Journal

Joshua Rozenberg: We need to be more open about punishing badly-behaved judges

By on
33

Lack of transparency blights the Judicial Conduct Investigations Office

Sacking bad judges has been a tricky thing to do for more than 300 years. Under the Act of Settlement 1701 (article III, clause 7), the judges’ commissions were held quamdiu se bene gesserint — as long as they behaved themselves well. But, the statute continued, “upon the address of both Houses of Parliament it may be lawful to remove them”.

The current law, in section 11(3) of the Senior Courts Act 1981, is to the same effect and not a lot clearer. It applies to judges of the High Court and the Court of Appeal; there are similar provisions for justices of the Supreme Court.

Because they cannot be sacked without the involvement of parliament, senior judges have substantial security of tenure. Several have stayed in post even when their closest colleagues have repeatedly advised them to stand down. No English judge has ever been dismissed on a parliamentary address although Sir Jonah Barrington, a judge of the High Court of Admiralty in Ireland, was removed with great difficulty in 1830 for helping himself to money that suitors had paid into court.

It’s for the Lord Chancellor to set in train the parliamentary procedures for removing a judge. But there’s no parliamentary involvement in a decision by the Lord Chancellor to sack a circuit judge for “misbehaviour” — although the agreement of the Lord Chief Justice is now needed. That process was used to dismiss Judge Bruce Campbell in 1983 after he was caught smuggling whisky and cigarettes into Britain in his yacht.

Similar powers apply lower down the hierarchy. In 2009, a district judge was sacked for being rude in court. And in 2015 a district judge, an immigration judge and a deputy district judge were dismissed for viewing inappropriate material on court-issued computers.

There are, of course, disciplinary powers that fall short of sacking. These range from formal advice through warnings to reprimands. Judges may also be suspended from office. In a subtle difference from dismissal powers, reprimands and lesser warning are issued by the Lord Chief Justice with the agreement of the Lord Chancellor.

But before any judge can be disciplined there has to be an investigation. Arranging investigations is the responsibility of a team of around 15 officials, known collectively as the Judicial Conduct Investigations Office (JCIO). Its joint heads, Stephanie Hack and Joanna Otterburn, currently run the JCIO on a job-share.

As officials working within the Judicial Office at the Royal Courts of Justice in London (pictured above), JCIO staff have no power to make findings of misconduct or impose disciplinary sanctions. A great deal of their time is taken up telling people that the JCIO cannot deal with complaints about the outcome of a case: it deals only with allegations of misconduct.

What, then, is misconduct? As far as I can see, the term is not defined in law. The JCIO says “the definition of personal conduct covers a wide range of behaviour and circumstances both inside, and outside of, the court environment”. But the JCIO does provide some examples. It says it can investigate:

• The 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

But the JCIO says it cannot investigate:

• A judgment, verdict or order
• Sentencing decisions
• Whether evidence should have been considered
• The award of costs and damages
• Attendance at, and participation in, hearings
• Whether a judge should have stood down
• Allegations of perverting the course of justice

Anyone can make a complaint — including, it seems, the senior judiciary. Of 2,078 complaints finalised during the year 2016/17, a total of 42 were upheld. Those 42 judicial office-holders represent around 0.2% of the 26,000 or so in England and Wales.

Most of the 42 received formal advice, warnings or reprimands. But 19 were removed from office: 15 magistrates, one tribunal judge and three part-time members of the judiciary. Ten of those 19 sackings were dealt with under a summary process covering criminal convictions, bankruptcy, failure to disclose relevant information and failure to meet sitting requirements.

It’s the job of the JCIO to sift incoming complaints. Any that do not relate to misconduct by an individual office-holder are dismissed at the outset. Of those that pass the initial sift, many can be dealt with under the summary process.

The remainder are referred to a nominated judge, who must be no lower in rank than the office-holder under investigation. The nominated judge has the job of establishing the facts, deciding whether they amount to misconduct and advising what disciplinary action, if any, should be taken against the judicial office-holder.

If a complaint is regarded as sufficiently serious or complex, the nominated judge may refer it to an investigating judge — who must be of a higher rank than the office-holder. The investigating judge may hold a private hearing. Nominated and investigating judges may be serving or retired. If no longer sitting, they are ranked according to their previous status.

