Minutes:
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The Chair advised that the Panel was aware of a request received from Councillor Nash to have two members of the public.
The Chair invited the Independent Person to give a view.
Advice given by the Independent Person
The Independent Person explained that the Panel received a written request from Councillor Nash received on 24 January 2024. The Independent Person’s provided advice and explained the Panel did not have to consider the request buy may wish to.
The Independent Person provided information on the request from Councillor Nash on having two individuals as McKenzie friends. She stated that McKenzie friends are individuals that attend court for somebody in the family court because proceedings in the family court were closed. In criminal courts any member of the public may attend. The individual has the right to apply for a McKenzie friend and it is up to the court to decide whether or not to grant that application.
The Independent Person stated that this was not a criminal court and the Panel was not bound by the same rules, but the Panel may wish to consider following the principles of what goes on within the court process. If the Panel determined to follow the principles her advice would be that Councillor Nash makes a verbal application/request to the Panel, and details why he feels it is necessary and proportionate.
The Independent Person explained that she had never known an application for two individuals to be present as McKenzie friends, only one, and would therefore consider asking Councillor Nash to make a request for one only and added that it was doubtful that an application for two would meet the “necessary and proportionate” test. She suggested that the Panel may then wish to ask if anyone in the room had any objections, and that the Panel may then wish to consider in private deliberation, as per the court process, whether what Councillor Nash has requested is necessary and proportionate. She added that the Panel may also wish to consider the risk of having members of the public involved. Members of the public are not bound by the same Codes of Conduct and suchlike that other people in the room may be. The Panel may decide that the risks can be mitigated in which case that is acceptable.
The Panel must ensure that there is no inference drawn from the individuals taking part in the process, either a negative or positive inference. It was explained that whatever the Panel decided, reasons should be given for the decision whether they granted or refused the application in interests of fairness and that it may set a precedent for a future hearing. It would be useful to understand the decision-making process and give a degree of transparency for all concerned.
The Independent Person explained that the Panel was not bound by the advice given but she had experience and knowledge of sitting in both criminal and family courts, and her advice followed the principles applied there.
The Chair invited Councillor Nash to address the Panel.
Councillor Nash explained that Mr Brien and Mr Parker had interests in the law and in business and they would bring different aspects to his defence, therefore he considered it appropriate to allow them both to attend. He also stated that they both had a deep knowledge of “what had gone on for the last ten years” in his dealings with the Council. Councillor Nash quoted Wikipedia on the origin of McKenzie friends in a divorce case, McKenzie v McKenzie. He stated that the Judge in the 1969 case told the McKenzie friends to leave the court, but then in 1970 the Court of Appeal ruled that the Judge’s intervention had deprived McKenzie of assistance to which he was entitled to and ordered a retrial. Councillor Nash stated that it was on this basis that he had Mr Brien and Mr Parker to attend the hearing to assist him.
The Chair advised that the Panel would retire with the assistance of the Independent Person and Deputy Monitoring Officer to consider the application.
The Independent Person explained that for the purpose of transparency any advice given to the Panel would be outlined to those in attendance.
The Panel retired at 9.53 am to consider the view of the Independent Person and reconvened at 10.06 am.
The Independent Person explained that she had not said anything beyond the points as outlined above and added that she had guided the Panel through the process in terms of the considerations they might be minded to consider should they choose that route.
The Chair advised that the Panel was not obliged to consider the request but had done so in the interests of fairness. The Panel noted that the request was based on the McKenzie case which was a Court of Appeal case, and considered the current request was not relevant or proportionate, the reason being that this was not an Article 6 hearing within the Human Rights Act because of the lack of a serious sanction which the Councillor could be subject to. The Panel had taken note of the advice from the Independent Person regarding risk and considered it not to be appropriate that the two members of public remain as Councillor Nash’s representatives. The Chair requested that the two gentlemen move to the public gallery.
Councillor Nash asked if he could respond.
The Independent Person advised that the decision of the Panel should be final and there was no right of appeal but the Panel may wish to give Councillor Nash the opportunity to speak.
Councillor Nash disputed the Panel’s view that this was not an Article 6 hearing. He stated that the LGA’s guide for dealing with code of conduct complaints stated it was an Article 6 hearing, and he was entitled to a fair trial. If the Panel removed Mr Brien and Mr Parker from the trial it would diminish his defence.
The Chair advised Councillor Nash it was not a trial.
Councillor Nash stated it was a hearing and came under Article 6.
The Chair advised that the Panel had considered the request seriously and the Panel’s decision must be final and had taken the advice of the Independent Person.
Councillor Nash stated he did not consent to the trial. Councillor Nash added that he considered the hearing would be unlawful if it proceeded, on the basis that the Panel had diminished his defence. He therefore said he would leave and advised the Panel that any decision the Panel made would be considered unlawful.
Councillor Nash left the hearing at 10.10 am.
The Chair advised that the Panel would adjourn to obtain advice from the Independent Person and the Deputy Monitoring Officer.
The Panel adjourned at 10.11 am and reconvened at 10.20 am.
The Chair announced that the Panel’s decision was that it had the authority to proceed in the absence of Councillor Nash. Councillor Ring proposed the Panel proceed which was seconded by Councillor Ayres and agreed by the Panel.