Judicial bullying – and how to complain about it – under the microscope again as more barristers speak out

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Delahunty: Barristers “deskilled and humiliated” by judicial bullying

The issue of judicial bullying has come up again, with more barristers outlining the behaviour they have faced in court and the Bar Council chairman condemning “bullying or inappropriate treatment” by judges.

One barrister has outlined her lack of confidence in the Judicial Conduct Investigations Office (JCIO) to handle issues of this nature, while the leader of the Northern Circuit has advised using informal lines of communication through heads of chambers to handle examples of bullying that is not “egregious”.

Mary Aspinall-Miles, an executive committee member of the Criminal Bar Association, broke what she described as a “taboo” last October when she openly complained about judicial bullying.

Others, such as renowned family law blogger Lucy Reed (aka Pink Tape), then spoke of their experiences.

In an article for this month’s Counsel magazine, Jo Delahunty QC, a family barrister and recorder, said she had been “gratuitously shouted at and undermined” by a judge.

Ms Delahunty said: “I know of colleagues who have been gratuitously shouted at and undermined. It has happened to me. I have seen it in the High Court. I have been told of it in the county court.

“I have received a number of emails from members of the Bar at all levels of call who have experienced judicial bullying and who have felt deskilled and humiliated as a result. No one has made a complaint: ever.”

She went on: “Are those who complain being ‘snowflakes’, who should just take it as part of the cut and thrust of a challenging work environment? No.

“Judges have power, and with power comes responsibility. They have their judicial oath to live up to even when they may feel sorely tried (rightly or wrongly) by the inadequacies of those of us who appear before them.”

Ms Delahunty said that despite the anecdotal evidence of judicial bullying, complaints were not formally raised and instead were “left in the air, with wounds salved over a drink with colleagues or by crying on the shoulder of a supportive partner at home”.

She called for judges to be subject to “360-degree feedback”, anonymous if necessary, to give them the opportunity for “reflection and change”.

In the same issue of Counsel, Judith Trustman, a barrister at St Ives Chambers, said she remembered being asked for advice in the advocates’ room at a county court by a young male pupil barrister.

“Just on his feet in his second six, he had arrived for a case in which none of the lay clients or opposing representatives had turned up. Before he knew he was the only person present, he had handed in a document upon which he intended to rely in the hearing.

“Called in by the judge, he went into court alone. She threw the document across the table, saying: ‘What the f*ck is this? I am not reading this.’ He wanted to know if this was normal judicial conduct.”

She suggested that the JCIO was not up to the task of dealing with bullying, saying it was more suited to “standout” examples of judicial misconduct.

Ms Trustman said she herself had a recent experience with a circuit judge, where she made an initial enquiry to the JCIO but not a formal complaint.

She explained: “The JCIO would not necessarily have served the complaint well.

“The judge in question had not used any bad language nor employed what could clearly be identified on a tape as criticism.

“It is hard to know whether or not the cruelty, the acid sarcasm or the deployment of legal reference as thinly disguised weapons of humiliation would have been discernible to a JCIO listener.

Most helpful, she said, were colleagues in chambers. “[They] provided immediate advice and support from high levels, leading to a route through which I was eventually able to pass my concerns to the designated family judge who was herself an immediately supportive and receptive ear.

“But, and this is the crux: despite the candid and sympathetic ears, there appeared to be nothing that those consulted could actually do about it. A High Court judge reassured me they were dealing with the problem but no system of redress yet exists.”

She called for reform of the system. “Advocates should never have to be fearful if they need to lodge a complaint as I was, but to whom can they turn?

“Some might see the JCIO as a starting point, but in my view it is only suited for the standout cases and has not equipped itself to handle complaints of judicial bullying as described in this article.

“For example, what safety is there for a victim advocate when the offending judge is notified of the complaint of bullying yet that complainant might have to appear before them?”

However, Michael Hayton QC, leader of the Northern Circuit, wrote in the magazine that he has heard “only the occasional rumbling of disquiet [about judicial bullying] but nothing that has necessitated me taking any direct action”.

He said that, given the nature of the courtroom, “judges are humans too and will never be immune to the occasional lapse”.

Mr Hayton said the JCIO was “the appropriate forum for overt cases involving more egregious judicial behaviour”.

He continued: “In most cases where any member of the Bar feels that he or she has been on the receiving end of inappropriate judicial behaviour, the starting point should be one’s own head of chambers or other appropriate senior member of chambers.

“It is through this process that concerns can be fed through to the appropriate people, which in appropriate cases will be the local leader of circuit.

“Leaders have available to them lines of communication directly with resident judges, designated judges and presiding judges. By dealing with concerns in this way patterns of systemic bad behaviour can be picked up upon and the judge can be spoken to by his judicial line managers.”

Bar Council chairman Andrew Walker said: “Barristers may be the first target of judges’ frustrations borne from matters beyond their control – such as the rising number of individuals having to represent themselves in court, without any legal expertise, as a result of cuts to legal aid, leading to cases being much more difficult to deal with and taking much longer.

“Poor court conditions and a heavy workload of troubling cases can also take their toll on those involved – barristers and judges alike.

“There is a pressing need to address these much wider problems with the functioning of our legal system, but none of them excuses bullying. Bullying has no place in our courts.

“Our advice is always to be civil but firm with any bullying judge, opponent or clerk, to seek advice about it and to report it.”