Judges, bullying and a 'broken' complaints system

12:14 pm on 23 September 2021

If you're unhappy with a judge's behaviour, you can complain. But will anything be done? Lawyers, academics and complainants say the complaints system is secretive, ineffective and broken.

No caption

Photo: RNZ/Vinay Ranchhod

It was only once Laura Smith* left town that she realised how unbearable the bullying had become. There were two judges in particular that made working as a lawyer in her small city a living hell.

"They were brutal and difficult to deal with, particularly with women, but they were bullies towards men as well."

Their behaviour was so bad female lawyers would often "burst into tears" after appearing before them, she says. "The number of colleagues I held while they sobbed was too high. But what was really damaging was that you started to lose respect from other judges too, because judges talk."

Smith raised her concerns about one of the judges with a senior lawyer, who approached the judge on her behalf. But it did not help. "She went and saw him, but, actually, things got a whole lot worse from there."

She knew it would be career suicide to lay a formal complaint with the Judicial Conduct Commissioner, so it was a relief to leave town. She believes the bullying led to several other lawyers leaving town, or abandoning their law careers completely, over the space of two years.

Read more from Is This Justice?

A sad but unusual story?

Unfortunately not, according to Defence Lawyers Association co-founder Elizabeth Hall. She says she has heard similar stories many times. Lawyers are reluctant to complain about a judge's behaviour because the repercussions can be huge, especially in smaller towns, she says.

"If you particularly think about a provincial court with a resident district court judge, if you complain, you may as well move."

Judicial independence is enshrined in law for good reason, but archaic legal traditions are partly to blame for lawyers not wanting to complain, Hall says "You don't have many professions where deference is an inbuilt aspect of the job. Not in the way that a court is - and it's a real problem."

No caption

Nick Chisnall. Photo: Supplied

There is reason to be concerned. Bullying by judges appears to be widespread, according to a 2018 survey Hall conducted with the support of the Criminal Bar Association. It found 88 percent of lawyers said they had experienced harassment or bullying, and judges topped their list of tormentors.

"Eighty-three percent of the people who have experienced bullying or harassment did not make any formal complaint through any means. The number one reason why they don't complain… 60 percent said it wouldn't have made a difference," Hall says.

The survey results prompted a rare warning from then-Chief Justice Dame Sian Elias that "the bullying of counsel is not acceptable". Indeed, the Guidelines for Judicial Conduct say as much and add that, "Judges must conduct themselves with courtesy to all". Dame Elias insisted: "If it is occurring, I and the heads of the bench want to know about it and we want to stop it".

Three years on, barrister Nick Chisnall says lawyers remain reluctant to complain. "Which perhaps means that at times, judges who should be complained about, are not."

But even if they did complain, would anything be done? Lawyers, academics and complainants told RNZ the complaints system was secretive, ineffective and broken, and they had little confidence errant judges were being held to account.

Hall describes it like this: "There's a long-standing history where practitioners have sought to raise issues and nothing has happened, or the judge has just been moved around to other locations."

***

Here is how the complaints system works: No-one can make a complaint about a judge's decision - that's what the appeal process is for - but complaints about a judge's behaviour, whether in or outside the court, can be made to the Judicial Conduct Commissioner (JCC).

Judicial Conduct Commissioner Alan Ritchie would not speak to RNZ, but legislation outlines the three options he can take when a complaint is lodged: Take no further action; refer the complaint to the Head of Bench (the chief judge) to deal with; or recommend the Attorney-General convenes a Judicial Conduct Panel to decide whether the judge should be removed from office.

Since the JCC's inception in 2005, 3201 complaints have been made by lawyers and members of the public. Nearly all (95 percent) were either dismissed because they were not about a judge's conduct, or no further action was taken because the commissioner concluded the conduct was not concerning.

In the last 16 years, just two complaints prompted the commissioner to recommend a panel - made up of current and former judges - be convened. Neither panel ever went ahead. The first, in 2010, involved former Supreme Court Justice Bill Willson, who resigned before the panel took place. The second, involving a District Court judge, was dismissed by the Attorney-General after he was satisfied steps had been taken by the judge's Head of Bench to deal with the matter.

So far, so straight forward, but things get murky when it comes to the 2 percent of complaints that are referred to a Head of Bench. A judge cannot be disciplined by anyone, including another judge, in order to ensure their independence is protected. The Head of Bench can only recommend a course of action, but cannot make a judge do anything, and the complainant might never be told of the outcome.

No caption

Photo: RNZ/Vinay Ranchhod

Last year, the JCC received a total of 136 complaints, of which eight were referred to the Head of Bench. Five went to the Chief District Court Judge and three to the Chief Coroner. What happened next? We do not know. Even the complainants may be none the wiser.

But Former District Court Judge Rosemary Riddell can throw some light on what happens behind closed doors when a complaint lands on a Head of Bench's desk. "The best way to deal with that is for the Head of Bench to sit them down and say, 'You were rude that day, what was going on? What's going on in your life at the moment? We can't have this. What do we need to do to fix it, or do you need to do some counselling?' I've never had that conversation, but I know of judges who have."

No caption

Elizabeth Hall's survey found 88 percent of lawyers said they had experienced harassment or bullying Photo: RNZ / Samuel Rillstone

After Hall's 2018 survey uncovered so many lawyers feeling bullied by judges, then-Chief Justice Dame Sian Elias worked with The Law Society to establish an alternative, informal way for lawyers to lay complaints. The Judicial Protocol was established in 2019 and allows a lawyer to anonymously lay a complaint through the Law Society president. The president then speaks to that judge's Head of Bench on a "strictly confidential basis."

