*/
If you have been the victim of bullying in the workplace, be it in chambers or in court, or are someone who has truly heard and understood the harm that is done by those who perpetrate this very real form of abusive behaviour, nothing we say in these two articles will be in any way surprising or controversial to you. If, on the other hand, your reaction to what we say is surprise, or ‘I don’t believe this happens’, then, we suggest, this identifies a ‘training need’ that you should address without delay.
On 18 November 2021, in response to ongoing reports of bullying conduct towards members of the Family Law Bar Association (FLBA) by members of the judiciary and/or by other members of the Bar, the FLBA arranged what we expected to be a small online seminar. That over 100 barristers attended demonstrated to us the scale of the problem. The seminar was not recorded to ensure, as far as we could, that those attending could speak openly in the chat room and share their experiences. In the months that have followed, the conversations have continued.
Any of us can have a bad day and be quicker to a sharp comment or curt response than we might otherwise choose to be. The occasional loss of ability to demonstrate good manners or an infrequent failure to treat court users with proper respect is not what we are here concerned about. The behaviour we address is that of judges, and opponents, who frequently and habitually seek to manage their court, or gain the upper hand in court or out, by ill-mannered, undermining and very often personally abusive comments about an advocate or opponent. The scenario is all too familiar and not gender specific but we will call our victim Ms Jones.*
Ms Jones stands up to address the court. The impatient and ill-mannered judge interrupts almost immediately. Said judge then tells Ms Jones that the document she has submitted makes no sense, is illogical and she is wasting the court’s time. Rather than approaching the decision to be made on the basis that Ms Jones has instructions that she must to act on, and argue her client’s cases accordingly, the judge makes personal comments about her performance, about her lack of understanding of the law, and of her competence as an advocate.
When Ms Jones has the misfortune of appearing in a trial before Her Honour Judge Misery, the name we shall give to this particular judge, the judge will often interrupt cross-examination, roll her eyes, make ‘quips’ or off-hand remarks, and generally show her annoyance with everything said by Ms Jones during the case. Judge Misery demonstrates this behaviour irrespective of the outcome of the case.
This behaviour from the Bench has a devastating effect on the wellbeing of Ms Jones when at work but also when away from court in the evenings, over the weekends and when on holiday. Ms Jones is convinced that Judge Misery holds a personal dislike for her; a completely reasonable conclusion for her to reach given the behaviour of the judge. Ms Jones becomes anxious whenever she hears she is listed before Misery. She flushes across her face and neck whenever she has to speak, an involuntary physical reaction not to a fear of public speaking but to the abuse she knows she will receive. She can find it hard to get out all she needs to say, not just because the judge is always interrupting her, but because the irritated and angry look on the face of the judge makes it hard for Ms Jones to maintain her train of thought.
Sometimes, when the ordeal in court is over, her opponents will tell Ms Jones that she did nothing wrong and will ask if she is okay. This really should happen after every hearing but only occasionally do opponents show any support. Mostly they keep their heads down, glad that it’s not them at the receiving end of this foul treatment.
Ms Jones often has trouble sleeping. The abuse she receives in Misery’s court runs through her mind at night, preventing her from getting to sleep. She questions herself and her abilities as a barrister, a job she loves when before other judges; judges who never behave like Misery and who seem to appreciate her efforts on behalf of her clients. Ms Jones worries for her health. She over-prepares because she never knows what is going to be said to her by this irascible judge. Her home life and relationship are affected. Her partner often has to physically nudge her to bring her back into a conversation because her mind has wondered back to something said to her by Misery.
Ms Jones is reluctant to see her GP for prescription medication to help her sleep. She doesn’t want anything recorded in her medical records that might suggest she has emotional problems, in case someone sees her medical records, such as an insurance or mortgage company or a future employer should she feel she needs to leave the Bar, something she has often thought about because of Misery. Ms Jones has a friend who has needed antidepressants and attended therapy because of Judge Misery. Ms Jones knows she should probably see a therapist herself but fears that someone might find out and think she is weak and unable to manage the demands ‘of the job’.
When at the Bar, Misery was known for being difficult, rude and unsupportive of juniors in chambers. It came as no surprise when, following her appointment, she behaved in the very same way.
Why is it that some judges behave in this way? We have probably heard examples of all the above-mentioned scenarios. So, what are the responsibilities/obligations on judges concerning their behaviour towards advocates?
The Lord Chief Justice recently said in a Judicial Equality and Diversity Statement:
‘We expect all judicial office-holders to treat everyone decently and with respect… This statement should be read in conjunction with the Guide to Judicial Conduct… the Judicial Grievance Procedure and reference should be made to the Equal Treatment Bench Book.’
