Sasha Borissenko: Judge dread - bullying and harassment from the bench

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The judiciary. It is loved by many, and feared by all. For all the people I talked to about bullying from the bench, no one would go on the record. Off the record, to be "benchslapped" is common-place. Fear of going on the record and the aforementioned colloquialism are rather telling.

We know from a 2018 anonymous survey conducted by the Criminal Bar Association that 90 percent of the 283 lawyers had personally experienced or witnessed harassment or bullying since 2014. Judges were the culprits at 65 percent, followed by colleagues at 44 percent, opposing counsel at 33 percent, clients at 32 percent, employers at 24 percent, then police officials at 23 percent.

Unsurprisingly, 83 percent of respondents never made a complaint about the behaviour. Of those who did, the first point of call was to contact their supervisors at 47 percent or the Law Society at 11 percent. Only 4 percent of respondents complained to the Judicial Conduct Commissioner. A total of 42 percent said the complaint did not resolve the issue, and 37 percent were not wholly satisfied.

A Law Society survey conducted in that same year found judges were perpetrators for bullying for four in ten criminal lawyers who had been bullied. Judges accounted for 50 percent of barrister sole practitioners who had been bullied. Similar to the Bar Association survey, 57 percent of those bullied across the board failed to come forward for fear of consequences.

Complaining a no-go

Why mightn't people feel comfortable coming forward? Just under 60 percent of people said a complaint would not make a difference, 55 percent were afraid of repercussions, and 41 percent were worried about how they would be perceived. These answers reek of hierarchy and power imbalance, in my view. Interestingly though, 92 percent of respondents talked to colleagues about the bullying and harassment on an informal basis. So arguably bullying and harassment - from the bench in this case - is well known, but no one feels they can do anything about it.

Then there is the independence of the judiciary and the protection of that independence, which could be a factor. In a 2014 paper, Australia's Hon Justice Michael Kirby wrote: "Any response to instances of judicial bullying should not disproportionately inhibit the robust independence of, and candid speaking by, those who hold judicial office. Executive government and the media are often jealous of the independence of the judiciary and desirous of challenging it." Well then.

Judicial guidelines and standards

Nevertheless, Chief Justice Dame Sian Elias came out swinging following the 2018 survey and pointed to the Guidelines for Judicial Conduct. The Guidelines are based on the Bangalore Principles, which were endorsed at the 59th session of the UN Human Rights Commission at Geneva in 2003. Their aim is to establish standards for ethical conduct of judges, namely judicial independence, impartiality, integrity, propriety, equality of treatment, competence, and diligence. The Guidelines say judges must display such personal attributes as punctuality, courtesy, patience, tolerance, and good humour. Bullying by the judge is unacceptable.

There is no definition of bullying in the guidelines, however. According to a 2018 survey of Australian barristers, inappropriate judicial conduct was defined as conduct "that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person". In New Zealand, we could look to WorkSafe, which defines bullying as: repeated and unreasonable behaviour directed towards a person or a group that can lead to physical or psychological harm. Unreasonable behaviour could be victimising, humiliating, intimidating, or threatening a person. Bullying could also include harassment, discrimination, or violence.

How do I complain?

Cue the Office of the Judicial Conduct Commissioner. Alan Ritchie, LLB leads the charge, alongside Deputy Commissioner Kathryn Snook, BA, LLB. Ritche was Executive Director of the NZ Law Society from 1985 to 2008. Once a complaint is lodged, Ritchie will conduct a preliminary examination where he will decide either to take no further action, dismiss the complaint, refer the complaint to the appropriate Head of Bench, or conclude that an inquiry is necessary, which would involve the Attorney General and forming a judicial conduct panel. The panel would conduct a hearing, which would then be referred to the Attorney General to decide whether to initiate a removal.

Ultimately it is the Governor General who would remove a judge from office. In all scenarios, the complainant and judge would be notified of the decision. Prima facie it seems pretty hard to remove a judge, and there appears to be no anonymous reporting mechanism.

In the Commissioner's report for the year to 31 July 2019 there were 272 complaints. Nine of those were referred to the Head of Bench. One referral related to an insensitive and overbearing reaction to counsel introducing herself in an appropriate way in te reo Māori; another related to an instance of overbearing behaviour inconsistent with expected standards of courtesy, patience and tolerance; and another related to an instance of overbearing behaviour that allegedly undermined the rights of a defendant in a criminal trial and the role of counsel.

Since the Judicial Conduct Commissioner and Judicial Conduct Panel Act came into force in 2004, only three complaints led to the appointment of a judicial conduct panel (2009/2010). There were three separate complaints concerning the alleged conduct of one judge.

Where to from here?

It has been two years since the Bar Association survey, perhaps it is time for another. We could also create an anonymous complaints process, and have universal recordings in court that could be audited. Judicial Conduct Commissioner Alan Ritchie is all for it. One underlying problem, I fear, is that New Zealand does not take bullying in any workplace seriously. And then there is the question as to how judges are appointed in the first place? Well that is another column, entirely. In the meantime please send thoughts and prayers in the hope that I will not be slammed with contempt of court.