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Judicial bullying affects aspiring barristers too

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Taboo subject dissected by a BPTC graduate

If you are being bullied at your workplace you have a few options. You can talk to the bully directly, approach your line manager, speak to HR, contact ACAS or even bring a claim for constructive dismissal. However, what do you do when you are being bullied by a judge who, though technically not your boss, is the person with the highest authority in the (court)room, which you consider your workplace? Who do you speak to and why does it matter?

The Judicial Conduct Investigations Office (JCIO) has been responsible for handling complaints against the judiciary since taking over from its predecessor, the Office for Judicial Complaints (OJC), in October 2013.

JCIO publishes annual reports as well as updates about current investigations. Despite this, the procedure remains vastly concealed. The public can read, for example, that a matter was considered and it did not amount to misconduct, but we do not know who investigated the conduct, what was looked at and even if the complaint was made by a litigant or a legal professional.

According to statistics from the annual reports published by the JCIO, only a fraction of complaints made against judges are investigated. The JCIO suggests this is because case management and judicial decisions are complained about often, topics not within the JCIO’s remit.

If this is true, this would imply that most of the complaints are made by litigants rather than legal professionals. So why are legal professionals not complaining if they are being bullied?

Unfortunately, it’s not the case that people aren’t complaining about judicial bullying because it doesn’t exist.

A 12 College Place barrister, Mary Aspinall-Miles, opened Pandora’s Box on judicial bullying last month in a series of tweets which has led to lawyers coming forward with their gruelling experiences. Many admitted to not reporting due to fears of stunted career progression and feeling ‘paralysed’ at the moment it happened.

But this is a phenomenon that transcends the practising bar, too. During a mini pupillage I watched a junior barrister being yelled at by the judge for offering to research a matter at court from her laptop. Although I experienced a lot during that mini, what I remember the clearest is not wanting to be yelled at.

During the Bar Professional Training Course (BPTC), many of my peers were the most unmotivated about going to advocacy classes due to the fear of being humiliated by the “judge” — now imagine that feeling of being humiliated by an actual judge in front of your client, professional client and perhaps even a jury. Although it might not put budding lawyers off their true passion permanently, it does make the profession seem rather unapproachable, even if the truth remains that the bullying judge is an exception rather than a rule.

How do we go about tackling this? Would more transparency by the JCIO help?

Possibly, but if the investigations related to Mr Justice Peter Smith have taught us anything it’s how frustrating the JCIO complaints procedure is.

Those of you who are not familiar with Mr Justice Smith should know the judge has been investigated since July 2015 after going on a rant about how British Airways allegedly lost his luggage during a case the airline was party to. This questionable behaviour and investigation did not stop him from making things worse for himself by throwing a hissy-fit over an article Lord Pannick QC wrote about him.

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The JCIO has been investigating him since July 2015, and only managed to set a disciplinary panel hearing for 30 and 31 October 2017. Then on 27 October 2017 the JCIO published the following: “Mr Justice Peter Smith retires with effect from 28th October 2017. In accordance with JCIO rules, all conduct investigations cease immediately when a judicial office holder retires, and as such investigations into Mr Justice Peter Smith cease on that date with no outcome.”

This investigation has been longstanding and those affected as well as those of us who are merely spectators have been for a resolution not a retirement. If the lack of transparency in the investigation can lead to such unruly behaviour being dropped then why would anyone bother complaining to the JCIO anyway?

JCIO aside, this past month has showed how unity against harassment is what is needed to rid the culture of silencing one’s experiences due to shame and fear. Coming forward with one’s experiences can be mortifying, however we can thank those like Aspinall-Miles and Jo Delahunty QC for speaking about a subject that has been an unspoken secret so far.

The effect of legal professionals speaking about their experiences should be applauded, not least for the support and encouragement it provides younger members, and aspiring members, of the bar. Hopefully, shedding light on these unfair experiences will generate the understanding that these matters should be taken seriously and will force the JCIO to investigate complaints of judicial bullying and publish more transparent statistics on how complaints are dealt with and where they are coming from.

And remember — younger members of the profession as well as aspiring lawyers feel more confident about the profession due to the current discussion on judicial bullying being out in the open, as it demonstrates that it is not the norm, and that the topic is receiving the attention it deserves. For an aspiring advocate there needs to be trust in the profession pursued, and the trust in the profession lives another day if the good experiences are highlighted and the bad ones are addressed. This is hopefully what the current discussion will lead to.

Adiba Bassam is a BPTC graduate and an aspiring barristers, currently working as a legal assistant at a London chambers.

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