SALAMAN v. THE UNITED KINGDOM
Inadmissible
Elisabeth Palm;Gaukur Jörundsson;Nicolas Bratza
The applicant is a British citizen born in 1956 and residing in Meopham, Kent, England. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was appointed an executor and beneficiary under the will of the deceased B, a freemason, who died in November 1992. This professionally drawn will, dated 5 June 1991, left a large part of the estate to the applicant subject to a life interest in the residuary estate to B’s brother, P. The applicant states that B told him that P was also a freemason. The Government have provided a letter from the United Grand Lodge of England stating that they had no trace of P as a member. On 6 August 1991, B made a manuscript codicil endorsed on the back of a photocopy of the will by which he purported to revoke the will without making any other will in its place. It was purportedly witnessed by two persons present at the time. The applicant complained to the police about the codicil after B’s death but the police did not find any evidence of criminal conduct. P applied to the High Court for a declaration that the will had been validly revoked. The applicant states that he wished to produce in evidence tape recordings of a phone conversation between, amongst others, B and a friend. Although the tapes were not produced, a transcript of one tape appears in one of the police statements which was before the judge. Two of P’s witnesses were freemasons. The evidence before the court made reference to B’s involvement in freemasonry. In his application, the applicant alleged that P’s counsel and solicitor were also freemasons. The Government have provided letters from both in which they stated that they were not, and never had been, freemasons. On 12 December 1994, the deputy High Court judge, Mr Roger Kaye, declared that the will had been validly revoked by the codicil, ordered that letters of administration be granted to P and ordered the applicant to pay P’s costs. The result of this order was that B died intestate and the entirety of his estate passed to P. The applicant had been legally represented until shortly before the trial when he dispensed with legal assistance and conducted his case in person before the judge. P died on a date unspecified in 1995, leaving no surviving children or spouse. The applicant appealed to the Court of Appeal, claiming inter alia that the evidence as to the attestation of the will was inconsistent, that the judge disallowed the admission of tapes in evidence, that P failed to disclose documents or did so at a late stage, that the judge did not explain why he made a costs order and that the judge erred in concluding that the codicil was validly executed, that B knew what he was signing and that he was not the victim of undue influence. In its decision of 22 November 1995, the Court of Appeal (Lord Justice Rose, Lord Justice Millett and Lord Justice Thorpe) found that there were no flaws in the judge’s essential findings or conclusion. Further it was noted that the applicant had not made any formal application for the admission of the tapes in evidence but that in any event it appeared unlikely that this would have influenced the trial judge one way or the other. The Court of Appeal unanimously held that there was no substance to the appeal and made an order for costs against the applicant. On 18 December 1995, the Court of Appeal refused leave to the applicant to appeal to the House of Lords. On 22 July 1997, the applicant petitioned the House of Lords for leave to appeal upon similar grounds. This was rejected by the House of Lords on 13 January 1998. The applicant alleges that he subsequently learnt that the trial judge was a freemason, and received confirmation that one of the Court of Appeal judges Lord Justice Millett was also a freemason. At the time of the hearing the applicant states that there would have been no means of discovering this. A letter provided by the Government indicates that the applicant was aware of Lord Justice Millett’s membership by 2 December 1996 at the latest. In his letter dated 18 May 1999, Lord Millett (now a Law Lord in the House of Lords) did not recall being aware that either the deceased or plaintiff was a freemason but even if it was mentioned in the papers it would have made no impression on him. He pointed out that there were 1,000 lodges in the United Kingdom and over 300,000 masons, the overwhelming majority of whom were complete strangers. As masons, they shared common interests, as did those who played golf or collected stamps. They owed each other no special obligations that they did not owe to others. They acknowledged the claims of charity but beyond this the notion that masons were obligated to support each other or protect each other’s property was a complete myth. In his letter dated 24 May 1999, Roger Kaye Q.C. recalled that he was aware during the proceedings that B had been a freemason as it had received fleeting mention. He also recalled that there were references in the documents to one or two witnesses being freemasons. He was not aware that P was alleged to be a freemason. However, this aspect was never an issue of feature in the case. At no time did it appear to him to have such a bearing or connection with the case as to call