The tidal wave of #MeToo sexual misconduct allegations has rightly prompted self-analysis amongst professions and sectors, including Westminster, and an attempt to root out all forms of abuses of power, not just sexual harassment.
But shouldn’t the courtroom also be safe and how does subtle abuse of power by a judge get dealt with?
Most advocates will be able to share, first or second hand, bad experiences in court. I well remember being asked for advice in the advocates’ room at a county court by a young advocate. Just on his feet in his second six, he had arrived for a case in which none of the lay clients or opposing representatives had turned up. Before he knew he was the only person present, he had handed in a document upon which he intended to rely in the hearing. Called in by the judge he went into court alone. She threw the document across the table, saying: ‘What the f*ck is this? I am not reading this.’ He wanted to know if this was normal judicial conduct.
Barrister Mary Aspinall-Miles’ recent tweets on destructive judicial behaviour around the time of World Mental Health Day last year suggests it’s time for the Bar to break cover over the issue. In the Twitter-sphere, legal heavyweights suggested, amongst other things, a 360 degree appraisal for judges (see p 24), advocates appearing before them and court users.
When does behaviour become bullying?
Outside the UK, other jurisdictions are trying to grapple with this difficult issue. An article in Australian online journal (newlawyerlanguage, 29 June 2016), defines judicial bullying of lawyers as including, but not limited to:
- shouting at them;
- deliberately saying things to embarrass or humiliate them;
- asking them to justify themselves in circumstances that are unfair;
- calling them names;
- calling into question their professionalism in circumstances that are unfair;
- accusing them of incompetence in circumstances that are unfair;
- using various facial expressions to demean or intimidate them;
- setting unrealistic time frames;
- making them work through lunch breaks;
- refusing to give them time to formulate an argument or response in circumstances where it is unfair to do so.
The Judicial Conduct Investigations Office
Judicial bullying of advocates – as distinct from any perceived bullying of witnesses or litigants – is one that all too often goes undetected or under the radar. Disgruntled litigants, disappointed at the outcome of the case, can often be ready to complain. The judiciary can be vilified by the press, often in ways that pay little attention to the weight of evidence or the enormous difficulties faced by judges who are, ultimately, where the buck stops. None of this – the balancing of all these complex considerations and factors – renders the task of monitoring judicial conduct easy.
That task now falls to the Judicial Conduct Investigations Office (JCIO). Since 2004, when its predecessor The Office for Judicial Complaints was set up to handle complaints about judges, there has been a greater degree of transparency than hitherto when they were a matter for the Lord Chancellor alone. It can investigate the following: use of racist, sexist or offensive language; falling asleep in court; general rudeness; misusing judicial status for personal gain or advantage; criminal convictions; failure to declare a potential conflict of interest. The staff at the JCIO will tell you on enquiry that their modus operandi is to notify the judge complained of if a complaint crosses the initial threshold for investigation and thereafter to obtain and listen to the tapes of the hearing(s) which gave rise to the complaint.
The JCIO will then consider the complaint in accordance with the Judicial Conduct (Judicial and other Office Holders) Rules 2014. There is a proscribed procedure for making a complaint including time limits and requirements, some obvious but understandable, such as the need for a complaint to be legible.
The rules make interesting reading, as do the published decisions. For example, a referral will be made to a nominated judge for dealing with the investigation, once the complaint has passed the referral threshold. It is at that point the office holder is notified. Drilling down into the detail, one finds within Rule 41 some fairly obvious remedies – disciplinary action, dismissal – but perhaps more interesting is Rule 41 (c) wherein the nominated judge may ‘deal with a complaint informally and direct that it may be considered as a pastoral or training matter’.
The published decisions show upheld complaints covering a range of conduct from permitting a student to be present in a medical tribunal without permission to insufficient sitting hours (magistrates). There appear to be few, if any, examples of rudeness, offensive language or obvious misconduct such as those itemised on the JCIO checklist. Whilst many would say that this is a testament to good conduct of the judicial office holders as a whole, it nevertheless begs the question: are there forms of judicial misconduct that escape the system designed to monitor them? The Guide to Judicial Conduct 2013 is available online and gives an idea of the expectations of the judiciary. Appendix 1 will tell you that there is a commitment to ‘ensuring that the environment in which judicial office-holders and staff work is free from harassment, victimisation and bullying’.