The Guide to Judicial Conduct (March 2020) says:
The Equal Treatment Bench Book (Dec 2021 revision) is a 566-page publication that provides important guidance to judges covering a very wide range of situations where a need for care arises, or may arise, to ensure that parties are treated fairly by the court. It advises:
The Equal Treatment Bench Book provides guidance to judges about how they should communicate with parties in litigation, but it does not directly address judicial conduct towards advocates in terms of workplace bullying and, surprisingly, conduct towards qualified advocates is, in the whole 566 pages, only mentioned explicitly in the terms underlined above.
It is interesting to compare the less prescriptive ‘should seek to be courteous’ in the England and Wales Guide to Judicial Conduct with the requirements imposed on USA Federal Judges. Federal Judges must comply with a Code of Conduct – not just guidance on conduct:
‘The judge should perform… duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased. The judge should adhere to the following standards:
(3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct by those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.’
We are not suggesting that judges cannot be critical of an advocate, when the conduct of the advocate demands it, but no judge should engage in conduct that amounts to workplace bullying.
ACAS provides a definition of workplace bullying:
‘Workplace bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.’
In part 2 of this article, to be published in the next issue of Counsel magazine, we will consider the ‘rules’ that apply to how barristers behave towards each other, will provide strategies for responding to workplace bullying, be it by a judge, by a member of chambers or even by an opponent. We will signpost to sources of support and look at what has happened in terms of judicial education and initiatives within the Bar since the publication of Bullying, Discrimination and Harassment at the Bar – Qualitative study by YouGov for the Bar Standards Board in October 2020.
* If you recognise the experience and anxiety symptoms of Ms Jones in yourself, or a colleague, then don’t remain silent. Speak to someone about it. You must not feel afraid to talk. Contact a trusted colleague, or us, or Talk to SPOT. Other sources of support can be found at www.wellbeingatthebar.org.uk; lawcare.org.uk; samaritans.org
Darren Howe KC of 1 Crown Office Row specialises in complex child protection cases and private law children disputes. Darren also sits as a Deputy High Court Judge.
Professor Jo Delahunty KC was called to the Bar in 1986, took silk in 2006, became a Recorder in 2009, a Bencher of Middle Temple in 2011, was Gresham Professor of Law 2016-20, and appointed Emeritus Gresham Professor of Law, and a Fellow and Trustee of Gresham College, in 2020. Jo has a silk practice at 4 Paper Buildings, Temple. She was among 100 women to be awarded Freedom of the City of London to mark the centenary of the Representation of the People Act 1918. Jo is an Ambassador to Bridging the Bar.
If you have been the victim of bullying in the workplace, be it in chambers or in court, or are someone who has truly heard and understood the harm that is done by those who perpetrate this very real form of abusive behaviour, nothing we say in these two articles will be in any way surprising or controversial to you. If, on the other hand, your reaction to what we say is surprise, or ‘I don’t believe this happens’, then, we suggest, this identifies a ‘training need’ that you should address without delay.
On 18 November 2021, in response to ongoing reports of bullying conduct towards members of the Family Law Bar Association (FLBA) by members of the judiciary and/or by other members of the Bar, the FLBA arranged what we expected to be a small online seminar. That over 100 barristers attended demonstrated to us the scale of the problem. The seminar was not recorded to ensure, as far as we could, that those attending could speak openly in the chat room and share their experiences. In the months that have followed, the conversations have continued.
Any of us can have a bad day and be quicker to a sharp comment or curt response than we might otherwise choose to be. The occasional loss of ability to demonstrate good manners or an infrequent failure to treat court users with proper respect is not what we are here concerned about. The behaviour we address is that of judges, and opponents, who frequently and habitually seek to manage their court, or gain the upper hand in court or out, by ill-mannered, undermining and very often personally abusive comments about an advocate or opponent. The scenario is all too familiar and not gender specific but we will call our victim Ms Jones.*
Ms Jones stands up to address the court. The impatient and ill-mannered judge interrupts almost immediately. Said judge then tells Ms Jones that the document she has submitted makes no sense, is illogical and she is wasting the court’s time. Rather than approaching the decision to be made on the basis that Ms Jones has instructions that she must to act on, and argue her client’s cases accordingly, the judge makes personal comments about her performance, about her lack of understanding of the law, and of her competence as an advocate.
When Ms Jones has the misfortune of appearing in a trial before Her Honour Judge Misery, the name we shall give to this particular judge, the judge will often interrupt cross-examination, roll her eyes, make ‘quips’ or off-hand remarks, and generally show her annoyance with everything said by Ms Jones during the case. Judge Misery demonstrates this behaviour irrespective of the outcome of the case.
