The recent high profile arrest of a part-time recorder, Constance Briscoe, in connection with the Vicki Pryce trial gives me a tenuous topical link to judicial discipline and nineteenth century case of Sir Jonah Barrington, still the only High Court judge to have been dismissed from office. Disciplinary proceedings against a judge are relatively rare and dismissal of a permanent salaried judge is almost unheard of. Removal of a judge above High Court level is something that may only be done by Parliament according to the Act of Settlement 1701 (re-enacted in section 11 of the Senior Courts Act 1981). For judges below High Court level (such as Briscoe) it may be done by the Lord Chancellor and the Lord Chief Justice acting in concert under the Constitutional Reform Act 2005. The rules for disciplinary action short of dismissal (for example, formal reprimands) are similar. The website of the judiciary in England and Wales lists two cases in which a district or circuit judge has been dismissed since the 1980s (one, intriguingly, for smuggling whiskey). Barrington’s case deserves more than a slightly notorious footnote in textbooks.
Barrington was an Irish barrister and politician, and served as an MP in the Irish Parliament prior to the Act of Union in 1801. As a reward for political loyalty he was given a seat on the Irish Court of Admiralty in 1798 whilst still an MP but the Act of Union deprived him of his parliamentary seat, and he expended a great deal of ink in later life writing about what he perceived as the betrayal of Ireland by those who acquiesced in the union. In later life he would also write a colourful book of reminiscences detailing, amongst many other things, several instances in which he participated in duels in response to insults he suffered on the bench.
The events that led to his dismissal as a judge took a long time to come to pass. In admiralty cases in 1805 and 1806 (the Nancy and the Redstrand) Barrington took around £850 in cash for his own use. In 1810 a ship salvager asked Barrington’s court to pay £40 over to him. Barrington directed the registrar to pay it but delayed the order for two months. During this time Barrington fled to France where he continued to live for the rest of his life, never returning to Ireland. During his period in effective exile he continued, however, to receive his judges’ salary of £1,000 per annum. His judicial duties were carried on by a succession of deputies appointed by Barrington and paid only comparatively tiny sums.
Barrington’s rather brazen behaviour came to light in 1829 in the course of a general investigation into court officers in Ireland. A parliamentary Commission uncovered evidence of the alleged embezzlement of two decades earlier and also referred scathingly to the fact that Barrington “has been for more than eighteen years enjoying a sinecure salary.” Matters went before report a Commons Select Committee in early 1830. Both the Commission and the Select Committee repeatedly offered Barrington the opportunity to offer evidence in his defence but he refused to leave France or indeed to offer anything other than repeated letters insisting on his innocence. Following consideration by the Select Committee, a motion went before the Commons, sitting as a committee of the whole house, to present an Address to His Majesty requesting the removal of Barrington under the Act of Settlement. At this point it appears that Barrington began to realise the gravity of the situation and he sought through advocates in the Commons to be allowed to give evidence. This was refused, apparently because he had passed up opportunities to give evidence previously, and the motion passed.
Barrington was allowed to make submissions in the Lords debates, where matters proceeded as something approximating criminal proceedings, with formal examination in chief and cross-examination of the main witness, Barrington’s Registrar (Daniel Pineau). In the course of Pineau’s cross-examination it emerged that in relation to the 1805 case Barrington obtained the money from Pineau personally and not from the public purse. Pineau kept court funds in his own home and reading between the lines there is a suggestion that some or all of the embezzlement may have been done by Pineau himself rather than Barrington. The Registrar had a more or less absolute right to deal with court funds and so could have lent money legitimately to Barrington. Barrington’s counsel did not, however, pursue this apparent line of defence. The motion passed the Lords and Barrington was then dismissed.*
If Barrington’s case were to occur today it seems likely that, as appears to have occurred in the Briscoe case, criminal proceedings would be allowed to run their course before any attempt at dismissal. In relation to the Briscoe case, the front page of the website of the Office for Judicial Complaints stated simply that “The Lord Chief Justice and Lord Chancellor have suspended Constance Briscoe from the judiciary pending the outcome of the police investigation into the allegations against her.” In the parliamentary debates in 1830 it is emphasised that no criminal case was pursued against Barrington because of his illness and advanced age. In an equivalent modern case such deference seems unlikely and if a judge convicted of a criminal offence did not resign voluntarily Parliament would in all likelihood refer to the fact of the criminal conviction rather than seek to re-examine the evidence. But in the event that a judge tried – like Barrington – to brazen it out, or where (as in the case of a modern Irish judge, Brian Curtin) a criminal case collapses for technical reasons leaving serious charges unanswered, the example of the 1830 debates provide a useful blueprint for how Parliament could proceed.
* This argument about a possible defence is suggested by Andrew Dewar Gibb, Judicial Corruption in the United Kingdom (Edinburgh, W Green & Sons 1957).
Patrick O’Brien is a Research Associate at the Constitution Unit, University College London.
Suggested citation: P. O’Brien, ‘When Judges Misbehave: The Strange Case of Jonah Barrington’, UK Const. L. Blog (7th March 2013) (available at http://ukconstitutionallaw.org).