Recommendations to the Lord Chief Justice
Recommendations to the Lord Chief Justice
Panel: Elisabeth Laing J, HHJ Dhir QC, Mr Victor Marshall OBE, Air Commodore Feroze
- On 23 March 2016 the Lord Chief Justice wrote to Mr Recorder Mr Peter Herbert OBE (‘the Office Holder’) about the Advice which had been given by Underhill LJ in the Office Holder’s case. He said that the Office Holder had made points in his representations about Underhill LJ’s recommendation which Underhill LJ had not had an opportunity to consider. The Lord Chief Justice and the Lord Chancellor were not able to make a decision in the Office Holder’s case until those issues had been fully explored. They would like those points to be investigated by a disciplinary panel.
- The issues were referred to us. On 23 May 2016 we had our first meeting and decided that it was necessary to hear evidence from the Office Holder. It was not easy to find dates when the Office Holder and all the members of the Panel were free. We first listed a hearing for 20 July 2016. We decided to adjourn that hearing when we received medical evidence from the Office Holder that he would not be fit to attend it. As the Office Holder was out of the country for much of the summer, we re-arranged the hearing for 3 November 2016.
- The Office Holder attended the hearing. He was represented by Mr Courtney Griffiths QC, and he was supported by a friend, Mr Michael Hart. He had submitted in advance, in accordance with our written directions, witness statements and a skeleton argument. We indicated to him in a letter dated 10 October 2016 what we thought the main issues were. In the light of the Office Holder’s skeleton argument and the contents of the witness statements, we decided that we did not need to hear oral evidence from any of the Office Holder’s witnesses.
- At the hearing, the recording of the speech the Office Holder made on 30 April 2015 was played. We heard from the Office Holder. He spoke for over two hours. He made many of the points which he had made in his witness statement, which we summarise below. We then asked him some questions. Mr Griffiths QC made succinct submissions at the end of the hearing. We are most grateful to the Office Holder for attending the hearing, to Mr Griffiths QC for his submissions and to Mr Hart for attending to support the Office Holder. A transcript of the hearing is now available. We have not, therefore, rehearsed in this document everything that the Office Holder said during the hearing.
- These are our recommendations following that hearing, based on all we have read, on viewing the video of the Office Holder’s speech, on the witness statements submitted by the Office Holder, on his statement at the hearing, on his written submissions, and on the oral submissions of Mr Griffiths QC. We must make it clear that, to the very limited extent that our views or recommendations differ from those Underhill LJ, we are not in any way critical of his approach. His Advice is a meticulous, balanced and fair analysis of the material he had. We have had the advantage, which he did not, of having heard from the Office Holder in person, of listening to the submissions of Mr Griffiths QC, of considering in depth the events in November 2015 and of reading the witness statements of an impressive array of character witnesses, who speak with one voice of the Office Holder’s integrity and his struggles to try to work from within the system to change it for the better. The evidence of those character witnesses is important in placing the speech in its context in the Office Holder’s experiences of racism, of others’ experiences of racism, and of his efforts for change.
The Office Holder
- The Office Holder is a practising barrister. He has been a part-time Immigration Judge since 1996. He has also sat, since 2003, as a part-time Employment Judge and as a Recorder of the Crown Court. In January 2010 he was awarded the OBE for his services to equality, diversity and human rights. He was a member of the Metropolitan Police Authority and is Chair of the Society of Black Lawyers (‘the SBL’). No complaint has ever been made against him in his judicial capacity. He described in his witness statement, and spoke movingly at the hearing about, his own personal experiences of racism, and the efforts which he and others, including the SBL, have made to combat racism, particularly in the criminal justice system. He reminded us that as recently as 1979 it was possible to be disciplined for raising issues about racial discrimination in court. Members of minority communities should feel confident in court. He spoke of the way in which, unlike white colleagues, he has had to act as an ambassador for a system which has not always treated him very well. He had been mistaken for a defendant because of his race, and had been stopped by a white usher from going into his room in court in a tone of voice which implied he should not be there.
The letter of 13 March 2013
- On 7 March 2013, the Office of the Presidents of the Immigration and Asylum Chamber wrote to the Office Holder on behalf of Mr Clements, who is the President of the First-tier Tribunal, Immigration and Asylum Chamber. The letter referred to articles in the Lawyers’ Gazette. The letter said that it appeared from those articles that the Office Holder had taken part in interviews, or provided a statement. He was reminded of the Senior President’s Guidance on the media, which said that an office holder should ensure in advance that, when taking part in interviews or programmes, he was not described by his judicial role. In deciding whether or not to take part in interviews or programmes, he should consider whether doing so would bring the judiciary into disrepute, even if he was not described as a judge. The President noted that the Office Holder had been described in two of the articles as an Immigration Judge. It could be seen as inappropriate to be referred to as a judge in such a context.
- Towards the end, the letter said this
‘I am sure that you will appreciate that in public life officeholders should always be alert to how references to their status might be perceived by other people. This is especially necessary where judicial officeholders are undertaking activities which are not a direct consequence of their judicial appointment and for which they are remunerated separately or are unpaid. In such cases they should carefully consider whether the use of a judicial title might give rise to a public perception that they are acting in their judicial capacity.’
- We bear in mind that the solicitors who were then acting for him, Mischcon de Reya, said in their letter to the JCIO dated 23 November 2015 that the article in the Law Society Gazette came from meetings the Office Holder had had, in his capacity as Chair of the SBL, with a journalist, about two campaigns which the SBL was running. The Office Holder was asked about immigration and some recent comments of Theresa May. The Office Holder was not speaking as a judge and understood that the conversation was ‘off the record’. He was not expecting his views to be quoted, or to be described as an Immigration Judge. When the Office Holder saw the article he immediately complained to the journalist. A copy of that complaint (by email) was enclosed with the letter. The journalist did not reply.
- The letter of 23 November 2015 from his solicitors to the JCIO said that the Office Holder was ‘entitled to engage in political and potentially controversial discussion, within limits. Provided [he] takes reasonable care not to present his views as being made in a judicial capacity, if notwithstanding [his] efforts, third parties misrepresent his position, [he] should not be held culpable….the letter of 7 March 2013 did no more than confirm [his] views on interactions with the media and to emphasise that he needed to take steps to avoid being misquoted’. The letter of 7 March should not ‘be viewed as reflecting a pattern of [the Office Holder] purporting to speak in a judicial capacity’. The Office Holder was not holding himself out as speaking in a judicial capacity on 30 April 2015.
The decision of the Election Commissioner
- On 23 April 2015, the Election Commissioner, Mr Richard Mawrey QC (‘the Commissioner’), handed down his judgment in Erlam v Rahman  EWHC 1215 (QB). The judgment is 686 paragraphs long. The petition was heard between 2 February and 13 March 2015. The Commissioner was satisfied, and certified, that in the election for the Mayor of the London Borough of Tower Hamlets held on 22 May 2014 Mr Lutfur Rahman was:
a. guilty by his agents of corrupt practices contrary to:
i. section 60 of the Representation of the People Act 1983 (‘the 1983 Act’) Act; and
ii. section 62A of the 1983 Act;
b. guilty by his agents of illegal practices contrary to:
i. section 13D(1) of the 1983 Act; and
ii. section 61(1)(a) of the 1983 Act;
c. personally guilty and guilty by his agents of an illegal practice contrary to section 106 of the 1983 Act;
d. guilty by his agents of an illegal practice contrary to section 111 of the 1983 Act;
e. personally guilty and guilty by his agents of a corrupt practice contrary to section 113 of the 1983 Act; and
f. personally guilty and guilty by his agents of a corrupt practice contrary to section 115 of the 1983 Act.
- The Commissioner declared that the election of Mr Rahman as Mayor of Tower Hamlets was void. Mr Rahman was also disqualified from standing in a local election for five years.
- We note that in January 2016, in R (Rahman) v Local Government Election Court  EWHC 1280 (Admin) the Divisional Court granted Mr Rahman permission to apply for judicial review of the Commissioner’s decision on one ground, relating to spiritual injury, because it raised an interesting point of law on which there was no modern authority. Permission to apply for judicial review was refused on two other grounds, by which Mr Rahman sought to challenge his disqualification for five years for paying canvassers and for bribing voters. That means that even if the substantive application for judicial review succeeds, the rest of the Commissioner’s decision will be unaffected, and Mr Rahman will still be disqualified for five years.
