Judge Peter Herbert to receive an apology and a dressing down after publicly saying racism ‘sometimes’ exists in the judiciary..
A disciplinary panel has recommended that a prominent black judge should receive both an apology and “formal advice” – a dressing down – after its members found he committed misconduct in a speech he made referring to a fellow judge and that the matter had not been handled well.
While Judge Peter Herbert welcomed the apology he also said his treatment by the judiciary had made him feel “like a nigger” and is appealing against the findings of the Judicial Conduct Investigation Office panel on the basis that it has racially discriminated against him.
The panel has recommended that Herbert receive an apology “from a suitably senior person” for the way he had been treated by some members of the judiciary and called for changes to the procedure for suspending judges.
The panel’s recommendations have been sent to the lord chief justice and lord chancellor for consideration. The lord chief justice has the right to give – from the least serious – “formal advice,” a “formal warning”, or a “reprimand” to a judge. In certain circumstances a judge may be suspended from office.
Herbert is a barrister and part-time recorder in the crown court as well as a part-time immigration and employment tribunal judge and chair of the Society of Black Lawyers. He has also received an OBE.
The dispute relates to a speech he made at a rally in Stepney, east London, in April 2015. Herbert commented negatively about the decision to bar the former mayor of Tower Hamlets, Lutfur Rahman, from holding public office for five years and claimed that racism was present in parts of the judiciary. He said in the speech: “Racism is alive and well and living in Tower Hamlets, in Westminster and, yes, sometimes in the judiciary.”
The panel examined claims that he was guilty of judicial misconduct because of the inferred criticism that another judge had given a judgment on racial grounds.
Herbert told the panel that the way the judiciary had dealt with the case had caused him acute distress. “There are some occasions in our life when you feel as if you are being treated as a nigger. That was what it felt like,” he said.
The panel found that the speech was misconduct and “likely to undermine public confidence in the judiciary”. The panel added: “To say that a judge is guilty of racism is to make a grave attack on that judge.”
On 15 November 2015, several months after the speech was made, pressure was applied to Herbert to voluntarily refrain from sitting as a judge. The panel found that this should not have happened and requested that Herbert receive an apology for this. The panel also found that procedures for suspending judges should be changed so that future requests are not made to judges to voluntarily stop sitting, especially where, as in Herbert’s case, the complaint was not sufficiently serious to warrant a suspension.
Herbert asked the panel to consider whether a white judge who had made a similar speech would have been treated in the same way. The panel said they were not going to comment on this point. He said he believed that as a black judge he had been treated differently from a white judge and that this amounted to racial discrimination.
Herbert said: “We cannot expect to have a diverse judiciary and magistracy, and to recruit police officers, probation officers, prison officers and lawyers who look like us and are knowledgeable of our communities, if we are forced to operate in a system that is itself unwilling or unable to deliver justice equally to all. As Martin Luther King said, ‘It is not possible to be in favour of justice for some people and not to be in favour of justice for all people’.
“I am aware of several other cases involving black and minority ethnic judges, all of whom complain of the Judicial Conduct Investigations Office refusing to deal with race issues other than to deny their existence.”