Those attending His Honour Judge Kelson’s court in Durham on Monday 14th April had an unexpected treat: a blazing row between a judge and a barrister. The confrontation ended with the Judge fining the barrister £500 for contempt of court. The barrister appealed to the Court of Appeal. He was successful in that the Court of Appeal ruled that the judge had failed to follow the correct procedure and quashed the fine. But his success came at the cost of a public condemnation of his behaviour, coupled with what the barrister might have found faintly unctuous praise for the judge.
To add piquancy to the Court of Appeal’s ruling the barrister was Ian West, perhaps the bar’s most outspoken opponent of the proposed Quality Assurance Scheme for Advocates, or “QASA” as it is normally known. The scheme is loathed by almost all advocates because it places their careers at the mercy of judicial approval. West’s appeal was presided over by Lord Justice Leveson, who recently ruled that the scheme was lawful, a judgement that is itself now under appeal.
So what actually happened? And was the Court of Appeal right to condemn the barrister and praise the judge?
According to the Daily Telegraph’s spectacularly inaccurate report:
“The row erupted during a trial held at Durham Crown Court in April, when Judge Kelson lost patience with Mr West and ordered him to sit down in the middle of a speech.
When Mr West refused to give way, the judge barked at him to sit down six times, banging his gavel on the bench as he did so.
To the astonishment of the court, the judge described Mr West as an “impertinent barrister” and told him he needed to “mind his manners.”
In fact the Judge did not get angry with Mr West in the middle of a speech; nor did he vent his anger by banging his gavel – even once – on the bench. The gavel – a wooden hammer – is an American judicial accessory, that has never been used by English judges and nowadays, for what it is worth, it is hardly ever used by American ones either. Since it is obvious that the Telegraph reporter was not in court we can assume that the word “barked” also owes something to the imagination of its sub-editors.
Nevertheless, even without the judge banging the bench like a demented carpenter, the episode was still rich in courtroom drama. Everyone likes to watch a bad-tempered argument and Monday mornings in the Crown Court are usually rather dreary and low key.
For those readers who don’t often venture into the Crown Court we need to set the scene a little.
Before any trials get under way on a Monday morning the court lists are usually filled with plea and case management (“PCMH”) or preliminary hearings.
At a PCMH defendants will enter their pleas and trial dates will be set (although these often amount to what politicians call an “aspiration” rather than a firm commitment). The Ministry of Justice has produced an enormous tick-box form containing lots of questions about trial preparation, although in practice I have never known anyone to complete it in full. Judges will often make further orders – perhaps setting time limits for the service of further evidence, ordering video-links for vulnerable witnesses and so on. They are unexciting for the participants and not much of a warm-up act for any spectators awaiting the main event from the public gallery. Nevertheless they do perform an important function.
Preliminary hearings are usually even duller. Almost all Crown Court cases now start with one of these non-events. As long as a Not Guilty plea is anticipated almost nothing happens. The judge formally directs that a full set of papers is served and a date is set for the PCMH. Generally that’s it. Some bail issues may arise but this has often been sorted out by this stage. Sometimes Defendants who know the game is up will plead guilty, and indeed they are given a great deal of encouragement to do so; lighter sentences are given as a reward for pleading guilty as early as possible, and no opportunity is wasted to try to encourage defendants to put their hands up.
What seems to have happened in Durham is that Judge Kelson had formed the view that the evidence against Mr West’s client, Mr Ingham, was strong. He also, perhaps, thought that given a bit of extra time he might decide to plead guilty. So he told Mr West to go and talk to him again.
There was nothing wrong in him trying to nudge things along in this way, and it often happens that barristers themselves ask the judge for a more time when a Defendant is considering his plea. Judges are strongly encouraged to “manage” cases firmly: to identify the real issues at an early stage, to make orders that keep things moving and, indeed, to encourage guilty pleas where that is appropriate. But this has to be done sensitively. At a preliminary hearing it is hard to appreciate the strength of the prosecution evidence, because not all of it will have been served. More importantly, the judge almost certainly won’t know the strengths of the defence case.