The Office Holder’s speech on 30 April 2015
- On 30 April 2015, the Office Holder spoke at a rally in Tower Hamlets. His speech was recorded and appeared on YouTube. A transcript of that speech is Annexe 1 to this document. For present purposes the significant features of the speech are that the Office Holder said,
‘I am a judge, albeit part-time…I can say this because I sit; these are sometimes my colleagues. Racism is alive and well and living in Tower Hamlets, in Westminster, and sometimes yes in the judiciary…We had, we had before the murder of Stephen Lawrence, race training for judges because they came out with racism, when they didn’t even know what it meant. So don’t let anyone fool you that just because you have a judgment in a court it is somehow sacrosanct. It is not.
But do not put your faith in a system that is not designed for you. You are not regarded as British. You are not regarded as part of here and now, otherwise this decision would not be made. So let me make no mistake about it, you have to take your fight out of the borough and make them feel it economically…’
- The Office Holder then described how teachers in Chicago went on strike. The children did not throw stones or bottles. They occupied the Chicago Stock Exchange, and within two hours they were back at school. He said, ‘Sometimes you have to take direct and peaceful action to get redress outside of the system. The press and the media, you know, is laid against you.’ He referred to deaths in the Mediterranean, to the press and the metropolitan police. He then said, ‘We don’t necessarily expect justice but we draw a line in the sand…so if you want change you have to fight for change and stand on principle, we are with you at the moment. We are with the people of Tower Hamlets.’
- It is clear from the video, but does not come across from the printed page, that the Office Holder is an effective and passionate public speaker. He emphasises his points with hand gestures, and paces his delivery. It is also clear from the way in which he elicits laughter from the audience that he quickly made a connection with the audience. We consider, below, both what the words of the speech convey to an objective listener, and what we what we are satisfied, having heard the Office Holder’s explanations, were his subjective intentions in making the speech. Both are relevant, in our view. We say more about these below. We note that in the tabulated comments on the speech which the Office Holder attached to his letter of 10
September 2015, he said that the audience was ‘a predominantly working class BME audience’. He also said that ‘The “decision” was a reference to the judgment [sc of the Commissioner]’.
- The Office Holder provided in his witness statement a link to the website Stand Up To Racism which advertised this meeting. Under the heading ‘Reinstate Lutfur Rahman’ is a further heading, ‘Defend Democracy in Tower Hamlets Rally’. The speakers are listed as including (‘in personal capacity’), the Office Holder. He is described as a ‘Human Rights Lawyer’. There is a further link signposted ‘Click here for Facebook event’. When this is opened, the speakers are similarly described (the Office Holder as a ‘leading human rights barrister’). The text says this
‘This meeting will set the record straight about the removal of Lutfur Rahman as Mayor of Tower Hamlets and set out what needs to be done to defend democracy in Tower Hamlets, to challenge racism in the borough and beyond, and to ensure that anti-racist, anti-war and anti-austerity politics find their rightful place in the council.’
The disciplinary process
- A Presiding Judge on the South Eastern Circuit referred the speech to the Judicial Conduct Investigations Office (‘the JCIO’) on 17 June 2015. On 18 June 2015, Underhill LJ was asked whether the complaint should be referred for investigation to the JCIO. He decided that it should be. The JCIO asked the Office Holder for his comments on the YouTube recording.
- A member of the public, Mr Greenhill, complained to the JCIO about the Office
Holder’s speech, later, on 17 July 2015. He said that the Office Holder appeared to ‘refer specifically to [the Commissioner’s] decision and to attribute the outcome to racism’. This was a misuse of the Office Holder’s status. It was inappropriate for the Office Holder ‘speaking publicly and unofficially to cast aspersions on a recent judgment and the integrity of another judge…’
- On 6 November 2015, a Presiding Judge on the South-Eastern Circuit asked the Office Holder to refrain voluntarily from sitting. We say more about this episode in the next section of this document. The JCIO referred the complaint to Underhill LJ as the nominated judge under rule 97 of the Judicial Conduct (Judicial and other office holders) Rules 2014.
Events in November 2015
- We have seen some emails which were sent between August and November 2015. These emails were forwarded to the Office Holder in response to two requests he made for disclosure. We have also read what the Office Holder has said about these events in his representations and witness statement. We have read the witness statement of Joel Bennathan QC, a former colleague of the Office Holder.
- What seems to have happened, in sum, is that an official from the JCIO asked one of the Presiding Judges (on more than one occasion), and the President of the First-tier Tribunal (Asylum and Immigration Tribunal) to consider whether the Office Holder should be invited not to sit while the complaint was being investigated. Emails were sent to and fro about this, but nothing happened until early November 2015. This meant, that, as the Office Holder pointed out to us, he had, by November 2015, been sitting for several months despite the existence of this complaint.
- On 6 November 2015, the Lead Presiding Judge, Sweeney J, wrote to the Office Holder. He said he was writing as Lead Presiding Judge with the agreement of the President of ‘the Immigration Tribunal’, Michael Clements, and of the President of the Employment Tribunal, Brian Doyle. He said that the JCIO had drawn to their attention two complaints about the Office Holder’s conduct. Neither he nor either President was involved in that process and they could make no assessment or assumption about the outcome. Sweeney J said in the letter ‘That said, it would not be appropriate for you to sit in any judicial capacity until the complaints have been resolved. I must therefore ask you to refrain, on a voluntary basis, from sitting until then. If, as I would hope, you agree to take that course, no more need be done. If you do not, I will have to take steps formally to seek your suspension’. That letter was sent by email to the Office Holder. He received it early on the morning of 7 November. It caused him great anxiety.
- On 7 November 2015 the Office Holder and Mr Bennathan QC were at a judicial training course at the Ministry of Justice. Sweeney J handed the Office Holder a hard copy of the letter of 6 November and spoke to him. The Office Holder later approached Mr Bennathan QC ‘in some distress’ and said he had just received an email threatening him with immediate suspension unless he ‘voluntarily’ suspended himself.
- Towards the end of the training, the Office Holder approached Mr Bennathan QC again. He said that he had been asked to have a meeting with Sweeney J. Mr Bennathan QC agreed to go to the meeting. The Office Holder was due to begin a week’s sitting at Harrow Crown Court on Monday 9 November 2015. According to Mr Bennathan QC, Sweeney J said he knew nothing about the origins of the complaint and was ‘just the messenger’. The Office Holder said he knew about white male Immigration Judges who continued to sit despite facing more serious allegations. Mr Bennathan QC asked what would happen if the Office Holder turned up at court on the Monday morning. Sweeney J said that he would be ‘turned away’. The Office Holder agreed not to go to court on Monday 9 November. It was agreed that there would be a further meeting after court on Monday 9 November.
- Mr Bennathan QC helped the Office Holder to draft a letter in which the Office Holder undertook not to speak publicly on controversial issues until the complaint was resolved. The undertaking was Mr Bennathan QC’s idea and was not the Office Holder’s preference. The letter was sent.
- In the meantime, the Senior Presiding Judge, Gross LJ, became involved. On 9 November 2015 he emailed a senior official in the JCIO for advice. He doubted that the complaint warranted suspension pending an investigation. The JCIO official said that the JCIO was still drafting a request to the Nominated Judge for Advice, but that the JCIO needed to give the Office Holder an opportunity to comment on some further information. It would be at least another six weeks before the matter was concluded. She said that she knew that ‘the LCJ was only willing to suspend in the most extreme cases’. It followed that if the Office Holder was not willing to refrain voluntarily from sitting it was unlikely that he would be suspended. That meant that there was little point in asking him to refrain voluntarily, particularly as he had continued to sit since the start of the investigation.
- There was a meeting on the Monday between Sweeney J and Singh J, and the Office Holder, accompanied by Mr Bennathan QC. The meeting was cordial. The undertaking was accepted. It was agreed that the Office Holder could resume his sitting the next day and that he would be paid for the day when he had not sat.
- Strictly speaking, we doubt whether our remit includes any consideration of this episode. We accept that there may be material which we have not seen, which might cast a wholly different light on this episode. If there is such material, and it casts a different light on this episode, what follows must be read subject to what that information may show. With that proviso, and on the basis of what we have seen, the Office Holder, rightly, in our assessment, feels very strongly about it. It has contributed greatly to his sense that he has been treated unfairly. He submits in his skeleton argument that he was deliberately misled into thinking that the allegation was so serious that a report would be made to the Lord Chief Justice and to the Lord Chancellor seeking his suspension. That is, in his view, ‘a disgrace’. Such treatment of a BME judge, he says, is likely to undermine public confidence in the justice system. He also said that when the threat to suspend him was made, ‘…they must have known it would not be carried out’. He described this experience as ‘one of the biggest slaps in the face I have ever had in my professional career’. He also said of it, ‘There are some occasions in our life when you feel as if you are being treated as a nigger. That was what it felt like’.