If a nominated judge recommends suspension or removal from office, the judicial office-holder may ask for the complaint to be considered by a disciplinary panel. The panel has four members: a judge more senior in rank than the office-holder, a judge of the same rank and two lay people. Again, the judges may be retired.

It’s the panel’s job to advise the Lord Chancellor and the Lord Chief Justice on whether removal or suspension is justified. Before that can happen, though, the panel must send a draft of its report to the office-holder concerned and “have regard to” any comments received in response.

All this is bound to take months. If the office-holder seeks an adjournment, perhaps on grounds of ill-health, it may take years before a final recommendation reaches the Lord Chancellor and the Lord Chief Justice. If that recommendation was for the removal of a senior judge, the parliamentary processes would presumably take several months more. The judge is paid as normal throughout this period, even if suspended.

We can see how long all this can take from the case of Sir Peter Smith (pictured below), which I wrote about most recently in October and for Legal Cheek in April. It was well over a year before complaints against the former senior Chancery judge even reached the stage of a disciplinary panel hearing.

Two days before that hearing was due to open, Smith retired from the bench. We do not know on what terms. Regulations say that consideration of the complaint against him had to cease as soon as he retired — leaving complainants and the wider public almost completely in the dark. An investigation can be reopened, but only if the judicial appointments and conduct ombudsman makes a finding of maladministration.

But the worst aspect of the way Smith’s case was handled was the refusal of the then Lord Chief Justice and Lord Chancellor to keep the public informed. Individual complainants were told the dates of scheduled hearings but the JCIO refused to provide even this basic information to reporters or the public.

The fault was not theirs. Under the regulations, “the Lord Chancellor and the Lord Chief Justice may agree to the publication of information about disciplinary proceedings or the taking of disciplinary action”.

It is they who should have told us what was going on. Although section 139 of the Constitutional Reform Act 2005 provides for confidentiality, subsection (6) says the section “does not prevent the disclosure with the agreement of the Lord Chancellor and the Lord Chief Justice of information as to disciplinary action taken in accordance with the relevant provision”.

In yet another of my articles on the subject last month, I disclosed that “an unlisted tribunal is planning to sit at an undisclosed location” where “its four unnamed members… will consider allegations that have not been published and make findings of fact that will not be revealed”.

I can now reveal that the BBC news legal team responded to that article by writing a nine-page letter to the Lord Chief Justice and Lord Chancellor. In it, the BBC pointed out that “open justice is a constitutional principle that stretches back to the fall of the Stuart dynasty”. There was, the broadcaster said, “a strong presumption of publicity in every other disciplinary regime involving public servants” — for example barristers, solicitors, police officers, teachers, doctors, opticians, dentists, nurses, midwives, pharmacists, osteopaths and chiropractors.

The latest comments from across Legal Cheek

“Any presumption of privacy in disciplinary proceedings against judges would be an unjustified anomaly,” the BBC argued. “There is no rational justification for providing greater privacy protection to the judiciary than to any other professional. The public interest in transparency is, if anything, greater in respect of the judiciary than it is in respect of other legal professionals.”

In its letter of 17 October, the BBC asked for the charges against Smith to be disclosed, for the disciplinary hearing to be opened to accredited journalists and for the panel’s draft report to be disclosed.

The BBC’s letter was promptly acknowledged but received no substantive response. Lord Burnett of Maldon can be excused for not dealing with this adequately in his first months as Lord Chief Justice. But he should now order a review of the entire process.

A blanket of secrecy covers judicial disciplinary hearings, creating the impression that the rules and regulations I have outlined in this piece are designed to protect the judges rather than the public they serve. Some measure of insulation from aggrieved litigants-in-person and other dissatisfied parties is certainly justified. But the judicial complaints system has shown itself entirely incapable of handling immensely serious complaints in a transparent and effective way.

If the personal failings alleged against Smith in 2016 — and upheld in 2008 — lead to an effective reform of the judicial complaints process, his 15 years on the bench may be remembered for more than a steady stream of embarrassing misjudgments.