Mr West on the other hand had met his client, albeit for only twenty minutes. He seems to have received firm instructions that he intended to plead not guilty. He saw no point in going and talking to him again, and certainly not before receiving the full case papers.
A date was fixed for the trial.
At this point the following exchange took place:
MR WEST: Could we have it on the week of the 15th September?
JUDGE KELSON: It would be at a risk that week but then again, having read the interviews in the case, I wonder how much of a risk. He had something of a difficulty dealing with the wrap around the £1,000 didn’t he?
MR WEST: He says he is not guilty so we will have to work on the basis that that is right …
JUDGE KELSON: Mr West, of course he has pleaded [not] guilty, not your most helpful observation. To case manage the case properly, some clue as to the likely issues, even at this early stage, would be useful. I have deliberately made reference to the interviews because to the outside observer they appear to present him with a very substantial problem evidentially, so what I want from you, a little more helpfully, is there an issue over the admissibility of the interviews?
MR WEST: The answer is until I see them I do not know. The issue in the case generally is was he robbed as he says or did he steal the money as the Crown seem to think.
JUDGE KELSON: You have not got the interview?
MR WEST: I have got brief summaries of them, yes.
JUDGE KELSON: Have you had the chance to go through them with the defendant so far?
MR WEST: No, I have not.
JUDGE KELSON: I think perhaps you should really, to make it a useful hearing. What is the point of this hearing if you have not taken instruction?
MR WEST: I have taken instructions that he is not guilty…
Even at this stage a certain prickliness seems to have crept in to their exchanges. The judge thought he was doing his job of speeding things up. The highly experienced criminal barrister was irritated by being told how to do his job.
But matters were about to get worse.
The judge invited Mr West to come back into court later, once he had gone through the interview summaries with his client.
JUDGE KELSON: … You know, I mean, why have you not gone through the interviews with him so far?
MR WEST: Because he has been produced from Armley Prison. I have had about 20 minutes in the cells downstairs …
JUDGE KELSON: Then have as long as you need.
MR WEST: Sorry?
JUDGE KELSON: Have as long as you need. I am here all day.
MR WEST: I have had all the time I need. I know that it is going to be a not guilty trial. I do not need to go through the short summaries of the interviews with him to change that position. He tells me is not guilty. We need to fix a trial date. I do not need any more time, thank you.
JUDGE KELSON: Do you not think it is an important part of preparation for this hearing to go through at least some of the evidence with a defendant rather than just take his bare assertion? At what stage …
MR WEST: Who is saying I took his bare assertion?
JUDGE KELSON: At what stage were you proposing going through the evidence with him?
MR WEST: When I have got it.
JUDGE KELSON: I will put this case out till later today when you have conducted a proper conference with your client and we will revisit the case.
MR WEST: I will decide how long I spend in conference with him.
JUDGE KELSON: Mr West, we will come back to this case after two o’clock.
MR WEST: We can come back to it whenever you like but I …
JUDGE KELSON: Don’t be rude, Mr West. That was very rude. Don’t be rude. All right. We will revisit the case at two o’clock. Thank you.
Although the Court of Appeal was subsequently to commend the Judge’s approach as “exemplary,” most practising criminal barristers would still have found it pretty exasperating. We do not like others, and especially not judges, telling us how to represent our clients. We particularly do not like being told to hang around at court for hours when we are not being paid anything to do so and when we see that no purpose is likely to be achieved thereby.
We would have been even more exasperated by the fact that Judge then excused the prosecution from attendance at two o’clock: after all if the purpose of the exercise was really to “manage” the case, rather than to annoy Mr West, surely that was more likely to be effective if the prosecution as well as the defence were present?
Anyway, Mr West certainly found it exasperating and the exchange continued:
MR WEST: Your honour, the solicitor, who is actually my solicitor, attends with me today.
JUDGE KELSON: Excellent
MR WEST: He cannot stay longer. I am not going to discuss the evidence in the case …
JUDGE KELSON: Two fifteen, Mr West …
MR WEST: … with my client without a solicitor …
(In days gone by it would have been considered unethical for Mr West to meet his client without his solicitor: that is no longer the case. But where a solicitor has had a long conference with a defendant who has indicated that he is not guilty it is entirely understandable that a barrister would be reluctant to see the defendant without the solicitor being present, and especially not if the purpose of the exercise was to advise him that he should plead guilty.)
