The recent Supreme Court case of Serafin (Respondent) v Malkiewicz and others (Appellants) [2020] UKSC 23 again highlights the need for practitioners to take a universal stand against judicial bullying. Despite the availability of complaint mechanisms including SPOT (discussed below) this is harder than it seems. Advocates often appear before the same judge or district judge regularly and that judge holds a great deal of power both in relation to the outcomes for lay clients but also for that advocate’s career progression. We are a small profession where making a complaint can be frowned upon and people who do so are sometimes seen as ‘not one of us’. The fear of long-term consequences from speaking up are real and sadly often justified.
Judges who behave like this are the exception, but we all know that a few ‘bad apples’ can rot the barrel, a few well publicised instances of bullying or unfairness can fundamentally undermine public confidence in our criminal justice system, which is why this behaviour must never be tolerated or condoned. The Supreme Court has recently highlighted this in the Serafin judgment. In the Serafin case, the Court ordered a full retrial due to the behaviour of the judge towards a litigant in person. The judge is described as directing a ‘barrage of hostility’ towards the claimant and in so doing used ‘“immoderate, ill-tempered and at times offensive language”. The Court is driven to uphold the Court of Appeal’s conclusion that the judge did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and that the trial was unfair. Instead of making allowance for the claimant’s being unrepresented, the judge “harassed and intimidated him”
This is powerful stuff and an indication of the increasing appetite within the judiciary itself, at the highest level, to address judicial bullying. But what can an advocate do when faced with this, before, during and after?
Before
Firstly, know your judge. An ill-tempered hostile judge is sometimes an ill-prepared uncertain judge. There are some judges who if you turn up early, well prepared and don’t make the fatal error of interrupting them (often taken as a personal affront) will be an entirely reasonable and fair tribunal, despite their fearful reputation.
If you know you are listed before a challenging tribunal prepare yourself and any client mentally and make full notes for any potential appeal. Remind yourself it is them and not you and be ready to respond as best you can.
Even if you would not normally do so, have full notes of the points you want to make, in case the barracking puts you off.
During
STAY CALM. The affront may seem personal, it may be unjustified, but at all costs, stay calm. It will get your respect from all present and be assured you have more allies in that court room than you think, even if they are too scared to speak.
Don’t react in kind and don’t be afraid to use silence. Sometimes you have to let a judge rant themselves out. I was recently on the wrong end of some unreasonable behaviour and after a period when I said nothing and waited for the storm to settle the judge commented he was going to take a 10 minute break and come back when he was no longer so frustrated with the technology and had calmed down. It was not an apology but as close as I was going to get to an acknowledgment that I was not the main source of his ire.
Do make the points you need to calmly and clearly, even if you are being interrupted. If your point is good even an unreasonable judge will sometimes hear it and begrudgingly change their stance.
If appropriate quote the above Supreme Court case – no judge likes being appealed on this ground.
Make notes, you may need evidence of the behaviour later.
If it is simply an inexplicable judicial meltdown from a judge under pressure, ask for a break or for the matter to be put back in the list. Judges are human, so are ushers and court clerks some of whom have been known to have a quiet and polite word with a judge who has inexplicably lost their temper on a bad day.
If a judge says something really bad, pause and perhaps ask them to repeat it saying you didn’t quite catch it and visibly make a note, including of the time on DARTS (if in the Crown Court). If they do repeat it and dig down at least you know for sure you need to report them.
If you are the opponent of someone being bullied by a judge don’t be complicit. If you are a prosecutor remember your duty of fairness, this sometimes involves advocating for a defendant and making it clear that you disagree with the judge even when they are acting in a way that is favourable to the prosecution.
Express solidarity with your opponent, a little email or note to your opponent saying they are doing well and to hold their ground, can help more than you imagine. Offer to be a witness if they choose to report it.
After
The fact of the matter is that sometimes you have to simply get through the hearing and then take the decision to make a report/appeal the matter. Indeed, often it is your professional duty to do so. This can be by way of a complaint to the Judicial Conduct Authority. The Bar Council however has recognised that this can be difficult, and that many people are reluctant to do this. They have therefore brought in the SPOT reporting system.
Details can be found at https://www.barcouncil.org.uk/support-for-barristers/equality-diversity-and-inclusion/talk-to-spot.html
It is a system the Bar Council has brought in to enable people to report anonymously incidents of bullying, harassment or discrimination. It is there to let you make a record when it happens, and receive a date and time stamped record, and if you agree for the record to go anonymously to the Bar Council Equality and Diversity team it enables the Bar Council to build up a picture of what is happening.
Disproportionate impact
WICL encourage all to speak up about the disproportionate impact of judicial bullying and the more subtle and insidious side to this. Not everyone sees that women, BAME advocates and other underrepresented groups face additional difficulties, but by talking about it we raise awareness. Some of your colleagues will deny there is a problem, don’t let that put you off. Know that there are many, including WICL mentors https://www.womenincriminallaw.com/mentoring who are more than willing to listen and support. Be part of the solution and not the problem and together we will make sure that the judiciary is a profession that does not tolerate ‘bad apples’.
With thanks to Diana Wilson of 9 Bedford Row.