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September 2, 2016

Where is the line which judges should not cross?

Judge Patricia Lynch certainly crossed a line in a recent case.  A defendant called her a c**t and she responded “you are a bit of a c**t yourself.  Being offensive to me does not help”. Her conduct has been reported to the regulator – the Judicial Complaints Investigations Office (JCIO).

Another judge who got into hot water was magistrate Margaret Gilmour, who wrote to the Times last year:

Sir, As a magistrate of more than 30 years’ experience I was astonished to read that Alison Saunders, the director of public prosecutions, said she had received good feedback from staff and magistrates (“DPP accused of presiding over a shambles”, Dec 16).

Anyone who goes into a magistrates court on any day will see that the Crown Prosecution Service is in a state of disarray. The quality of the lawyers used by the CPS is high, but these lawyers are sadly being forced to publicly apologise all the time — for example, for not having complied with earlier court directions to provide files to the defence or for failing to meet timeframes set by law, due to the shambolic administration of the CPS. Their humiliation at having to regularly apologise has even been exacerbated at times by their having to admit under questioning by magistrates about their failings, that they had fed back to their “masters at the top” that the organisation was in a state of disarray but that they were being ignored.

Magistrates frequently write highly critical comments about the CPS on the sitting review forms which Mrs Saunders seems to be oblivious of. Maybe her bubble is double-wrapped.

Margaret Gilmour JP, Frome, Somerset

The letter does not mention any individual case or prosecutor.  But she was reported to the JCIO and received a formal warning six months later: “the tone and content of the letter, including the implication that Mrs Gilmour was speaking for magistrates generally, were inappropriate and failed to show the circumspection and sound judgement expected of a magistrate”.

But is it so wrong for a magistrate to air her frustration with the CPS based on her own experience?  Judges often complain in open court about CPS conduct – this week Jason Evans, of the South West Evening Post tweeted a quote from a judge “His Honour says he “despairs” at the quality of work done by the CPS, says cases are not being prepared properly: “It’s simply not good enough”…The (drugs) case ends with no evidence being offered – amidst general bemusement as to why charges were ever brought in first place”.

The JCIO criticised Mrs Gilmour for implying CPS inefficiency was a general problem, but evidence such as Jason Evans’ suggest it is.  The reprimanding implies that magistrates can never openly complain about the system they are part of.  This is a pity – it’s in the public’s interest to know if court cases are being delayed or abandoned. Presumably Mrs Gilmour was supposed to complain about the CPS only through the official channels.  But this is not easy.  She and her colleagues had already been regularly reporting problems, and had seen no improvement.  Magistrates are no longer allowed to be members of any forum (apart from police and crime panels) where issues affecting the whole criminal justice system are discussed.  Court user groups have been disbanded, magistrates cannot be members of community safety partnerships, and there is now no role for judges in the governance of probation.

Magistrates are advised against writing to newspapers and banned from being members of committees involving criminal justice agencies in the name of judicial independence.  The fear is that judges might be accused of being influenced by, or influencing, criminal justice policy, or that judges’ reputation for neutrality might be damaged.

I absolutely understand the need for judges to avoid discussing individual cases, but don’t see the problem with their taking part in discussions about the system. In fact their experience and ideas on reform would be invaluable to other agencies.  And judges would gain from understanding more about issues affecting the wider criminal justice system.  So judicial independence needs preserving, but not if it results in judges being isolated and silenced.