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In part 1 of this article (Counsel April 2022) we provided an example of how bullying by a judge negatively impacts the wellbeing of barristers both in and out of court. Of course, it is not just the conduct of judges that can be oppressive and change an ordinary day at work into an upsetting ordeal. We do not here seek to identify or describe the very many ways in which members of our profession are harassed, treated unequally and oppressed by the conduct of other members of the Bar. What we first want to try to identify are our responsibilities to each other. The Bar Handbook/Code of Conduct is surprisingly silent on the topic.
Part 2 of the Bar Standards Board Handbook contains the Code of Conduct:
rC12 requires that ‘you must not discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief, or pregnancy and maternity’. These are all very important matters that are rightly protected but what of those persons who are harassed or victimised on grounds that do not fall within those mentioned or for reasons that cannot be proved as falling with those categories or for purposes that simply cannot be identified?
It is our view that the rules of the Bar should protect everyone from harassment, victimisation and bullying. Many, even most, of the oppressive behaviours we endure from others when at work do not fall within the category of ‘unlawful’ discrimination, victimisation or harassment. In our view, unlawfulness should not be the benchmark for assessing whether behaviour is appropriate. We should expect to be treated with courtesy and respect. All the more so when the power hierarchy in our profession is part of its dynamic, whether between senior and junior barristers or between barristers and Bench. The more elevated the place you occupy in that hierarchy, the greater your responsibility not to abuse your position.
We are sure that those who have been victims of this behaviour would like to see bullying added to the list of other conduct which is likely to be treated as a breach of CD3 and/or CD5 at gC25. The ACAS definition of workplace bullying, that we set out in part 1 of this article, should be incorporated into the guidance to the Code.
None of the ‘rules’ in the code appear to have their primary focus on how barristers behave towards each other. The 2012 Equality Rules introduced minimum requirements for chambers, and other entities, that addressed equality and diversity, parental leave, anti-harassment, flexible working and reasonable adjustments. In terms of harassment policies, a chambers or entity is required, by rC110, to have a written anti-harassment policy which, as a minimum:
However, Bullying, Discrimination and Harassment at the Bar: a qualitative study by YouGov for the Bar Standards Board (published October 2020) found that workplace bullying, discrimination and harassment very much exists at the Bar, despite the introduction of the 2012 Equality Rules. Importantly, the research concluded that clear guidance was needed to identify the type of conduct that fell to be defined as bullying, discrimination and harassment, so victims of such conduct knew whether the treatment they suffered should or could be reported.
The Bar Council has established a working group to make recommendations concerning how it can better support those who are the victims of harassment and bullying. That working group will have reported before this article is published but has not formulated its recommendations at the time this article was prepared. The message from the 2020 research is clear: a non-exhaustive definition of bullying must be adopted. Victims of bullying will often to say to themselves ‘perhaps it’s me’ and ‘I must have done something to deserve that’. A non-exhaustive definition will assist victims to identify whether the behaviour they have experienced falls outside the range of tolerable behaviour. The lack of any definitional guidance signifies (wrongly) that bullying is somehow less oppressive than other forms of abuse. If the Bar cannot codify, define and prohibit this behaviour, what chance do we have of persuading the Judiciary that they should do so?
It seems that ‘the buck’ has thus far been passed to chambers at best, and individuals at worst, rather than this issue being addressed more centrally by our profession. The Bar Council has, in its sample chambers anti-harassment policy, provided a non-exhaustive definition of harassment that describes what harassment includes, while not seeking to cover all possible behaviours.
Harassment is, by virtue of gC96, serious misconduct. Bullying should, we suggest, be included in gC96 so it, too, is treated as serious misconduct. Why should this toxic behaviour be treated any less seriously?
The Bar Council has, in fact, provided a suggested definition of bullying in its sample anti-harassment policy for chambers:
Bullying is offensive, intimidating, malicious or insulting behaviour involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened. Power does not always mean being in a position of authority but can include both personal strength and the power to coerce through fear of intimidation.