JUDGE KELSON: … possibly later; in fact probably later, the longer you go on, but certainly you will be here at 2.15.
MR WEST: You are assuming that.
JUDGE KELSON: Mr West, you will be here at 2.15. Now, mind your manners and sit down. Sit down.
MR WEST: Excuse me.
JUDGE KELSON: Sit down, Mr West, or I will take this further. Sit down.
MR WEST: In what …
JUDGE KELSON: Sit down, Mr West.
MR WEST: I am not used to be spoken to …
JUDGE KELSON: You are an impertinent barrister.
MR WEST: I am …
JUDGE KELSON: Do as you are told or sit down.
MR WEST: I am apparently …
JUDGE KELSON: Sit down. Very good. Mr Ingham, we will come back to this case.
With the very greatest respect to the Court of Appeal I see nothing exemplary about Judge Kelson’s behaviour, at least as it appears from the transcript. It strikes me that he was unnecessarily throwing his weight around by demanding that Mr West go to take further instructions. The barrister had established that his client wanted to plead not guilty, further papers were likely to be served and another conference would almost certainly be required anyway. Moreover, a defence statement, setting out his defence in detail, would have to be served (although it was certainly not due for at least two weeks and probably longer). There was some force in Mr West’s position that whether he needed to spend longer with Mr Ingham was something to be decided by himself, his solicitor and Mr Ingham themselves and not by the judge. What is more, his repeated demands to Mr West to “sit down” and to “mind your manners” were hardly calculated to lower the temperature in court.
Had matters ended there it is unlikely that we would have heard any more of it. Unfortunately, Mr West, perhaps stung by the suggestion of impertinence, decided to ignore the judge’s order to return to court at 2.15. Instead he travelled the thirty miles or so back to his chambers in Middlesbrough. That was a serious mistake. Judges can be foolish, can be unreasonable and can even be bullies (although I am not suggesting that Judge Kelson was anything of the sort), but they are the judges and the system cannot function unless their rulings are respected, however absurd they may be. Just as a football match would quickly descend into chaos if the referee’s decisions are ignored, the same would happen in the criminal courts.
So it was hardly surprising that when Mr West failed to turn up, Judge Kelson appears to have been enraged.
A further hearing was set for the following day, for Mr West to explain his refusal to attend. At that hearing the barrister went onto the attack, and demanded an apology from the judge for calling him “impertinent.” That was the wrong approach. A little humility and a grovelling apology was called for, even if Mr West was not entirely to blame. Not surprisingly the judge angrily refused to apologise:
“I think you are an impertinent barrister. Yesterday I thought your behaviour was appalling in open court. I think leaving court when you were required here in the afternoon was monstrous. You will receive no apology whatsoever from me.”
A date was set for yet another hearing. At that hearing he decided (although without following the proper procedure) that Mr West was indeed in contempt of court, and fined him £500.
At some point well before this, some impartial observers might have thought that the whole thing had got completely out of hand. The judge had not only thrown his weight around but also his toys some considerable distance out of his pram; while the barrister, instead of graciously humouring the judge had picked a completely unnecessary and pointless quarrel with him.
That is not the way the Court of Appeal saw things. Presided over by Lord Justice Leveson (he of the Leveson inquiry) they laid into the hapless Mr West with relish and directed that a copy of their judgement be sent to the Bar Standards Board:
His behaviour amounted, said Leveson LJ, to:
“…serious misconduct of a type that is wholly inimical to the proper discharge of his professional duties and, furthermore, in total disregard of his duty to the court. We have no doubt that the temperature of the exchange increased as it proceeded: that was entirely the responsibility of the appellant and, on the following day, to require an apology of the judge was more than merely impertinent.”
There was a little more praise for the judge, and gratuitous praise for the prosecution, then this final kick at Mr West:
“… [his] conduct … if it was to become the norm, will cause our present system to collapse for want of sufficient funding with the risk of causing enormous damage and replacement by a process that imperils many of the hard gained improvements designed with the interests of justice in mind.”
