Helping Out
Sometimes as a barrister you can be asked to give references. This could be for a barrister or prospective barrister, someone applying for a judicial position or a post with a solicitor's firm, or a character reference for someone you know who is in trouble. The same could apply to those barristers who then become judges. Is there anything wrong in this? I would never have thought so.
Recently the barrister Bruce Hyman, received a prison sentence. This was over his extraordinary behaviour in an access case, where essentially he produced material for a litigant in person on the other side (sent anonymously by e-mail) and then accused the litigant of fabricating it. (For the circumstances see the earlier article On another planet, if not another galaxy). It was only because the litigant, Mr Eades, tracked down the Internet cafe where it was sent from, and from CCTV footage demonstrated that the barrister was the one who had sent him the information, that the tables were turned. Hence Mr Hyman's guilty plea to attempting to pervert the course of justice.
There was a postscript to the prison sentence he received. It is not uncommon for people in trouble to seek character references. This is to seek to show other sides of their character, other things they have done. One person who Mr Hyman knew very well was the senior family judge in England and Wales, Sir Mark Potter. Sir Mark gave him a character reference. Mr Eades subsequently discovered this and complained to the Lord Chancellor and the Lord Chief Justice that this was improper. They both dismissed the complaints. Sir Mark did not know the sentencing judge and he was correct to conclude that this would be treated as a reference, not pressure. However eminent they are, friends are and should be able to give character references. As a matter of fact had there been any hint of putting pressure on the judge (which there was not and would not have been) it would almost certainly have spectacularly backfired. Anyone receiving such a reference from a judge or another lawyer would know that it was meant as an indication in a personal capacity and not an instruction.
I have only once given a character reference for a barrister facing a prison sentence (which was in fact imposed). He was not a personal friend nor had we have been in chambers together, but I'd been against him on a few occasions and knew him well enough to be able to say what the inevitable loss of his career as a barrister would do to him. As I knew nothing of the circumstances of the offence I could not really comment on those. That was probably the hardest reference to phrase. However references generally can be difficult. You have to be fair to both sides. You want to be able to specify the positive things about the candidate, but it is also necessary to be realistic and confine your comments to those things you can properly say. They are never easy things to do.
I hope I am never in the position again of having to give a character reference for a barrister facing a prison sentence (not because I would refuse to give one, because I hope no one I know ever find themselves in that position again). If I ever do, although I am not a judge and have no intention of ever becoming a judge, I would hope that I would not find myself in the position of Sir Mark in having someone complain about it.