Examples of bullying may include:
The Sample/Template Policy: Dignity at Work is a very well-constructed document that is found here. If you do not know whether your chambers has adopted the document as a policy, we encourage you to check and, if not, seek to persuade the head(s) of chambers to do so. It is a very helpful draft that needs to be seen, and understood, by those who fall victim to oppressive behaviours, by those who perpetrate them and by those tasked with ensuring members of chambers are protected.
With such clear guidance available, why is that we continue to hear so regularly of bullying by members of the Bar? It may be that the Bar Council Equality and Diversity Guides: Tackling Sexual Harassment: Information for Chambers is not the obvious place to look when searching for support if you are the victim of bullying. If you are at the receiving end of bullying from a member of your own chambers, particularly by a more senior member, turning to chambers and its policies that are not, in your experience, being enforced is perhaps the last thing you would want to do.
Dealing with bullies in chambers is a very difficult task – both personally and professionally. They tend to be powerful personalities and the victims are reluctant to go ‘on the record’. A complaint may be made on behalf of a victim who does not want to be named for fear of reprisals or simply just not wanting to make things awkward in chambers. In the absence of ‘on the record’ evidence, chambers may take the view that nothing can be done. There is the promise of an ‘informal chat’ with the perpetrator that might, or might not, happen. If it does, the victim loses control of the narrative; experiences may then be ‘played-down’ and/or excuses allowed. The effect of the behaviour risks being diminished and accountability is fudged. Ultimately, nothing is done other than, in our experience, the victim finds a reason to leave and moves elsewhere.
So, when bullying does happen, what can you do?
Each chambers is required to have an anti-harassment policy and an equality and diversity officer (EDO). Have a look at your chambers’ website. Look at the policy and decide if the EDO is someone you feel able to speak to about the behaviour.
It may be that you would feel more comfortable speaking to someone outside of your own chambers. If you have friends in other sets able to provide you with this support and advice, then rely on them but, if not, do call the Bar Council’s Equality and Diversity Helpline on 0207 7611 1426. You will not have to give your name to receive advice and, if you require additional support, you will be put in touch a barrister member of the Equality and Diversity committee. Any person you speak to via the above number has an exemption from the requirement to report alleged misconduct, an obligation still imposed by the BSB on others; a potential reason why some in your own chambers may turn a ‘blind eye’ as they do not want to have to get involved. Your call will be taken in confidence and how to proceed will be decided by you and not taken out of your hands by being reported formally by others.
You will be listened to. Do not remain silent. Please speak to someone.
The March edition of Counsel magazine included a helpful article by Rehna Azim about how she responds to rude and aggressive judges. We endorse the advice she gave and add a few tips of our own:
1. Collective responsibility. Very often, a judge takes against one advocate and the others are able to keep their heads down, glad it’s not them being hectored. If you see a colleague being bullied, make sure you speak to them when leaving court. Tell them that they did nothing wrong and the actions of the judge were completely unacceptable. One day, in the very near future, it may be you at the receiving end of such behaviour and there is nothing more reassuring than immediate support from colleagues.
2. Senior’s responsibility. If you observe a judge bullying a colleague and you are the senior advocate in the room, you should consider whether it is appropriate to interrupt/distract. If the blast from the Bench is rude but short, the opportunity to interrupt may not arise. If the bullying takes the form of a tirade or a sequence of barbed targeted comments, it can easily be interrupted. The interruption need not concern the abusive behaviour from the Bench but might be for reasons to do with the case. If you are brave enough, by all means address the judicial behaviour but just standing up and sharing the load, taking the heat away from the victim that redirects the fire or even extinguish it, can be enough. It gives the victim time to recompose themselves and, importantly, shows them they are supported. Remember, if you are in a court that records the proceedings, the ‘tape’ is our friend. The judge may look dismissive, pointedly stare at the victim or ostentatiously look away. We know of a case where a formal complaint against a judge was made so, rather than bullying by mouth, the judge would pull faces and make gestures. Say, ‘I see your Honour/My Lady etc is looking… how can I assist?’ Describe such things orally so there is an audio recording of what has occurred.