Oh really, please let’s not get carried away. Mr West’s refusal to return at 2.15 was pretty idiotic but was this ridiculous tiff really something that could be called “serious misconduct?” No-one was hurt, the interests of prosecution and defence were unaffected, the trial was not delayed and, as the Court rather grudgingly accepted, unless one includes the time taken to “try” Mr West for contempt, nobody suffered any financial loss.
What of their Lordships assertion that the system will collapse if Mr West’s conduct becomes the norm?
Well, it would, but is not about to become the norm. Generally speaking relations between bench and bar are cordial and professional. That is because generally speaking our judges are courteous and understanding of the constraints under which advocates work, and advocates are respectful towards the judiciary. It is that mutual respect and understanding far more than aggressive case management that just about prevents our present system from collapsing. Once that is lost all the procedural rules in the world will be as much use as a gavel on a battlefield.
Now that his £500 fine has been lifted what is needed is a magnanimous gesture. With half of the money previously earmarked to pay his fine Mr West could afford to buy some decent wine for His Honour; perhaps from the nearest winemaker to Durham, the excellent Ryedale Vineyards near Malton. A Taste of Paradise 2013 would be just right at £252 for a case:
“A beautiful rosé sparkling wine with excellent mousse and a classy nose …”
It would be perfect to improve everybody’s humour in this lovely summer we are enjoying.
More to the point, both parties might take note of the wine’s taste:
“ … the acidity is just right, balanced by a hint of sweetness in the dosage, but still clearly a brut ….”
It might not conceal the essential brutishness (that would be asking the impossible) but otherwise: Acidity just right? A hint of sweetness in the dosage? What better advice could there be for bar and bench alike?
Younger readers of this blog will think that Gerald Butler is a Scottish actor, but anyone who had the misfortune to appear in Court 1 at Southwark Crown Court in the 80s will remember a clever, bored, and therefore irascible judge of the same name. It used to be said that he could not forgive the Lord Chancellor for his mistake in appointing him to the Crown Court, when he was was destined for the High Court and beyond. In about 1989 he got into a row with one of the most charming and dogged defence advocates of the day, Ernest James. Ernie was addressing him on a point of law. The Judge was wrong, and Ernie was telling him why. Butler, annoyed, told him to sit down. Ernie did not sit down. The Judge told a police officer to arrest him. Ernie submitted that police officers were not allowed to make arrests inside court rooms: having been merely apoplectic before, Butler now went into complete meltdown. He ordered a prison officer in the dock to make the arrest, and Ernie spent a few hours in the cells before they apologised to each other. A few days later, a journalist spoke to the clerk at Ernie’s chambers about the incident: ‘business has never been better’, he said.
Do you know if there were any further repercussions? Reports to the Bar Council, suits for false imprisonment etc?
There is a concern that the CA’s comments re Mr West’s conduct now make any BSB investigation a fait accompli.
Ian should have gone back to court, either that day orr the next. However is anyone suggesting that he did not do his job properly? I get fed up with those in the judiciary -and elsewhere- who assume that the absence of a guilty plea must be proof that the Bar has not given “advice”.
I would like to think BSB will indeed investigate – and clear West completely. Judge does not come across well (let’s put it no higher), and CA’s ruling smacks of damage limitation. There’s more than a hint of Nemo Iudex here.
I hadn’t appreciated the piquant QASA connections till this blog, but I do feel this case highlights a major issue with QASA, namely judicial “marking” of barristers’ performance in front of clients.
Wasted hearings seems another issue – MOJ take note.
Should have bought His Honour a bottle of Buckfast. Judge was impertinent and wrong – needed to keep his judicial nose out of issues covered by privilege. It sounds just unfortunate that Mr West rose to the bait and started a tug of war that he could not win.
far too much deference I was recently in a childcare case with 7 parties 3 of whom were in person. On the 1st day the distinguished CJ said in front of everyone that none of the advocates had prepared the case properly. I wanted to take him on but none of the other Counsel would back me.
