It’s a Lawyer’s Life in conversation with HHJ Kaly Kaul QC
HHJ Kaly Kaul QC was appointed a Circuit Judge in 2015, and currently sits at Wood Green Crown Court in London. She is a tutor judge for the Judicial College, was appointed a Diversity and Community Judge in 2019 and launched the Judicial Support Network in March 2021. She has assisted the JAC with Recorder Competitions since 2017.
Rina-Marie Hill is a criminal barrister. She practises from 23ES in London (and of course, is also part of our editorial team). Following on from Rehna’s article on judicial bullying in November, Rina spoke with HHJ Kaul QC to ask for her views on being a judge, on bullying within the legal profession and on the continuation of Cloud Video Platform (CVP) hearings in criminal cases.
Rina: In March of last year, you and others launched the Judicial Support Network. What is the JSN?
KKQC: It’s an independent and unfunded organisation for Judges, run by Judges. We aim to support and assist Judges (whether salaried or fee-paid) in relation to all manner of concerns they may have as they perform their roles. The concerns may be about appointments to higher roles, obtaining full-time employment, working relationships, including bullying and discrimination, allocation of work, welfare, disability, safety at work generally, issues with managers, and so on.
Rina: What inspired you to set up the JSN?
KKQC: Encountering great difficulties within days of my appointment, expecting support from the ‘Judicial Family’ and finding out there was no family, and almost no support. On the contrary. At the outset, I didn’t know what was going to happen because everyone told me it was going to fail. It didn’t, it hasn’t, and it is actually going very well, considering that we only sent one email to promote it. Some want to complain but they do not have the courage or are afraid of the repercussions. We can demonstrate that the problems are systemic and repeated up and down the country in different jurisdictions. We can’t solve the problems, but we can suggest reform and support the complainant. There is a ‘blame game’ and that is very undermining. I think it helps them to be able to talk to other Judges with the same or similar experiences. Judges need other Judges to stand with them, and speak for them, not just console them privately.
We are in the process of opening up our website to include a member’s area and information, and we are currently working on the content. It will be a resource for members to dip into without having to look around for information. It will include tips for wellbeing as well as a collection of Judicial Office Policies, the EqA which applies to Judges too! We can raise issues for them, without identifying them, support them if they decide to lodge grievances, and collect experiences so that we can inform those in a senior position, but who must be unaware of all of this. The Judiciary has not welcomed us with open arms, but no one has tried to stop us, neither can they, there is a UN Convention guaranteeing our rights in this respect. The GMB has and is being very helpful, and more help will be announced soon. Judges are joining a Union as they need support that is not available to us within the Judiciary. Are policies compliant, and how are they implemented?
Rina: What is your priority in terms of what you like to achieve with the JSN?
KKQC: I want to see the implementation of anti-bullying codes. Codes that will not only govern how Judges treat counsel and how counsel treat Judges, but also how the Judiciary treat one another. People seem to think that the Bar has to be an aggressive profession, but it really doesn’t, save within the context of a contested case in Court. We would all work better if we work together and I think the Judiciary should also embrace that. Less of us saying to you “…you have to…” and less of you saying to us “…you have to…”. It’s far better that we try and see it from the other person’s perspective and usually there is a perfectly good way through the middle if we work together. We all want to encourage a respectful working environment for every Judge, regardless of race / disability, background, or anything else.
Rina: Do you have any thoughts on what an anti-bullying code should look like or a similar code that it could be modelled upon?
KKQC: We have researched many different anti-bullying codes including the Church of England, the police, HMCTS, the CPS, and the House of Commons. In fact, Dame Laura Cox prepared a report on bullying in the House of Commons in 2018 and the report is brilliant, but the sad part is that it could apply equally to the Judiciary and mirrors the treatment many of us have experienced.
The police have a code, the Army has a code, the Bar has a code, the Law Society has a code but has that stopped the bullying? No. But at least they have a code, a document they can point to, to say, “this behaviour is in breach of our code of conduct”. We have almost nothing, I don’t understand why there has been such resistance to it. If the senior Judiciary is correct and there is actually no bullying, no discrimination, no unfair treatment, and any complaint of the same is from an over sensitive Judge who shouldn’t have been appointed in the first place, then there is nothing to be concerned about – it’s just good practice, as it would having a Carers Policy, which is an issue that affects many of us, and yet there isn’t one of those either!