3. Speak to trusted colleagues. The problem of judicial bullying has been widely publicised and is now something that colleagues at the Bar are far less likely to dismiss. However, we are not naïve. Seniors may be on a career ladder that means they do not want to create friction with a judge who they may want as a referee. Pick and choose who to speak to. If you are not happy speaking to someone in your own chambers, look further afield for a confidential chat. It may be that your chambers has an arrangement with a barrister or silk at another set who is nominated to act as a listening ear; a strategy we have heard about and applaud as a very positive step. It may be that your specialist Bar association (the Family Law Bar Association in our case) is able to provide support, signpost you to someone who can listen to what you have to say and provide some informal advice or support you in taking more formal steps.
4. Gather your evidence. If the time comes when you feel you need to make a formal complaint, you will be required to provide ‘chapter and verse’ about the behaviour you want to complain about and when exactly it happen. Even if a complaint is made less formally through a local leadership judge rather than through the Judicial Conduct Investigations Office, that judge will need the date, time and case number for the hearing in which you allege the judge behaved inappropriately. It is our advice that you need to have the possibility of a complaint in mind so keep a note of what happened and when. Record the names of other lawyers/parties present, the court, the case number and, of course, the full name of the judge concerned.
5. Talk to Spot. Making a complaint is not what most will want but registering your concerns about judicial behaviour with Spot is really important. It is astonishing that the Bar is able to name, very easily, the judges in a locality who, on a regular basis overstep the mark, yet the Judiciary seem ignorant of those reputations – or are aware and take no steps to deal with it. Talking to Spot helps to identify the courts where there is a regular problem with a particular judge. Please do log in and make a report when you are the victim of judicial bullying. You can find Spot here.
6. Remember it’s not your fault and a problem shared really does help – do ‘unload’ on family or friends. We are all guilty of taking our work way too seriously and forgetting that our family and friends are there for us, no matter what is going on in court. Do we work to live or live to work? If a judge behaves in the ways we have described, the problem is with them and not with you. If anyone performs badly in a commercial workplace, they can expect to be warned or even disciplined but the disciplinary procedures that all employers must have committed to writing are not present in our workplace to protect us. To be frank, the behaviour of many judges to barristers in court would, if it occurred within a company workplace, be likely to result in the perpetrator being disciplined or even dismissed. Expect to be pulled up if your performance has fallen short but do not accept being personally belittled, insulted and deliberately undermined. If it happens, speak to someone. It is happening regularly to barristers of all seniorities and the time has come for us to be more assertive in standing up for our ‘right’ to be treated with respect and dignity at work. We also must be better at standing up for each other.
It is our experience that the working environment for barristers has become a more hostile place than it once was. One source of that hostility comes from our opponents. As with the bullying judges, all who work in your area will be able to name the opponents known to be difficult, aggressive and often rude. We cannot complain about our wellbeing at work if it is us causing unnecessary stress to others by the manner in which we conduct ourselves. We must remember that our own behaviour impacts on others. We are unlikely to know what challenges our opponents might be facing so be courteous and respectful. If you let work stress or personal problems get to you and your own behaviour falls short, then own that and say ‘sorry’. Don’t let pride stand in the way. You do not need to be aggressive to win your case. Do as you would be done by. Reputations matter in our profession. We all ‘talk’, so do the right thing.
We hope that the judges who might read these articles, if recognising the ‘Judge Misery’ in themselves, will modify their behaviours. The Judiciary has commissioned research into judicial bullying and, we hope, one of its recommendations will be that judges, and particularly experienced judges who have forgotten what life as an advocate can be like, receive training on an ongoing and frequent basis to address appropriate behaviour towards advocates in court. We are not there to be shouted at, insulted or belittled. The days of the screaming Dickensian judge hectoring counsel should be long over. They aren’t yet.
In 2022 we are tired from COVID and feeling besieged by demands to get used to ‘the new normal’. We have a lot on our plates, as does the Judiciary. That exhaustion and pressure to get cases done means it is more important, not less, to better manage our working environment to ease avoidable burdens. Bullying is dysfunctional behaviour. We have to call this out to stamp it out, now more than ever.
