Nicholas Lavender, sometimes called The Honourable Mr. Justice Lavender.
These include a tendency to support the state, and other judges, wherever possible even in the face of overwhelming data that the evidence against a member of the establishment or public body might be correct.
Now, Mr Justice Lavender has been publicly humiliated by judges at The Court of Appeal over his sentencing of former Labour politician Nazir Ahmed.
The simple fact is that the correction made by the Appeal Court judges is over matter that Mr Justice Lavender would have been well aware of at the point of sentencing.
However, it would seem that Nicholas Lavender was more interested in pontificating during sentencing and giving his opinions regarding Ahmed’s offending than he was paying attention to the correct sentencing guidelines and requirements on his position as judge as set out in law.
It must’ve irked Nicholas Lavender that he had to sentence effectively a member of the establishment when Lavender spends so much of his judicial career supporting the establishment and covering up the effects of their misdeeds.
However, it’s disturbing to know that the little frisson of joy Lavender had when sentencing blinded him to the requirements to properly sentence the offender for the offence committed.
Given that this is a schoolboy error can it be inconceivable that there will be additional future appeals made in cases sentenced by Lavender, who may have become overexcited in other cases and overlooked clear issues that would reduce the sentence?
The link to an excellent article from Byline Times regarding exorbitant and manipulative legal loans which catch people at their most emotionally vulnerable and go on to exploit them financially.
The article contains the following, amidst criticism of a company called RafeSetter:
In a recent remote court hearing, RateSetter’s chief commerical officer Peter Behrens acknowledged that Sophia being more than £600,000 in debt may be an example of “mismanaged litigation”. Asked what action the company had taken to ensure Sophia was not vulnerable, Behrens said that the lender had done “enough to make ourselves comfortable”.
Mr Judge Raeside, presiding over this hearing, ruled as “fair” her debt from two high interest divorce loans. But Sophia said: “I just know that a lot of people will be coming out of lockdown and divorcing. I don’t want this to happen to anybody else.”
The real story here is that RateSetter’s Peter Behrens is the son of former District Judge John Behrens, now retired. Behrens senior and Judge Raeside were close colleagues at the bar.
How odd then that Judge Raeside did not recuse himself from dealing with a case involving his old friend’s son and found in the favour of the company at which Peter Behrens is chief commercial officer!
Would be curious to know how many other claims involving RateSetter have come before Judge Raeside and what the result of those were.
HMCTS has a number of ways of obtaining money from court users. Some of these amount to sharp practice and although within the Civil Procedure Rules can also be said to amount to an abuse of process.
Yesterday I discussed how difficult it is to obtain a refund from HMCTS (with an example!). Today I look at one of the ways they increase costs for parties.
Here’s one of the ways this happens.
An application in a civil claim was cancelled with a few days notice.
This is because the High Court Judge set to hear the case, The Hon. Mr Nicholas Lavender, decided to scuttle back to London before Yorkshire and the North East Circuit (for which he is senior civil judge) was put into tier three COVID restrictions. In the event this was pointless as a few days later the Government decided to lockdown the whole of England. However this caused significant disruption to civil listings at Leeds Combined Court this week. Great to see a judge who takes his leadership responsibilities so seriously.
The hearing was rescheduled with eight days notice to the parties. Which was insufficient notice for the Claimant. The Claimant informed the court of this and the grounds for being unable to attend the short-notice rescheduled hearing. Either these grounds were not out before the judge or else were ignored.
One facet of The Hon. Nicholas Lavender’s handling of cases can be seen on a website in which it’s complained that he seeks to drive up costs for litigants. Particularly ones whose cases he finds tiresome. I suppose he has to find some amusement in the job. This site can be found at https://www.bentjudgenicholaslavender.site/index.php/contact/ [viewed February 2020]. Some of the content of the site this writer is unable to verify: in respect of his seeking to drive up costs for parties however I am able to comment.
So consequently the grounds on which the Claimant couldn’t make the rescheduled hearing were ignored and an Order made by the judge regarding the rescheduled date. As per usual the route to challenge such an Order lies in the completion of an N244 form and the payment of a fee. Indeed this is the only route to do so when an Order has been made by the judge.