We need Judges to be better educated about the impact that their behaviour can have on others, but I also think that it would help if you as counsel saw us as human beings and not as some numb entity – that we become Judges, and stop being people. That is how the Bar Standards Board sees us, the ‘notional’ Judge, there to be ignored, as we are not members of the public who may lose confidence in the Bar, so we don’t matter. Behaviour directed at us, doesn’t matter. That ignores the public duty of those who have to uphold the administration of justice and may, as I do, come from non-traditional backgrounds. We are as entitled to be treated in a lawful and courteous way as any member of the public or any Advocate is, but the BSB does not seem to consider that is the case. The JSN looks forward to taking up this issue, as the Senior Judiciary does not appear to be interested in how the lower ‘ranks’ are treated. One only becomes conscious of that as a full-timer. There is far less support in the Judiciary than there ever was at the Bar. There is much less real unity than at the Bar, to progress and to be well thought of, we must obey the orders of our superiors and mirror their views.
Rina: Is the job of a Judge a lonely one?
KKQC: It is lonely, but in a different way to how it can be lonely at the Bar. As a Judge, I have been badly treated by members of the Bar, and I know what effect that had on me. Judges, counsel, we are all people, and we shouldn’t lose sight of that when we come to work. This is why I am trying to persuade the Association of Women Barristers to become the Association of Women Barristers, Advocates and Judges. So that there is an organisation (yes it will be women) but women doing all sorts of different work including Judges, so that we can really work together to understand each other’s problems and support each other.
Rina: How do you approach your job?
KKQC: My approach is to reflect upon the very many Judges I appeared before when I was at the Bar whom I respected, and to try and be the best Judge I can be, taking up their traits.
I remember very fondly some of the Judges I appeared before. When I was around 18 months’ call, a Judge told me and other counsel what his philosophy was as a Judge. He said that a Judge was no more than a team leader. “It’s your court, it’s your atmosphere, you are responsible for everyone in that room and your job is to bring out the best of everyone whether they are an usher, a short-hand writer, a juror, a defendant. You are responsible for making sure your courtroom runs smoothly, efficiently and fairly. There is no place for egos. It is a place of support. If the advocate gets a question wrong, don’t criticise the advocate, but support them. The advocate will learn and will get better”. He was just so nice to us as advocates and I remember thinking, “if I am ever a Judge, I am going to be that Judge”. Yet he was called ‘too nice’ and so am I!
Rina: What do you say to a barrister who is being bullied by a Judge and who fears not calling out the bad behaviour but rather, being thereafter perceived as weak or overly sensitive?
KKQC: I’m afraid that being perceived as weak and oversensitive is what will happen to anyone that complains about anything, at least most of the time. Any of us who criticise someone, whether we are at the Bar or in the Judiciary, find that it is immediately turned around on us and we are told “it isn’t us, it’s you – you’re pathetic, you’re no good, you’re not up to the job, therefore…” if the complainant barrister/ solicitor /Judge is female, brown, a solicitor, or anything ‘different’ then that feature will be used to base a view of our ‘unfitness’. There is rarely a moment’s thought that maybe the behaviour by the Judge, or the behaviour of the other barrister or the solicitor or whoever it is, is not appropriate; and so that is a problem. It is cultural in all parts of the professions; we need to address the way we perceive those who raise concerns. Training of the kind that really increases empathy is vital. Many do not realise the impact they are having.
It is a problem the JSN will embrace so that Judges who want to raise issues don’t have to raise them alone. At the Bar, there are lots of structures in place to support you. You have your Heads of Chambers, the Criminal Bar Association, your Circuit, the Bar Council, and so on. When I faced obstacles at the Bar, I was never alone, not ever, and there were always people just as important as my detractors, often more important, who were there to support me, including Judges.
Rina: What would you advise counsel to do if they are being bullied by a Judge?
KKQC: You have to get your own network together of people who like you and then go and have talk to them. Ask yourself, did I do anything wrong? Factor in both sides and then consider objectively. If, having cooled down, you still feel that you have been treated poorly then report it to Talk to Spot, speak to Sam Mercer at the Bar Council or another person you can trust. What advocates really ought to be doing is calling out bad behaviour or bullying by going to Resident Judges, or to a designated Judge who will listen and have a confidential chat about an issue that has arisen and what can be done about it. Someone who can offer support. There should be a designated Judge in every main Court Centre, and an opportunity to contact Judges off Circuit if the Advocate feels s/he will be victimised if a complaint is made to a Judge at the same Court, to see if there is a way forward that will assist. Often these issues could be reduced quite easily.