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.
In part 1 of this article (Counsel April 2022) we provided an example of how bullying by a judge negatively impacts the wellbeing of barristers both in and out of court. Of course, it is not just the conduct of judges that can be oppressive and change an ordinary day at work into an upsetting ordeal. We do not here seek to identify or describe the very many ways in which members of our profession are harassed, treated unequally and oppressed by the conduct of other members of the Bar. What we first want to try to identify are our responsibilities to each other. The Bar Handbook/Code of Conduct is surprisingly silent on the topic.
Part 2 of the Bar Standards Board Handbook contains the Code of Conduct:
rC12 requires that ‘you must not discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief, or pregnancy and maternity’. These are all very important matters that are rightly protected but what of those persons who are harassed or victimised on grounds that do not fall within those mentioned or for reasons that cannot be proved as falling with those categories or for purposes that simply cannot be identified?
It is our view that the rules of the Bar should protect everyone from harassment, victimisation and bullying. Many, even most, of the oppressive behaviours we endure from others when at work do not fall within the category of ‘unlawful’ discrimination, victimisation or harassment. In our view, unlawfulness should not be the benchmark for assessing whether behaviour is appropriate. We should expect to be treated with courtesy and respect. All the more so when the power hierarchy in our profession is part of its dynamic, whether between senior and junior barristers or between barristers and Bench. The more elevated the place you occupy in that hierarchy, the greater your responsibility not to abuse your position.
We are sure that those who have been victims of this behaviour would like to see bullying added to the list of other conduct which is likely to be treated as a breach of CD3 and/or CD5 at gC25. The ACAS definition of workplace bullying, that we set out in part 1 of this article, should be incorporated into the guidance to the Code.
None of the ‘rules’ in the code appear to have their primary focus on how barristers behave towards each other. The 2012 Equality Rules introduced minimum requirements for chambers, and other entities, that addressed equality and diversity, parental leave, anti-harassment, flexible working and reasonable adjustments. In terms of harassment policies, a chambers or entity is required, by rC110, to have a written anti-harassment policy which, as a minimum:
However, Bullying, Discrimination and Harassment at the Bar: a qualitative study by YouGov for the Bar Standards Board (published October 2020) found that workplace bullying, discrimination and harassment very much exists at the Bar, despite the introduction of the 2012 Equality Rules. Importantly, the research concluded that clear guidance was needed to identify the type of conduct that fell to be defined as bullying, discrimination and harassment, so victims of such conduct knew whether the treatment they suffered should or could be reported.
The Bar Council has established a working group to make recommendations concerning how it can better support those who are the victims of harassment and bullying. That working group will have reported before this article is published but has not formulated its recommendations at the time this article was prepared. The message from the 2020 research is clear: a non-exhaustive definition of bullying must be adopted. Victims of bullying will often to say to themselves ‘perhaps it’s me’ and ‘I must have done something to deserve that’. A non-exhaustive definition will assist victims to identify whether the behaviour they have experienced falls outside the range of tolerable behaviour. The lack of any definitional guidance signifies (wrongly) that bullying is somehow less oppressive than other forms of abuse. If the Bar cannot codify, define and prohibit this behaviour, what chance do we have of persuading the Judiciary that they should do so?
It seems that ‘the buck’ has thus far been passed to chambers at best, and individuals at worst, rather than this issue being addressed more centrally by our profession. The Bar Council has, in its sample chambers anti-harassment policy, provided a non-exhaustive definition of harassment that describes what harassment includes, while not seeking to cover all possible behaviours.
Harassment is, by virtue of gC96, serious misconduct. Bullying should, we suggest, be included in gC96 so it, too, is treated as serious misconduct. Why should this toxic behaviour be treated any less seriously?
The Bar Council has, in fact, provided a suggested definition of bullying in its sample anti-harassment policy for chambers:
Bullying is offensive, intimidating, malicious or insulting behaviour involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened. Power does not always mean being in a position of authority but can include both personal strength and the power to coerce through fear of intimidation.
