McCloud’s last case

Spooling through a life on the bench

Oct 16, 2024

The UK’s first transgender judge has delivered an unusual farewell judgment.

Dr Victoria McCloud stood down in April after 14 years as a High Court master — a first-instance judge.

In a resignation letter two months earlier, McCloud wrote:

I have reached the conclusion that in 2024 the national situation and present judicial framework is no longer such that it is possible in a dignified way to be both “trans” and a salaried, fairly prominent judge in the UK.

Samuel Beckett

McCloud’s 51-page final ruling on Monday began with a literary flourish:

This is my last judgment. It arises from my unaccountably long service as a judge after the equally unexpected reality that Her late Majesty saw fit to appoint me despite my flaws, declaring (as all warrants appointing masters do), that I was “right and trusty”…
Those who know this judge will be aware that she is a long-time Samuel Beckett enthusiast, and one of his finest works is Krapp’s Last Tape, a self-referential, recursive work in which the eponymous Mr Krapp, who savours the word “spool” greatly, reviews previous voice tapes in which he charted his life, hearing himself as he ages over the years and who retreats into recollection of his past. This is my “Last Tape” though I suspect neither it nor I will ever aspire to the standard of Krapp.
I was assisted, not by spools, but by transcripts of digital recordings of the dates on which this court sat on these applications spread over some time, and so have had the benefit of re-reading the entirety of the hearings when writing this judgment.

Simple language

For reasons that were not explained in the judgment, McCloud started with what she described as a simple language summary. It began:

This summary is written at average reading age and whilst it does not form part of the judgment it must be reproduced with it.

It is not unknown for judges to summarise their rulings in simple terms when those affected by a judgment are children or have learning difficulties. But the parties in this case are a former member of parliament and the publishers of a national newspaper.

What made her decision “somewhat unusual”, as she put it, was that McCloud also considered whether she should have withdrawn from the case — even though neither side had asked her to do so. Having set out the arguments that might have been put to her, she decided not to recuse herself.

The case

The claimant was Charlie Elphicke, MP for Dover from 2010 to 2019 and a former solicitor.

In 2019 Elphicke sued the Sunday Times for libel over articles published the previous year, alleging that words complained of meant that he was guilty of rape.

In 2020, Elphicke was convicted of sexual assault and sentenced to two years’ imprisonment. He discontinued his claims against the newspaper in 2022.

That left him liable to pay the publisher’s costs. He challenged this requirement before the master.

This was how McCloud explained her decision in an admirably clear simple language summary:

The claimant said the defendant broke rules about how a party in a court case must behave and that the judge should punish the defendant by reducing its legal costs.
The judge considered whether she should step aside and not decide the case. This was because part of the case was about a woman who alleged she was a rape victim.
The judge made four decisions:
She decided that she did not have to withdraw from the case because of being a transsexual woman and that the first and last duty of a judge is to decide a case. Neither party objected to her deciding it.
She decided that two breaches of rules justified reducing the costs of the defendant by one-fifth. Those were a failure to preserve evidence and a breach of the rules about using documents in a court case for other things.
She ordered that the decisions about how much costs would be awarded and whether other wrong behaviour which the claimant said had happened should be considered by the costs judge.
She ordered that the parties should not commence the process for assessing legal costs until they had a proper process of dispute resolution about them. She ordered that if they did do so they would have to be able to explain why.

Recusal

In the judgment itself, McCloud explained why she had considered withdrawing from the proceedings:

Behind this case, as I have noted, we have a woman who alleged rape and whose centrality must not be diminished.
The position has been expressed publicly by current and former ministers of the Crown and by some in the law, during the currency of this case, that people who are transsexual are the embodiment and expression of a “transgender ideology” (sometimes “gender ideology”), or that steps must be taken to protect women from transsexual people by isolation or segregative legal measures in some contexts which have been canvassed in the UK for implementation.
The essence of the belief is that people such as this judge make a choice to be transsexual, are biassed against women, deny their experience (or deny the existence of sex at all, or assert multiple sexes), are a threat to women and children if they share a space with them, and seek to gain access to positions of influence with manipulative intent, which is to say therefore also in bad faith…
The dilemma for the sole judge from the transsexual community is that all judges are appointed by the Crown, must bear the Crown’s trust and confidence, and cannot remain if they lose that trust. This judgment is a hangover from one of my final hearings prior to my (in the circumstances inevitable) departure from the bench. It is that fact which means I must address recusal because of the facts of this particular case which I have already mentioned.
No objection was put to me by either side to my dealing with the case but in the circumstances I felt obliged to consider whether I should give a decision or withdraw, despite having concluded the hearings in the case.
In the event… I have decided that the conduct of the litigation in the context and seriousness of the issues relating to the rape and assault complainant and how the robust positions on either side may or may not have been appropriate is a matter for the costs judge…
Therefore I have not had to weigh such sensitive aspects into my consideration further. Having excluded that aspect from my reasoning, in my judgment it is unlikely that a fair minded, reasonable member of the public would consider that there is a real risk of bias.
Weighing in my decision is that the parties rightly expect a decision, have incurred the time and cost of the case and have given me the privilege and duty of hearing it. To recuse myself would amount to a waste of court resources on a considerable scale.
There seems to me to be a difference between accepting that ministers on behalf of the Crown may express a lack of confidence in a judge, necessitating her stepping down, by expressing a view that persons such as her are a risk or threat, versus tolerating ministerial or external impact on a specific case or decision, on the other.
Recognising the first is merely to recognise the misfortune of one’s own accident of birth and the shifting sands of social tolerance, but to allow the second would be to betray the judicial oath, and I will not do that.
The first duty of a judge, and now my last, is to decide the case and to give reasons for her decision. That is what I shall do.

McCloud is now an associate member of Gatehouse Chambers in London.