OPINION Judicial conduct: talking & listening

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Huge strides have been made since advocates started talking openly about judicial conduct. Why the momentum for change must continue – and with understanding on both sides – to ensure there are lasting effects. By Mary Aspinall-Miles

Sometimes being a barrister feels like being Alice in Wonderland, where time and space do curious things and the world is full of even more curious creatures. When I was asked to write this article for Counsel, I retraced my steps from moderating a discussion at Middle Temple in November 2019 on judicial conduct, back to when I tweeted about the issue in October 2017. I was immediately reminded of that famous quote from Alice herself: ‘It’s no use going back to yesterday, because I was a different person then.’ It seemed to me that two things had changed since then: I had, but more importantly, the environment had as well.

Once the issue had been named and brought into the light, its power seemed to diminish; a willingness to discuss the problem not only revealed its scale but in itself gave part of the solution. Barristers across all practice areas felt able to talk with each other more openly about incidents, and that in turn brought greater support and awareness. I said that I had changed too. There has been a growing sense that this is not an issue necessarily specific to the individual, but perhaps symptomatic of a deeper one, and thus our confidence has grown. This is not to abrogate our individual professional responsibilities; but it has enabled us to be more clear-eyed about self-analysis of performance.

The mood music in the legal environment also seems to have changed. Those who lead the Judiciary and the Bar have taken steps to address the issues. The Bar Council guidance published in February 2019 (Advice to the Bar about Bullying by Judges) was a particular landmark; not only because it offered clarity in its definition of what could constitute bullying, but also, perhaps, an objective overview. It says this:

‘Barristers are ordinarily well able to, and do, take a sensible and responsible view of what judicial conduct is and is not proper, but sometimes there are misconceptions about bullying.To be clear – 

Bullying is offensive, intimidating, malicious or insulting behaviour involving the misuse of power such as can make a person feel vulnerable, upset, humiliated, undermined or threatened. It does not need to be intentional.

While all incidents must be judged in context, bullying involves behaviour such as: 

  • personal abuse 
  • sarcasm
  • contemptuousness 
  • unreasonable demands
  • relentless criticism 
  • intemperate language 
  • demeaning behaviour 
  • comments designed to embarrass or humiliate. 

It may also include questioning counsel’s competence or professionalism, or asking counsel to justify him/herself, in circumstances that are unfair.’ Bar Council Guides: Advice to the Bar about bullying by judges 

In offering the guidance, the Bar Council gave greater certainty to barristers as to an acceptable framework – because to define and name a thing, makes it easier to at least identify it.

Changing dynamics, dynamic change

Professor Jo Delahunty QC has been instrumental in spearheading a challenge to the culture and how it might be improved in the future (see, for example, ‘Judicial conduct: when it goes wrong’, Counsel, March 2018). Any such guidance would have seemed alien and almost incomprehensible when the original Pandora’s box was opened in 2017, as Jo described the initial social media storm. It simply was not the dynamic of the relationship between the Bar and judiciary back then, even though it was only two years ago.

If you had told me in 2017 that there would be an open discussion panel with the President of the South Eastern Circuit, a Lord Justice of Appeal and a leading silk, moderated by a junior, about judicial conduct, I would have laughed. However, that is precisely what happened on 13 November 2019 as part of Middle Temple’s innovative Survive and Thrive series of talks. Although the talk was governed by Chatham House rules, it can be revealed that a common theme emerged – that there was now greater awareness, if not quite understanding, of the respective roles as they are today. Also, that a little bit of communication can go a very long way to ameliorate some of the tensions that can arise in a case. Conversely, and the basic tenet of advocacy (both oral and particularly written), brevity was seen as the key to ensuring smooth relationships – no one likes to draft 50-page skeletons and it seems that no one likes reading them either. Like a latter-day Alice, believing at least one impossible thing before breakfast seems less far-fetched than it once did.

