Bullying on the bench
And how to tackle it
If you’re a lawyer representing a client in court and the judge appears to be bullying you, what should you do? One barrister has offered some practical tips for the brave — though it’s probably not a good idea to treat the judge as a hostile witness. You can also complain to the Judicial Conduct Investigations Office. That process can take as long as a year to resolve but has resulted in an appeal judge receiving a formal warning for misconduct.
Judicial behaviour protocol
Another option for legal professionals — formalised in a document published yesterday — is to ask for a quiet word with the judge.
“An informal approach,” it says, “can be the preferred route for those who are looking for a quick resolution or whose concern relates to a less serious issue: for instance, isolated incidences of brief loss of temper or an apparently isolated ill-judged remark.” The lawyer is advised to warn the judge in advance and either or both may bring a friend.
If you don’t feel brave enough to do that yourself, you can approach the appropriate leadership judge instead. Or you can ask a senior colleague to do so on your behalf.
Bar conduct commissioner
A new option is to call in the Bar Council’s commissioner for conduct, Dame Maria Miller.
Under an agreement with the senior judiciary published yesterday, the commissioner must seek their approval in advance if she wants to meet individual judicial office holders and talk to them about bullying, harassment, discrimination or exclusionary behaviour. But Miller, a former cabinet minister, is free to drop in on any public hearing if she merely wishes to observe.
The agreement goes to some lengths to stress the constitutional separation between the bar and the judiciary. The commissioner accepts that she has no power to regulate judges and the judges acknowledge that they cannot regulate barristers.
From time to time, though, Miller is expected to meet Lady Justice Whipple, lead judge for diversity, to share “high‑level, anonymised information about barristers’ reported concerns”. The commissioner may apply for access to recordings of court proceedings and, if conditions are met, she may also pass on anonymous complaints about named judges to their leadership judges.
Comments
Whipple said:
While the majority of judicial office holders behave professionally and courteously, we take concerns about bullying, harassment and discrimination very seriously and are committed to providing clear, accessible routes for legal professionals working in our courts and tribunals to raise and resolve concerns about a judge’s behaviour.
Miller said:
This is a significant milestone in delivering the recommendations of Baroness Harman’s review and establishes a clear agreement of roles and responsibilities with the Bat Standards Board. It has been a priority for me since taking up my role six months ago as it means we can better support those who experience bullying, harassment and sexual harassment at the bar.
What this means for barristers
There have been changes to what constitutes serious misconduct as well as the way barristers can report it and the evidence they need.
Barristers are told:
You can now meet your duty to report by reporting to the commissioner through the Talk to Spot app.
Under the Bar Standards Board’s new guidance, you don’t have to worry about your duty to report when someone confides in you. That means you can give them help and support with confidence.
The Bar Standards Board’s definition of serious misconduct now includes serious instances of bullying.
The regulator has introduced a lower threshold for reporting. You should now report when there is a reasonable suspicion. Previously, the threshold was reasonable belief.
If barristers are not sure what to do, they can contact the commissioner through her app.
Joshua, this brings back memories of my first cross-examination in my first (what was then the) Ontario Supreme Court (first instance court) ... well before I knew anything about "bullying" other than in the school yard.
It was late one afternoon before a crusty judge of many years on the bench.
I did a terrible cross-examination … and how bad it was did not go unnoticed nor unexpressed by His Lordship. It was not how I hoped my career in court would begin, to say the least.
Fortunately, I cannot recall how badly I must have felt that evening.
Overnight His Lordship must have started to feel guilty.
The next morning, just before the court starting time, he apologized … unfortunately by calling me into his chambers alone. Yes, without the other side present … which almost led to a mistrial as the party on the other side (who was the "little guy") was understandably upset. And I was representing a large corporation.
Fortunately counsel opposite was a sensible and honourable guy.
The whole thing came to a peaceful conclusion when the judge invited all of us into his chambers - parties and counsel - at which time he dug himself out of his hole nicely, and after huddling between counsel and client on the other side, the trial continued.
One or two of life's lessons learned. :)