“Whether we like it or not, many of us have been guilty at some point of being hurtful or rude or intimidating
Justice James Allsop
Chief Justice, Federal Court of Australia
‘Whilst, of course, practitioners are not workers of the Court, the reality is that judges influence significantly the working environment in which practitioners spend their time,' he said. ‘Whether we like it or not, many of us have been guilty at some point of being hurtful or rude or intimidating.’
In February 2018, Lord David Neuberger, former President of the Supreme Court of England and Wales, said there should be greater awareness of bullying across the legal profession. ‘There are a number of people who actually don't realise that they're behaving wrongly and unless it's drawn to their attention they will go on behaving as they are,’ he said during an event hosted by the IBA’s Human Rights Institute (IBAHRI). He added that the involvement of regulators, appropriate complaints mechanisms and ‘training at all levels’ would be necessary to change the ‘culture’ of bullying that permeates the legal profession.
Justice Michael Kirby is Co-Chair of IBAHRI and a former Justice of the High Court of Australia. He says judges must always be wary of overstepping the line. ‘With the type of personality that will show courage in the face of significant public or private power sometimes comes a personality that is not always polite and courteous,’ he says. ‘We need our judges to be strong and to stand up against very powerful interests in our society,’ but this ‘does not condone bullying or excessive unpleasantness.’
Justice Kirby believes leadership, education and peer pressure all play a role in upholding professional conduct in the courtroom, but when only a single judge is present ‘it remains for advocates, parties and citizens to ensure that inappropriate statements or conduct are properly recorded in the transcript so that complaints machinery can be enlivened with some hope of success.’
Fiona McLeod is Co-Chair of the IBA Diversity and Inclusion Council and former president of the Law Council of Australia and the Australian Bar Association. Each jurisdiction should adopt ‘judicial commissions [that are] under the control of the Courts’,’ she says. ‘Referrals to investigation by an outside source might [also] be needed in extreme cases where guidance, coaching and clear guidelines have failed.’
In England and Wales, the Judicial Conduct Investigations Office (JCIO) investigates complaints about judges’ conduct. There were 2,147 complaints made against judicial office holders between 1 April 2017 and 31 March 2018, according to the JCIO’s Annual Report 2017-18. 498 of these related to ‘inappropriate behaviour and comments’.
However, the JCIO was unable to confirm to Global Insight how many of these complaints related specifically to bullying. Neither the Bar Standards Board nor the Solicitors Regulation Authority, which also cover England and Wales, routinely record allegations of bullying as a standalone category of complaint. The lack of data and general under-reporting of incidents in many jurisdictions makes it difficult to form a reliable global picture of the impact of bullying on the judiciary or other legal workplaces.
Recent surveys on the issue could help change that. In October 2018, research by the Victorian Bar in Australia revealed that 59% of barristers in the state said they had experienced judicial bullying. Throughout 2018, the IBA conducted a comprehensive global survey on the prevalence, nature and impact of bullying and sexual harassment across the profession. It spans 135 countries, with findings announced on 15 May.
An upcoming hearing at the Supreme Court of England and Wales will highlight another aspect of the issue: whether judges themselves can fall victim to bullying. In 2015, Judge Claire Gilham brought proceedings in the Employment Tribunal against the Ministry of Justice claiming detriment after exposing excessive workloads and unsafe working conditions at Warrington Country Court. She says she was also asked to tolerate bullying behaviour by a more senior judge.
However, her claim was dismissed on the grounds that, as an office holder, rather than an employee, she is not afforded whistleblower protection under the Employment Rights Act 1996. Gilham has, nevertheless, succeeded in getting leave to appeal the case at the Supreme Court, which will hear her arguments in June, including whether she is eligible to bring her claim as an employee of the Crown. When approached by Global Insight the Ministry of Justice and the JCIO declined to comment as the case is ongoing.
Although Gilham’s case is principally about employee rights, she’s determined it will shed light on the pervasiveness of bullying within the judicial system. ‘Stories of judges bullying lawyers and other judges are related internally – and it's not a gendered issue – but there is great reluctance to examine or even preserve evidence or to acknowledge current problems of this nature,’ she says.