for a declaration of interest. B. Relevant domestic law and practice Freemasonry in the United Kingdom According to a Parliamentary Home Affairs Select Committee report (see below), freemasonry is a predominantly social organisation which plays a significant role in charitable activities, donating about £13 million per year to charitable causes. In their evidence to the Committee, the United Grand Lodge estimated their active lodge membership as 349,213. Freemasons belong to a lodge, each lodge having on average 40 members. Lodge meetings typically consist of a social dinner and the acting out of a series of one-act plays by members. Members take an oath to abide by particular principles, including obedience to God and the law, the practice of morality and charity and basic principles of good citizenship. Members also take oaths of mutual support. In its written evidence to the Select Committee, the United Grand Lodge stated that a Freemason’s duty as a citizen must always prevail over any obligation to other Freemasons. Although in the past, freemasons adopted an attitude of secrecy, since 1984 there has been a change. Freemasonry now publishes leaflets, its rule book and year book. Nor is there any obligation on a freemason to keep his membership of the organisation secret. Freemasonry and the judiciary In a Memorandum from the Lord Chancellor’s Department to the Home Affairs Committee entitled “Freemasonry in the Judiciary” dated December 1996 it was stated: “2.1. Judges ... are bound by the judicial oath which they take on appointment ... 2.2. In honouring this oath, a judge can be expected to have full regard to the law on disqualification on grounds of interest or bias. Recent authority on this area of the law can be found in the judgment of the House of Lords case of R v. Gough [1993] AC 646. 2.3. The law as elucidated in R v. Gough disqualifies a person automatically from taking a judicial decision if she or he has any pecuniary or proprietary interest in the outcome of the proceedings. Where a judge has an interest other than a pecuniary or proprietary one, the law disqualifies him or her from adjudicating in any cases where circumstances point to a “real danger”... of bias in relation to a party or an issue involved in the case, each case falling to be considered on it own facts. 2.4. If a judge finds that he is acquainted with, or has any other sort of relationship with, a person involved in a case or with the subject matter of the case, then the judge must consider whether the nature of the relationship would ... be such as to create a real danger of bias. This would apply to an acquaintance or relationship resulting from membership of the freemasons just as it would to any other sort of relationship. If the judge sitting decides that the relationship would be regarded as creating a real danger of bias, then the judge should disqualify himself from adjudicating on the matter ... 2.8. The judicial oath overrides any commitment which might be made as part of a person’s membership of the freemasons, and the Lord Chancellor has no reason to believe that freemasons who take the judicial oath cannot be relied upon to honour it.” In March 1997, the Parliamentary Home Affairs Select Committee published a report entitled “Freemasonry in the Police and the Judiciary” which concluded, inter alia: “The Committee conclude that, when the oaths are read in context, there is nothing in them that would appear sinister; and nothing in the evidence we have heard that would show a conflict between the oath taken by a judge or policeman and that taken by a freemason. We do not believe that there is anything sinister about freemasonry, properly observed, and are confident that freemasonry itself does not encourage malpractice.” (paragraph 32) “It is obvious that there is a great deal of unjustified paranoia about freemasonry and we have no wish to add to it ...We believe however that nothing so much undermines public confidence in public institutions as the knowledge that some public servants are members of a secret society one of whose aims is mutual self-advancement - or a column of mutual support to use the masonic phrase ... The solution is disclosure. We recommend that police officers, magistrates, judges and crown prosecutors should be required to register membership of any secret society and that the record should be available publicly. However, it is our firm belief that the better solution lies in the hands of freemasonry itself. By openness and disclosure, all suspicion would be removed and we would welcome the taking of such steps by the United Grand Lodge.” (paragraph 56) The Government responded to the Report by announcing on 17 February 1998 the setting up of a voluntary register. New recruits to the judiciary would be required to register their membership of the Freemasons. The Home Secretary stated that he would be requesting existing judges to join voluntary registers. The Government would address the need for legislation having regard to the extent of compliance with voluntary registers. According to the Government’s provisional figures, 96% of the professional judiciary have responded to the invitation to declare whether they were freemasons or not. Of those that responded, 5% declared themselves to be freemasons.