Use the Talk to Spot App a lot more! You should have it on your phone. It has been a real success in that it has enabled the Bar Council to build up a picture of certain courts and certain themes, albeit that the information can’t be used without the complainant’s agreement. A pattern is established, and anonymity preserved. Nevertheless, it has given the Bar Council an idea of where there are problems, and it means that the senior Judiciary cannot say, for example, “It was four cases, and it was anecdotal”, or “it didn’t happen”. I would encourage counsel to at the very least talk to Sam Mercer or someone at the Bar Council if they are being bullied and set out who has been behaving badly and the circumstances of what happened. If there is enough data, something will have to be done about it. In the meantime, we as Judges need much better training but also, so do you at the Bar.
Rina: What can we do to make your job easier in the current climate?
KKQC: On the whole the Bar/ Advocates generally are fine, I’d like to make that clear. Generally speaking, people do work together. But, if you are attending via CVP, place your name and contact details in the sidebar. So many Advocates don’t, and it wastes so much time. If you are overrunning in another court, put a note in the sidebar. We all want to support each other. I want you to be able to do another case, in another court, if the listing allows. If you don’t put your name in the sidebar, I can’t help. I feel that people seem to forget that their case is not the only one I have to deal with that day. I may have a list of 15 cases including four sentences, as well as 35 cases to consider administratively, and a multi-handed sentence to prepare for the next day. I want to help you, but I also have to focus on my time marked PVL list.
Rina: Do you think we at risk of losing CVP hearings in the criminal courts?
KKQC: At Wood Green, and I say this about all the Judges there, we are doing our best to make as many hearings as possible CVPs. But I recognise that in other courts they are not. There is to be national guidance, that is to be welcomed. As Judges we need to approach counsel in a fair and kind way and do our best to support them and not make them come to court unnecessarily. But the other side of that is, counsel have to be prepared. The attitude cannot be, “it’s only CVP, I don’t have to read the papers”. There’s no excuse. Some counsel haven’t a clue what happened at the last hearing, or they answer, “it’s not my case” when you ask them what it is they want you to do on a particular issue. They haven’t talked to the prosecutor in advance, or to trial counsel. So, we may get tetchy and irritable, but you can’t blame us! If you come before me at 2pm and I haven’t had time for lunch, and perhaps I have matters outstanding from my morning list, I will be in a tetchy mood. I don’t consider that’s bullying; I genuinely don’t think so. If I am in a tetchy mood I like to explain why. I may say something like, “I’m sorry, I haven’t had a good morning…”
Rina: I am very keen for CVP to continue where the particular hearing makes it practicable…
KKQC: There’s no doubt that it is better for us if you are there in person because it is easier for us to re-jig our list if we need to, and the CVP headaches are a very real phenomenon. But trust me, we all want to make CVP work. All we want to do is get through our list in an efficient manner. If a case collapses, we want to be able to bring the next hearing forward, if counsel is available. This is more difficult to achieve via CVP. Counsel may not have posted their details on the sidebar, and I have heard some counsel say that other courts don’t require them to do so and so it can make things difficult. This is precisely why there needs to be a really simple protocol. A page for contact details, how hard is that?
As Judges, we need to put across that this desire of some counsel, not all, to get out of coming to court when their client is required to attend has got to stop. They should not expect the Judge to represent their client. I have seen urgent messages asking me to agree that counsel can attend via CVP because they don’t want to incur the travel costs of attending court in person. I get that, too. But it’s your case. It’s your client. We have to be very clear that if the defendant is going to be there, so should the defence advocate.
Rina: Last question, dare I ask? How can counsel earn a gold star when attending via CVP?
KKQC: Prepare a note. It can be a really short note of the issues, or of the sentencing powers, etc. Just help me by setting out what we can do to progress the case. If it’s a Plea and Trial Preparation Hearing, include the stage dates, set out what the issues are, and the Custody Time Limits if it’s a custody case. Judges need this when they have a list of 15 cases, and it makes such a difference. When you have capable and competent people before you, it makes life so much better and even if things go wrong, it goes wrong together, and we can all help each other to try and get it right. You feel like this is the way it should be. So, prepare a note and you’ll get a gold star from me!