Judges speaking out

Judges are generally discouraged from speaking publicly outside the remit of their judgments, and two have recently been reprimanded for doing so. But a third made the news after he set the record straight when publishing revised sentencing remarks in a case widely misreported in the press.

Just not cricket

Faced with a situation where he was lied to by the defendant at the time, and widely misreported in the press thereafter, Judge Richard Mansell QC exercised powers under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 to recall the defendant Mustafa Bashir and correct the sentence imposed on him for offences of violence against a former partner. He had originally sentenced Bashir to 18 months imprisonment suspended for two years, which was widely considered too lenient: see Daily Telegraph, Abusive husband spared jail amid claims he lied about having a contract as a county cricketer. He now imposed an 18-month term of immediate imprisonment.

The lies related to Bashir’s claims in mitigation to be about to take up a professional cricketing job (he was not, and the relevant club seems barely to have heard of him); and the misreporting took the form of misquoting the words which the judge himself had quoted from the relevant sentencing guidelines concerning the “particular vulnerability” of the victim. The judge now took the opportunity to set the record straight:

I now intend to revisit the comments I made on the last occasion concerning the vulnerability of the victim in this case, Fakhara Karim.

I do so because there has been widespread misreporting of my remarks and widespread misunderstanding of why I made them.

“Particularly vulnerable” means especially vulnerable, exceptionally vulnerable or unusually vulnerable. The press selectively quoted the word “vulnerable” without any of these qualifiers, giving a wholly misleading impression of the judge’s assessment of the position of the victim. The problem is that the public understanding of the case is coloured by the selectivity of the press coverage, and this in turn fuels politicians to get up on their hind legs and “shoot from the lip” (ie make ill-informed pronouncements) without anyone taking the trouble to read the actual remarks of the sentencing judge.

See, by way of example, in Huffington Post, Jess Phillips Hits Out At Mustafa Bashir’s Sentencing Judge For Sending ‘Dangerous’ Message To Victims Of Domestic Abuse. These two paragraphs indicate succinctly the problem (and I speak as one who admires this MP enormously):

Phillips said she was not at court when Mansell made his remarks and was not privy to all the facts in the case, but added: “The details that we do have access to paint a very distressing picture.”

Phillips said: “The level of misunderstanding on the part of the judge as to what it is like to be a victim of domestic violence and the message that it sends is so very dangerous.

The best thing you can do if you want to know more about this case is to read the Secret Barrister’s blog, which includes the full sentencing remarks (which are also available on the Judiciary website, as controversial sentencing remarks usually are, though the press may not choose to tell you or link to them).

This case offers a rare example of an occasion when a judge, through the exercise of jurisdictional powers, was able to make a public statement setting the record straight. But all too often judges are discouraged from speaking out— despite the current Lord Chancellor’s urgings that they are the best people to inform the public about their work and thus raise the judiciary in the public’s esteem. And when they do, they provoke a storm of criticism (see, for example, Weekly Notes — 13 March 2017).

Judges in the dock

Two judges have recently found themselves on the wrong end of the disciplinary process. Recorder Peter Herbert OBE, who sits as an employment and immigration judge and is chair of the Society of Black Lawyers, was slapped down by the Judicial Conduct Investigations Office (JCIO) after making a public speech on a political issue. The JCIO said in its statement dated 6 April that Herbert had

“been issued with formal advice after making a public speech criticising the election commissioner’s decision in 2015 to declare Lutfur Rahman’s election as mayor of Tower Hamlets void. A disciplinary panel found that the recorder’s comments were inappropriate and put the reputation of the judiciary at risk, which amounted to misconduct.”

The following day Judge Jonathan Durham Hall QC was the subject of another statement by the JCIO, also for speaking out. You may remember that he was the judge who, a year ago, offered to pay the defendant’s victim surcharge if she were forced to pay it. See, eg, The Independent, Judge offers to pay court fine of abuse victim who stabbed her abuser on his doorstep after he avoided jail. According to the JCIO:

The Lord Chancellor and the Lord Chief Justice considered this failed to demonstrate impartiality, and that his comment amounted to misconduct.

Judge supports court protest

Although they have not been named in the press, a senior district judge is reported to have backed lawyers in their fight against plans to dramatically extend court hours at Highbury Corner, as part of a pilot scheme for late-sitting courts.

Under proposals announced by HM Courts and Tribunals Service (HMCTS), the magistrates’ court in Holloway Road will sit for three sessions between 8am and 6.30pm, or from 10am until 8.30pm. According to the Islington Tribune the judge, who did not wish to be named, said:

“I took part in the trial of evening courts some years ago. I characterised them as ‘a scandalous waste of public funds’. They were abandoned after a short time.

“Defence lawyers will have to spend even more demoralising and unpaid time waiting at court for matters entirely beyond their control. That is both inefficient and unfair.

“Similarly, I wonder how much thought has been given to the inevitable change of working conditions for court staff.”

The pilot has been opposed by barristers and solicitors, as well as representative organisations like the London Criminal Courts Solicitors’ Association (LCCSA), who say they were not consulted in advance, unlike the police, Crown Prosecution Service, magistrates and the prison service.

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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