:

What recommendations, advice or expression of expectations regarding the Gaul case did the Attorney General and the DPM, John Prescott, offer you before and during the 2004 Formal Investigation?

© Crown copyright 2004

The smell of fish and bilge water

In the period between 17 and 24 January, two emails were sent to justice David Steel (the Chief of the 2004 Re-opened Formal Investigation into the sinking of the FV Gaul) and two emails were received from the judge's office in reply.

These items of correspondence were concerned with the very same question that had not quite made it to the Parliament Question Book earlier this year, and which was now addressed to the judge:
Was any evidence of design inadequacies in the construction and arrangements of the duff and offal chutes on the Gaul, specifically relating to:
a. The non-return flaps and their possibility of malfunction (i.e. to open under the action of the sea)
b. The strength of the inner covers when subjected to direct sea loading,

presented to you prior to the publication of your final report on the Investigation on 17 December 2004?"

A simple ‘yes' or ‘no’ from the judge, who acted as solicitor on behalf of the Insurers back in 1978, then as Chief of the Investigation in 2004 and was therefore in the best position to know the answer, would have sufficed.

Sadly, however, we were not meant to get either.

Improbable impossibility

An extract from the Report of the Re-opened Formal Investigation into the loss of the FV Gaul:

"21.1 What was or were the probable cause or causes of the loss of the GAUL?

A sudden and rapid accumulation of water on the factory deck, (...)

21.2 What possible causes can be eliminated by the evidence which is now available?

All other causes including, seizure, scuttling, fire, collision, explosion, missile attack, torpedo attack, striking a mine, icing, cargo shift,structural failure, grounding, snagging a seabed cable or a submarine.

21.3 What other possible causes remain open?

None."

By definition, probable is something likely to happen but not certain. What is not absolutely certain leaves room for other possibilities. Therefore other possibilities (i.e."all other causes") cannot be eliminated.

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"There is no use in trying," said Alice; "one can't believe impossible things.""I dare say you haven't much practice," said the Queen. "When I was your age, I always did it for half an hour a day. Why, sometimes I've believed as many as six impossible things before breakfast." (Excerpt from "Alice in Wonderland")

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