It looked as if things could not get worse for Mr Justice Peter Smith, the
judge who may go down in history as the "judge who lacked judgment".
He had been castigated recently by the Court of Appeal for failing to stand
down in a case involving trustees where he had shown "undoubted
animosity" towards one of the parties, and issued a defiant statement,
digging in his heels, which at the very least made him look foolish.
Then this week the Lord Chief Justice announced that he was initiating
disciplinary proceedings against the judge by referring the case to the
Office for Judicial Complaints. That office now has the invidious task of
recommending what action to take: at best the judge could face a reprimand;
at worst, the Lord Chief Justice might have to ask the Lord Chancellor to
move an address before both Houses of Parliament for his removal - the only
way that a High Court judge can be dismissed from office.
Judges at their annual dinner hosted by the Lord Mayor of the City of London
on Tuesday were astonished that the judge had allowed things to go so far.
Several take the view that he should have resigned - and should do so now
rather than see himself publicly humiliated. But Mr Justice Smith is not the
run-of-the-mill High Court judge. "He is a man of extremes - and will
see things as black and white," a colleague said. "He will also
see this as a ganging up of the Establishment against him - and become even
more resistant." He has "a kind of siege mentality", said
another.
Sir Peter has form. The judge best known for The Da Vinci Code trial and his
judgment, in which he inserted his own code, had already been voted the
least popular Chancery judge in a straw poll of lawyers in 2003, a year
after his appointment to the High Court bench. This was chiefly because of
his blunt manner and the rough-and-ready way that he handled advocates. In
the esoteric realms of the Chancery Division he was seen as something of a
rough diamond. Plucked from the Northern Circuit where he taught law at
Manchester University before entering legal practice he was appointed partly
because it was decided, as one judge put it, that "we should have a
Chancery judge from the North". Sir Peter is not from public school
although he went to Selwyn College, Cambridge, and may have arrived at the
Royal Courts of Justice aware of being an outsider. "He felt that he
was different and has a bit of a chip on his shoulder as a result," one
judge said.
Judging can be a lonely job and Sir Peter felt somewhat isolated. "He is
away from family and friends - and the problem with this work is that you
can find that you don't have the opportunity to talk to people, as you did
at the Bar." A lawyer who knows him said: "I actually feel quite
sorry for him. He was a good barrister in Manchester and in demand. But he
has felt a bit of a fish out of water in London."
Meanwhile, some eyebrows have been raised over his judgments. The Court of
Appeal was critical over his Da Vinci Code reasoning - and eyebrows were
certainly raised over his inserting of a code in the judgment. "Had it
been otherwise flawless, he might have got away with it," one lawyer
said. "But it wasn't."
The Court of Appeal judges were unequivocal as to what they thought of the
latest debacle. Sir Peter, they said, had behaved in an "intemperate"
way when handling the application to stand down, had got "carried away"
and indulged in "extraordinary exchanges" in court. The
application that he recuse himself was "entirely justified".
The problem is that the episode displays not one but a series of errors of
judgment: first, in not standing aside when the papers for the case
involving trustees came before him and he saw that a partner from Addleshaw
Goddard was one of the parties. He had recently been involved in
unsuccessful negotiations with the firm for a job and an acrimonious e-mail
exchange ensued. The exchange, revealed in court, reveals Sir Peter's
bitterness at not getting the job. But judicial colleagues were also
concerned at the image it portrayed of a judge seeking to ingratiate himself
with a law firm, citing such comments as "the considerable advantages
of being associated with someone like himself".
Then there was the error of judgment in not standing down when the application
involving the Addleshaw Goddard partner came before him; and thirdly, his
reaction to the Court of Appeal ruling, when he said that "as no one in
the Court of Appeal or anyone else in the Ministry of Justice has yet
actually told me I have been removed (although I discerned this when I
prepared to sit on Tuesday but nobody turned up) and no one has given me any
reasons for my removal, I am unable to comment save to say that I will not
be resigning."
Sir Peter would or should have known that he must stand aside: only last year,
in a case involving Mr Justice Evans-Lombe, the Court of Appeal ruled that
the latter should step down because he knew someone in the case he was about
to try. The court said that, if there was evidence of an apparent bias, then
inconvenience, costs and delay in finding a substitute judge were not
acceptable reasons for the original judge to preside. The judge should step
down to avoid any possible perception of bias, the appeal judges said.
What is to be done? Judges - in this jurisdiction - rarely are reprimanded.
Gary Slapper, professor of law and director of the Open University law
programme, notes that "not all judges are perfect. They are no more or
less universally impeccable than surgeons or government ministers". But
if there are several cases of judges misbehaving in the 16th century, it is
rare now. Judge Bruce Campbell is the only judge sacked in recent years -
for smuggling whisky into England from Guernsey in 1983. Only one High Court
judge has been removed from office on an address from both Houses of
Parliament: Sir Jonah Barrington in 1830. He was found to have
misappropriated money belonging to litigants.
Sir Peter had possibly fallen out of love with his work - hence his attempt to
secure a job with a law firm. Now, though, such attempts are likely to have
even less likelihood of success. And more bad headlines may follow: an
appeal over aspects of his ruling involving the sequestrators and the
property tycoon Nicholas van Hoogstraten is pending.