- It is clear from regulation 17 of the Judicial Discipline (Prescribed Procedures) Regulations 2014 (2014 SI No 1919) (‘the 2014 Regulations’) that interim suspension is a formal procedure to which two protections attach. The first protection is that the person or body conducting the investigation must consider that the matter should be referred to the Lord Chief Justice with a view to the exercise by him of his powers of suspension. If so, that person or body must send a report to the Lord Chief Justice to that effect. The second protection is that if the Lord Chief Justice decides to exercise his power of suspension, the Office Holder has the opportunity to make representations to the Lord Chief Justice.
- Those two protections are important safeguards for Office Holders. They must not be undermined by informal action such as that which took place in this case. The requirement to make formal report ensures that before any attempt is made to suspend, somebody has to exercise a judgment about whether the disciplinary allegations are serious enough to warrant suspension. It seems that no such judgment was exercised in this case when the JCIO officials informally approached the Presiders. If no such report has been made, this procedure must not be circumvented by the suggestion to an Office Holder that he should voluntarily refrain from sitting, and, if he does not do so, he will be suspended.
- If it was not likely that the Lord Chief Justice would exercise his powers of suspension in this case, the JCIO should not have suggested to the Presiding Judge, or to the Presidents of Tribunals, that they invite the Office Holder to refrain from sitting, nor should Sweeney J have made such an invitation to the Office Holder. We note that in his email of 9 November 2015 to Gross LJ, Sweeney J said that he was ‘looking at how we should deal with such situations better in the future’.
- On the basis of the material we have seen, we consider that this episode does no credit to the disciplinary process. The Office Holder told us that one has apologised to him for this episode. We have no hesitation, whether this is within our remit or not, in recommending that there be a formal apology, from a suitably senior person, to the Office Holder for the way this was handled.
- We recommend, further, that the JCIO, the Presiding Judges and the Presidents ensure that, in future, Office Holders are not invited to refrain voluntarily from sitting. The only person who can suspend an Office Holder is the Lord Chief Justice, and he can only exercise that power if a formal report has been made.
The Office Holder’s response to the complaints (September 2015)
- The Office Holder provided his response to the complaints on 11 September 2015. This included a line-by-line commentary on the speech. In short, he did not accept that his speech, which was about human rights, and not a party political speech, conflicted with his judicial office or could be seen objectively to compromise his impartiality. He had tried to show that it was possible to hold judicial office and ‘still be an active advocate in the community for human rights and equal treatment’. He mentioned that he was a part-time judge because earlier speakers had commented on the lack of diversity in the judiciary. It was a humorous aside, and the irony was not lost on the audience. He did not intend it to be a platform for what he was going to say. The references to racial discrimination in the judiciary were historical, and factual. His views were directed to ‘the exercise of human rights in Tower Hamlets potentially outside of the justice system. This is a typical speech for a community activist questioning a judicial decision.’
- He would be happy to take advice, but would resist any disciplinary action.
Underhill LJ’s Advice
- In his Advice, sent to the JCIO on 13 January 2016, Underhill LJ decided, in short, that part of the speech amounted to misconduct and that the Office Holder should be given a formal warning.
- Underhill LJ said that the speech was evidently unscripted. The Office Holder was introduced as a leading human rights barrister but referred to the fact that he was a part-time judge. Underhill LJ concluded that what the Office Holder said ‘could only be taken as a statement that the Commissioner’s judgment in the case of Lutfur Rahman was tainted by racial discrimination. That message is reinforced by what he then goes on to say, namely that his listeners – who were evidently predominantly from a black or ethnic minority background – are not regarded by the system as British and that ‘otherwise this decision would not be made’.
- Underhill LJ said that there was no general objection to a part-time judge speaking out on a matter of public controversy. Nor did it make any difference that the subject of the controversy was a judicial decision. The Office Holder would not have been precluded by his part-time office from saying that the decision of the Commissioner was wrong, with two reservations. Those were that the Office Holder had identified himself as a part-time judge, and that he had alleged that the Commissioner’s decision was tainted by racial discrimination.
- Where a part-time judge engages in public debate about a controversial issue he should be careful not to draw attention to his judicial role, particularly where the controversy concerns a judicial decision. ‘It is plainly liable to damage public respect for the judiciary if judges criticise each other’s decisions otherwise than in a forensic context. Underhill LJ accepted the Office Holder’s explanation for saying that he was a part-time judge. That explanation very much mitigated his conduct. But he should have resisted the temptation to refer to his status as it ‘risked giving an impression he did not intend’. The Office Holder referred three times to being a judge.
- Underhill LJ accepted that there is nothing wrong in principle with saying that racial discrimination may still exist in the judiciary. The speech was not concerned with the general position, but with a particular decision. This was misconduct. It was a plain instance of a public conflict between judges, expressed out of court, which is of a kind which is liable to bring the judiciary into disrepute and diminish the authority of the court. The heart of the misconduct was correctly expressed by Mr Greenhill in his complaint.
The Office Holder’s response to the Advice
- The Office Holder was given the opportunity to respond to the Advice. He submitted his representations on 3 February 2016. He said that informal advice would be a more appropriate and proportionate sanction. He relied on various mitigating factors. He described his personal experience of racism over many years, including in his efforts to obtain a judicial appointment, his unstinting efforts to combat racism and his international reputation for promoting the British legal system abroad.
- He suggested that the complaint was manufactured, and racially and politically motivated, aimed at discouraging criticism of disparity of treatment in Tower Hamlets. Other judges had made politically controversial speeches and not been disciplined.
- He had said he was a judge because the judiciary had been attacked for being white male and middle class. That he was a BME man and a judge went some way to dispelling such allegations. This was mitigation which should be given significant weight. He did not give way to ‘temptation’ but was positively showing diversity. He has often acted as a role model as a BME judge. He is certain, despite training, that outcomes in court are the same as, if not are worse than, 20 years ago.
- To discipline him and not others could amount to discrimination on grounds of race. He referred to McCloskey J’s comments about the migrants in the camps in Calais. He gave an example of an Immigration Judge who, he said, had been victimised, harassed and bullied after she made a complaint of discrimination on grounds of race, and of a white Employment Judge who had not been disciplined for gratuitously using the ‘N’ word. ‘There is no example of a judge being disciplined for alleging any form of discrimination’.
- Senior judges used their judicial office to call for the abolition of the criminal courts fee. Those are comments on a matter of general controversy. There should be no distinction if ‘the target is another member of the judiciary’. Judges must be open to criticism. His criticism of the judgment was, in any event, in very general terms. It could not be ‘so fundamental as to diminish the public’s confidence in the judiciary as a whole’. He continued, ‘The fact that the criticism was that it was ‘tainted by discrimination’ is not suggesting corruption, or even deliberate bias’. Most differential treatment is due to unconscious bias. Racism and feelings of unfairness cause ‘deep upset and humiliation…’ He said that it may be difficult for the criminal justice system to acknowledge it, but ‘criticising a particular judgment…has to be permissible if it draws attention to apparently discriminatory practice’.
- The rules are not enforced uniformly. He suggested that he had been treated less favourably than a white judge would have been. A white judge would not have been disciplined or suspended before any investigation had taken place.
- His speech was a ‘protected act’ under section 27 of the Equality Act 2010 (‘the 2010 Act’). He anticipated, at least in a broad sense, that he would have that protection when he made the speech. It was invidious that he could criticise the judgment in an academic setting, but not in a community setting. Underhill LJ had not addressed this question. The fact that he was aware of the 2010 Act in the broad sense at the back of his mind should be enough to give him protection. The alleged misconduct is a protected act and the investigation is a detriment.
- The letter of March 2013 was unfair. It was sent in circumstances which are different from the present. If the circumstances had been investigated properly he would have responded more fully and no ‘warning’ would have been given.
- His attempted suspension was significant mitigation and was relevant to the appropriate penalty. It had caused him significant distress and humiliation. It came at a time when he had suffered a bereavement, and on the anniversary of his mother’s death.
- Underhill LJ had failed to address significant issues in the case arising from the 2010 Act. In particular, he had not considered whether the speech was a protected act and the inconsistent approach to public speaking by white and BME judges, his significant mitigation and the interference with the rights protected by article 9 of the European Convention on Human Rights read with article 14. He would welcome constructive dialogue with the JCIO and with the Ministry of Justice. He was concerned that he might be ‘held out as a scapegoat for a discriminatory system’.
