Clumsy Cherie Cover-up Clarified

The Office for Judicial Complaints has tried to block publication of the news that Cherie Booth QC is to be given “informal advice from a senior judge” about comments she made when sentencing someone she described as a “religious person”.

As I reported here on June 10, there were a number of complaints about comments Ms Booth had made while sitting as a recorder, or part-time judge.

It was reported in February that the former prime minister’s wife told Shamso Miah, 25, that she would suspend the prison sentence she had given him for fracturing a man’s jaw. She reportedly told him: “You are a religious man and you know this is not acceptable behaviour.”

The Lord Chief Justice has disciplinary powers over other judges under section 108 of the Constitutional Reform Act, although these powers may not be exercised without the agreement of the Lord Chancellor. Lord Judge and Ken Clarke are supported by officials in the Office for Judicial Complaints (OJC).

The National Secular Society complained to the OJC that Ms Booth’s sentencing remarks suggested that she would have treated a non-religious person more harshly.

On June 10, the OJC announced that “Recorder Booth’s observations did not constitute judicial misconduct”.

It added: “The Lord Chancellor and Lord Chief Justice have considered the conclusions of the investigation and agree that no disciplinary action is necessary.”

But this was not the full story. In a letter to the National Secular Society, the OJC said that the Lord Chancellor and Lord Chief Justice had agreed “that Recorder Booth should receive informal advice from a senior judge about the comments she made in this particular case but that is not a formal disciplinary sanction”.

Contrary to the impression given in its public statement, the OJC’s letter said that the case against Ms Booth had been “substantiated in part”. It continued: “The Lord Chancellor and Lord Chief Justice have expressed some concern about the impact Recorder Booth’s comments may have had on the public perception of the judiciary and the sentencing process.”

The National Secular Society complained last week about a “cover-up”. It said the OJC’s letter, though dated 9 June, had been posted second-class and did not reach the society’s office until 14 June.

In the circumstances, the National Secular Society told the OJC it did not regard itself as bound to comply with a request by the OJC that its letter should not be circulated any further. All letters from the OJC say, at the foot of every page:

RESTRICTED – This information is intended for the recipient only and should not be copied to a wider audience without the permission of the author

But then matters took a curious turn. On hearing that the National Secular Society intended to release the OJC’s letter to the press, the OJC told the society:

As complainant, additional information was given to you on a confidential basis…  This information, which is personal confidential information, is contained in paragraph 10 and 11 of your letter. Section 139 of the Constitutional Reform Act 2005 says that any person who obtains confidential information, or to whom confidential information is provided, under or for the purpose of a relevant provision must not disclose it, unless he/she has a lawful authority to do so.

It is true that section 139 makes it unlawful to disclose confidential information. The section covers Part 4 of the 2005 Act, which deals mainly with judicial appointments. It also covers section 108, which deals with disciplinary powers.

But, of course, there is an exception. Subsection 6 of section 139 says:

This section does not prevent the disclosure with the agreement of the Lord Chancellor and the Lord Chief Justice of information as to disciplinary action taken in accordance with a relevant provision.

Without the exemption contained in that subsection, the OJC would not have been able to write its letter of 9 June to the National Secular Society. Disclosure of the information contained in that letter had clearly been made with the agreement of the Lord Chancellor and the Lord Chief Justice.

If that had not been the case, Ms Booth would have been able to sue the author of OJC’s letter for breach of statutory duty. She would have been well placed to do so, since there is a 944-page textbook on the negligence of public authorities written by one Cherie Booth QC.

But section 139 does not apply to the OJC’s letter of 9 June. That being the case, disclosing it more widely cannot be a breach of statutory duty.

If there is any doubt on the matter, a reading of the Human Rights Act should make it clear that the National Secular Society’s right to freedom of expression under article 10 and the right to a public hearing under article 6 would trump Ms Booth’s right to respect for her private life under article 8.

It was mischievous of the OJC to suggest otherwise. Officials working for the Ministry of Justice really ought to get the law right.

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