There have been cases where the inappropriateness of the language used by the judge is one of the grounds for appeal, most recently the case of A (Children)  EWCA Civ 133, in which King LJ said ‘the unrestrained and immoderate language used by the judge must, I am afraid, be deplored and is wholly unacceptable. Such bombast can only leave advocates seeking to present, on instructions, their cases to the court feeling browbeaten and impotent and, rightly, as though their lay clients have been denied a fair hearing’ (see also p 23). Had such a case come to the JCIO, it would most likely have found in favour of the complainant. However, such overt cases are rare. Less easy are the cases in which judges bully, humiliate, intimidate and cause fear in the advocates.
Duties of care
Bullying is not itself against the law and is neither defined nor specifically related to ‘protected characteristics’ such as disability or race. However, employers owe a duty of care to their employees and a quick glance at an employment law guide will reveal how often bullying or hurt feelings is in issue. Acas, the Advisory, Conciliation and Arbitration Service, defines workplace bullying as ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the person being bullied’. The Health and Safety Executive takes the view that it is a pattern of behaviour rather than isolated instances, happening ‘repeatedly and persistently over time’. However, workers have at least the option of consulting line managers, human resources personnel, and certainly in larger companies are likely to have recourse to a grievance procedure designed to protect the worker.
Victims of bullying will tell you the experience haunts them a long time after it happened, that they have a loss of confidence or worse. Barrister Lucy Reed describes the debilitating consequences that such an experience can deliver, with the power to disturb years after the event. Bullying is dangerous and can inflict lasting damage, both subtle and overt. The HSE explains that bullying can cause depression, anxiety or low self-esteem, stomach problems or sleep difficulties.
My experience and sources of help
Having myself recently experienced behaviour from a Circuit judge that fell into the Acas definition above, I resorted to the following: an exploratory call to the JCIO (I did not register a formal complaint), a search of the Bar Council wellbeing portal, Dr Google, followed by consultation in chambers. The latter provided immediate advice and support from high levels, leading to a route through which I was eventually able to pass my concerns to the Designated Family Judge who was herself an immediately supportive and receptive ear. But, and this is the crux: despite the candid and sympathetic ears, there appeared to be nothing that those consulted could actually do about it. A High Court Judge reassured me they were dealing with the problem but no system of redress yet exists.
The JCIO would not necessarily have served the complaint well. The judge in question had not used any bad language nor employed what could clearly be identified on a tape as criticism. It is hard to know whether or not the cruelty, the acid sarcasm or the deployment of legal reference as thinly disguised weapons of humiliation would have been discernible to a JCIO listener.
The Bar Council wellbeing portal acknowledges that as a profession we are ‘exposed to emotionally and psychologically challenging environments on a daily basis’. The section on bullying is a step in the right direction and does envisage ‘a judge bullying a barrister’ but the self-help suggestions such as ‘take a deep breath’ or ‘relax’ are weak and a link to a well-researched website written by an expert in bullying which offers advice inapplicable to the courtroom is unhelpful. The wellbeing portal’s suggestion to ‘report it’ will only ever be as effective as the reporting system allows.
All holders of power should be subject to a system that can rein them in or strip away power if abused. So far in England and Wales the focus has been on the experience of litigants, witnesses and members of the public whose unhappy lot it is to find themselves in a court of law. This article asserts that there is also a duty of care upon judges towards advocates, with whom they engage the most.
It is wrong to think that there is a kind of judicial rudeness that somehow makes advocates better at what they do. We are not talking here about judicial interventions that keep up high standards of advocacy. BullyingUK regards the much touted notion of ‘character building’ as one of the ways in which bullying is wrongly framed as are ideas that public school style initiation will ‘make a man of you’ and that sexual touching is ‘just a bit of fun’. There is no fine line. Nor is it a spectrum with plain speaking at one end and bullying at the other. It is something when you hear that a court usher has made a formal complaint about a judge’s treatment of a barrister they witnessed. That this should ever have to happen speaks volumes about what is absent in the system to protect advocates.
Advocates should never have to be fearful if they need to lodge a complaint as I was, but to whom can they turn? Some might see the JCIO as a starting point, but in my view it is only suited for the standout cases and has not equipped itself to handle complaints of judicial bullying as described in this article. For example, what safety is there for a victim advocate when the offending judge is notified of the complaint of bullying yet that complainant might have to appear before them?
This article calls for reform and is an invitation to the Bar Council, the Judicial Investigations Conduct Office and ultimately HM Courts & Tribunals Service to take action to protect the interests of those who have to work daily in the court system.
Contributor Judith Trustman is a barrister at St Ives Chambers