Peter Smith J case: the first test of judging the judges

THE REFERRAL of Mr Justice Peter Smith to the Office of Judicial Complaints (OJC) over his conduct has led to the inevitable question: what is going to happen now?

One silk at a top five chambers says: “It’s amazing that Peter Smith J hasn’t simply resigned.” A sentiment shared by many in the legal profession.

“The judge would save himself much heartache by standing down,” says one magic circle litigation partner. “It’s not as if he could really come back from a situation like this.”

The ‘situation’ was born from Peter Smith J’s decision not to recuse himself from the case of Howell v Lees Millais (2007). Law firm Addleshaw Goddard, whose private client head Paul Howell was one of the parties, requested Peter Smith J recuse himself as judge of the case after he had been in negotiations with the firm about a potential job.

Peter Smith J refused, leading to the Court of Appeal decision that the judge was affected by his personal dealings with the firm.

This led to Lord Chancellor Jack Straw and Lord Chief Justice Lord Phillips referring Peter Smith J’s conduct to the OJC (, 16 July).

The legal profession will have to continue wondering why Peter Smith J has not decided to resign, as so far he has kept quiet on what action he will take. He could argue that this is not a resignation issue.

Under new rules introduced last year, the judge now has between four and five weeks to respond to the Lord Chancellor’s and Lord Chief Justice’s referral to the OJC. A report of the preliminary inquiry will then be put together with recommendations of what action should be taken.

If these recommendations hold that there is a case to be answered and are accepted, then a more senior judge will be appointed by the Lord Chancellor and Lord Chief Justice to make the final decision as to Peter Smith J’s fate.

An OJC spokesman says it could be at least two to three months before the point is reached where a judge is appointed.

If the senior judge’s decision goes against Peter Smith J, the Lord Chancellor and Lord Chief Justice have the power to advise him on his conduct, give him a warning or remove him for misconduct.

To do the latter the conduct of a High Court judge would have to be seen as “serious misconduct”, as defined in the Act of Settlement 1701 and the Supreme Court Act 1981.

The 1701 act states that a judge can be removed “only for serious misconduct and/or by a resolution of both Houses of Parliament”.

If the process does go this far it would be unprecedented. The Lawyer understands that no High Court judge has ever been struck off. But in 1983 circuit judge Bruce Campbell was dismissed for smuggling substantial amounts of cigarettes and whisky into the country on his private yacht.

Peter Smith J’s referral led to non-lawyers getting in touch to voice their concerns about the process of ‘judging judges’.

One member of the public writes: “No one wants a witch hunt, but unless there is some system of collecting data, injustices will continue, which will bring all the judiciary into disrepute.”

The Judicial Appointments and Conduct Ombudsman was set up 15 months ago to deal with such concerns. Ombudsman Sir John Brigstocke’s first annual report revealed that more than a quarter of criticisms against the OJC were legitimate.

Brigstocke states that, of 14 conduct cases brought against judges, one was upheld and three were partially upheld.

On the upheld complaint, Brigstocke ruled that the OJC had failed to conduct a fair and independent investigation into a judge’s behaviour, taking his evidence at face value. The OJC, as a result, revisited the complaint and agreed to establish appropriate guidelines for the future.

The procedures, checks and balances are all in place, so for the legal profession, and of course for Peter Smith J, it is a question of wait and see.