Judicial Collision part 7

In the last QC blog after the young barrister doing his first case had been subject to an outrageously inept hearing by a particularly inept judge, his opponent, telling him not to worry, told him that he had a much worse tale to tell regarding that particular judge.

Before coming to that, in order to fully understand the context, a few other true incidents involving that particular judge need to be borne in mind.

The first was a family case. This was a dispute between Mister and Mrs X. The allegation was that Mister X was violent, (an assertion vehemently denied) and in consequence the wife had obtained a domestic violence injunction against him. That meant that any incident after Mrs X obtained the order which was a breach of it (violence or attending at the former matrimonial home) could lead to the husband being sent to prison.

She alleged that a further incident had taken place by him attending at the house and shouting at. She therefore brought a committal application in order to have him committed to prison for breaching the order. There were no witnesses and it was his word against hers, since there was no allegation of violence and no possibility of resolving the matter by medical evidence. Mister X said that the allegations against him were complete nonsense, and were in truth an act of revenge because he had got a girlfriend. After complicated negotiations between the respective barristers at court, it was agreed that the committal application would be abandoned with no costs order on either side. The judge was told, and said that he wanted a few words with the parties. In the court room there is a witness box on either side, and the judge asked both husband and wife to go into each box while he lectured them. "The two of you should grow up," he said, "after all, you have the interests of your child to consider here.". Turning to the husband, he said "if there is any more nonsense from you you will be sent straight to prison" (obviously there was an order against him which if he breached he could be sent to prison). Notwithstanding that there was no order in place against the wife, he then turned to her and said "and the same applies to you."

The two barristers were shaking their heads at this performance when they had a coffee together later. However they ended up shaking their heads even more at its aftermath. Sometimes getting things wrong does not lead to a damaging result. As a result of the lecture the husband and wife were reconciled and there were no further problems. As marriage guidance goes, the judge misunderstanding the legal position of the parties is perhaps an unusual situation.

Another incident was even more bizarre. Counsel was opening a rape case. It was of course being tried by judge and jury. Prosecuting counsel was undertaking the usual opening, but found himself constantly being interrupted by the judge. "That's not right." the judge would say. "That's not relevant." he would add. Prosecuting counsel, not wanting a bruising encounter with the judge before he even got started, which might create an unfavourable impression on the jury, was trying to be accommodating without undermining his case. In the end however, when the judge interjected "why do you keep bringing sex into it?" counsel was driven to point out that it was necessary in a rape trial. "This is a shoplifting isn't it?" said the judge. He had picked up the wrong file, hence his bafflement at the approach of prosecuting counsel. Needless to say the jury was discharged and they started again. Probably no other judge sitting before or since in this jurisdiction could have been capable of such a mistake.

Something of this judge's bizarre approach in criminal cases can be gathered from the following incident. Prosecuting and defence counsel were called into the judge's chambers before a particular trial started. The judge turned to counsel for the defence and started to badger him, telling him that his client had no chance of success and that he ought to plead guilty and avoid wasting the court's time with a trial. Counsel for the defence was having none of it, and pointed out the reasons why his client could have a defence. The judge was silent for a moment. He then turned prosecuting counsel. "You have got no case at all and should abandon the prosecution". He had no more success with prosecuting counsel than he did with the defence, and despite the judge's best efforts the trial took place.

Perhaps therefore anyone approaching a criminal trial before this particular judge would have been concerned that anything might happen. As we will see next week, in one particular instance that is certainly what happened.