Judging the judges

Mr Justice Smith

Yesterday the Lord Chief Justice made the most remarkable decision I’ve heard being made about a sitting High Court judge. He directed that Mr Justice Peter Smith must not hear any cases involving any barrister from Blackstone Chambers because of concerns of bias against them.

This all started with an article in the Times penned by Lord Pannick QC, which was critical of Mr Justice Smith. The judge did not take the criticism very well and complained to Anthony Peto QC, the head of Blackstone Chambers.  When Mr Smith did not get a reply he wrote this letter, which first sought to remind Mr Peto that he is a Silk only because Mr Smith gave him a leg up.

The now infamous letter

The letter goes on to say that Smith, J. will not support any members of Blackstone Chambers in future and does not wish to be associated with them. This can be taken two ways, first that he won’t provide references for any applications to the bench or for QC status from that Chambers in future or that he will not find in their favour in court in future. It strikes me that the former is the correct interpretation of that paragraph but it does raise a very real concern that this judge has such a dislike of Lord Pannick that he will take it out on any member of Lord Pannick’s Chambers – it is this that should give everyone very real concern about the impartiality of Mr Justice Smith when members of Blackstone Chambers appear before him.

This is not the first time issues of bias have been levelled at Mr Justice Smith. The article that kicked off the feud detailed an incident during a case involving British Airways where the airline became so concerned about Mr Smith’s bias against them that they asked the judge to recuse himself (step aside from hearing the case).

Then there was a case in 2007 when the Court of Appeal stepped in to remove Mr Justice Smith from a case where the judge had failed to recognise that his personal interests made it inappropriate for him to hear the case. In that case, the Master of the Rolls described Mr Smith’s conduct as “somewhat extraordinary” and Sir Igor Judge said, “had become too personally involved in the decision he was being asked to make to guarantee the necessary judicial objectivity”.

I was surprised to see that in the Times today there seems to be no mention of this extraordinary event – it’s reported in the Times’ Brief email as the lead story but I cannot find it on the website even when I search for it. So far as I can tell, only the Telegraph and legal blogs/magazines have even bothered to mention this story. I’d have thought they’d be all over something like this, but the truth is that stories like this require some in-depth journalism and too many in the general media are more interested in quick easy to understand stories.

Now, you might wonder why Mr Justice Smith has been permitted to continue as a judge for so long. The answer is, I suspect, three-fold. First, it is very difficult to sack a High Court judge; secondly, the courts do not like to admit that they get things wrong (although they do every single day) and thirdly there is a dearth of suitable candidates to replace anybody leaving the High Court bench.

Some will say that this is a sign we should make it much easier to sack judges. I disagree. While it may be undesirable to have judges sitting who appear to struggle to dissociate personal feelings from the case before them, it would be far worse for us to allow a system in which dismissing judges it too easy.  Why? Because whether you like them or not. Whether you agree with their decisions or not. Judges provide a strong defence for the citizenry of any nation against governments who would act unlawfully against their interests. You only have to look at countries like Zimbabwe to see the effect on a population of having a weak and subservient judiciary. It is a common complaint that judges hinder governments in their aims too often – ask Theresa May about that – but this is a compliment not a criticism. Judges are there to prevent governments breaking the law and to order them to make things right when they do. A system that allows a judge to be dismissed too easily risks breaking down this defence and allowing a powerful government free-reign over the nation. This is precisely why the judiciary are considered one of the three pillars of government and why the US are so proud that their constitution protects their independent judiciary (we’ll overlook the fact that their Supreme Court is a politically appointed entity that seems to pass judgment as much based on the political affiliation of the judges as on the law).

The senior judges can take action against judges they feel should not be sitting, but we should not make doing so too easy.