As with the Bar, now that the issue has been brought out to the light, in the Judiciary there appears to be a greater willingness to engage and acknowledge that there is work to be done. In particular, there have been moves to better support and supervise judges in their jobs by a greater understanding of the challenges they now face as the funding crisis in publicly funded work continues to deepen its bite, as well as with the rise of technology and social media, all coupled with increasing workloads. There may be in the future a greater emphasis on resident judges/supervising judges to monitor and support judicial performance. Although not strictly related, the case of District Judge Claire Gilham, who says she is a ‘whistle-blower’, at least highlighted the difficulties that judges are, perhaps, facing behind the scenes – particularly those who are lower down the judicial ladder (‘Whistleblowing judge denied her human rights, rules Supreme Court’, Law Gazette, 16 October 2019).

Equally, counsel will have to look to their own conduct, as it appears that the distance between Bench and Bar means that some forget that judges are human too.

Further adventures

However, the ‘adventures’ are not over in terms of judicial behaviour. There was the reported case of C (A Child) (Judicial Conduct) [2019] EWFC B53, which was a family law case involving the conduct of the district judge as one of the central points of appeal. Gordon Exall from Kings Chambers in his excellent civillitigationbrief.com blogged on the central issues here: ‘Appeal allowed when the trial judge overstepped the line’, 25 October 2019.

Lucy Reed, a family practitioner from St John’s Chambers and whose blog is the award-winning Pink Tape, wrote an as ever thoughtful and insightful companion blog to it: 'Judicial conduct - what about the context?'

In it, she identifies judicial resilience as being worn thin in all quarters. In fact, everyone’s resilience is now gossamer thin and held up like butterfly wings to be inspected under the magnifying glass of lay and professional clients/witnesses alike.

This is certainly true for those who practise in publicly funded work, where every branch is overweighed to the point of breaking – whether it be Police, local authorities, court staff, solicitors or social workers. It almost echoes with some of the issues that DJ Claire Gilham sought to raise with the Ministry of Justice. Caseloads have increased but judicial sitting days have not, and the volume of sensitive, often distressing, cases is unrelenting in what is often a lonely and isolated job. The Bar can, at least, find solace in the company of others in the robing room in a way that a DJ in their room cannot.

This is not to say that those in private practice are better off, as it seems that some judges view that as blank cheque for making unreasonable demands. As a civil junior said, ‘It doesn’t matter how much I am paid, I cannot make there be more than 24 hours in a day.’ The Court of Appeal pulled no punches whatsoever in Serafin v Malkiewicz [2019] EWCA Civ 852 in describing Mr Justice Jay’s conduct during the course of a libel trial:

‘On numerous occasions, the judge appears not only to have descended to the arena, cast off the mantle of impartiality and taken up the cudgels of cross-examination, but also to have used language, which was threatening, overbearing and, frankly, bullying.’ [114]

Through the looking glass

Huge strides have been made in the past two years, but the momentum for change must continue to ensure there are lasting effects. In reality, it is in everyone’s best interest to continue to discuss and ventilate the issue as it arises, as it improves our collective working conditions.

Anecdotally, a pattern seems to emerge in many cases of judicial ‘bullying’ that the individuals displayed some of the behaviours complained of before being appointed to the Bench. It has also been noted by some senior judges that being a good lawyer/barrister may not always translate into making good judges, as the jobs are fundamentally different requiring different skills and qualities.

Judge-craft can be taught but character cannot; patience not only being a virtue but an essential part of the job description. It may well be that the Judicial Appointments Commission’s initial application may test competencies, but capability and suitability may be areas that require some review.

I heard a piece of folk advice that you never win an argument by insult, and fellow barristers perhaps should heed the words of the Cheshire Cat to Alice:Which way you ought to go depends on where you want to get to...’

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Mary Aspinall-Miles

Mary Aspinall-Miles, Chambers of Nicholas Haggan QC, 12CP Barristers, Southampton, is an elected member of the Criminal Bar Association Executive Committee and CBA contributor to the National Disclosure Improvement Programme. All views expressed in this article are personal to the author.