There must, I suppose, be some sympathy for a judge or magistrate who has a very occasional outburst during a case – provided that they do not do it too often.
The Court of Appeal certainly seems to take a fairly generous view, even of repeat offenders. I have been looking at David Pannick’s thoroughly entertaining Judges, whose chapters on performance and discipline are littered with examples of outrageous behaviour often countenanced by the perpetrators’ appellate betters. I have often thought they might do well to sit in the public gallery to listen to what goes on.
Take the dismissal of the conduct of Ewen Montagu – a serial offender if ever there was one: ‘Although we could not possibly condone the conduct of the chairman, it was not conduct which could cause the conviction to be safe or unsatisfactory.’ Montagu had, it seems, shouted ‘Oh God’ when one barrister began his address. He also laid his head on his arm and groaned throughout. Montagu never reformed.
Judges must get bored with hearing the same things and take refuge in diversions. The 19th-century lord chancellor Lord Brougham, who was blackmailed by the courtesan Harriet Wilson, read the newspapers and wrote letters while sitting. When a barrister rebuked him, he replied ‘you may as well say that I am not to blow my nose or take snuff while you speak’.
Hawkins J had consultations with his dog, Jack, who sat with him. The Scot Lord Thankerton knitted while on the bench. And when I was young, Geoffrey Rose, who sat as a stipe at Lambeth, pasted postage stamps in his album as he conducted the afternoon traffic list.
Boredom induces sleep, and attempts – usually unsuccessful – have been made to overturn verdicts when the judge has apparently dozed off. Very often after lunch, Lord Birkett was asked by his fellow appellate judges to watch out for them while they snoozed. Sometimes the court found the judges were not asleep but merely ‘resting their eyes’. Mmm.
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