This behaviour from the Bench has a devastating effect on the wellbeing of Ms Jones when at work but also when away from court in the evenings, over the weekends and when on holiday. Ms Jones is convinced that Judge Misery holds a personal dislike for her; a completely reasonable conclusion for her to reach given the behaviour of the judge. Ms Jones becomes anxious whenever she hears she is listed before Misery. She flushes across her face and neck whenever she has to speak, an involuntary physical reaction not to a fear of public speaking but to the abuse she knows she will receive. She can find it hard to get out all she needs to say, not just because the judge is always interrupting her, but because the irritated and angry look on the face of the judge makes it hard for Ms Jones to maintain her train of thought.
Sometimes, when the ordeal in court is over, her opponents will tell Ms Jones that she did nothing wrong and will ask if she is okay. This really should happen after every hearing but only occasionally do opponents show any support. Mostly they keep their heads down, glad that it’s not them at the receiving end of this foul treatment.
Ms Jones often has trouble sleeping. The abuse she receives in Misery’s court runs through her mind at night, preventing her from getting to sleep. She questions herself and her abilities as a barrister, a job she loves when before other judges; judges who never behave like Misery and who seem to appreciate her efforts on behalf of her clients. Ms Jones worries for her health. She over-prepares because she never knows what is going to be said to her by this irascible judge. Her home life and relationship are affected. Her partner often has to physically nudge her to bring her back into a conversation because her mind has wondered back to something said to her by Misery.
Ms Jones is reluctant to see her GP for prescription medication to help her sleep. She doesn’t want anything recorded in her medical records that might suggest she has emotional problems, in case someone sees her medical records, such as an insurance or mortgage company or a future employer should she feel she needs to leave the Bar, something she has often thought about because of Misery. Ms Jones has a friend who has needed antidepressants and attended therapy because of Judge Misery. Ms Jones knows she should probably see a therapist herself but fears that someone might find out and think she is weak and unable to manage the demands ‘of the job’.
When at the Bar, Misery was known for being difficult, rude and unsupportive of juniors in chambers. It came as no surprise when, following her appointment, she behaved in the very same way.
Why is it that some judges behave in this way? We have probably heard examples of all the above-mentioned scenarios. So, what are the responsibilities/obligations on judges concerning their behaviour towards advocates?
The Lord Chief Justice recently said in a Judicial Equality and Diversity Statement:
‘We expect all judicial office-holders to treat everyone decently and with respect… This statement should be read in conjunction with the Guide to Judicial Conduct… the Judicial Grievance Procedure and reference should be made to the Equal Treatment Bench Book.’
The Guide to Judicial Conduct (March 2020) says:
The Equal Treatment Bench Book (Dec 2021 revision) is a 566-page publication that provides important guidance to judges covering a very wide range of situations where a need for care arises, or may arise, to ensure that parties are treated fairly by the court. It advises:
The Equal Treatment Bench Book provides guidance to judges about how they should communicate with parties in litigation, but it does not directly address judicial conduct towards advocates in terms of workplace bullying and, surprisingly, conduct towards qualified advocates is, in the whole 566 pages, only mentioned explicitly in the terms underlined above.
It is interesting to compare the less prescriptive ‘should seek to be courteous’ in the England and Wales Guide to Judicial Conduct with the requirements imposed on USA Federal Judges. Federal Judges must comply with a Code of Conduct – not just guidance on conduct:
‘The judge should perform… duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased. The judge should adhere to the following standards:
(3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct by those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.’
We are not suggesting that judges cannot be critical of an advocate, when the conduct of the advocate demands it, but no judge should engage in conduct that amounts to workplace bullying.
ACAS provides a definition of workplace bullying:
‘Workplace bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.’
In part 2 of this article, to be published in the next issue of Counsel magazine, we will consider the ‘rules’ that apply to how barristers behave towards each other, will provide strategies for responding to workplace bullying, be it by a judge, by a member of chambers or even by an opponent. We will signpost to sources of support and look at what has happened in terms of judicial education and initiatives within the Bar since the publication of Bullying, Discrimination and Harassment at the Bar – Qualitative study by YouGov for the Bar Standards Board in October 2020.
* If you recognise the experience and anxiety symptoms of Ms Jones in yourself, or a colleague, then don’t remain silent. Speak to someone about it. You must not feel afraid to talk. Contact a trusted colleague, or us, or Talk to SPOT. Other sources of support can be found at www.wellbeingatthebar.org.uk; lawcare.org.uk; samaritans.org
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