This is closely related to the Southwark Seizure, previously thought to have been eradicated. What happens is that the judge threatens to lock counsel up for contempt of court. In the most recent outbreak, the judge threatened to imprison a defendant and his counsel for contempt of court after defence counsel indicated at a pre-trial hearing that the defendant would not be filing an amended defence statement as ordered by the judge. Counsel nevertheless held his nerve. He followed the recommended course and secured an overnight adjournment (not in custody) to consult his head of chambers, the Bar Council, and presumably anyone else he could think of. The next morning and having already submitted a substantial skeleton on the subject, Nicholas Lavender QC appeared to persuade the judge of the errors of his ways, at least so far as the advocate was concerned. The judge immediately backed down. However, once the Silk had departed the judge turned his attention back to the defendant and locked him up for 28 days.
The Court of Appeal quashed this sentence and confirmed that the judge had no power to act as he did. The court said the sanctions for non-compliance with the defence statement provisions were explicit, as set out in s 11 of CPIA 1996. The CACD did observe that a lawyer was not permitted to advise a defendant not to file a defence statement or to omit from it something required by s 6A of the Act. The full diagnosis of the judge’s behaviour is awaited but the case is reported in note form at R v R  WLR (D) 220. Note that the appeal against a sentence of imprisonment for contempt of court lies under s 13 of the Administration of Justice Act 1960.
A judge affected with this parasite is inclined to “novel and extremely proactive” behaviour. He may quash indictments in cases that “he does not believe should have been brought before the Crown Court”: R v FB, R v AB, R v J  EWCA Crim 1857. It should be noted that the trigger for the outbreak tends not to be some defect in the indictment but is more likely to be the insistence by the prosecution in pursuing a case that the judge regards as trivial. One can perhaps understand the irritation felt by the judge, concerned at the state of the lists and the financial pressures on the court system but the main problem here seems to be that there was “simply no power or authority to take the course that he did” (per Leveson LJ). It follows that prosecuting counsel confronted with an outbreak of this affliction should stand firm and check the provisions for appealing against a terminating ruling. Defence counsel should warn their clients that celebrations may be premature. The remedy likely to be prescribed by the CACD is a fresh trial in front of a new and uninfected judge.
In a variation of the affliction (see R v SH  EWCA Crim 1931) the judge will again rail against wasting the judge and jury’s time on your case (eg “the country is next to broke, we do not enjoy the luxury of being able to spend two days … on this kind of thing” and “… I feel particularly strongly as a taxpayer that my money is wasted on rubbish like this …”). If he does not secure the dropping of the case at the very outset, there may be another outbreak of the symptoms at half time. This will very likely involve the judge himself making submissions of no case to answer. He will find the submissions most persuasive and despite soundly based reasoning from the prosecution, he will not need to hear from the defence. Alert prosecutors, recognising the symptoms will notify an intention to appeal the terminating ruling and give the appropriate undertaking (see CJA 2003, s 58; Archbold $7-244).
That medicine may not be enough to ensure a speedy cure. Many readers will know that CJA 2003 s 58 renders a ruling of no case to answer of no effect once the prosecution make a valid announcement of their intention to appeal, while s 59 requires the judge to consider either adjourning the trial or discharging the jury. You should be warned that in an extreme case, such as the outbreak in Woolwich, the judge is very likely to press on with the jury, despite the fact that he has no power to do so. This may lead to further embarrassment when the only remaining count left on the indictment is a summary only offence that should not have been there in the first place …
In relation to the “waste of money” argument, the judge should be told that counsel are well aware of Judge LJ’s remarks in R v Jisl  EWCA Crim 696 to the effect that time is not an unlimited resource and that trials should not be permitted to “meander sluggishly” to a conclusion while witnesses and jurors suffer stressful delays. Tell him that the case will be conducted as expeditiously as possible and he should just get on with it. Anyone minded to spring to the judge’s defence on the basis that he was conducting a public spirited, if slightly eccentric, campaign to save public money at a time of austerity should think again according to Leveson LJ in R v SH who said: “it is ... worth pointing out that if he had not fallen into error, the substantial waste of resources on this appeal, to say nothing of any future costs would also have been avoided.”
It might also be worth suggesting that the judge should point out to the jury that while “they may have attended for jury service expecting that they were giving up their time to try a case of greater gravity … Parliament had specifically provided that this type of case could be tried by a jury and that however lacking in gravity they perceived it to be, it was important to those involved and the public. Thus it deserved their respect and their full attention” (per Leveson LJ).
These recent maladies come on the heels of two other episodes worthy of note. The first was Northampton Neurosis. This is where the judge, following a series of no doubt helpful interventions during the evidence, sent a note to defence counsel in the absence of the jury but in the presence of her client. The note was headed “The 6 Ps” and the body of it read: “Prior Preparation Prevents Piss Poor Performance”.
Defence counsel referred the note for the opinion of the Court of Appeal (see R v Cole  EWCA Crim 3234). The CACD found it impossible to decide whether the judge thought he was being humorous or whether it was “pure rudeness.” There is no doubt as to who had the last laugh as the appellant Mr Cole’s conviction for dangerous driving was quashed, restoring his faith in the criminal justice system as he told The Daily Telegraph.
It is almost a relief to find that these outbreaks are not just a South Eastern Circuit phenomenon. The Birmingham Bug took the form of a direct assault on the judicial memory. In layman’s terms, the judge forgot his role and telephoned prosecuting counsel, leaving a message advising him to obtain some expert evidence. This communication proved fatal to the trial as the judge had to recuse himself and order a retrial.
The criminal Bar is facing a fight to secure a decent share of the available work in the future. If we get the work, the job is often demanding and stressful in any event. These cases demonstrate the importance of steady nerves when confronted with a judge going off the rails. Is it too much to ask that judges should keep taking the tablets and let us get on with the job?
Christopher Kinch QC is a barrister at 23 Essex Street and the new CBA Chairman
If you are a barrister unlucky enough to find yourself on the receiving end of judicial conduct of the kind described in this article, remember that you can call the Bar Council’s Ethical Queries Helpline on 020 7611 1307 (open between 9.15 am and 5.15 pm) or e-mail Ethics@BarCouncil.org.uk. Ethical queries are dealt with by trained Bar Council staff or referred where necessary to members of the Professional Practice Committee (as happened in the St Albans case, where counsel received assistance from Mark Ellison QC and Nicholas Lavender QC before returning to face the judge).