Judicial conduct: when it goes wrong

Jo Delahunty QC considers transparency around complaints based on judicial behaviour and trial management; perceived judicial bullying of advocates and why much of it goes unchallenged

On 30 November 2017, in the wake of an energetic social media debate about the prevalence and impact of judicial bullying in the court room, I delivered a lecture as part of my Gresham Professorship called ‘What do judges do in the family court?’

This article highlights just a fraction of the issues I sought to cover in it; to those whose interest (or ire) is peaked by this contribution I ask that they access my lecture notes and the audio recording of its oration on the Gresham College website for context

Does judicial bullying happen? Anecdotal evidence

In November 2017 Mary Aspinall-Miles, a barrister based at 12 College Place, opened the Pandora’s Box on judicial bullying on Twitter and, in so doing, many other advocates came forward with their own experience. The topic created headlines in the Law Society Gazette, Legal Cheek and was widely discussed on Twitter and the blogosphere. On Pink Tape, for example, barrister Lucy Reed blogged about the ‘striking parallels’ between the #MeToo campaign and judicial bullying: ‘Most obviously, sexual assault is about power as much as it is about sex. And film producers are to aspiring actors what judges are to lawyers. What they say goes. My experience of judicial bullying has helped appreciate why it is that women don’t often call it out. Because they are powerless, paralysed, silenced.’

Reed spoke eloquently about the impact of bullying that many may recognise as an experience of their own or a friend. Reed’s description of her own response acts as the otherwise unspoken testimony of other lawyers and is recommended reading.

Since the subject was opened up for professional and public debate, Twitter movement @behindthegown was launched, ‘created by a group of barristers committed to tackling harassment and abuse of power in the legal profession’. It rapidly gained followers. And yet, in contrast to anecdotal sharing of experiences in chambers amongst friends, and on social media with colleagues, there seems to be little (if any) official data one can turn to, to see how visible the issue is, if it is an issue at all, and what can and has been done about it.

This kind of conduct is contemplated within the Guide to Judicial Conduct (March 2016, amended July 2016), which arose from what have become known as the Bangalore Principles of Judicial Conduct (initiated in 2001) and succinctly cites six ‘values’ with the stated intention: ‘To establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the Executive and Legislature, and lawyers and the public in general, to better understand and support the judiciary.’ The principles are: judicial independence, impartiality, integrity, propriety, ensuring equality of treatment to all before the courts and competence and diligence. Appendix 1 to the Guidance, subtitled ‘Dignity at Work Statement’, may be of particular relevance here: ‘The Lord Chief Justice and the Senior President of Tribunals expect all judicial office-holders to treat their colleagues and members of staff decently and with respect. They are committed to ensuring that the environment in which judicial office-holders and staff work is free from harassment, victimisation and bullying and that everyone is able to work in an atmosphere in which they can develop professionally and use their abilities to their full potential.’ These principles are just as applicable, it seems to me, to the courtroom and those who appear in it.

The Bar Council has been proactive in thinking about the Bar’s wellbeing and has created a helpful website: www.wellbeingatthebar.org.uk. The section on harassment and bullying says: ‘Barristers are expected to be fearless and robust in defence of their client’s interests while maintaining their duty to the court and the administration of justice. It is not easy to describe precisely when these behaviours become bullying. Context is important; justified and well evidenced performance management, making official complaints or reporting malpractice (when done so in good faith and with relevant evidence) is not bullying. However, it is important to be clear; bullying cannot be passed off as “strict” management practice… Bullying is not defined in employment law and this can make it more difficult to define, especially as it is often a slow process of undermining or belittling behaviour which may go unnoticed by others.’

So, are there are judges who abuse their position by being unjustifiably rude, hostile, unfairly critical of and abusive towards lawyers who appear before them? ‘Yes’: it is an issue for small minority of judges. It has happened to me. From my knowledge of, and practice in, the family Bar I have been given clear, corroborated, accounts of it occurring in the High Court. I have been told of it in the County Court. I know it has been the subject of recent meetings with a Family Division Liaison Judge, a user group and the district judge concerned sitting out of London. I have received emails from members of the Bar at all levels of Call who have experienced judicial bullying and felt deskilled and humiliated as a result.

Let me make plain that we are talking of judicial behaviour well beyond the grumpy, peeved or abrasive when an advocate’s conduct falls below that which could properly be expected by the Bench of them. One is not expecting perfection: judges are entitled to have an ‘off’ day. Given the pressures of their work, it would be unnatural if the strain and frustration of court life didn’t impact on them. And judicial patience can be sorely tested by advocates who fail to assist the court as required. But I am not talking of stern (even taciturn) judicial intervention and direction in a case to keep issues focused. What was being reported from the Bar described conduct from some judges that was highly inappropriate such that it fell within the Acas (Advisory, Conciliation and Arbitration Service) definition of workplace bullying: ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the person being bullied’. And yet, it is rare that this kind of judicial behaviour is brought to light officially.

Most of the tweets and emails I received suggested that barristers felt that complaining would harm their career. But there is more to it than that: many of those affected did not share it with anyone because they feel humiliated and professionally and personally crushed. Those of us who work in the family court know the temperament of a judge affects the dynamic of the case. We can all name those judges we wish to appear before and those we wish to avoid. And do not take the suggested parallel with the #MeToo movement too far, for the bullying behaviour I refer to makes no distinction in terms of gender of judge or advocate to whom it is directed. It cannot be explained by sexism, though elements of that may bleed through in individual cases. When it happens, for whatever reason, the impact can be profound for advocate, client, evidence called and case outcome.

When judicial conduct goes awry what can be done?

There are three areas I’d like to explore in this article. First: points of appeal based on judicial mismanagement. Second: complaints based on judicial behaviour and trial mismanagement. Third: is there a less high stress/risk alternative?

Appeal to a higher court

Space in this article allows just one example relating to judicial conduct: A (Children) [2015] EWCA Civ 133 on appeal from HHJ Robert Stephen Dodds: a successful appeal from a peremptory dismissal of an application for DNA testing by a 13-year-old child (in a bid to discover the identity of her real father) on the basis she had been deprived of a fair hearing. The Court of Appeal accepted the appellant’s submission that the hearing amounted to a serious procedural irregularity and criticised the ‘unrestrained and immoderate language’ used by the judge ‘which can only leave advocates seeking to present, on instructions, their cases to the court feeling browbeaten and impotent’. They formed this view after reading these (sample) exchanges took place:

‘Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop?’

HHJ Dodds warned the assembled lawyers, ‘You may want to put your crash helmet on,’ before saying (loudly): ‘If she told you that the moon is made of green cheese will you say, ‘Yes, S, no, S, three bags full S?’ – He continued ‘For heaven’s sake, in this day and age especially, just because the lunatic says, “I want, I want”, you do not have to respond by spoon-feeding their every wish.’

Lady Justice King called his unrestrained and immoderate ‘bombast’ both ‘deplorable’ and ‘unacceptable’. The case was remitted for re-hearing before the designated family judge for Liverpool.

Making a complaint to the JCIO

Matters of complaint against a judge which do not form the subject of an appeal to a higher court of law can be raised as a grievance with the Judicial Conduct Investigations Office (JCIO). A complaint can be brought if the judge has used racist, sexist or offensive language; fallen asleep in court; been generally rude; misused judicial status for personal gain or advantage; has criminal convictions; or failed to declare a potential conflict of interest. The complaint will be reviewed in line with the Judicial Conduct (Judicial and other office holders) Rules 2014 and the process is as follows:

All complaints received by the JCIO are sifted by caseworkers.
The JCIO may refer the complaint to a nominated judge of at least the same rank as the judge under investigation. The nominated judge will advise the Lord Chancellor and Lord Chief Justice whether there has been misconduct and, if so, what sanction is appropriate.
If the nominated judge thinks a complaint is sufficiently serious or complicated, he or she may refer the case to an investigating judge, who must be senior in rank to the judge being investigated.
The judge under investigation must be given a chance to respond. If that judge is at risk of removal or suspension, he or she can demand to appear before a disciplinary panel.

We have limited examples on the JCIO website (judicialconduct.judiciary.gov.uk): but it would appear the case of Re A above in relation to HHJ Dodds was not an isolated example of judicial excess, as a firm based in Liverpool also made complaint to the JCIO in relation to his conduct. After investigation the JCIO concluded in 2015 that his behaviour amounted to ‘serious misconduct’ in relation to three cases. The Lord Chancellor and Lord Chief Justice agreed and HHJ Dodds was reprimanded: he continues to sit in family cases.

JCIO published complaints data

The judiciary comprises approximately 26,000 individuals serving across a range of jurisdictions. The JCIO received 2,126 complaints in 2016/17, compared to 2,609 in 2015/16. The team also dealt with 526 written enquiries, compared to 662 in 2015/16. When analysing this data Stephanie Hack, Joint Head of the JCIO, said: ‘It is a testament to the high standards of conduct maintained by judicial office holders that, in 2016/17, only 42 investigations resulted in the Lord Chancellor and Lord Chief Justice taking disciplinary action’ (JCIO Annual Report 2016/17).