Wonderful article, bang on the money
Very kind of you, Dennis!
Well done Matthew. Now wait for Ian to instruct you to represent him at BSB hearing! I hear they are a bit short on prosecutors, although the Govt Has just scraped the barrell and found another couple of silks.
Prosecutors? Serious misconduct? Not sure I’m really up for that.
I recall the story of the Judge who after being given a lengthy explanation by a barrister stated that he was “non the wiser” to which the barrister replied “No my Lord but you are much better informed”
It was FE Smith QC (later Lord Birkenhead) who said this.
On another occasion:
Smith: witness was as drunk as a Judge.
Judge: Mr Smith, I think the phrase is as drink as a lord!
Smith: Yes, my LORD.
Refer to a similar exchange that occurred in R v Kartal in Woodgreen Crown Court in 1999:
This was a trial before a jury. Five Dfendants. Mr Atunwa’s client was first on the indictment. He was said to have started a Violent Disorder. They were all Turkish with little knowledge of English. A prosecution witness was giving evidence at a fast pace. The five interpreters were getting confused and couldn’t keep up the pace. Mr Atunwa wanted the Witness to slow down. The Judge refused, saying whatever was not heard could be repeated. Mr Atunwa was of the opinion that each of the Defendants were entitled to hear the evidence first time round, perchance the Witness could add to, or subtract from, what he originally said when repeating. If the Defendants, or indeed Counsels, didn’t hear it first time round then, that point is lost to the Defence.
So the following exchange is picked up from when Mr Atunwa resumes his application for the Witness to slow down:
[quote]
Judge Finney: I am not going to interfere with the witness giving his
evidence in the way he finds best. Insofar as that can be dealt with by it
being repeated.
Mr Atunwa: Your Honour has to balance that. He may say something now which
…
Judge Finney: Sit down.
Mr Atunwa: Which …
Judge Finney: Sit down, I’ve given you your answer, sit down.
Mr Atunwa: Your Honour, there is a certain matter I have to raise.
Judge Finney: What is your name?
Mr Atunwa: Mr Atunwa.
Judge Finney: Very well, Mr Atunwa, would you sit down, please.
Mr Atunwa: Your Honour, may I …
Judge Finney: Mr Atunwa, I am telling you to sit down, if you do not sit
down I will have you in contempt.
Mr Atunwa: Your Honour, there is a matter of law.
Judge Finney: There is no matter of law, sit down please.
Mr Atunwa: Your Honour, there is a matter of law.
Judge Finney: Mr Atunwa, sit down —
Mr Atunwa: Your Honour, there is a matter of law.
Judge Finney: — or I shall have you in contempt, Mr Atunwa —
Mr Atunwa: Your Honour, there is a matter of law.
Judge Finney: Mr Atunwa, I am going to warn you, just once more.
Mr Atunwa: There is a matter of law.
Judge Finney: Mr Atunwa, please, sit down.
Mr Atunwa: There is a matter of law. Does your Honour say there is no matter
of law?
Judge Finney: There is no matter of law sit down.
Mr Atunwa: Has your Honour heard what I have to say?
Judge Finney: Sit down, Mr Atunwa. Sit down or I shall have you in contempt.
That is the last warning.
Mr Atunwa: May the record show that I have —
Judge Finney: Sit down, or I shall have you in contempt.
Mr Atunwa: Your Honour may do as your Honour wishes.
Judge Finney: Sit down. If you try that again Mr Atunwa you will be in
contempt.
Mr Atunwa: Your Honour, I made my objection and that’s it.
Judge Finney: Well, Mr Atunwa, it’s only fair to warn you, I shall be
reporting you.
Mr Atunwa: Your Honour may do as your Honour wishes.
[unquote]
Mr Atunwa remained quite calm throughout the exchange, interrupted only by intermittent smile and wink at the jury. His client, who was said to have started the violent disorder, was found Not Guilty. The other four who were said to merely have joined him were found Guilty!
In this case the Court of Appeal [1999] All ER (D) 792 held that once Mr Atunwa said there was “a matter of law”, the Judge ought to have sent the jury out and listened to Counsel’s submissions. Appeal allowed.