Judging the judges

The recent resignation of Dame Lowell Goddard and criticisms of Mr Justice Peter Smith are likely to have dented the public's faith in the judiciary

Barely a week goes by at Solicitors Journal without the team receiving at least one correspondence complaining of judicial misconduct or a wide-ranging institutional conspiracy perpetrated by lawyers.

Upon investigation, the majority of such allegations can be chalked up to sour grapes in the aftermath of a lost case. Other complainants simply have little understanding of the law or role of the judiciary, an understandable result of self-representation following swingeing cuts to legal aid and the free advice sector.

Last year saw over 2,600 complaints made against judges and magistrates, but only 15 were removed from office. But while the receipt of complaints usually illicits a sigh, shoulder shrug, or quick eye-roll, the case of Mr Justice Peter Smith is a reminder that even judges are not beyond reproach.

In June, the Court of Appeal strongly criticised Smith J over a 'disgraceful' and 'worrying' letter sent to Anthony Peto QC, co-head of Blackstone Chambers, in which the High Court judge said he would 'no longer support' the set. The letter followed a Times article from Lord Pannick QC, in which the crossbench peer and Blackstone's member criticised the judge for being potentially biased in the now notorious British Airways luggage case.

While the Court of Appeal found no evidence of actual bias, it was not the only time Smith has had his partiality questioned. Lord Dyson, then Master of the Rolls, said Smith had a demonstrated a 'fundamental lack of understanding of the proper role of a judge' when handing Janan Harb a £20m award in her claim against Saudi Prince Abdul Aziz. Harb was represented by Blackstone.

The Chancery Division judge is currently under investigation by the Judicial Conduct and Investigations Office over the letter, BA case, and Harb appeal. However, as the Times reported last week, Smith is 'understood to be mentally unfit to defend himself in a disciplinary inquiry' and may never return to work.

There have been calls for Smith to step down from the bench from as long ago as 2007, so while his departure might be considered 'long overdue', it is nonetheless hoped that he regains his health and answers the complaints made against him. Only then can any damage made to the judiciary's reputation be repaired.

Meanwhile, in another embarrassing twist for the Independent Inquiry into Child Sexual Abuse (IICSA), Dame Lowell Goddard has announced her resignation with immediate effect.

The departure of the New Zealand High Court judge appointed by Theresa May to investigate child sexual abuse, including the alleged Westminster paedophile ring, comes after concern was raised over her apparent lack of knowledge of English law, as well as criticism of the arguably lengthy time she had spent on leave in her home country and Australia.

With public hearings set to begin in early 2017, the resignation of the third IICSA chair comes at an unfortunate time for abuse survivors, who, having already taken the brave step of sharing their stories in private sessions, would have thought the IICSA had begun to finally make some progress following repeated false dawns.

In a statement that followed her terse resignation letter, Goddard - seemingly without a trace of irony - said that conducting the inquiry was 'not an easy task' but 'compounding the many difficulties was its legacy of failure which has been very hard to shake off'. She is now part of that legacy.

Despite the government's insistence that the inquiry will continue 'without delay', the increasingly farcical IICSA runs the risk of losing all credibility with victims. As abuse lawyer and Leigh Day partner Alison Millar explains, survivors have been waiting years for a proper investigation that would 'get at the truth of institutional failure and potential cover-up, and it is vital that no momentum is lost'.

Of equal significance, public trust in the title of 'judge' may be diminished even further than any tabloid hack job on 'soft justice judges' could have ever hoped to achieve. Here's hoping that the Michaelmas term brings some good news for the judiciary.

John van der Luit-Drummond is deputy editor of Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD