To the Judicial Conduct Investigations Office
We, the undersigned, are writing to express our concern at the conduct of the District Judge in the above matter.
This case was a charge of assault by beating. The defendant was a 26-year-old man, of approximately 6 feet tall, who violently attacked a 60-year-old woman, the witness referred to below. In court, however, the defendant, through his legal representative, indicated that, although he does not have a Gender Recognition Certificate indicating that he has changed gender, he now ‘self-identifies as a woman’ and wishes to be referred to by female pronouns.
When a witness takes the oath, they swear or affirm to tell the truth. It is therefore imperative that they make statements in their own words and to the extent of their beliefs. There is no negative judgement or inference in using the terms, man, woman, he, she. These are neutral, factual terms.
When the witness commenced her evidence, she naturally referred to the defendant as he, because it was clearly a man who attacked her, and he remains to this day physically and legally male. She was quickly informed by counsel that the defendant wished to be referred to as a woman. She did her best to comply and referred to him as ‘the defendant’ twice. She was then asked to watch a video of the assault, during which she was asked further questions and she inadvertently slipped back into referring to the defendant as ‘he’. At this point the judge stopped the witness’s evidence and reminded her to refer to the defendant as a woman.
This raises several issues:
1. The witness had taken an oath to tell the truth. By requiring her to use female pronouns to describe an assault that she had experienced as a man beating her, the judge was forcing the witness to recount inaccurate testimony. The witness attempted to comply, as to ignore a direction from the judge could carry a charge of contempt of court, but this proved unsustainable as she recalled the beating.
2. Trying to remember to use incorrect terminology may have affected the quality of the witness’s evidence. Indeed, the judge, in his judgement, mentioned negatively her failure to use female pronouns every single time. Despite her attempts to comply with the judge’s direction, he accused her of ‘behaving with bad grace’. Other witnesses also referred to the defendant as male, and yet were not admonished.
3. It can never be acceptable for a judge to tell a victim of a violent, unprovoked assault that her accurate recall of the incident is anything other than good witness testimony. That this appears to have diminished the severity of the sentence is particularly demoralising as, later that day, the defendant boasted on his social media account that he had ‘won’ the case because the fine was low.
4. The broader question in relation to such a judicial direction is that the quality of witness evidence will inevitably be affected. If a witness is having to recount an event truthfully, but then lie about the sex of the defendant, because he choses to ‘present’ on that day as a member of the opposite sex, this will create confusion for the witness, the court and the transcript.
5. Forcing a victim and prosecution witness to endorse a self-identity demand of a defendant could lead to the unconscionable situation where a rape victim is directed to speak of her male rapist as if he were a woman, if he so demanded. Such a direction would be extremely abusive for the victim.
We are aware that S12 of the Equal Treatment Bench Book, provided to judges and magistrates gives guidance regarding how to address transgender defendants in court. We are not aware of any such requirement of witnesses, who are required to tell the truth, which in this case was that a man attacked a woman.
Giving evidence in court can be a challenging and intimidating process, without having to rethink the wording of one’s evidence to use words that distort the genuine recall of events. In directing the witness testimony in this way, to suit someone who exhibited abusive and violent tendencies towards the victim, this judge materially affected the quality of the witness’ evidence which is not in the interests of justice.
Further, we refer you to paragraphs 13, 14 and 15 of the Introduction to the Equal Treatment Bench Book, which places a requirement on judges to place themselves in the position of those giving evidence and accept that their culture, experiences and knowledge may affect their evidence, and this should be respected, considering the daunting and unnerving experience of appearing in court. In our view, the judge failed to apply this to the victim of the violence but rather directed her to comply with the wishes of the man who had attacked her.
We request that you investigate this matter to see whether justice has been compromised in this case by the judge’s action in a) misdirecting the victim b) thereby confusing her and compromising the quality of the evidence she was able to give and c) in taking into account her occasional accidental failure to follow his instruction to use female pronouns and using it to mitigate the sentence awarded to the defendant.
We further ask that you provide further guidance to judges, and indeed magistrates, that they should not interfere with witnesses’ evidence, other than with regard to questions of law.