SENIOR BLACK JUDGE SUES THE MINISTRY OF JUSTICE, JUDICIAL CONDUCT INVESTIGATION OFFICE (JCIO) ALLEGING BREACHES OF THE EQUALITY ACT 2010 IN MISCONDUCT PROCEEDINGS
|Judge Peter Herbert|
D. PETER HERBERT O.B.E., a practicing human rights barrister, and Chair of the Society of Black Lawyers, who sits as a Recorder, part time Immigration Judge and Employment Judge has today launched an action in the Central London Employment Tribunal after conciliation efforts with the Ministry of Justice (MOJ), failed to produce any response from the Respondents.
The MOJ currently face 5 cases alleging race discrimination and victimisation.
The complaint against Judge Herbert arose after a short speech he gave at a meeting protesting the judicial decision to bar the former Mayor of Tower Hamlets, Lutfur Rahman from holding public office for a period of five years. Herbert was introduced as a human rights barrister but inadvertently referred to his being a Judge in a humorous aside in the context of speeches criticising the Judiciary as being all “white, male and middle class”.
Herbert mentioned racism by his colleagues had in the past been a problem and questioned in general terms the judgment of the Electoral College Judge decision as being discriminatory on racial grounds without naming the Judge.
The matter was identified by the JCIO when it appeared on a You Tube video and was subsequently subject to a complaint by two individuals purporting to be independent members of the public.
Judge Herbert, represented by solicitors, Mishcon de Reya, alleges that the decision by Justice Undersell to refer this matter for misconduct, and his subsequent decision as the Nominated Judge to recommend a formal warning against Judge Herbert is discriminatory on racial grounds, amounted to victimisation, and was fundamentally flawed as it failed to consider the protection offered by s27 of the Equality Act 2010 which prevents victimisation for those that raise racial discrimination under the EqA. Neither the JCIO, not the Nominated Judge appeared to consider or even mention the provisions of the EqA, not the right to freedom of speech under Article 9 read together with Article 14 of the ECHR.
Judge Herbert alleges that there was an attempt to suspend him from all his judicial sittings on November 6th, for no apparent reason, as this matter was first brought to his attention on 12th July. The President of the South Eastern Circuit, Lord Justice Sweeney signed the letter requesting he voluntarily suspend himself after consultation with Bran Doyle, the President of the Employment Tribunal and Michel Clements, the President of the Immigration Tribunal. This request to suspend is believed to have originated from a report made by Ms Joanna Holmes, a civil servant at the JCIO.
Judge Herbert was informed of this in person at a Criminal Judges Judicial training course by Sweeney, who stated he was only the “messenger’ and that he would be “turned away” if he attempted to sit at Harrow Crown Court on Monday 8th November. After written representations Sweeney lifted this suspension and the matter allowed to proceed on an undertaking the Judge Herbert would not make any “controversial comments”.
It is believed that the suspension was only lifted after Judge Herbert pointed out that three white male Judges at the Immigration Tribunal had been allowed to continue in office despite a far more serious allegation of racism and on-going victimisation and bullying against a colleague of African descent. Despite the case being lodged in the ET the victimisation has continued against this Judge.
In a recommendation to the Lord Chief Justice and Lord Chancellor, the Nominated Judge acknowledged Judge Herbert’s 20 years of holding part time Judicial Office and his contribution to equality and diversity recognised by the award of the O.B.E. in January 2010.
He also made a distinction with the absence of any misconduct if the criticism had been made in a “forensic setting”. Judge Herbert’s alleges this is a false distinction and was made to protect the many white Judges who do criticise the decisions of others at a range of legal conferences. The rules them selves make no such distinction.
The Lord Chief Justice, and Lord Chancellor, has the power to suspend, reprimand or even disbar Judge Herbert from judicial Office. Judge Herbert is of the view that neither will wish loose face by admitting a fundamental error by the JCIO or a failure by a senior Judge to apply the Equality Act 2010.
Judge Herbert, who is a member of the Commonwealth Magistrates and Judges Association, the Pan African Lawyers Forum and the National Bar Association (USA) has the full support of a range of legal and community organisations in the UK including the Society of Black Lawyers (SBL), the National Black Police Association, the Association of Muslim Lawyers, the Association of Black Probation Officers and variety of community organisations across the UK.
D Peter Herbert O.B.E., commented,
“It is a sad day for me personally and for the Black and minority community generally when we are treated with such a blatant disregard for the law in a manner that seeks to control our right to freedom of speech. This is reminiscent of the worst colonial excesses that our forefathers were subject to in the days of empire. The suggestion that we are equal under the law remains an illusion when our colour determines our professional lives. This is exactly the same way my people are treated on the streets and in the Courts themselves. I will fight this action for all those that follow me.”
David Neita, spokesperson for the Society of Black Lawyers commented,
“We are all told that we are all equal under the law. It now seems that Judges in England and Wales are above the law, at least if they are white, male and middle class”.
Courtney Griffiths Q.C. commented,
“Given the under representation of BME Judges in the Crown Court @ only 7% (60 out of 840 Recorders), the targeting of Peter Herbert appears to be founded in a rather colonial and myopic view of who is entitled to speak out on race issues. Cases such as this are a clear message to BME lawyers not to take judicial office and to remain invisible to our communities.
Imran Khan solicitor for Baroness Doreen Lawrence commented
“Peter has been known as one of the leading advocates for social justice over the years and this attempt to silence him harks back to the days before the murder of Stephen Lawrence where race was a four letter word that simply could not be uttered by anyone in authority”.
Baroness Doreen Lawrence,
“The targeting and victimisation of Peter Herbert is a clear demonstration that no matter what your achievements or expertise your experience is no better than a young black man on the street who is seen as a threat to the justice system simply on account of the colour of their skin.”
Michael Mansfield Q.C
‘In a world where free speech is being eroded from all quarters, the freedom to identify and comment upon perceived racism is vital. Discrimination is not always writ large, it is often elusive and masked. Without the facility for robust critique we will be a poorer and less fair society '
Milton Grimes Esq, based in Los Angeles, the lawyer for the late Rodney King commented,
“Having been to the UK on several occasions to speak out against racism in the criminal justice system it seems that the British establishment cannot tolerate or accept the presence of black Judges, let alone acknowledge their contribution to the system of justice”.
Lee Jasper, Chair of the London Race and Criminal Justice Consortium, commented,
Institutional racism in all its repugnant and toxic glory, continues to effect British black people, whether as suspects, defendants, defence solicitors, prosecutors or judges.
Both he and the Home Secretary Theresa May have now highlighted the scandal of racism in policing and the judicial process. This action against Peter is an attempt to silence and intimidate a UK black judges from highlighting racism, pure and simple.
Peter is a leading community activist who has an exemplary record of public service and would not face this action if he was white, male and middle class. This highlights the continued racial bias that exists in the British Judicial system which gives significantly longer sentences to African, Caribbean men and women, denies them bail has been allowed to exist for over 25 years since statistics were first published pursuant to s95 of the Criminal Justice Act 1991.
Benjamin Crump, the President of the National Bar Association (USA), commented,
“The NBA is appalled at this attempt to discipline the leader of our sister organisation in the UK. We have worked with Peter since we visited the UK in 1992 and stand shoulder to shoulder with him in fighting this disgraceful attempt to silence him in a manner not applied to his white colleagues. We will take this matter up with the President of the American Bar Association, Ms Paulette Brown, the first African American President of the ABA.”
If the matter goes for trial and any misconduct is upheld against Judge Herbert it will almost certainly result in the cross examination of Underhill J, the Lord Chief Justice and the Lord Chancellor on issues of race discrimination.
Ironically, that is likely to provide all three individuals with more training then either has ever had to experience in their careers to date.
The case is due to be heard later in 2016 and estimated to take some 5 days.
For further comment please contact:
Lee Jasper Campaign Co-ordinator and Press Spokesperson:
Tel 07984 181 797; email: firstname.lastname@example.org;