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.

33 Comments

Ellie

the peter smith debacle really was a disgrace. have other seriously misbehaving judges gone under the radar?

Not a Coward

Excellent analysis and summary, Joshua. If I may offer one small piece of advice: if you see Peter Smith walking down the street, if I were you I would cross the road.

Anonymous

Rayner Goddard

Trumpenkrieg

I say this needs to be settled once and for all by putting Rozenberg and Peter Smith in the ring for 10 rounds under Marquess of Queensberry rules. My money would be on Peter Smith. It would be a PPV killa.

Jackie Fan

Jeez, Rozenberg, put the knives away. Smith J fell on his sword. Let him retire in peace to his model warships.

Anonymous

Fell on his sword at the last possible moment having continued to draw his six-figure annual salary in the meantime while he was sat at home suspended.

Anonymous

That’s not Peter Smith, it’s Rodger Davis, the Australian golfer. Fine player.

Jackie Fan

Or Toast of London, aka Matt Berry…….

“Yes I can hear you Clem Fandango”

Anonymous

We want blood

We want blood

We want blood

Ciaran Goggins

Far easier in Ireland of course where Judges do what police order them to, especially in political trials.

Anonymous

Conspiracy theorist type comment. Are you saying all judges follow police orders?

Ciaran Goggins

In Ireland yes, In UK mostly.

Anonymous

Trouble is, many of these judges will have been to public school and therefore enjoy punishment, especially if it involves humiliation.

Anonymous

It is a good thing that 70% of the judiciary have had a real education rather than a tax payer funded one.

EtonMess

Typical jealous comment. Peasant.

Anonymous

Jealous of whom ? I personally believe state education should be means tested

WetBob

Mess is a mess

P Veritas

Magistrates are Judges (well the MoJ say we are part of the family).
JP’s who made submissions to the Justice Select committee about Grayling’s obscene Criminal Court Charge were subjected to a secret conduct investigation, when advised that submissions were subject to Parliamentary Privilege, investigation dropped, on apology just a warning about future judicial conduct.
It is made very clear that Magistrates are not allowed to air personal views even if those representing him or her have views of their own which will enhance personal ambitions.
Colleagues in the dark about original investigation and about the outcome.
The Advisory Committee and the Justice Clerk are of course very pis**d sitting on the fence like vultures waiting for the slighted perceived transgression.

By the way magistrates who are suspended do not enjoy any financial benefit because they are not paid in the first place. Guess what, magistrates subjected to an unjust discipline investigation just resign. Win Win for the JCIO.

DryBob

Anon/WetBob – I can personally vouch for Mess

Anonymous

One thing that interested me, Joshua, was that the supposed best silk of his day, George Carmen Q.C, was never made a high court judge, even though he wanted to be one.

His biography reveals what the senior civil service and the bench must also have known about him…that he originally trained as a priest and that he was a functioning alcoholic.

There is a risk that such a person is either too honest to be a judge or they cannot stand the pressure of power before truth.

There are hidden agendas about politics, pension funds and private equity funds, stock values and all the rest of it that go into deciding what evidence gets referred to or excluded in a judgment, what narrative goes into the judgment and how slowly or quickly a case comes on.

If you consider JAG Griffiths – The Politics of the Judiciary – you get an outsiders attempt to analyse the results of this…viz in key cases judges will give a factual narrative in favour of the establishment, or a legal analysis, or they will say that it is for parliament, not the court to decide the issue – all so that they can please the establishment.

Now, in reality, supposing private equity funds or pension fund shareholders’ needs for growth are such that they will practically force an airline that they own to bump low profit cargo off a flight for high profit cargo…

A company affected by the bumping may take it on the chin.

The shareholders and the company may bank on this and continue with the practice to continue with the required policy of growth.

But if an enterprising law firm comes along, sends solicitors to china and files 65000 claims by Chinese businesses with the help of the Chinese chamber of commerce, you have a monumental crisis on your hands.

An insurer could probably duck its indemnity but the losses, if the claims are upheld, could result in bankruptcy, or underperforming pension funds, etc.