Meanwhile, judges are hoping that he will see sense and step aside - and
finally show the judgment that has recently apparently been lacking. But
whether he fights to the last or not, the episode is a cautionary tale. Sir
Peter may be hung out to dry but, say more sympathetic colleagues, it should
never have got to this - particularly as the judge is known to be unwell and
undergoing tests. "There is no support network, no help for people when
things start going wrong - and no one he would be able to turn to,"
said one. The system may deliver its verdict on Sir Peter but he has in turn
exposed its pastoral shortcomings.
MR JUSTICE PETER SMITH: KEY FACTS
* Achieved worldwide fame after encrypting a code in his judgment in 2006 in
The Da Vinci Code trial
* Fan of Admiral of the Fleet, Lord (Jackie) Fisher - hence reference to
Fisher hidden in his Da Vinci Code judgment
* Ordered property tycoon Nicholas van Hoogstraten to pay £5 million to family
of murdered business rival - overturned on appeal. Appeal judges described
his approach as “startling”
* Hobbies: the Titanic; military history
* In 2003 voted least popular Chancery judge in a survey of lawyers published
by legal magazine, Legal Business, for gruff court style
* Most likely to say: “never explain, never apologise” - first said by Lord
Fisher (1841-1920)
The only reason the poor Judge got displined was because he made the remarks against another lawyer with good connections, I have heard and seen much worse behaviour by judges which has gone without any reprimand as the poor victims were just litigants in person or ordinary people.
The legal profession can not be allowed to be a law onto itself.
It should have an independent review panel.
Why should a judge be iremovable, in any other profession you would lose your job if you were useless in the judiciary the worst that can happen is you do not get promoted or end up in a minor court, but surely if you are a bad judge you are going to cause as much harm whereever you are.
Has anybody done a league table to show which high court judge has had more decision overturned on appeal?
Jadoo, UK,
As someone who can quote a Fisher Baron on a will left to me by my late grandmother Lady Mary Knights, and feeling at times that I amongst others had been put under the duress of the establishment, and raising in return more than just an eyebrow, I feel that Justice Smith is now truly a man of experience and so welcome his continued service in the Chancery. Justice Peter Smith might well be a tad odd, yet he is no Judge Judy.
Daniel Craver , Newcastle Emlyn, Wales
Dear 'Litigator',
One possible difference between disgruntled litigators such as yourself, and High Court Judges, may be that High Court Judges will stand their ground, state their beliefs AND put their name to it?
Just a thought.
Kate, London,
Poor judgment is an affliction which can be pinned on many judges during their careers. Like any post there is a learning curve and Judges are bound to make mistakes. Often the mistakes are less blindingly obvious. Sir Anthony Clarke was in my view correct in his criticism. It was clear from the point of view of any impartial observer that the argument that took place would have satisfied the test for apparent bias. Whether Mr Justice Peter would have subsequently been biased is another matter. He should have had the courage to accept the arguments, however, unfair he thought them and recuse himself. If however every Judge is hounded from office for losing their temper we would have a backlog of cases and the system would break down.
Some barristers don't like his rough manners, some find him eccentric. To call on him to resign or be removed is simply ridiculous and compromises the integrity and authority of the bench. They should just grow up and move on.
Julian, London, UK
It sounds as if Sir Peter was unhappy on the bench (hence the application to Addleshaws), that his rejection by them increased his unhappiness and led to the misjudgment. I hope that someone in the judiciary investigates his unhappiness informally and devises some solution that addresses it, such as a period of non-sitting, perhaps on secondment to the Law Commission, The disciplinary proceedings cannot address the main problem; it can only be a factor in mitigation. After time for consideration the question whether the bench is the right job for him can be decided by him and the powers that be and another job found where his talents can be used.
C.I.McGonigal, Rye, England
As a lawyer who has experienced the irrational conduct of Justice Peter Smith first hand in the court room, I for one feel that disciplinary proceedings are deserved and necessary.
Litigator, London,
There is no reason why Mr Justice Peter Smith should resign.
The Court of Appeal overruled Sir Peter - so what? Appeal courts overrule High Court judges every day.
In the case involving Mr Justice Evans-Lombe in 2006, the judge had been a personal friend of a key witness in the case for 30 years but nevertheless declined to recuse himself from hearing the trial. The Court of Appeal directed that he should do so, saying "With the greatest possible respect, the judge's well intentioned decision not to recuse himself was wrong. It is in the interests of all concerned that he does not hear this case."
The two cases are in substance similar, yet, unlike Sir Peter, Mr Justice Evans-Lombe is not being disciplined. It seems to me that it is the Lord Chancellor and Lord Chief Justice who have some explaining to do.
Michael Leckey, Preston, Lancashire,
The Head of his Division (the Chancellor) should have taken Mr Justice Peter Smith to one side long before his eccentricities were allowed to get out of hand. Judicial independence surely does not carry with it the freedom to be boorish and contrary.
Justinian, Berkshire,
The irremovability of the Judges is one of the cornerstones of our liberties, let us by all means get rid of any crooks that we may find on the bench, but there is no suggestion of any such thing in this case, which seems to amount to no more than eccentricity. He might have his failings, but I would rather have an "independently minded" Judge than all the politically correct sycophants, and party donors, who seem to be appointed in their hundreds.
Brian Owen-Wilson, Cardiff, Wales
Basically, this seems to be a rather "low level" issue which the Lord Chief ought to have been able to deal with relatively easily.
From this article, one gets the impression that the legal establishment want him out because his face doesn't fit. The comment that he wasn't "public school" seems to say it all.
Peter Hargreaves, Stockport, Cheshire, England