Senior judge dismisses complaint over Recorder’s ‘offensive’ tweet.

An appeal has been filed against a judgment given by Lady Justice Carr DBE following a complaint against Mr Recorder Nolan QC to the Judicial Conduct Investigations Office (JCIO).

The complaint concerned a tweet posted on social media by the part-time, fee-paid judge in the late evening of 18th June, 2020:

It appears that the subject Twitter account has now been deleted.

The Middle Temple website states: “Ben Nolan was called to the Bar in 1971 and took silk in 1992. He lives in the Yorkshire Dales and practices across the North-Eastern and Northern Circuits with chambers in Newcastle, York and Manchester. He has a mixed practice and is noted in Legal 500 as a ‘well known circuit heavyweight in serious crime’. He is a Recorder and Deputy High Court Judge. He is actively involved in advocacy training in the Inn and on circuit”.

Recorder Nolan features elsewhere on this website (read here) after presiding over a high-profile and notably acrimonious civil claim in September, 2019. His heavily criticised judgment is, presently, the subject of an appeal to the High Court (read here).

In a complaint outcome letter dated 21st August, 2020 the JCIO say:

In her judgment, the Nominated Judge (NJ) concluded that “I do not consider that the posting of the tweet amounted to judicial misconduct. The tweet was not sent from a judicial account. The details of the account did not identify its holder as a judge. Nor did the contents of the tweet identify in any way that the author was a judge. In short, the tweet contained a private expression of opinion, albeit in offensive language, on the part of the Judge in circumstances that did not implicate him as a judicial office holder. In these circumstances, it did not risk bringing the judiciary into disrepute”. The NJ also considered that “the tweet did not reflect any social prejudice on the part of the Judge. Rather it reflected what the Judge had seen in the newspapers and on television”. Accordingly, the complaint has been dismissed under Rule 41 (b) of the Judicial Conduct (Judicial and other office holders) Rules 2014.

A copy of the judgment was not provided to the complainant.

He has appealed the findings in these terms:

“I appeal the outcome of a complaint investigation into a judge as conducted by JCIO on the grounds as seen below. Evidence is attached. Copies of the original tweets can be obtained from JCIO. The outcome letter to the complaint states: 

The tweet was not sent from a judicial account. The details of the account did not identify its holder as a judge.

The March 2020 Guide to Judicial Conduct states: 

Judges should be aware; however, that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary whether or not a judge’s comments would lead to recusal from a particular case. This risk arises in part because the judge will not have control over the terms of the debate or the interpretation given to his or her comments.

The risk of expressing views that will give rise to issues of bias or pre-judgment in future cases before the judge is a particular factor to be considered. This risk will seldom arise from what a judge has said in other cases, but will arise if a judge has taken part publicly in a political or controversial discussion.For these reasons, judges must always be circumspect before accepting any invitation, or taking any step, to engage in public debate. Consultation with their relevant leadership judge20 before doing so will almost always be desirable.Where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular organisation (including a set of chambers or firm of solicitors), group or cause or to a lack of even handedness. Care should also be taken therefore, about the place at which and the occasion on which a judge speaks. Participation in public protests and demonstrations may well involve substantial risks of this kind and, further, be inconsistent with the dignity of judicial office.

This is stated in the context of post on social media or to newspapers etc. There is no requirement in the Conduct Regulations that a judge is able to state anything he or she wishes provided he is not identified as a judge. The rules apply to judiciary regardless of if they are commenting from a personal perspective, or as a judicial office holder. Different rules apply to such as The Secret Barrister who is believed to be a member of counsel but is not identified directly as such. 

There is no mention made in the Conduct regulations that the judge is able to publicise his own views regardless of if he mentions his judicial office or not. The rules apply equally to if comments are made in relation to someone identifying themselves as a judge or not. 

The response of The Rt. Hon. Lady Justice Carr hinges on the basis that the judge was not identified on his Twitter account as a judge. This is the basis for her dismissal of the complaint on the grounds that the judge was not identified as such. This is not relevant to the complaint and has been seized upon as grounds to dismiss the complaint erroneously and contrary to the relevant rules. I was able to identify the Twitter account holder as a judge and the majority of the persons following the account will also have been aware that he was a fee paid judge from either media or professional connections. The basis on which the complaint has been dismissed is therefore spurious and erroneous. 

I refer also to the comment in the outcome letter which states:

“the tweet did not reflect any social prejudice on the part of the Judge. Rather it reflected what the Judge had seen in the newspapers and on television”.

This is problematic in a number of areas. Firstly why would Nolan comments on something that he has learned from second-hand experience? Is also his comment not reflective of social prejudice on the part of the source material in which he has seen such comments? Finally has the judge been asked the question of where this opinion came from (either his own or some form of repetition of a third party opinion) by JCIO in the course of the investigation? Were the sources of these ideas stated and relevant enquiries made to ascertain if these were the sources of such ideas? Regardless of if a prejudice has been obtained from TV or newspapers the expressing of the same ideation by a person – particularly a person intelligent enough to recognise them as being prejudice – is effectively them expressing the same prejudice. 

Any expression of social prejudice on the part of a judge is, I would submit, an exceptionally concerning matter. 

I wrote to ask JCIO:  Finally: you state a copy of the outcome letter has been sent to the judge. Is this identical to the copy sent to me? 

And JCIO replied: Yes, the same copy as stated in my letter of 21 August.

This being the case is it not so that now the judge at the centre of the complaint has the name of the person who made the complaint, as seen in the top left hand corner of the letter sent to me? Is this a breach of relevant data protection guidance? 

For this reason I appeal the complaint outcome to the Ombudsman.”

Recorder Nolan has been approached for comment.

The Judicial Conduct Investigation Office has been approached for clarification on timescale for finalising the appeal but could not assist given the constraints of the Co-VID crisis. They were also asked to provide a copy of the judgment for wider publication via a freedom of information request. That application was refused citing section 44 of the Act as an exemption (read in full here).

A copy of the Amended Guide to Judicial Conduct, referred to in the complainant’s appeal, can be read here.

Page last updated: Wednesday 21st October, 2020 at 1855 hours

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