Here England, if the company and its shareholders were english, would need a judge that would sign off on any argument proffered by the company’s QCs to get the company off the hook of the claims. (Eg the claims have not been validly lodged in court and would now be out of time if they were properly lodged)

Key bureaucrats would know that a former priest with a drink problem would struggle with the pressure when faced with another eminent qc for the 65000 telling him that the claims were correctly lodged and validly made out. – particularly if that happened to be true.

Corporations would want to get Carmen off the case if they knew the registrar had listed him and they knew that he did not follow the hidden agenda.

They would have to come up with something….anything…to get him off the case.

An English judge on appeal would have to agree with whatever the corporation came up with to justify the recusal or to have the case retried.

There seems to me to have been a danger along these lines with Smith.

In the cold light of day, the corporations reasons and the appeal courts reasons for justifying a recusal or a retrial may not be able to stand wide scrutiny and that is why Smith retired at the last minute. Not because he was a freeloader or an idiot but because he was keeping his head when all about him were losing theirs and was waiting for the hearing format that suited him.

He was a top Qc but he earned his living on merit, is the risk. On a level playing field he would have hammered the other qcs, is the risk. Sometimes, being from the wrong background, he acted against the hidden agenda.

You will always have problems transparently getting rid of judges who do not follow the hidden agenda. Yet this is what you are asking for in your article.

It cannot be done against judges or indeed normal employees either. This is why there is an industry of compromise agreements.

This is why the mafia used to kill judges.

They are a risk.

Only appoint die hard middle class people if you need your judiciary to withstand the pressure at the top. That is the rule of the game. The procedural rules are not the true rules.

Dave Barrister

Barmy.

Eton Mess

it is a benign conspiracy. without the deep state you would be toast my friend

EtonMess

Why try to imitate me? If you must try, at least get the name right.

Carmeleon

George *Carman* QC

Anonymous

It is a benign conspiracy , economically, but it rewards sin over virtue amongst its human cooperators. The truth has no value. Corporations and the corporate personality in individuals flourishes. Those without virtue are led by the masters of the situation into thinking too highly of themselves.

Trumpenkrieg

Fookin hell, this reads like the David Icke Forum.

Ciaran Goggins

Are you by any chance a Giant Purple Lizard from Rigel VII?

Anonymous

If only David icke had been a lawyer who was helpfully referred to the politics of the judiciary by his tutor en route.

Instead he had to face his insights with the clerical training of a professional goalkeeper and auto cue reader. If he had shared an office with 4 supervising partners for two years, or two pupilmasters , then he would be better at sorting the wheat from the chaff.

Now there is to be a solicitors exam, he could think about trying the latter !

Anonymous

Trumpenkrieg, the British Airways case that Smith was forced to recuse went to another High Court judge. You will be able to see from googling British Airways 65000 claims struck out that the Finance Director of BA soon after was able to erase the risks in his ledger that could have caused its shareholders a lot of grief.

Further Googles along those lines will reveal a comment from the losing solicitors and a nod to the involvement of the Chinese chamber of commerce in claims against ba.

You can picture George Carmen having an adjournment to wash his bleary eyed face and smoke a silk cut saying “crumbs, what have I signed up for here” to the mirror.

But the senior civil service were a step ahead of him. “It’s not for George, this caper.”

Are you a pen pusher rather than a player ?

P. Barnes

The saying the truth hurts is relavent here:

1.. Not many people realize that nearly all Judgments appear to be written out BEFORE the case is heard ie. fiddled, and as a consequence the fees Counsel charge for a hearing are made a nonsence.
2. Judge s appear to often be promoted on the old boys network, not for their competence.
3. Everyone I have met who has been before or witnessed Sir Peter Smith in action says he was the best Judge in the RCJ, the fairest and one of the most knowledgeable.

Anonymous

Nonsense. There are good Judges and bad Judges. Holding the bad ones to account is the key here.

Benny Goodman

You are full of crap.

Anonymous

I did not know DJ’s could be sacked for rudeness. It makes one wonder how so many of them have held on to their jobs. Does anyone remember the two cows that used to sit at Shoreditch county court many years ago? Dreadful.

Join the conversation

Related Stories