Irvine Maccabe discusses practical issues and strategies to consider in relation to recusal, judicial misconduct and transcripts

Applications for Tribunal recusal based on perceived bias by the Tribunal judge and/or lay members during a hearing are rare. When these occur in a hearing, they are invariably grounded in the perception that the judge has appeared to advocate one side’s case against the other.  Usually this is by hostile and sometimes protracted questioning of one side’s witness. The borderline between what is, and what is not, acceptable, and how difficult and fraught it can be to identify, was the theme of Richard Hignett’s April 2014 article in the Newsletter. Here the writer considers to what extent this may also involve judicial misconduct, pursuant to the Judicial Conduct (Tribunals) Rules 2014 (the Rules). These Rules came into force on the 18th August 2014, repealing the 2013 rules.

How common recusal applications are, no-one knows, as no statistics are compiled. For what it is worth, it is the writer’s belief they are on the rise, for two reasons. First, he has recently been involved in his second one in 4 years, the previous 27 being free of contested applications. Second, colleagues report them more frequently than formerly.

The Judicial Conduct Investigations Office (JCIO- prior to the 1st October 2013, The Office For Judicial Complaints) collates statistics of the complaints of alleged judicial misconduct made to it. But it has no jurisdiction to investigate complaints about judicial decisions. This is because, not surprisingly, a judgment on recusal is not by itself judicial misconduct. This is not the same as saying that the conduct of the Tribunal and the manner in which an application for recusal is dealt with by the judge or Tribunal may not itself cross the line into judicial misconduct. Judicial misconduct during a case must very often be a ground of recusal by itself.  So if the merits of a perceived improper Tribunal intervention on what may be called the non-misconduct aspects may be finely balanced (ie not raising the doubt that should then be resolved in favour of recusal), misconduct will tip the balance in favour of recusal. A complaint to the JC10, if that is the preferred route, must be made within 3 months of the incident. Even if the recusal application is unlikely to succeed, or fails in front of the Tribunal, a separate (and bona fide) complaint to the JCIO about alleged misconduct might possibly result in a de facto recusal.   

What sort of misconduct?

The Rules at rule 34 (b) provide that the relevant President must dismiss the complaint, or part of the complaint, if it is about a judicial decision or judicial case management, and raises no question of misconduct. The 2013-4 JCIO Annual report records that in that year, 6 holders of judicial office were given formal advice about “inappropriate behavior/comments”, 6 were warned, 5 were reprimanded, 5 removed and 2 resigned. In the case of “professional misconduct” 1 was given formal advice, 1 a warning, 4 removed, 1 suspended and 1 resigned.  The report does not tell us what the particulars of the inappropriate behavior and comments are. It does not tell us what the professional misconduct was, nor, of course with what manner of hearing it was concerned (assuming, as may not be the case, that it involved, or took place in, a hearing). It publishes on its website “Statements of Discipline”. This a short general statement of the case against the office holder and the disciplinary outcome. Where “professional conduct” is involved, it may state what that was (largely taking too long to deliver a judgment). But where the finding is of inappropriate behavior/comments, it tantalizingly only gives the most general and bland of indications of what was said. Certainly, the words that comprised the comments are not set out. It is as if the JCIO does not want to create any precedent which can be seized upon and used by potential complainers as comparable misconduct.

Perhaps the short answer is that most advocates know judicial misconduct when they see and hear it. Perhaps, the more difficult question is how to record and evidence it, especially where there is only one representative.

Probably the most infamous, and indeed spectacular, example of the refusal of  a recusal application incorporating judicial misconduct involved Mr Justice Peter Smith in  Howell and Others v Millais and Others [2007] EWCA Civ 720. ( The judge had delivered a reasoned judgment rejecting the recusal application after a rumbustious hearing specifically convened to hear such application.

In his judgment on the appeal, Sir Anthony Clarke, MR, described the transcript exchanges between Senior Counsel and the judge in that hearing as “somewhat extraordinary” and the judge’s language as “intemperate”. In his short concurring judgment, Sir Igor Judge said:

“….It is the conduct of the hearing which underlines that the judge had become too personally involved in the decision he was being asked to make to guarantee the necessary judicial objectivity which would be required in the trustee proceedings. I identify three particular features. First, the witness who supported the application was in effect cross-examined by the judge in something of the style of an advocate instructed to oppose the application. Second, the submission by counsel for the applicant that the judge had given evidence was in the circumstances unsurprising, and the concerns he expressed on this topic were validly made. Finally, the judge impugned the good faith of the application, a conclusion repeated in the strongest terms of his judgment when there is no shred of evidence to suggest some ulterior or improper motive behind the application.”

The grounds for recusal were found by the Court of Appeal to exist before the hearing. However, the manner in which the judge misconducted himself in the hearing put the matter beyond any doubt. And that conduct was intemperate behavior to Counsel, questioning a witness in support of the application as if he was an advocate instructed to oppose the application, giving evidence himself and expressly impugning the good faith of the application without any foundation. The transcript graphically evidenced the judge’s misconduct in the hearing.

The judge was subsequently reprimanded by the Lord Chief Justice.

It is true that this is an extreme example of judicial misbehaviour during a hearing. It is also a fact that there is no hiding place in a transcript. Very few employment Tribunal hearings are recorded. Perhaps there would be fewer applications if recordings were routine and transcripts were readily obtainable. The writer understands there are now some very serviceable multiple voice recognition systems on laptops. The slight drawback is that it is a contempt of court to use them.

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