Examples of bullying may include:
The Sample/Template Policy: Dignity at Work is a very well-constructed document that is found here. If you do not know whether your chambers has adopted the document as a policy, we encourage you to check and, if not, seek to persuade the head(s) of chambers to do so. It is a very helpful draft that needs to be seen, and understood, by those who fall victim to oppressive behaviours, by those who perpetrate them and by those tasked with ensuring members of chambers are protected.
With such clear guidance available, why is that we continue to hear so regularly of bullying by members of the Bar? It may be that the Bar Council Equality and Diversity Guides: Tackling Sexual Harassment: Information for Chambers is not the obvious place to look when searching for support if you are the victim of bullying. If you are at the receiving end of bullying from a member of your own chambers, particularly by a more senior member, turning to chambers and its policies that are not, in your experience, being enforced is perhaps the last thing you would want to do.
Dealing with bullies in chambers is a very difficult task – both personally and professionally. They tend to be powerful personalities and the victims are reluctant to go ‘on the record’. A complaint may be made on behalf of a victim who does not want to be named for fear of reprisals or simply just not wanting to make things awkward in chambers. In the absence of ‘on the record’ evidence, chambers may take the view that nothing can be done. There is the promise of an ‘informal chat’ with the perpetrator that might, or might not, happen. If it does, the victim loses control of the narrative; experiences may then be ‘played-down’ and/or excuses allowed. The effect of the behaviour risks being diminished and accountability is fudged. Ultimately, nothing is done other than, in our experience, the victim finds a reason to leave and moves elsewhere.
So, when bullying does happen, what can you do?
Each chambers is required to have an anti-harassment policy and an equality and diversity officer (EDO). Have a look at your chambers’ website. Look at the policy and decide if the EDO is someone you feel able to speak to about the behaviour.
It may be that you would feel more comfortable speaking to someone outside of your own chambers. If you have friends in other sets able to provide you with this support and advice, then rely on them but, if not, do call the Bar Council’s Equality and Diversity Helpline on 0207 7611 1426. You will not have to give your name to receive advice and, if you require additional support, you will be put in touch a barrister member of the Equality and Diversity committee. Any person you speak to via the above number has an exemption from the requirement to report alleged misconduct, an obligation still imposed by the BSB on others; a potential reason why some in your own chambers may turn a ‘blind eye’ as they do not want to have to get involved. Your call will be taken in confidence and how to proceed will be decided by you and not taken out of your hands by being reported formally by others.
You will be listened to. Do not remain silent. Please speak to someone.
The March edition of Counsel magazine included a helpful article by Rehna Azim about how she responds to rude and aggressive judges. We endorse the advice she gave and add a few tips of our own:
1. Collective responsibility. Very often, a judge takes against one advocate and the others are able to keep their heads down, glad it’s not them being hectored. If you see a colleague being bullied, make sure you speak to them when leaving court. Tell them that they did nothing wrong and the actions of the judge were completely unacceptable. One day, in the very near future, it may be you at the receiving end of such behaviour and there is nothing more reassuring than immediate support from colleagues.
2. Senior’s responsibility. If you observe a judge bullying a colleague and you are the senior advocate in the room, you should consider whether it is appropriate to interrupt/distract. If the blast from the Bench is rude but short, the opportunity to interrupt may not arise. If the bullying takes the form of a tirade or a sequence of barbed targeted comments, it can easily be interrupted. The interruption need not concern the abusive behaviour from the Bench but might be for reasons to do with the case. If you are brave enough, by all means address the judicial behaviour but just standing up and sharing the load, taking the heat away from the victim that redirects the fire or even extinguish it, can be enough. It gives the victim time to recompose themselves and, importantly, shows them they are supported. Remember, if you are in a court that records the proceedings, the ‘tape’ is our friend. The judge may look dismissive, pointedly stare at the victim or ostentatiously look away. We know of a case where a formal complaint against a judge was made so, rather than bullying by mouth, the judge would pull faces and make gestures. Say, ‘I see your Honour/My Lady etc is looking… how can I assist?’ Describe such things orally so there is an audio recording of what has occurred.