That may be so, but the JCIO can’t act if complaints aren’t made. As explained above, it appears that lawyers don’t make a formal complaint because they are frightened to do so. They have to go to court every day, appear before the same judge and don’t want to make their working life even more stressful by inviting more attention. The judge would need to be told of the complaint and the specifics evidencing it in order to rebut it: an anonymous complaint would have no credence. The published data shows the vast majority (1,193) of complaints were ‘rejected on the basis that the complaint does not contain an allegation of misconduct on the part of a named or identified person holding judicial office’; 99 didn’t have a sufficiently particularised claim; 231 ‘even if true it would not require disciplinary action to be taken’ and 128 were ‘untrue, mistaken or misconceived’. The data is silent on the complainants’ role, so we don’t know how many complaints were made by a barrister or solicitor as opposed to unrepresented litigants who failed to realise that a disagreement with the judge about their decision is not enough to found a complaint under the strict coda that defines the remit of the JCIO.

What are the alternatives to a formal complaint?

The Bar Council wellbeing guide has this advice:

Be polite but firm with any bullying judge, opponent or clerk if bullying takes place in court. Remember sometimes in the judge’s case the exchange may be recorded. A note or record may be necessary for appellate purposes or through Ministry of Justice or Bar Council or chambers complaints procedure.
Consider your next step. Contrary to popular belief confronting the bully might not always be the best solution and could make things worse. You may be worried about your career prospects or about the opinions of others.
Report it. If your experience relates more specifically to chambers it may be appropriate to report the matter to the chambers’ E&D officer or the Head of Chambers.
Be clear of your facts. Write down everything that takes place, when, where, who witnessed it and how you felt as a result. Remember to use any written evidence you can locate – emails, notes or anything else which puts in writing what the bully has done. This can be particularly useful in cases of ‘cyber’ bullying (bullying using text, emails or online media). You may start to notice patterns of behaviour and this evidence may be useful if you decide to confront your bully.
Seek advice from a trusted source. This might be your Head of Chambers, a colleague or your pupil supervisor or senior clerk or a friend outside the profession.

But is this enough? Elsewhere in this issue it is suggested that the professional affected should take the alleged behaviour up with Head of Chambers or Circuit who could raise it on their behalf (see p 27). I know that this has been done and has been effective. But it is an extreme case that gets to this point because of reluctance by the barrister to raise the issue for the reasons outlined at the outset of this article. Barristers don’t ‘tell’ in the main. They feel at fault. They don’t want to compromise their reputation further by making judicial criticism of them known to a wider (and more senior) circle. They want to try to forget it and hope it doesn’t happen again. They don’t want to further antagonise the judge. Is there another way forward?

Another way forward: a proposal

Are those who complain being ‘snowflakes’ who should just take it as part of the cut and thrust of a challenging work environment? I would say unequivocally ‘No’. Judges have power, and with power comes responsibility. They take an oath upon appointment: ‘I, __, do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of __, and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.’

Judges have a duty (onerous as it may be) to live up to their judicial oath even when they may feel sorely tried (rightly or wrongly) by the inadequacies of those who appear before them. Conduct amounting to the Acas definition of bullying is incompatible with the judicial oath.

So is there an alternative way of raising concerns about a judge’s conduct? I think there is real value in introducing 360-degree feedback on performance given by staff, fellow judges, solicitors and barristers (and even litigants). An isolated complaint, unless well evidenced, would be unlikely to lead anywhere. But a consistent level of complaints over a range of contributors spanning a period of time would say something very significant about the way the judge was exercising his court room power. ‘Feedback is a gift,’ it is said. With legitimate challenge comes dialogue, support and reflection with and by the judge. With reflection comes insight. With insight comes the capacity to change and improve. That is to be embraced, surely?

Judges, once appointed, are in their role until retirement. Unlike, for example, in Europe we do not have a career judiciary. The skills required to be a successful barrister or solicitor, from whose ranks the judiciary are largely drawn, are not necessarily the same as those required to hold long-term successful office as a judge. Being a Recorder, for example, is unlikely to fully prepare you for total immersion in the judicial world with its particular stresses. The Judicial Appointments Commission makes careful appointments and very few judges fail our high expectations. The many who perform their task well have nothing to fear from 360-degree feedback.

In conclusion

The role of the judge is pivotal in the lives of the people who cross their paths. We have an excellent, disciplined and principled judiciary. Demands placed on judges are high and have become all the more onerous because of cuts in funding of the court service and the inexorable rise in unrepresented litigants. But when a judge falls short of the standards expected of the judiciary one cannot be complacent and brush it under the red or purple carpet. Bullying by sarcastic comment, disparagement, rudeness, and obvious disrespect can not only undermine the solicitor and client’s confidence in the barrister, and the barrister’s confidence in themselves, but can have profound consequences that extend beyond counsel’s row and the courtroom. Most importantly, it can affect the way in which evidence is tendered and the direction of the case as the judge controls the court and the atmosphere within it.

Contributor Professor Jo Delahunty QC, 4 Paper Buildings. See the full lecture 'What do judges do in the family court?' here.

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