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October 17, 2018

Bad apples or sign of systemic problems? The rudeness of judges

When I read the case of Myers (brought to my attention by the anonymous barrister tweeter @F_E-Smith and published by @CrimeLineLaw) I thought the judicial behaviour this case illustrates is bad, but I’ve heard of equally bad, and I was perhaps more surprised that a barrister had dared to appeal the case, basically on the grounds of judicial bias. It is a shocking case. The element that caused a twitter storm was that the judge threatened to send the 14 year old daughter of the defendant into the court cells if she cried. Her mother and sole carer was facing imprisonment for allegedly smuggling drugs into a prison. The 14  year old was in court to hear her mother give evidence. It was the day after the judge has suddenly remanded her mother into custody. This is the exchange:

Judge: Now I’m going to allow you to remain on terms. The first term is you’re going to sit in the back row in the far corner of the court and you are not at any time to approach the dock. Do you understand?

Child: Yes.

Judge: And you are on no account whatsoever either facially or by words to give any reaction to the evidence or the speeches or my summing-up. Do you understand?

Child: Yes.

Judge: If you do, I’ll have the officer arrest you and take you downstairs. And I don’t care if you’re 14; you’ll go into a cell same as anybody else. Do you understand?

Child: Yes.

Hagger (Counsel for def): Well your Honour it might depend on the reaction slightly.

Judge: I beg your pardon?

Hagger: It might depend on the reaction.

Judge: Don’t lecture me Mr Hagger. I’m speaking to her. Right, now are you prepared to accept those conditions?

Child: Yes.

Judge: Right, go and sit in that corner seat in the back row and bear in mind what I say.

The judge was rude to the lawyer and threatening to the child. He had no legal power to send the child to the cells anyway. But the twitter furore missed some other parts of the story. The day before, the judge decided to imprison the defendant on remand merely because she was told she faced a substantial sentence if found guilty. The defendant had been on bail for months and was the sole carer of two children, three and fourteen years old. The defendant was also encouraged by the judge to plead guilty during the trial. She resisted this pressure but was found guilty and spent five months in prison. The appeal to her conviction was successful – the Court of Appeal did criticise the behaviour of the judge – but the defendant gained little.

When I tweeted about the case I didn’t name the judge, although I always knew his name – I didn’t wish on anyone the kind of opprobrium I thought he would (and in the end did) get, and felt naming would detract from the systemic failures shown by the case:

  1. The only redress to such terrible judicial behaviour is to appeal the conviction on the basis it was not a fair trial. But that is pretty difficult to prove.
  2. Few lawyers want to appeal cases on the basis of the judge’s behaviour since they fear the repercussions.
  3. The threat to the fourteen year old girl could never have been appealed, it was simply an extra illustrative incident.
  4. There are no good mechanisms to get redress for such behaviour apart from the courts – there is a Judicial Conduct Investigations Office – but no-one ever reports professional judges for behaviour like this. Lay magistrates are reprimanded frequently for minor misdemeanours, though I doubt they are, in general, worse.
  5. The original judge in the Myers case would probably hear the results of the appeal, but there are no means whatsoever of helping or making him change his behaviour, if it was habitual. There is no appraisal of Crown Court judges, no feedback mechanisms, no action learning groups, no reflexive learning or informal mentoring. There is no structured discussions of appeals in which a judge was involved.
  6. Neither the Crown Court nor the Court of Appeal appeared to be cognisant of the case law concerning the sentencing of mothers with caring responsibilities. Shona Minson’s blog explains this.
  7. There are lots of judges like this who carry on behaving badly for years.

People on twitter got quite irritated that I did not identify the judge, though his name was easy to find. Lawyers portrayed him as a bad apple, and he was roundly condemned by one and all. I too know that there are lovely, humane judges. Family judge HHJ Stephen Wildblood seems one such – this week he told of being once driven to tears after deciding that some children should be removed from the care of their mother. He described the plight of litigants in person as “tough”. But it’s not just a question of good and bad apples. The system is itself broken. We need to reform the way the judiciary works. No other public servant could behave as they did in the Myers case, without being subject to a swift discipline process or at least the behaviour being discussed and a development plan agreed. “A quiet word” is not good enough. We need modern processes and procedures to ensure that judges are not rude to witnesses, lawyers, defendants, litigants or court staff.

PS Dinah Rose QC gave a great talk on the need for judicial reform to the public law project conference on 16th October. I hope it is published, but this twitter thread reflects some points

PPS Thanks to Elliot Gold for tweeting about another appeal case where judicial behaviour was criticised: “At times, the Judge might have been perceived to be intent on giving [the appellant] a stern lecture on the do’s and don’ts of cross-examination. Her repeated references in the course of the proceedings to a potential sanction in costs if the state or conduct of the Appellant’s case occasioned delay was oppressive and, in my view, inappropriate and intimidating”. However this case absolutely proves my point that there’s no redress since, despite the appalling behaviour of the original judge, the appeal was lost. The case is also interesting for the awkwardness Mr Justice Hildyard, who heard the appeal, clearly felt in criticising a fellow judge – the excuses he gives for her are legion.