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

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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.

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