The Office Holder’s witness statement
- He questioned the Panel’s training and experience, and its ability to make any judgment in a case which involves allegations of discrimination. He does not believe that he would have been treated in the way that he has been had he been white. ‘The Judiciary in the UK have racism and discrimination, sadly, within their DNA, and so do I to some extent’. He gives various historic, and current, examples of discrimination. The courts are still affected by racist remarks and behaviour by judges. The overwhelming evidence is that the police service, probation service and ultimately the judiciary have helped to ‘maintain a systematic and institutionalised discrimination against people of colour based on unequal exercise of discretion.’ He was asked in open court by HHJ Prosser in 1989 where he was born, with the threat that he would be disciplined if he refused to answer. This would not have happened if he had been white. ‘Twenty-five years later in terms of my suspension, little seems to have changed’. Every facet of life in the UK is still determined by race and class.
- Between pages 7 and 9 he criticised the events in November 2015 to which we have already referred. He made the (valid) point that, contrary to regulation 17 of the 2014 Regulations no report was made referring his case to the Lord Chief Justice with a view to the exercise by him of his power of suspension. He would not have been dealt with ‘in such a cavalier and discriminatory fashion if I had been white’. The suggestion that those involved ‘had no idea of the procedure to be followed not requirement of Rule 17, or the criteria to be applied by the Lord Chief Justice, simply does not stand up to any reasonable scrutiny and is simply not credible’. No-one has apologised to him for what happened.
- His intention in saying that he was a judge on 30 April was only to show that the judiciary is not ‘all white, male and middle class’. Other judges, such as Baroness Hale, have spoken on many occasions about controversial issues. The meeting was not advertised on the basis that he was a judge. He was speaking as Chair of the SBL. The poster says that everyone was speaking in their personal capacity and did not refer to him as a judge. This has been overlooked by the JCIO and by Underhill LJ.
- The phrase ‘tainted by discrimination on grounds of race’ is not known to law. The Panel have decided that Underhill LJ is not to be cross-examined, but Underhill LJ needs to explain this phrase, as the Office Holder never used these words. Underhill LJ is not qualified by his background or experience to draw inferences about discrimination on grounds of race. ‘Why does the phrase ‘tainted with race discrimination’ go beyond the word ‘wrong’? It can only do so if there is an allegation that a fellow judge was corrupt, deliberately bias [sic] or malicious. That was never alleged or inferred in any way by me for indeed by any other speaker…’
- He says that he does not believe he read the decision of the Commissioner. He continues, ‘I believe I was simply aware that many groups believed it was probably wrong in law, and its use of language and therefore its factual findings should be overturned or challenged. I was aware that part of the concern was the phraseology used and the logic applied that may have made assumptions about the local community’. He has never suggested that ‘members of the judiciary sit on the bench deliberately discriminating …There may be the odd example of deliberate decisions but that is the exception. My view is that Underhill J [sic] has a perception of race discrimination being a reprehensible allegation to make as do many who are unfamiliar with the nuances of and frequency of racism’.
- It cannot be inferred that he was saying that the Commissioner’s decision was ‘tainted by race discrimination’. In any event that is an ambiguous phrase, and he did not say that the decision was ‘offensive’ or ‘deliberately or maliciously bias [sic] on grounds of race’. Even if it could be inferred, which he does not accept, that he was saying that the decision was a breach of article 6 read with article 14, that is no more than to say that the decision was wrong. Judges often say that the decisions of other judges are wrong.
- White men in positions of power have a ‘pathological history of perceiving black men to be ‘critical’ and of ‘alleging racism’ attributing an abstract or generalised attack on institutional racism to be specific to an individual. The phrase that ‘decisions like this would not be made’ is a reference to the degree of bias and racism perceived by the BME community at large. Language is important and therefore decisions that may be objectively fair can give the impression of bias due to the language used. This was certainly possible from what I understood of the decision of the electoral college Judge, who had clearly caused significant offence in the local community’.
- He never mentioned ‘Mawbery J’ [sic] by name and he never used the words ‘tainted by racial discrimination’. He did not quote any aspect of the judgment. A decision can be legally wrong due to racial bias. It suggests that a person has a racial animus if he thinks it is unlawful to say that a decision is wrong because of racial bias. That person does not understand the meaning of race discrimination or its manifestation.
- To say that a decision is unlawful because of unconscious bias or discrimination is no different from criticising a judge for getting the law wrong for some other reason. Those who have little understanding of racism perceive it as some sort of unusual or extreme form of behaviour that deserves a special place in society. The Office Holder accepts that ‘if someone had suggested that Mawbery J [sic] was corrupt, or was deliberately racially motivated, that would probably be a breach of the regulations’. Underhill LJ’s approach is ‘embedded in the belief that allegations of racial bias (conscious or unconscious) are themselves an ‘evil’ or somehow a disgraceful matter for those accused’. They may well be serious but they are very common in a society built on race and class. If, which is denied, the Office Holder implied that there was unconscious bias in the decision, he was doing no more than to say that the decision was wrong. Judges regularly criticise each other’s decisions for being wrong. ‘Why does that become an offence when said by a person of colour as appears to be the case? The pathology of race discrimination is that the behaviour of others who are white is permissible but by people of colour somehow is elevated to a breach of the disciplinary regulations.’
- The Office Holder does not suggest that Underhill LJ’s findings are based on deliberate discrimination on grounds of race. But his analysis is flawed and ‘offends against the EqA 2010…It is likely to be a discriminatory finding based on the presumptions and opinions that are the hallmark of someone who has rarely if ever addressed these matters before.’
- The Office Holder suggests that his treatment by the JCIO is discriminatory because no record has been disclosed of any case where a white judge has been disciplined for a similar offence. Underhill LJ failed to take into account his unlawful suspension. The JCIO took no steps to force the Daily Mail to disclose the identity of an anonymous Immigration Judge who publicly criticised the asylum system. That is evidence of discrimination against the Office Holder on grounds of race.
- The Panel is wrong to suggest that it has no power to investigate his claims that the JCIO has discriminated against him on grounds of race. It is further evidence of unfair treatment based on race.
- He expects the allegation to be upheld, as ‘it is rather easy to uphold the decision of a fellow High Court Judge as against someone in my position’. Such an outcome will not ‘assist in the task to develop diversity in the Judiciary or increase the confidence of the general public in the impartiality, fairness and objectivity of the Judiciary themselves’.
- ‘Race discrimination is an everyday occurrence and not some extreme right wing manifestation of abuse or violence committed by some fist-waving fascist. The problem is that complaints of race discrimination are more often than not perceived as if they were. Underhill J [sic] sadly fell into this trap, possibly in unconscious defence of a colleague. It would be a matter of deep regret if this disciplinary panel followed his lead’.
The Office Holder’s skeleton argument
We summarise the main legal and factual points in this document. We do not suggest that we have, in that way, done full justice to it. The Office Holder made 26 broad submissions which we consider we should record.
i. This is a minor allegation which has not been treated proportionately.
ii. The burden is on the JCIO to prove the allegation and not on the Office Holder to prove that he is innocent.
iii. The Office Holder’s suspension and Underhill LJ’s report are strong prima facie evidence of discrimination, harassment and victimisation.
iv. The Panel has no judicial immunity.
v. The Panel is guilty of race discrimination and victimisation because it has indicated that it has no power to investigate the Office Holder’s allegations that the JCIO has discriminated against him on grounds of his race, and harassed and victimised him. It has acted unlawfully because it has not referred to the Equality and Diversity Policy of the Judiciary (2012) (‘the EDPJ’).
vi. The Office Holder is content to accept as agreed ‘facts’
a. his own characterization of the context in which he made his speech;
b. that it is legitimate for a part-time office holder to
i. express the view that a judicial decision is wrong; and
ii. contend that there may still be discriminatory attitudes among the judiciary.
vii. He does not accept that
a. he was saying that the Commissioner’s decision was ‘tainted by discrimination on grounds of race’;
b. even if unintentionally he gave weight to that allegation by saying that he was a judge, that he sat and that judges were his colleagues; or
c. it is misconduct publicly to have identified himself as a judge in three different ways and then to allege that the decision of another judge is tainted by discrimination on grounds of race.
viii. The phrase ‘tainted by discrimination on grounds of race’ is not clear enough to support a charge of misconduct. Only Underhill LJ can explain what it means.
ix. Neither the Panel nor Underhill LJ has the necessary experience to answer the relevant questions. The Panel should have recused itself and that failure compromises the Office Holder’s right to a fair trial.
x. The Panel’s procedure has been flawed by irregularities (pages 6-7 of the skeleton argument).
a. The Panel has refused to allow witnesses to give oral evidence but refuses to accept their evidence as credible or decisive on ‘matters of expertise not held by the Panel itself.
b. The Panel has refused to permit Underhill LJ to be cross-examined about his findings and the meaning of ‘tainted by discrimination on grounds of race’.
