When judges swear in court

12 August 2016

“Judge faces inquiry after swearing at racist defendant.”

 The Times, 12 August 2016

There is no ban on profanity in the courts. When a prosecutor asks a police officer what the defendant said on being arrested, the officer is expected to quote the exact words spoken.

It is not unknown for the defendant to dispute the police officer’s evidence. If that happens, a defence lawyer may ask the officer whether the defendant really did use the racist and abusive words that the officer has just quoted.

It may seem strange to hear profane language read out by eloquent lawyers, but everyone in court gets used to it very quickly.

If the public are unfamiliar with this, it is only because such evidence was not, until recently, reported verbatim. Some newspapers now print swear-words as spoken while others soften them with the use of asterisks. News broadcasters avoid using offensive language while script-writers sometimes sanitise the words used in television dramas.

But none of this justifies gratuitous use of bad language, especially by a defendant. Nor do judges have a licence to swear.

The authorities have received complaints following reports that Judge Patricia Lynch QC used bad language in Chelmsford Crown Court this week.

Judges in the lower courts can be disciplined or removed from office

Anyone may complain about the conduct of a judge in England and Wales to a team of officials known as the Judicial Conduct Investigation Office (JCIO).

There are separate complaints routes for magistrates and tribunal judges or members.

The JCIO can deal only with complaints about a judicial office-holder’s personal conduct. It cannot deal with complaints about judicial decisions or about case management. Those are a matter for the normal appeal process.

If a complaint appears to be about a judge’s conduct, the JCIO will normally begin by obtaining a transcript of what was said in court.

Complaints can be considered by a more senior judge or by a disciplinary panel. The most serious cases are decided jointly by the Lord Chief Justice and the Lord Chancellor.

If a complaint is upheld, brief details are normally published by the JCIO. A glance at the list shows the failings for which judges may be dismissed (unless they resign first). Recent examples include criminal convictions, bankruptcy and drinking on court premises.

Other judges may receive public reprimands.

A judge of the High Court or above can be dismissed only with the agreement of parliament.

Whether behaviour amounts to judicial misconduct may, itself, be difficult to judge. Judges are normally allowed considerable freedom in running their own courts.

One way of dealing with abusive defendants may be for judges to show that they are not intimidated by the defendant’s bad language—and, indeed, can give as good as they get. On the other hand, judges may lose the authority they exercise over the courtroom by appearing to descend into the arena.

Last year the JCIO took disciplinary action in 43 cases, 18 of which related to “inappropriate behaviour/comments”. Five judges were removed from office on that ground, while a further 13 were reprimanded or given “formal advice”.

If Judge Patricia Lynch QC is found to have fallen short of the required standard​ then,​ based on the outcome of similar cases, it's likely she'll receive formal advice about her future conduct.

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