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December 30, 2016

Is the magistrates’ disciplinary process fair and open?

It seems slightly odd that volunteers might face disciplinary action involving public reprimands and harsh sanctions, but magistrates do face such a process.  They are holders of judicial office and are expected to abide by certain rules.  When someone complains that a magistrate has transgressed, the complaint is investigated and a judgment of fact reached.

The problem is that those complained about often find the process neither fair nor transparent, and it can result in good magistrates being bullied, gagged and publicly humiliated.

Some complaints clearly need to be dealt with robustly

“Mr Andrew Edwards, a magistrate appointed to the North East London Justice area, was subject to a conduct investigation regarding allegations that he sent documents falsely purporting to be sent on behalf of the Lord Chancellor, using a fictitious name. In doing so Mr Edwards failed to comply with the magistrates’ Declaration and Undertaking; to be circumspect in his conduct and maintain the dignity, standing and good reputation of the magistracy at all times in his public, working and private life. The Lord Chancellor and The Lord Chief Justice found that Mr Edwards’s actions were incompatible with his remaining a judicial office holder and have removed him from the Magistracy”.

But in other cases it is not at all clear what exactly the judge or magistrate has done wrong.  I will focus on the case of Yvonne Davies, who sat in Manchester and was the incumbent Chair of the whole bench. Yvonne had a family history which she thought was relevant to some of her cases – her brother had been a cannabis addict who committed suicide.  His family blamed the addiction for his death, and Yvonne told her brother’s story over several years to offenders who had been convicted of drug offences, in an effort to motivate addicts to quit.  No colleague or member of court staff suggested that the story was inappropriate, and such anecdotes are told regularly by judges in US problem solving courts.  Though I am sympathetic to arguments for the decriminalisation of drugs, I fail to see the problem in Yvonne telling her story.  Use of cannabis is after all illegal, and drugs fuel much low level crime.

One day in August 2012 a local court reporter was in Yvonne’s court and heard the story. After the session he asked one of the court staff to contact Yvonne on his behalf.  On being contacted by a court administrator, Yvonne agreed to talk to the local reporter.  Unfortunately things snowballed, and as well as being featured in the local newspaper, Yvonne’s story got into the national newspapers.  Yvonne was unwise not to get official permission to speak to the media, but the stories merely reflected what she had said in court, and expanded on her brother’s story.

A complaint was lodged about her conduct and she had to face a disciplinary panel, organised by her local Advisory Committee. The accusation was that she “suggested a fixed personal view of the use of cannabis which could amount to bias” and “breached the media guidance for the judiciary”.  Yvonne countered in her disciplinary panel meeting that she had not discussed the particular court case publicly, but the panel recommended she be removed from office.  The decision was referred to Lord Judge who did not do this, but did reprimand her.  His letter suggests “providing a personal example of the use of cannabis was not appropriate”, as “a member of the public could reasonably believe that your remarks are indicative of prejudices in relation to cases regarding the use of cannabis”.  She was also criticised for breaching the media guidance for the judiciary, by not getting the right permissions.

In June 2013, almost a year after the original incident, she was invited to a meeting with the local liaison judge and the justice’s clerk to discuss resuming her work as a magistrate and her role as Chair of the Bench.  The notes of this meeting are concerning.  Both the judge and the clerk appear to have tried to get Yvonne to stand down from her role as Bench Chair.  The clerk quoted Lord Judge’s decision letter which “raised issues as to whether YD would have the confidence of colleagues when resuming the role of Chairman of the Bench”.  Yvonne was so upset by this meeting that she walked away from the magistracy altogether.

I still can’t see that Yvonne did much wrong in the way she talked about cannabis.  Surely any judge can have negative views about cannabis use, given that it is illegal?  I can see that she should have gone through the right hoops before talking to the press, but again, can’t see this merits a public rebuke.

Yvonne is not the only magistrate to be unhappy about the disciplinary process. I am in contact with two others.  Key criticisms are

  • Magistrates are left totally isolated. Magistrates subject to complaints are not allowed to talk to colleagues about what is happening, they have no access to legal advice (unless they want to pay for it themselves), and the process frequently takes a long time.  In many cases, including Yvonne’s, magistrates are not allowed to sit while the complaint is dealt with – though there appears no consistent policy on this.
  • Justices’ clerks (who are employed by HMCTS) have too much power over what is supposed to be an impartial process, run by independent bodies. In the case of Yvonne, the clerk intervened both in the disciplinary panel, and in the “resumption of duties” meeting.
  • The basis of complaints seems relatively arbitrary – in Yvonne’s case would she have been criticised if she had publicly expressed personal disapproval of mugging or burglary?
  • There is no equality of arms in the complaints process itself. Those subject to complaints battle to see the evidence against them, but if they “lose”, the judgement against them is publicised without the reasons for the judgement being explained.

Recently the Law Gazette featured a magistrate who had been removed because he had apparently failed to understand the role of the legal adviser.  The judgment is intriguing – it doesn’t actually explain what happened, nor what rules he transgressed.  I’m not sure there is any point in publishing so much and yet so little.

Magistrates are not the only ones unhappy about the disciplinary process.  Peter Herbert, a recorder and tribunal judge, had to counter a complaint that he referred to racism in the judiciary in a public speech (thus allegedly expressing political views).  He told the Guardian that he was denied a fair hearing – that he could not be legally represented or call witnesses. Peter has more confidence than many magistrates and complained about the process to the Lord Chief Justice himself.  I understand that the complaint against him has not been upheld.

If so many of those subject to it feel the judicial disciplinary process is unfair, it needs reform.  Many magistrates walk with their feet, by resigning rather than having to face what they see as a “kangaroo court”.

Meanwhile, magistrates and judges who are incompetent are seldom properly identified, helped to improve or disciplined.

PS I attach some documents about Yvonne Davies’ case (with her permission) including

1) A transcript of her disciplinary panel.  The panel consisted of members of the local advisory committee – two magistrates and one non-magistrate. This meeting was audio recorded and Yvonne subsequently spent a long time establishing the existence of this recording and getting access to it

2) The judgment of the panel on how Yvonne should be sanctioned

3) The letter from Lord Judge

4) A record of a meeting to discuss Yvonne resuming her duties with the local liaison judge and the justices’ clerk