c. The Panel has refused to take into account the Office Holder’s attempted suspension, whether it was an abuse of process, or direct discrimination, victimisation, bullying and harassment.
d. Underhill LJ failed to take into account any aspect of the 2010 Act, article 10 read with article 14, the Equality Bench Book, the EDPJ, or the general principles in the ACAS Code.
e. Underhill LJ should not have treated the letter of March 2013 as a warning letter.
f. Underhill LJ failed to take into account the strong mitigation arising from the attempted suspension, resulting in a disproportionate sanction.
g. Underhill LJ failed to have regard to ‘far more serious cases where little or no action has been taken against white judges’.
xi. The conduct of those involved in inviting the Office Holder voluntarily not to sit makes this disciplinary procedure an abuse of process. The current allegation wholly disproportionate and is ‘likely to have been undertaken on grounds of race victimisation, because I made mention of institutional judicial racism, and was known to be supporting Judge Wellesley-Cole’. That conduct is a breach of the EDPJ and the Office Holder’s witness statement is a grievance under the EDPJ. The Panel should dismiss the allegation on that basis alone.
xii. That conduct is also a breach of section 50 of the 2010 Act, which makes it unlawful (in short) to discriminate on grounds of race against the holder of a public office, or to harass such a person.
xiii. The attempted suspension amounted to bullying, and harassment. The Office Holder believes that it was victimisation because the JCIO knew that in a meeting on 18 June 2015 at a meeting with Langstaff J he had given information in connection with proceedings in the Employment Tribunal brought by Judge Wellesley-Cole against the Ministry of Justice. We note that in her witness statement, she describes an investigation by Langstaff J into her allegations. He produced a 75- page report. He dismissed her allegations of discrimination. She has issued proceedings against the Ministry of Justice, on the basis that his report is biased.
xiv. ‘Tainted by racial discrimination’ is not a concept in equality law. If his language was inappropriate or wrong ‘that is far short of being openly critical that the Judgment was deliberately biased, false, corrupt or discriminatory’.
xv. At pages 12-13 he repeats the ‘factual submissions’ set out in his witness statement (see paragraphs 57-59, above).
xvi. Underhill LJ made a fundamental error of law in taking into account the March 2013 letter. It was advice, not a warning. It was irrelevant to penalty. This approach is ‘evidence of potential bias on behalf of Underhill J [sic]’.
xvii. There is prima facie evidence of direct discrimination, bullying and harassment in the attempted suspension. The question is to what extent that played a part in the actions of Underhill LJ and of the Panel.
xviii. The Panel’s refusal to order the cross-examination of Underhill LJ is a major breach of the Office Holder’s article 6 rights, as only Underhill LJ can explain what he meant by ‘tainted by racial discrimination’.
‘Race discrimination’ is not necessarily unlawful. The 2010 Act cannot apply to judicial decisions as they enjoy judicial immunity. Underhill LJ has to explain his assessment and why he did not refer to the 2010 Act or to the EDPJ, which he was bound to take into account.
xix. Neither the JCIO nor the Panel has properly defined what ‘tainted by racial discrimination’ means, which is a breach of article 6.
xx. The Panel has refused to hear from his witnesses, but ‘purports to give considerable weight to Underhill J [sic] primary conclusion that pre- judges the hearing… The making of preliminary findings without hearing from the accused offends against article 6…’
xxi. The disciplinary process is a breach of the Office Holder’s rights protected by article 10 read with article 14. Judges are allowed to criticise other judges’ decisions on the grounds that they are ‘wrong’. ‘In its most common form of unconscious bias, race discrimination is simply another type of ‘wrong’, unless one is accused of a deliberate act.’ Judges can also criticise decisions of other judges if the use inappropriate language which may cause offence.
xxii. The Office Holder accepts (skeleton argument, page 18) that a judgment and a judge ‘enjoys immunity from the [2010 Act]. If, which is not accepted, my words were directed at claiming Mawbery J [sic] had deliberately and knowingly used racist language or filed a Judgment against Lutfur Rahman on grounds that were intentionally biased on grounds of religion that cannot amount to a protected act under section 27(2)(a)-(d) of the [2010 Act].’ But if the comments did not amount to an allegation of deliberate misconduct by the Commissioner, his comments would not be misconduct, as that is simply saying that ‘the decision is ‘wrong’ on grounds of race’. He continues, ‘A Judgment being ‘wrong’ on grounds of some form of unlawful discrimination likely to amount to unconscious bias or even inappropriate language likely to offend on grounds of race, sex, or religion is simply ‘wrong’ ’.
xxiii. The disciplinary action was victimisation because of the protected act of helping Judge Wellesley-Cole, or because he has complained about institutional racism in the judiciary.
xxiv. His criticism of the judgment should attract the protection of the EDPJ which applies where a person ‘raises a concern about discrimination in the above context’. At the top of page 20 of his skeleton argument he appears to accept that, in his speech, he was ‘highlighting discriminatory language in a judgment falling short of misconduct such as the language used… A judiciary where all forms of discrimination by colleagues are subject to a code of silence backed by the Judicial Conduct and Discipline Regulations is unacceptable in a democratic [society]’. He asks a rhetorical question ‘What does more harm in a diverse and democratic society, the use of inappropriate discriminatory language by a Judge or the threat of disciplinary action against his colleagues for raising the matter in the public domain?’
xxv. There is no legal or factual merit at all in the allegations. He does not accept that he was criticising the judgment, but if he was, all he was doing was to say that it was ‘wrong’ and that is a regular occurrence at seminars and conferences. It is not misconduct to tell a public meeting (intentionally or unintentionally) that he is a part-time judge, as ‘discussing institutional racism’ is no more contentious than Baroness Hale and others discussing a lack of diversity in judicial appointments. The Panel must not only dismiss the allegation, but it must make a recommendation about his suspension as a grievance against the JCIO and the High Court Judges and Presidents involved.
xxvi. On page 21 of his skeleton argument, the Office Holder lists ten further recommendations which he invited us to make. In our judgment, these are well outside our remit.
The other witness statements
- The Office Holder submitted witness statements from Mr Sailesh Mehta, a barrister and Recorder of the Crown Court, Mr Stephen Bedeau, a full-time Employment Judge, Mr Kevin D Judd, the President of the National Bar Association of the United States of America, Mr Joel Bennathan QC, a criminal practitioner and Recorder of the Crown Court, and former colleague of the Office Holder, Nawal Kumraj, a District Judge of the County Court, Immigration Judge Wellesley-Cole, and from Ms Ifath Nawaz, a solicitor. They have all known the Office Holder for a long time and speak of his integrity and efforts to combat discrimination, sometimes at high personal cost. We also read the witness statements of Rabina Khan and Sarbjit Dhalu (who were present when the Office Holder made his speech).
- We also read the witness statement of Diane Abbott MP. Her conclusion is that ‘Any disproportionate action against senior black and minority judicial figures runs the risk of marginalising and isolate an already unrepresentative body’. Finally, we read the witness statement of Lord Ouseley, an independent peer who sits on the cross- benches, who has considerable experience of working in the public sector to combat racial discrimination. He says, among other things, that ‘Any findings on the basis of facts as they exist in this matter would be unfair and potentially discriminatory on racial grounds. The facts show otherwise. Any finding against [the Office Holder would have serious implications for the way the judiciary and the justice system is regarded, making it even harder for those like [the Office Holder] who strive to bring equality, fair treatment and just outcomes in all situations in our society and especially as many people in the deprived communities expect people like him in his position to inspire them to believe that the British justice system is fair’.
- Several witnesses said in their witness statements that they expected to be called to give live evidence. We did not consider this was necessary. The material in their witness statements was either uncontentious, not relevant to the issues we have to decide, or consisted of the expression of the witnesses’ opinions on questions which it is for us and not for them to assess.
- We considered six questions
i. What is the scope of our remit?
ii. What objectively, does the relevant part of the Office Holder’s speech mean?
iii. Was the Office Holder guilty of misconduct in making such a speech?
iv. If so, was it a protected act?
v. Does any of the Office Holder’s procedural points undermine our conclusion?
vi. If not, what is the appropriate penalty?
