Joshua Rozenberg: Look out for a retirement announcement from the High Court’s Mr Justice Peter Smith

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By Joshua Rozenberg on

Lost luggage rant judge could bow out now, just as he qualifies for a pension

Via Prisma

Has Mr Justice Peter Smith finally decided to leave the bench? The senior Chancery judge clocks up 15 years in the High Court over the Easter weekend. At the beginning of May, he turns 65 and qualifies for a judicial pension. That’s when people are expecting him to hang up his wig.

There will be widespread relief if Sir Peter Smith jumps before he is pushed. Few doubt he has poor judgement, something of a drawback for a judge. How else can we explain the “shocking” and “disgraceful” letter he sent a senior barrister in 2015 — which, as the Court of Appeal said, showed “a deeply worrying and fundamental lack of understanding of the proper role of a judge”?

But a judge can be sacked only for misconduct. Smith already has one such finding recorded against him. In 2008, he was reprimanded by Lord Phillips of Worth Matravers. Despite that, the then Lord Chief Justice said that Smith had his “full confidence” and allowed him to continue sitting.

I realise that Smith may be as unknown to some readers of Legal Cheek as Mr Justice McCardie, who shot himself in the head in 1933 to escape from gambling debts, two long-term mistresses and an unacknowledged son. But those whose memories date back to 2006 will remember Smith as the judge who heard The Da Vinci Code case, dismissing a breach of copyright claim against the book’s best-selling author Dan Brown and then including a coded message of his own in his 70-page judgment.

That produced only muted criticism from the Court of Appeal in 2007. A few months later, though, the court laid into him over the way he responded when Addleshaw Goddard made him a job offer and then withdrew it on grounds of expense. This might not have mattered if Smith had not been hearing a case at the time against one of the firm’s partners, sued in his capacity as a trustee. After Smith had refused to stand down, the court criticised his interventions as “intemperate” and held that “a fair-minded and informed observer would conclude that the judge was biased” against Addleshaw Goddard and its partners.

It was at that stage, almost a decade ago, that I first called on Smith to resign. As I say, he was merely reprimanded for misconduct — although it’s believed he agreed not to hear any more cases involving Addleshaws.

Since the summer of 2015, further allegations of misconduct have been under investigation. It all began when Smith and his wife spent a week in Florence. Their return flight to London was delayed and the aircraft, operated by a low-cost airline associated with British Airways, took off without any of the passengers’ bags — though they were delivered a few days later.

But Smith complained to the BA chairman, Keith Williams. He told Williams he was a judge. And not just any judge: he had been nominated to try a long-running action brought against BA itself. More than 300 claimants were accusing the airline of being part of a cartel involved in fixing the price of air freight services.

After writing to BA, Smith called in the lawyers from the case he was due to try. He suspected that everyone’s luggage had been left behind deliberately so that the aircraft could carry a more lucrative cargo. If that turned out to be true, the uncanny similarity between his own experience and the claims he was to try might mean that he could no longer decide the dispute.

BA’s lawyers knew nothing about his cases. Instead, they asked the judge to stand down because of apparent bias against their client. To avoid cost, delay and inconvenience to the parties, Smith agreed.

Just before giving judgment, though, he closely questioned BA’s counsel, Jon Turner QC, about his flight back from Florence. Smith is recorded as asking “what happened to the luggage?” not just once but again and again and again.

Was that just a robust series of exchanges with a barrister who was well able to stand up for himself? Or was the judge running up costs by ventilating a personal dispute at inordinate length, at one point threatening to order BA’s chief executive to appear before him that day? The Guide to Judicial Conduct states: “a judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge’s family or of anyone else.”

Nearly two years on, we are still waiting for a decision on whether Smith’s behaviour amounted to misconduct. The Judicial Conduct Investigation Office (JCIO) began investigating his behaviour in July 2015. A nominated judge was appointed later that year to advise the Lord Chief Justice and the Lord Chancellor. Smith responded in 2016 and a four-person disciplinary panel met later in the year. According to guidance from the JCIO, a:

[D]isciplinary panel is convened… when a nominated judge has made a finding of judicial misconduct and recommended that the subject of the complaint be removed or suspended from office; or as directed by the Lord Chancellor and the Lord Chief Justice.

The panel had been due to meet again in March 2017 but failed to do so.

Its deliberations were complicated by an article Lord Pannick QC wrote for The Times in September 2015. Pannick argued: “the Lord Chief Justice should consider whether action to address Mr Justice Peter Smith’s injudicious conduct has, like his luggage, been delayed for too long”. That provoked Smith’s “shocking” and “disgraceful” letter to Pannick’s head of chambers (pictured below). The letter has also been referred to the JCIO.


Over a period of nearly two years, the JCIO has said nothing more in public than that the investigation against Smith was continuing. This is hardly consistent with the principle of open justice. I can see that it might be damaging to public confidence if entirely unfounded complaints against the judiciary could be freely reported. But it cannot prejudice a judge’s right to a fair hearing for the JCIO to confirm the stage an investigation has reached.

The JCIO’s failure to do so can only feed speculation that Smith and the disciplinary panel have reached some sort of tacit understanding. Did the judge agree to resign on turning 65 provided there had been no further disciplinary finding against him? Might we simply be told next month that Smith is no longer a judge and the case against him has therefore been closed?

That is pure speculation on my part. But what we know for a fact is that, since last summer, “he has agreed to refrain from sitting”. That sounds to me like a deal: stay at home quietly where you can’t cause any more trouble and we’ll pay you your full salary until you qualify for a judicial pension.

From the judiciary’s point of view, that might be regarded as a pragmatic approach. After all, a High Court judge may only be sacked on an address presented to the Queen by both houses of parliament. The spectacle would have been magnificent but the damage to public confidence potentially huge. No High Court judge in England and Wales has ever been sacked in this way.

Once Smith has gone, consideration of the complaint against him will come to an end. But regulation 23 of the Judicial Discipline (Prescribed Procedures) Regulations 2014 says that the Lord Chancellor and the Lord Chief Justice may make a finding of misconduct against a former judge if a disciplinary panel “proposes to advise, or has advised, [them] that the office holder concerned should be removed from holding their office”. We need to be told whether that was the case here.

The Lord Chief Justice should also commission an inquiry into whether the present complaints system strikes the right balance between judicial independence and the efficient use of judicial resources. In our efforts to protect the judges against their critics, have we made it too easy for someone to play the system? Or should we be safeguarding judicial tenure against those who would question it — such as Liz Truss, the Justice Secretary, who is seeking power to limit the term of office of the Lord Chief Justice and other senior judges?

Despite everything, I have some sympathy for Sir Peter Smith. A former lecturer at Manchester University, he was well regarded by members of the northern circuit and academic colleagues including Baroness Hale. He hadn’t wanted to become a judge: the idea is said to have come from a former head of the Chancery division who though a chippy northerner would shake things up a bit and improve diversity.

But Smith’s tendency to shoot himself in the foot has been evident for more than a decade. Fortunately, Chancery judges are not trusted to sit in crime. If we can learn lessons from the sorry way Smith’s case was handled by senior judges, maybe his 15 years on the bench will not have been entirely in vain.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. You can read his previous Legal Cheek articles here.

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