Now here’s where things get funky. In addition to driving up costs for parties he dislikes Nicholas Lavender likes to take his time on dealing with applications made. Sometimes this can be up to four months when HMCTS service standards say fourteen days should be the turnaround time for such.
So the court ignored the grounds for the Claimant not being able to attend the rescheduled date in order to make an application which would then cost the Claimant £55 to overturn. There is of course no guarantee that the application to vacate the rescheduled date would be heard before the due date of the hearing (especially not with this judge!) but hey… let’s take a punt on the idea of making some more money out of a service user.
This sort of thing represents clear sharp practice but is a common enough activity within HMCTS.
Recorder Ben Nolan QC, a part-time, fee-paid judge on the North East Circuit posted an inadvisable tweet in the late evening of 18th June, 2020:
The relevant Twitter account has now been deleted.
Like the account of HHJ Sarah Greenan, a Family Court judge sitting at Leeds and who has been subject of a prior blog post regarding judicial misuse of Twitter.
Ben Nolan QC is assumed to have sufficient seniority as a judge to be aware of the judicial conduct rules and how these relate to the expression of opinions on social media and elsewhere.
However let’s count the issues with the tweet above, shall we?
Inappropriate uses of expletives
Political opinions expressed regarding the Government
Poor diction – an issue which has been said to appear in Ben Nolan’s judgments
“fetid Primark store” expresses social prejudice against the people you’d likely find in Primark if not the store itself.
A complaint was made to the reliably ineffective Judicial Conduct and Investigations Office which supposedly enforces judicial conduct guidelines. The complaint was made in the terms mentioned above. JCIO can usually be relied upon to evade proper action on complaints about judges via a series of “trapdoors” built into the regulations which allow such cuffing off of legitimate complaints.
However – again unusually for JCIO – the issue made it as far as Nominated Judge (NI) stage. In this matter the NI being The Right Honourable Lady Justice Carr. In a complaint outcome letter dated 21st August, 2020 the JCIO stated that 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”.
You might of course wonder about the common sense of a judge who bases his opinions on things he has seen on television or read in a newspaper!
Recorder Ben Nolan QC
The Nominated Judge went on to say:
“Accordingly, the complaint has been dismissed under Rule 41 (b) of the Judicial Conduct (Judicial and other office holders) Rules 2014.”
Regardless of the NI’s findings the rules regarding judicial conduct apply if the judge is identified / self-identified as such or not. Otherwise there is little point having the rules! As such the findings of Lady Justice Carr are at best unsustainable.
The findings of the Nominated Judge have been appealed on these grounds:
The outcome letter states:
The tweet was not sent from a judicial account. The details of the account did not identify its holder as a judge.
However 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 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. Which of course makes a nonsense of the Nominated Judge’s application of the rules. In fact it rather shows that the NI has misapplied the rules to avoid making a judgment against Recorder Ben Nolan QC.
In fact the rules apply to judiciary regardless of if they are commenting from a personal perspective, or as a judicial office holder. Different rules of course 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 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. This is not relevant to the complaint and in this matter has been seized upon as grounds to dismiss the complaint erroneously and contrary to the relevant rules.
One might wonder about the reliability of the investigation given the deeply odd findings made.
Anyone working on the North East Circuit (presumably the majority of Ben Nolan’s Twitter followers) are 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. That the account holder was a member of the judiciary is something clear and obvious from the account itself.
Recorder Ben Nolan QC described as “a heavyweight in criminal practice”.
The basis on which the complaint has been dismissed is therefore spurious and erroneous.
In respect of the comments regarding Primark clothing stores the findings of the Nominated Judge stretched credulity even further. For good or ill that store seems to be one ripe for mockery as a place where people without much money tend to shop. The NI claimed:
“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 Ben Nolan QC comment on something that he has picked up from second-hand experience? Is also his comment not reflective of social prejudice on the part of the source material in newspapers papers or on television in which he has seen such comments? 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.
I would say that the tweet regarding Primark does express social prejudice on the part of a judge and that this is an exceptionally concerning matter.
The complaint outcome has been appealed. The outcome of the appeal is awaited.
It has been intimated in a separate civil case that Ben Nolan will shortly no longer be undertaking judicial work.
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