(i) The scope of our remit
- We have taken a relatively broad view of this. On a strict reading of the legislative framework, it could be said that all we can do is to look at the facts and decide whether the speech was misconduct, and, if so, what the penalty should be. Having read the Office Holder’s various representations and having heard from him, we have taken a somewhat broader view of our remit than that. It seems to us that in making our recommendations we cannot ignore (as it appears to us on the information we have), that the Office Holder was threatened with suspension in circumstances where, in the view of a senior official in the JCIO, it was not likely that the Lord Chief Justice would have exercised his power of suspension, and where no report (an essential preliminary to suspension) had been prepared or, as far as we know, was contemplated. These events caused the Office Holder considerable humiliation, distress and anxiety (90% of his income came from his part-time appointments) and caused him to consider resigning and even leaving the United Kingdom. We consider that there is real force in the Office Holder’s general point that he has already suffered a considerable (and apparently unjustified) penalty for making the speech.
- However, we do not consider that we are able to come to any conclusions, or express any view, about the Office Holder’s argument that a white judicial colleague would not have been treated in a way in which he has, because (a) a white judicial colleague would not have been disciplined for making similar speech, and (b) a white colleague would not have been threatened with suspension in similar circumstances. Nor are we in any position to make any findings about his suggestion that the investigation is politically or racially motivated, or that he is being victimised for supporting Judge Wellesley Cole. In any event, even if those allegations are true, they do not help us, as matter of logic, to decide whether the speech is misconduct or not, or if it is, what the penalty should be.
(ii) What, objectively, does the speech mean?
- The Office Holder acknowledges (in the commentary attached to his representations of 10 September 2015) that his audience was a ‘predominantly working class BME’ audience. Those are the people he meant when he said, ‘you’. Those are the people the audience would have seen in the room, and those are the people they would have understood the Office Holder to be addressing as ‘you’. We consider that a reasonable person, listening to the relevant part of the Office Holder’s speech, would have understood that a part-time judge, with first-hand experience of other judges, was saying that
a. a judgment is not ‘sacrosanct’, as it can be influenced by the racism of the judiciary,
b. the justice system does not regard the BME people in the audience as British,
c. the decision of the Commissioner would not have been made if Mr Rahman had been regarded as British, ie had not been a BME person,
d. people who are not regarded as British (ie BME people) could not get justice from the British justice system, and
e. Such people should therefore take the law into their own hands by taking direct action.
- Mr Griffiths QC submitted that the context of the key sentence was criticisms of the justice system generally. We have carefully considered his argument that the sentence ‘You are not regarded as British….’ should not be taken out of that context and given a meaning it does not fairly have, that is, that it is a criticism of the decision of the Commissioner. We reject that submission. It is clear to us that the context in which the speech was made was concern about the decision of the Commissioner and its effect on Mr Rahman and the electors of Tower Hamlets, not a wider concern about the justice system as a whole. That is the context in which the Office Holder referred to historic racism in the judiciary, and training for judges, and then referred to the decision of the Commissioner.
- We further consider that the audience, listening to his speech, and having appreciated the irony that he was a part-time judge, would have had that information in mind when listening to the rest of his speech. We accept that the Office Holder did not use the word ‘discrimination’. But that does not affect the objective meaning of this part of his speech. An objective person listening to the speech would have concluded that a part-time judge had said that the Commissioner’s decision was based on the race of the litigants (as did Mr Greenhill).
- The Office Holder is not his own best advocate. We consider that the questions we asked him, which were as sympathetic as we could make them, gave him a full opportunity to acknowledge the clear objective meaning of his speech. He could not bring himself to do this. He seemed surprised to see that he had said ‘this decision’, rather than ‘these decisions’ (despite what he had said in his tabulated comments – see above). He told us that he wanted to make quite clear that he had not read the Commission’s judgment and that he wanted to make no reference to the Commissioner or to the judgment directly. The difficulty is that he did not say he had not read the decision, and, in our view, did refer directly to the Commissioner’s decision.
- He also had a clear opportunity to say that he had not meant to say what he had said, and had not said what he had meant to say. He found it very difficult to do that in an open and unqualified way. He was given several chances to suggest that ‘this decision’ was a slip of the tongue for ‘these decisions’. Had he answered those questions directly we also consider that he would have had an opportunity to apologise for the wrong impression which his words conveyed, and to acknowledge that he would be more careful in the future about what he said in public.
(iii)Was the Office Holder guilty of misconduct?
- We consider both that that these elements of the speech, against that background, are misconduct, and that the speech was likely to undermine public confidence in the judiciary, and the authority of the judiciary, particularly when coupled with an unambiguous invitation to direct action.
- In his written materials the Office Holder accepts that it would be misconduct to accuse another judge of deliberate racism (see paragraph 60, above). He submitted that it cannot be inferred that he accused the Commissioner of deliberate racism; and that if he was saying that the Commissioner was guilty of subconscious racism, he was doing not more than to say that his decision was ‘wrong’; and judges regularly criticise other judges’ decisions on the grounds that they are ‘wrong’. He has submitted more than once that to treat an accusation of subconscious racism as a serious and damaging accusation is to over-react, because racism is an everyday occurrence.
- We do not agree with that approach. We deal, first, with whether it is serious to accuse a fellow judge of unconscious racism. We will assume in the Office Holder’s favour that he was making an accusation of unconscious, rather than of deliberate, racism. We consider that all right-thinking members of our society would view an accusation of racism as serious and damaging. To say that another judge has been guilty of unconscious racism is to make a grave attack on that judge. We consider that for the Office Holder to have identified himself as a judge, to have made that accusation to listeners who were predominantly BME people, and to say that they should not put their faith in a justice system which is not designed for them, are statements which are likely to bring the judiciary into disrepute and to undermine its authority. That effect is exacerbated by the fact that the accusation is made by a prominent BME human rights lawyer, to whom that audience might well look for informed comment and guidance. We are surprised that the Office Holder, who has fought for years against its pernicious effects, has in this context sought in this way to underplay the significance of unconscious discrimination, and of an accusation that a judge has engaged in it.
- We consider, second, whether we agree with the Office Holder’s contention that to say that a decision is affected by unconscious racism is to say no more than that it is wrong, something which could be said with impunity in an academic seminar. The first point is academic criticism of judicial decision is based on a close analysis of the reasoning in the decision. Academics do not simply declare, ex cathedra, that a decision is ‘wrong’. The Office Holder had not read the decision of the Commissioner, and has not explained to us, by reference to the text of the decision, what part of the Commissioner’s reasoning is legally flawed, or shows evidence of ‘unconscious discrimination’. He certainly did not do so in his speech. We are driven to the conclusion that the Office Holder simply decided that he did not like the outcome. He did not need to read the decision in order to know that, or to criticise it in public. Such a careless approach is troubling. The Office Holder in part recognised this, when he told us in the hearing that ‘…you are not going to comment in any detail if you have not got a judgment…’
- The second related point is that criticism of the legal reasoning in a judgment is an objective exercise. It does not depend on ‘feel’ or ‘intuition’, or on what others may have said about the judgment. It requires, instead, a close analysis of the judgment. By contrast, an assertion that a judgment is subconsciously discriminatory cannot be tested objectively. It is impossible to prove, and impossible to disprove. It is a particularly corrosive accusation to level at the work of a fellow judge.
- He said, in his September representations, that he would be willing to take informal advice. Towards the start of the hearing he also said that he would have been happy to take advice informally. He is not infallible; but what he said did not warrant disciplinary action. We were not clear, at the end of the hearing, whether he recognised that he needed any advice, as his answers suggested that the purpose of his offer to take informal advice was to avoid a formal investigation, rather than to acknowledge that he needed advice. At one point, he said, ‘I’m here because I upset a High Court Judge by talking about racism’, and later, ‘I’m not required to do any more learning about what I said’. He was asked whether, if he could go back in time, he would have changed anything he said. His reply was that he would not change a couple of words to make it look good. He would have read the decision, or ‘at least some of it’ if he had intended to make a formal complaint about it.
- We should also consider the Office Holder’s argument that his right to free speech would be infringed if he were disciplined for what he said in the speech. He said that he should not be disciplined for ‘one interpretation of a set of words which is extremely subjective no matter what your collective wisdom is around this table’. We accept that as a part-time judge the Office Holder is free to speak in public about political issues, provided he does not identify himself as a judge. He accepted in the hearing that there should be as much of a ‘firewall’ as possible between political comments and judicial office. He is also free to engage in academic discussion of the judgments of others. We do not accept, however, that his right to express his views in public extends to suggesting that another judge has based a decision (whether consciously or unconsciously) on the race of the litigants in the case.
- We have three further concerns about his judgment.
- First, it had clearly not occurred to him that he was wrong to criticise the decision of a fellow judge without having read that decision, particularly, if as here, the criticism is said to be a criticism of the language used by that judge. He did not seem to realise that as a judge himself, he should have read the decision, rather than taking, as read, second-hand criticisms he had picked up from others (who might, or might not, have read the decision themselves). This also disposes of his argument that judges can criticise the decisions of fellow judges in academic seminars. It is inconceivable that a judge would do so without having read the decision in question. He was still asserting, in the hearing, that ‘decisions like this are wrong’, without explaining, by reference to the terms of the decision, why.
