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April 13, 2017

Is judicial discipline either just or effective?

The judicial discipline system is broken. Part-time judges and magistrates are publicly named and shamed, sometimes for very minor misdemeanours, while full time paid judges “get away with murder” since there is no effective system of performance management. Disciplinary procedures are opaque and can seem unjust.

It is practically impossible to get a full time paid judge to leave their post unless they have committed a criminal offence.  They can be truly incompetent, or absent, and nothing will happen, because judicial independence principles mean judges cannot be sacked. Joshua Rozenberg wrote this week of Judge Peter Smith, a judge who was probably never suited to the role. Judge Peter Smith seems to have made a number of incompetent decisions (including berating British Airways in court for mislaying his holiday baggage), but Joshua suggests that his disciplinary process has been lacklustre and that, most worryingly, he suspects the authorities of having reached a tacit understanding to buy time: “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”.

Also this week was news of another judge, Ms Justice Russell, whose incompetence resulted in a man (LL) being wrongfully imprisoned for contempt of court – for failing to obey an order to repatriate his daughter, who was living in Singapore. LL was unrepresented and not allowed time to seek legal advice before being bungled off in the prison van. There are many miscarriages of justice, but it is incredibly rare for any of the judges involved to be criticised, let alone the state compensate the defendant for the judges’ incompetence.  But this week some of the most senior judges in the land decided that LL was due damages for the “gross and obvious irregularity” of the hearing.

Judge Peter Smith and Ms Justice Russell are full time salaried judges, who have committed serious errors. Neither has been subject to a (completed) disciplinary procedure and both appear to be receiving their £180,000 annual salary.

Meanwhile (mainly) part-time paid judges have recently been sacked or severely reprimanded by the Judicial Conduct and Investigations Office (JCIO).

  • Recorder Jason Dunn-Shaw was sacked for allegedly posting anonymous messages on FaceBook responding to criticism of his judgments
  • Judge Jonathan Durham-Hall was reprimanded for offering to pay the fine of a girl who had stabbed her abuser
  • Peter Herbert QC was reprimanded for a speech in which he said “Racism is alive and well and living in Tower Hamlets, in Westminster and, yes, sometimes in the judiciary”. The JCIO said Herbert had “been issued with formal advice after making a public speech criticising the election commissioner’s decision in 2015 to declare Lutfur Rahman’s election as mayor of Tower Hamlets void. A disciplinary panel found that the recorder’s comments were inappropriate and put the reputation of the judiciary at risk, which amounted to misconduct.”

Peter Herbert QC has complained that the disciplinary process is unfair and discriminatory against those from ethnic minorities: “the message is clear, that BME judges are to be referred for disciplinary misconduct proceedings on spurious grounds whilst white high court judges are above the law. They can act with impunity …”

An analysis of the JCIO disciplinary judgements seem to back up Peter Herbert’s point. There are no high court judges and very few circuit judges who have received reprimands, or worse.  But the vast majority (over 75%) of complaints upheld are against magistrates, rather than paid judges. One of the misdemeanours for which a magistrate has been told off appears particularly trivial

Mr Colin Speight, a magistrate appointed to the North Northumbria Local Justice Area, was subject to a conduct investigation after he entered the magistrates assembly room at Bedlington Magistrates’ Court when he was not sitting as a magistrate. The Lord Chancellor and Mrs Justice Cheema-Grubb, on behalf of the Lord Chief Justice, considered that Mr Speight’s behaviour fell below the standards expected of a magistrate and have issued him with formal advice.”

Presumably there is some bad blood on the North Northumbria bench, but is it helpful to resolve it in such an adversarial way?

The most worrying aspect of the judicial discipline system is that it appears not to meet human rights standards in terms of equality of arms and transparency. The case of a magistrate who was pressurised to resign after being reprimanded is in point. Many of the papers in her case are here.

It is hard not to conclude that senior judges get away with mistakes virtually scot free, while lowly magistrates and part-time judges are punished severely for minor misdemeanours, via an unjust process. It is likely that senior judges transgress less, but their total absence from the JCIO list of the named and shamed is a little odd.  Incidentally, I think if the JCIO believes in rehabilitation, they should probably remove the details of the individuals they have reprimanded after a set period, rather than leaving them up in perpetuity.