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18/03/2015 13:35 GMT | Updated 18/05/2015 06:59 BST

Were the Three Porn Viewing Judges Rightly Sacked?

Don Farrall via Getty Images

You might think that the most important part of a judge's job is to sit on the bench and listen to the evidence, and that the least important part is sitting in chambers waiting to be called into court. The Judicial Conduct Investigations Office, on the other hand, appears to think that how a judge behaves in the privacy of his chambers is more important than how he does his job in court.

Three judges have been sacked for watching pornography. District Judge Timothy Bowles, Immigration Judge Warren Grant and, Deputy District Judge and Recorder Peter Bullock. In the great scheme of things there have been greater injustices, but I think they have been treated rather harshly. Bullock has perhaps got off the lightest of the three as he was not a full-time judge. No doubt he can return to private practice without too many problems. Bowles and Grant were full-time judges and they have lost their livelihoods. Possibly they will be able to return to practice as lawyers but failed and disgraced ex-judges don't command a high premium in the competitive world of legal recruitment.

So was it right that they should have lost their jobs for watching pornography? They were sacked, according to the typically and annoyingly brief report given by the Judicial Conduct Investigations Office, because they:

"Viewed pornographic material on judicial IT equipment in their offices."

We don't know, and don't need to know, exactly what sort of pornography floated the various judicial boats. The Judicial watchdog noted that none of it involved "images of children or other illegal content." "Other illegal content" was presumably a reference to "extreme pornography" which is forbidden under S.63 of the Criminal Justice and Immigration Act 2008, so we can be fairly sure that the junior judges' tastes didn't extend to animals or corpses, nor, in all probability, were they watching activity likely to cause death or serious injuries to the "breast, anus or genitals."

But this mitigation counted for little with the Committee for the Promotion of Virtue and Suppression of Vice, otherwise known as the JCIO. The judges' behaviour was an

"inexcusable misuse of their judicial IT accounts and wholly unacceptable conduct for a judicial office holder."

It is hard to deny that the learned judges' judgement was a little wayward. When they decided to put the court papers to one side and indulge themselves in their solitary pleasures they should have done so without involving the Ministry of Justice IT system. It is a barely functioning system at the best of times and if judges regularly used it to access pornography it would almost certainly collapse entirely. On the other hand it is also difficult to see why they should have been sacked for doing something that was not illegal. Plenty of judges, I am afraid to say, have for example, committed adultery: none, as far as I am aware, have been sacked for doing so. Viewing pornography may or may not be immoral - the jury, if not the judges, are still out on that one - but there is no obvious reason why it should disqualify you from being a judge.

None of this would have happened in the old days. Judges were issued, not with IT accounts but with thick hard-backed notebooks. I suppose they could have bound Playmates of the Month into the centrefolds but I never heard of it.

The towering figure of the mid twentieth century legal scene, before the internet was even imagined, was Lord Goddard, one of the last true "hanging judges." He had no need for pornography, although he did have a much kinkier taste that his job enabled him to indulge. He was said to derive intense sexual pleasure from sentencing people to death: so much so that his intermittently loyal clerk, who knew his little ways (and later voiced them to the press), would always ensure that an extra pair of trousers was brought to court on sentencing days.

The problem here, it is said, was not the viewing of the pornography as such, but doing so on an official computer. They have misused their Judicial IT accounts. A serious matter, no doubt, but dismissal still seems an over-reaction. Would they have been dismissed for sending a personal email or buying the family shopping online? I very much doubt it. The problem was the pornography. Yet nobody was hurt and nobody's case was delayed or indeed affected in any way. I suppose it has something to do with the "dignity of the office."

But what happens to judges who really do cause harm? The same JCIO that sacked the porn judges has allowed other judges to escape with slapped wrists for conduct that was arguably much worse.

Philip Cattan, for example, a Manchester barrister and part-time judge, had appeared to fall asleep in a child rape trial, while the alleged victim was giving evidence. As a result the trial had to be abandoned and re-started on a later date. The JCIO found that Mr Cattan was guilty of "serious misconduct," as indeed he was even if, as we can accept, he only gave the appearance of sleeping. Here was the judge apparently, I stress apparently, snoozing while he was actually meant to be judging; and not just in some ridiculous neighbours' leylandi boundary dispute but in a very serious criminal case.

Of course it is probably true that the sacked judges intended to watch pornography, and it is very unlikely that Mr Cattan intended to give the appearance of falling asleep. But intention alone does not make a trivial matter serious, any more than a lack of intention necessarily make a serious matter trivial. The consequences for justice of Mr Cattan's negligent appearance of sleeping were a great deal worse than anything that could have resulted from the porn judges' intentional bishop bashing. Instead of showing him the quickest way out of the judicial corridor, the JCIO merely issued him with a reprimand and allowed him to carry on sitting.

In showing leniency towards Cattan the JCIO has followed the traditionally lenient approach towards dozy judges.

The original, disastrous, Bloody Sunday Inquiry was conducted by the Lord Chief Justice, Lord Widgery. One likely reason for the lamentable quality of the inquiry was that Widgery was probably suffering from the early stages of Alzheimer's disease. Even so, he continued to sit in the Court of Appeal for a further eight years where his behaviour raised eyebrows:

"he sits hunched and scowling, squinting into his books from a range of three inches, his wig awry. He keeps up a muttered commentary of bad-tempered and irrelevant questions 'What d'you say?', 'Speak up', 'Don't shout', 'Whipper-snapper', etc."

Eventually Widgery started to fall asleep in court, and he became so incapable that his fellow judges even started writing his judgments for him. His dementia was not a disciplinary matter, but should still have been a reason to ease him off the bench. Instead he clung miserably on until shortly before his death in 1981.

Yet sleeping judges have continued to pop up, or perhaps slump down, since then. Gloucester Judge Gabriel Hutton twice fell asleep during a rape trial in 2001, or at least (like Cattan) he admitted that he "gave that impression." It may have been considered some mitigation that Hutton's judgment was sometimes better when he was dozing than when he was fully awake. He continued to sit in his Gloucester fiefdom for several more years.

In 2004 Judge Michael Coombe repeatedly nodded off and allegedly slumped forward and snored during the trial of men accused of a £200million diamond robbery. The Judge frankly admitted that he had slept during the quieter parts of the case, although, as habitual snorers generally do, he adamantly denied snoring. The Court of Appeal did not find it necessary to decide whether he had actually snored, but found that having a sleeping judge did not mean that the convictions were unsafe. Shortly after the case Judge Coombes retired but he does not appear to have been formally disciplined.

So the disgraced threesome may have every reason to feel somewhat aggrieved at their treatment. If it is "excusable" for a judge to fall asleep - or appear to do so - during a child's evidence in a rape trial, why should the legal and harmless sexual activities of judges in the privacy of their chambers be "inexcusable"? Is the Judicial IT account really such a tender flower?

Why is the dignity of a judicial IT account seemingly of greater concern than the welfare of all parties involved in a rape trial?

This blog was first published on Matthew's personal site, Barrister Blogger, and can be read here