3. Speak to trusted colleagues. The problem of judicial bullying has been widely publicised and is now something that colleagues at the Bar are far less likely to dismiss. However, we are not naïve. Seniors may be on a career ladder that means they do not want to create friction with a judge who they may want as a referee. Pick and choose who to speak to. If you are not happy speaking to someone in your own chambers, look further afield for a confidential chat. It may be that your chambers has an arrangement with a barrister or silk at another set who is nominated to act as a listening ear; a strategy we have heard about and applaud as a very positive step. It may be that your specialist Bar association (the Family Law Bar Association in our case) is able to provide support, signpost you to someone who can listen to what you have to say and provide some informal advice or support you in taking more formal steps.
4. Gather your evidence. If the time comes when you feel you need to make a formal complaint, you will be required to provide ‘chapter and verse’ about the behaviour you want to complain about and when exactly it happen. Even if a complaint is made less formally through a local leadership judge rather than through the Judicial Conduct Investigations Office, that judge will need the date, time and case number for the hearing in which you allege the judge behaved inappropriately. It is our advice that you need to have the possibility of a complaint in mind so keep a note of what happened and when. Record the names of other lawyers/parties present, the court, the case number and, of course, the full name of the judge concerned.
5. Talk to Spot. Making a complaint is not what most will want but registering your concerns about judicial behaviour with Spot is really important. It is astonishing that the Bar is able to name, very easily, the judges in a locality who, on a regular basis overstep the mark, yet the Judiciary seem ignorant of those reputations – or are aware and take no steps to deal with it. Talking to Spot helps to identify the courts where there is a regular problem with a particular judge. Please do log in and make a report when you are the victim of judicial bullying. You can find Spot here.
6. Remember it’s not your fault and a problem shared really does help – do ‘unload’ on family or friends. We are all guilty of taking our work way too seriously and forgetting that our family and friends are there for us, no matter what is going on in court. Do we work to live or live to work? If a judge behaves in the ways we have described, the problem is with them and not with you. If anyone performs badly in a commercial workplace, they can expect to be warned or even disciplined but the disciplinary procedures that all employers must have committed to writing are not present in our workplace to protect us. To be frank, the behaviour of many judges to barristers in court would, if it occurred within a company workplace, be likely to result in the perpetrator being disciplined or even dismissed. Expect to be pulled up if your performance has fallen short but do not accept being personally belittled, insulted and deliberately undermined. If it happens, speak to someone. It is happening regularly to barristers of all seniorities and the time has come for us to be more assertive in standing up for our ‘right’ to be treated with respect and dignity at work. We also must be better at standing up for each other.
It is our experience that the working environment for barristers has become a more hostile place than it once was. One source of that hostility comes from our opponents. As with the bullying judges, all who work in your area will be able to name the opponents known to be difficult, aggressive and often rude. We cannot complain about our wellbeing at work if it is us causing unnecessary stress to others by the manner in which we conduct ourselves. We must remember that our own behaviour impacts on others. We are unlikely to know what challenges our opponents might be facing so be courteous and respectful. If you let work stress or personal problems get to you and your own behaviour falls short, then own that and say ‘sorry’. Don’t let pride stand in the way. You do not need to be aggressive to win your case. Do as you would be done by. Reputations matter in our profession. We all ‘talk’, so do the right thing.
We hope that the judges who might read these articles, if recognising the ‘Judge Misery’ in themselves, will modify their behaviours. The Judiciary has commissioned research into judicial bullying and, we hope, one of its recommendations will be that judges, and particularly experienced judges who have forgotten what life as an advocate can be like, receive training on an ongoing and frequent basis to address appropriate behaviour towards advocates in court. We are not there to be shouted at, insulted or belittled. The days of the screaming Dickensian judge hectoring counsel should be long over. They aren’t yet.
In 2022 we are tired from COVID and feeling besieged by demands to get used to ‘the new normal’. We have a lot on our plates, as does the Judiciary. That exhaustion and pressure to get cases done means it is more important, not less, to better manage our working environment to ease avoidable burdens. Bullying is dysfunctional behaviour. We have to call this out to stamp it out, now more than ever.
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