"The Head of Bench will draw the concerns to the attention of the judge and convey any response the judge wishes to make," the Judicial Protocol states. But it also notes: "...a judge is under no obligation to make any response to the information supplied".

Has the Judicial Protocol helped? Hall says there is no way of knowing the outcome of complaints laid via the Law Society president. It means there is still a lack of transparency so it is impossible to tell how effective this system is. "There is no binding result on the judge. There's no obligation for the judge to even engage."

"It's a way of raising issues, but it's not a way of potentially even dealing with or checking how progress is going with the issues we've raised, or any concerns that need to be addressed."

The Law Society would not speak to RNZ and could not say how often complaints were made because all records are "destroyed" once a matter is dealt with to ensure "absolute confidentiality", it said in an email.

"We regularly let the legal profession know about the protocol and we are confident it is fulfilling its intended purpose as a way to raise low level issues with judges that are suitable for an informal process."

***

No caption

Jessica Kerr says the Judicial Conduct Commissioner is an "ambulance at the bottom of the cliff". Photo: Supplied

Jessica Kerr, who researches judicial issues at the University of Western Australia, has a different take on the complaints systems. Despite having an "incredibly highly performing judicial culture" in New Zealand, its tradition of quietly dealing with conduct issues behind the scenes may no longer be suitable, she says.

Kerr, a New Zealander and former magistrate, says transparency is especially important because the judiciary's legitimacy rests on public confidence, and confidence is only gained if people know and understand how issues are dealt with. "Even if the complaints process is working, in the sense that the judiciary is working behind the scenes to address issues as they arise and to keep judges in line, if the complainants don't see that happening and don't feel that happening, then I would argue that perhaps the primary purpose of the complaint system hasn't been achieved."

The Judicial Conduct Commissioner is the "ambulance at the bottom of the cliff", and while there will always be complaints about judges, the best way to reduce their number is to focus on appointing the right people as judges and proactively supporting those people throughout their judicial careers, Kerr says.

***

Auckland University Faculty of Law Lecturer Dylan Asafo

Fuimaono Dylan Asafo describes the complaints system as "broken". Photo: RNZ / Claire Eastham-Farrelly

"Broken". That's the best word to describe the complaints system, according to Auckland University law lecturer Fuimaono Dylan Asafo. It is in need of a major review, he says.

"The fact that there have been over 3000 complaints since 2005, but only a handful actually being referred for disciplinary action means that there are major systemic flaws in that process. It gives a mistaken impression of perfection within our judiciary, which is completely false and impossible."

It is "seriously concerning" that as a consequence of a failed complaints system there could be sitting judges who are unfit to be on the bench, he says. "This should be concerning to everyone."

More research is needed into how complaints could be heard so everyone has access to justice, Asafo says. He also believes a review is needed of the statutory provisions which the Judicial Conduct Commissioner has to consider when a complaint is received.

Auckland University Faculty of Law research fellow Litia Tuiburelevu also has concerns. While there are good reasons why judges' independence is protected, that should not mean they are above scrutiny, she says.

"I think it can be hard to critique because it very easily can be interpreted as a personal attack on a specific judge, but the judiciary is a huge part of the justice system, and it would be, I think, disrespectful to not scrutinise the work as an institution, much like we would the police or prisons.

"It's really important that we ensure that they are upholding justice, that they are doing the job the best way possible."

***

No caption

David Parker says he's never heard of people being afraid to complain about a judge. Photo: RNZ / Samuel Rillstone

Attorney-General David Parker might be surprised to hear those concerns coming out of Auckland University. He may also be surprised to hear lawyers were queuing up to talk to RNZ about being bullied by judges, though almost all said they were too afraid to complain or speak on the record.

Parker said he had never heard of lawyers or members of the public being scared to complain about a judge, and he has never heard academics voice any concerns about the current system either. "So I'm not sure that that's a widely held view."

Chief Justice Helen Winkelmann also defends the complaints systems, saying it is important the public knows they can complain about a judge's behaviour and both the JCC and The Law Society processes work and are transparent.

The low number of complaints that are addressed (only 5 percent of JCC complaints) does not mean the system is failing, Winkelmann says. "I would flip that on its head and say that the public should be reassured that our judiciary is actually of high quality. Is the fact no judge has ever lost their job a sign they are not being held to account? The opposite, she says. It shows that "any issues are rare".

She sees no issue with Head of Benches' inability to discipline judges, saying in her own experience she has never had a judge, in the senior courts at least, unwilling to engage when a complaint is raised. "Because they have a concern to improve their own conduct, but they also have a concern for the integrity of the system because a judge not meeting the standards that we set out in our judicial conduct guidelines has a potential to damage the system."

Like Parker, she does not believe lawyers are too afraid to complain about judges for fear it will hurt their careers. "It's because they have very high regard for our judiciary, and they don't want to be seen to be undermining it in any way."

***

Laura Smith has a far less rosy view. She's left the city she lived and worked in now, and is free of the judge she says bullied her. Before she packed her bags, however, she decided to approach another senior member of the legal community with her concerns about the judge's behaviour. "I was brutally honest. I told him about all the women leaving, the crying, about lawyers being publicly reamed out all the time."

A few months after relocating, Smith found out the judge had left town. She was never told whether he'd been talked to or received any extra training. "I never found out if my comments had any impact, or whether he just wanted to move cities."

This article is part of the series Is This Justice?

Get the RNZ app

for ad-free news and current affairs