- Second, he suggested to us that he would not have been in the room with us had he been white. ‘The formalisation of this for me misses far greater issues, wider issues of race in the system…and issues of proportionality’. At that point he referred to the public debate between the Supreme Court Justices. Nothing had been done about that, and there was no equality under the law. He was receiving differential treatment. It felt like he is not a judge, but just another black man.
- Third, in his documents and oral statement to us he, and in their witness statements, some of his character witnesses, implied that were we to uphold the decision of Underhill LJ, this could have serious implications. He told us that this was a ‘very political decision’ and if it was ‘formalised’, it would not be seen by him or by others as equal treatment. He said that should not matter, but it does, that he should be able to speak with freedom and should not be subject to a disciplinary process on the basis of a ‘subjective interpretation’. He said that the Lord Chief Justice and the Lord Chancellor have to understand that diversity has to mean something. If there is a perception that there is differential treatment it will do great damage to the system.
- We have taken into account, in reaching our view, that the Office Holder, for understandable reasons, has not found this an easy process, nor has he found it at all easy to make any sensible concessions. We have anxiously considered whether we should give him the benefit of the doubt, and conclude that he is not guilty of misconduct because, whatever he might have said expressly in his documents and at the hearing, he realises, deep down, that what he said was wrong, and he is sorry. We gave him several opportunities to express this. In the end, we do not consider that we can, or should, patronise him by inferring that he did not mean what he said during the hearing, or by attributing to him an insight into the effect of his speech which he simply did not show in the course of the hearing.
- Seen from the vantage point of November 2016 this drawn-out process may seem disproportionate to the misconduct we have found. We have also considered anxiously whether those concerns, our concern about the events of November 2015, and the human sympathy which we feel for the Office Holder himself, might have enabled us to find, when coupled with our views about his intentions, and the views of his character referees, that he was not guilty of misconduct. In the end we have decided that we could not conscientiously do so.
(iv) If it is misconduct, is the relevant part of the speech a protected act?
- If a person is subjected to a detriment because he has done a protected act, that amounts to the statutory tort of victimisation (see section 27(1) of the 2010 Act). If the relevant part of the speech was indeed a protected act, to discipline the Office Holder for it would amount to victimisation. One of the main arguments in the Office Holder’s representations dated 3 February 2016 was that Underhill LJ’s reasoning was flawed, as Underhill LJ had failed to recognise that his speech was a ‘protected act’ for the purposes of the 2010 Act. As we understand his skeleton argument, the Office Holder conceded in it that if he was criticising the Commissioner’s decision on the basis that it was in some way discriminatory, that would not be protected act. That concession is rightly made.
- ‘Protected act’ is defined in section 27(2) of the 2010 Act. The definition includes ‘making an allegation (whether or not express) that [a person] has contravened this Act’ (section 27(2)(d)). In so far as the Office Holder was making systemic criticisms of the justice system, on the grounds that it discriminates against people from minority backgrounds on the grounds of their race, that might well be a protected act. But the Office Holder is not being investigated for any systemic criticisms he might have made, as Underhill LJ’s careful Advice shows. The vice of his speech is the criticism it makes of the decision of a particular judge, the Commissioner.
- The Commissioner was performing a judicial function when he made that decision. The relevant provision of the 2010 Act is section 29, which (in short) prohibits unlawful discrimination in the provision of a service to the public. Such a service includes the provision of a service in the exercise of a public function (section 31(3)). Section 29 is subject to the exceptions in Schedule 3 to the 2010 Act (section 31(10)). Paragraph 3(1) of Schedule 3 provides that section 29 does not apply a judicial function. The effect of that is that nothing done in the exercise of a judicial function can amount to discrimination which is made unlawful by the 2010 Act. It follows that to suggest that a judge has discriminated on grounds of race in the exercise of a judicial function is not a protected act. To discipline someone for making such a criticism does, not therefore, amount to the statutory tort of victimisation.
- The Office Holder suggested both in writing, and in the hearing, that he had in the back of his mind that what he was doing was protected act. A subjective belief in a protected act does not transform something which is not, in law, a protected act, into something which is. Nor do we think that such a belief would provide the Office Holder with any relevant mitigation, as, as a part-time Employment Judge, he should have realised that a criticism of the decision of a judge was not a protected act. However, his suggestion that he had this defence in the back of his mind suggests that he was aware that he was, in the speech, saying that the Commissioner’s decision was discriminatory on grounds of race.
(v) Does any of the Office Holder’s procedural points change this conclusion?
(1) Is the charge unclear?
- We have considered carefully whether there is any merit in the Office Holder’s argument that Underhill LJ’s phrase ‘tainted by racial discrimination’ is ambiguous so that the misconduct proceedings are unfair, because he does not know what accusation he has had to face. We do not consider that there is anything in this point. It was clear from the Office Holder’s representations of 3 February 2016 that he understood Underhill LJ’s Advice. He did not then suggest that there was any relevant lack of clarity in Underhill LJ’s Advice. Indeed, that may well be why he suggested that his speech was a protected act. In our letter of 20 October 2016, we set out what in our view were the issues for the hearing. We based those on Underhill LJ’s approach, as his Advice was clear, the Office Holder had not suggested otherwise, and it seemed to us that the best way to proceed was to invite the Office Holder to focus his evidence and submissions on Underhill LJ’s findings. Mr Griffiths QC, in his succinct submissions, accepted, we think, that everything turned on a short passage in the speech: ‘You are not regarded as British… otherwise this decision would not have been made’.
(2) Is the disciplinary investigation an abuse of process?
- The Office Holder rightly concedes in his skeleton argument that it is unusual for proceedings to be stayed for abuse of process. His argument is based on the attempt to suspend him in November 2015. We have already expressed our views about the attempted suspension. We do not consider that it even arguably makes these proceedings an abuse of process. The attempted suspension has not prevented the Office Holder from presenting his case, or made the hearing unfair. We are simply not in a position to decide whether the Office Holder is right when he alleges that the attempted suspension amounted to discrimination on the grounds of his race. But even if we were to assume for the sake of argument that it did, that could not mean that if an allegation of misconduct is otherwise made out, we should somehow ignore it.
(3) The Panel’s approach to the calling of witnesses
- We decided that it was not necessary for Underhill LJ to be cross-examined. He is not a witness of fact, but a decision-maker. His findings are a mixture of factual findings and assessments. He has made favourable findings which the Office Holder has not challenged. The findings which the Office Holder has challenged are not factual findings, but matters of assessment. In that situation, we could not see how it would help us to have Underhill LJ cross-examined about what he meant by his findings, or why he reached them. His Advice is a document which speaks for itself. As we have already said, we also decided that it was not necessary for us to hear from the Office Holder’s witnesses. We have read their statements and taken them into account. There is no relevant dispute of fact about their evidence. Some give their opinions about various issues which are relevant to our decision. We have read those opinions, but do not consider that we would be helped by asking those witnesses why they hold those opinions. None claims to be giving expert evidence.
(4) Underhill LJ did not take into account the 2010 Act, article 10 read with article 14, the Equality Bench Book, the EDPJ or the ACAS Code
- Our approach has been to use Underhill LJ’s Advice as a starting point. But we are not hearing an appeal from it. We are reaching our own view about the issues. In any event, none of these points undermines our view that the relevant part of the speech is misconduct. In short, what Underhill LJ did was to listen to and read the speech, to interpret it, and to conclude that it constituted misconduct. None of those tasks would have been informed by these documents, and none of his conclusions is contradicted by them. This is not changed by the fact that Underhill LJ’s conclusion was that the effect of the speech was to say that the Commissioner’s decision was ‘tainted by racial discrimination’. No special expertise is required to reach that conclusion, which depends on asking what an objective listener would understand the speech to mean. Articles 10 and 14 are qualified rights. The Office Holder does not, precisely because he is a judge, have an unqualified right to say what he likes about the decisions of other judges. In particular, he does not have a right, having identified himself as a judge, to say that of the decision of another judge that the parties (who were BME people) were not regarded as British, otherwise the decision would not have been.
(vi) If not, what is the appropriate penalty?
(a) What did the Office Holder intend?
- Having heard from the Office Holder, we consider that the objective meaning of the words is not the only relevant factor. Here, we consider, in the round, what the Office Holder told us about the speech at the hearing on 3 November. He was feeling stressed when he arrived. He had had trouble finding a parking space, and was late. He had not had time to prepare what he was going to say. He had not thought it through. We agree with Underhill LJ’s assessment that the train of thought in the speech is not always clear. It is improvised. At the start, the Office Holder says ‘You have not read, probably’ and then abruptly changes course.
