“Racism is alive and well and living in Tower Hamlets, in Westminster and, yes, sometimes in the judiciary…. They came out with racism, when they didn’t even know what it meant. So don’t let anybody fool you that just because you have a judgment in a court it is somehow sacrosanct. It is not… Do not put your faith in a system that is not designated for you. You are not regarded as British. You are not regarded as part of here or now.” By no feat of imagination would the maker of this statement ever foresee that these words held at a rally in Stepney in 2015 would provoke the turmoil it did.
Little would fare for anybody making such comments in this day and age, however these were not the words of any ordinary man. The maker of the statement is an OBE, has had a distinguished career as a prominent human rights advocate alongside Michael Mansfield Q.C, and most importantly now sits as apart-time Judge at the Crown Court and the Employment and Immigration Tribunals.
Following the speech, the Judicial Comments Investigation Office (“JCIO”) launched an investigation into whether there was any misconduct. In England and Wales, pursuant tostatutory instrument SI 2013/ 674: The Judicial Discipline (Prescribed Procedures) Regulations 2014 confers powers to the JCIO to carry out an investigation process on to any alleged act of misconduct or wrongdoing of members of the Judiciary. Powers under the above-mentioned statutory instrument vests the Lord Chief Justice and the Lord Chancellor with powers to take action ranging from the issuing of formal warnings such as reprimands, to notifying Judges of suspensions from their Office. The exercise is in itself rudimental as it involves judges giving witness accounts and opinions against their own peer judges.
In the case of Justice Herbert, the finding of the investigation process carried out by a four-person disciplinary panel was one of guilt. It was concluded that the speech amounted to misconduct and was “likely to undermine public confidence in the judiciary”. The finding of guilt was to the effect that the speech was “inappropriate and put the reputation of the judiciary at risk, which amounted to misconduct…” It is understood that the Lord Chief Justice wrote to Mr Herbert with formal advice regarding his future conduct as fee paid judge. While formal advice is only one of the lesser forms of punishment available, it is by no means the lowest form of punishment.
The reply of Justice Herbert was most unapologetic. In a letter sent to the Chief Justice he related his disagreement: “I fundamentally disagree that what I said posed any risk to the reputation of the judiciary. On the contrary, your decision and that of the minister herself, coupled with the actions of the panel combine to leave me in no doubt this is an example of direct race discrimination and victimisation.” Whilst Justice Herbert’s conduct will be seen by many as a constant act of defiance to the institutionalised authority this is the judiciary, his action should be acclaimed as laudable if only for taking the liberty of freely expressing a serious cause for concern in the doing of justice
Not later than this month, the Old Bailey saw the appointment of its first non-white circuit Judge; Asian, Scottish and Female: Justice Dhir. It has been reported that her appointment comes at a time when the judiciary in England and Wales is to an extent embroiled in allegations of racism. It may be unsurprising that Justice Dhir referred in an interview by the BBC to the accepted expectation at the time she started at the bar of the preferential treatment white Oxbridge men had. The question can only be asked as to whether this analogy really can be dispensed in today’s context.