- He faces an allegation of misconduct in a sensitive and somewhat grey area. As Underhill LJ rightly accepted, a part-time judge can make a political speech. A judge can also criticise the decision of a fellow judge. Judges can disagree publicly about controversial issues. The Office Holder refers in this context to a recent, public debate between Justices of the Supreme Court about diversity in the judiciary. The Office Holder argues that white judges are especially touchy about allegations that collectively, they are racist. They are uncomfortable talking about such issues.
- He feels that he did no more than to reflect the feeling of the community that the decision was ‘wrong’ because they were upset by its language. He was aware that the language used by the Commissioner had probably upset a lot of people. A judgment can be right in law but be phrased in a way which causes upset and distress. He had in his mind references he had heard in the past in a summing up in open court to ‘the nigger in the woodpile’. There was nothing legally wrong with such a summing up but listeners would have no confidence in it. He is pretty sure he had not read the judgment. The most he was aware of was that the language of the judgment had probably caused offence. He wanted to make no reference to the judgment or to the Commissioner directly. He wanted to talk about how racism is dealt with in the judiciary. The speech was not eloquent; it was not thought through. He did not have time to explain about bias and discrimination.
- If he had intended to accuse the Commissioner of racism, he would have done so by making a formal complaint. His intention, rather, wearing his hat as Chair of the SBL, was to draw attention to systemic flaws. We asked him several questions about this, and we consider that, in the end, he indicated that, with hindsight, he might not have meant to say ‘this decision’ but rather, ‘these decisions’.
- Like Underhill LJ, we accept the Office Holder’s explanation for mentioning that he was a part-time judge. Several earlier speakers had ‘taken a tilt’ at the judiciary for being white, male, and out of touch. He wanted to defuse that in a humorous way by showing that things had moved on. He felt it was necessary to make this point. He had not planned to, as he had not written the speech: he had not had time to. It seems to us, however, that an objective listener would not have forgotten those introductory remarks when the Office Holder made the rest of his speech. Objectively, those references do, in our view, affect the way in which an audience would understand what followed. However, we accept the Office Holder’s explanation, which is, in short, that in his own mind, those references were in a separate box; he then moved on and then continued his speech as Chair of the SBL. He did not make a connection between his introduction and what came later. It was an occasion when he could say no more than that there is a problem with racism in the judiciary and he was involved in trying to change that; there is, in his view, a danger if people do not speak out about these things.
- An issue which was running through his mind, we also accept, when he made the speech, was that he was concerned about what he saw as racial harassment and victimisation of a female colleague by three white male colleagues who sit at Taylor House. In his view she was bullied after making a complaint about her treatment, and sent to Coventry. In his view, nothing had been done about that, and the President of the Tribunal was palpably uncomfortable in talking about the issue. None of the three judges had been suspended. His reference to his ‘colleagues’ was a reference to those three judges.
- Mr Griffiths QC further submitted that the evidence of the character witnesses was relevant to our assessment of what the Office Holder intended when he made the speech. People of impeccable integrity and experience, he submitted, all spoke in glowing terms of the Office Holder’s contribution over the years. That material was not before Underhill LJ. It must have quite an impact on us.
- We accept that the circumstances in which the speech was made provide the Office Holder with some mitigation, as does the evidence of his character witnesses. It seems to us that he did not plan to say, in public, that he was a judge, and that the decision of the Commissioner would not have been made if the litigants had been regarded as British. It also seems to us that he might have meant to say ‘these decisions’, rather than ‘this decision’. But this mitigation is two-edged. It also seems to us that as a prominent BME lawyer and part-time judge, the Office Holder should have taken particular care not to say things which objectively conveyed a meaning which he did not plan to convey. One way to do this would have been to prepare his speech, rather than to speak without a script. Moreover, while he said in his witness statement and to us that his call to direct action was a call to lawful direct action, he did not say so in his speech. The example he gave in his speech was of action which must have involved the commission of, at the least, the tort of trespass; and his call to direct action was framed as an alternative to putting faith in a justice system ‘which is not designed for you’. The short point is that, as a part-time judge, the Office Holder is not free to speak in the way in which he would be if he were simply a community activist, particularly if he has, when speaking, chosen to identify himself as judge. Indeed, he accepted to us that there should be a ‘firewall between political comments and judicial office’. He has never had an issue about making political comments about legislation when sitting, but ‘We need to be visible in our communities… I have the right to say that a colleague is wrong, where that wrong may be inappropriate language’.
(b) The letter of March 2013
- We must consider the letter of March 2013 in this context. It was written to the Office Holder on behalf of the President of one of the Tribunals in which the Office Holder sits. It reminded him that if taking part in media interviews or television programmes he should ensure in advance that he is not going to be described by his judicial role and that in deciding whether to take part, he should consider whether doing so could bring the judiciary into disrepute, whether or not he was described by his judicial role. He was reminded of the need to be alert in public life to how references to judicial status might reasonably be perceived by other people, and that this was particularly necessary when judges were doing things which are not a direct consequence of their judicial appointment, and are unpaid. They should consider carefully whether use of their judicial title might give rise to a perception that they are acting in a judicial capacity.
- We of course accept that the letter was not a formal warning. We will assume that the letter should not have been written. Nonetheless, the letter is a fact. That the letter is not a warning is irrelevant, in our judgment. The Office Holder is not an employee. The point is that the letter was sent to him (rightly or wrongly) and drew his attention to his responsibilities as part-time judge. The fact that it was sent about two years before the speech means, in our judgment, that the Office Holder should have realised that he had to be careful, when speaking in public, not to refer to his judicial role (and, we would add, to be especially careful about what he said if he had identified himself with his judicial role).
- Underhill LJ saw the issue of penalty as finely balanced. The letter of March 2013 tipped the balance, for him, towards a formal warning rather than towards formal advice. We have considered anxiously what role the letter should play in our decision. We consider, very much on balance, that the Office Holder might have thought that, as he did not accept that he had been at fault in March 2013, and should not have received that letter, it had no bearing on his future conduct. Given the contents of the letter, and the indemnity of its author, that view, if held, was unwise, even if the letter was written about a different issue (interactions with journalists rather than public speeches). Nonetheless, we consider, in the circumstances, that it would be unfair to appear to penalise him by taking the letter into account in an otherwise finely balanced decision about penalty, as the factor which should escalate the penalty from formal advice to a reprimand. This is all the more so, as, unlike Underhill LJ, we have received much information about the events of November 2015, about which we have already expressed our views, and the views of the character witnesses.
(c) Conclusion on penalty
- Our decision, therefore, is that the appropriate penalty is formal advice. This is not a case, in our view, in which it could be said that such advice was unnecessary. Such advice should stress that if the Office Holder choses to make a speech on a controversial subject which might involve criticism of the decision of a colleague, he should think very carefully before doing so, particularly if there is any risk that he will not be able to control the debate. If he nonetheless decides to do so, he should prepare a script, and bear in mind that he should never publicly criticise a colleague’s decision unless he has read the decision, and planned what he is going to say about it. He should not use language which would lead an objective observer to infer that he is accusing a colleague of making decision on grounds of race (whether consciously or unconsciously).
Decision and recommendations
- Our view is that the Office Holder is guilty of misconduct because after referring three times to the fact that he was a part-time judge, he said, in a public speech, of a decision of a fellow judge, that the parties (who were BME people) were not regarded as British, otherwise the decision would not have been made, that they should not place their faith in a justice system which had not been designed for them but should take direct action instead.
- We express our regret for the time which this complaint has taken to resolve, and for the pressure and anxiety to which the process has subjected the Office Holder.
- We recommend that
i. A suitably senior person apologises formally to the Office Holder for the attempts to put pressure on him not to sit in in November 2015, in circumstances where (a) no report had been made to the Lord Chief Justice asking him to exercise his power to suspend and (b) the complaint was not sufficiently serious to warrant suspension (see further, paragraphs 21-34, above).
ii. The JCIO, the Presiding Judges and the Presidents ensure that, in future, Office Holders are not invited to refrain voluntarily from sitting, particularly in cases where the complaint against them is not serious enough to warrant suspension. The JCIO, the Presiding Judges and the Presidents must be told that the only person who can suspend an Office Holder is the Lord Chief Justice, that he can only exercise that power if a formal report has been made, and that he will only do so in sufficiently serious cases.
iii. The Office Holder be given formal advice along the lines indicated in paragraph 110, above.
23 November 2016
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