The interns & the law firm

‘Repugnant’ committee pursuing female lawyer must go

In a letter to the Law Society, High Court barrister and solicitor Benedict Tompkins calls for the removal of the National Standards Committee members investigating lawyer Catriona MacLennan for her comments on a domestic violence case, as described in her piece for Newsroom Lawyer: I will not be silenced

Kathryn Beck
President, New Zealand Law Society

Subject: National Standards Committee investigation into comments made by Catriona MacLennan

I am an enrolled barrister and solicitor of the High Court of New Zealand. I am also called to the Bar of England and Wales, and practice as a barrister from Chambers in London.

I write about the National Standards Committee investigation into comments made by a barrister, Catriona MacLennan, to the New Zealand Herald.

The Committee’s decision to commence and proceed with that investigation is repugnant.

For the reasons below, I ask that your Board remove the convenor and members of the National Standards Committee in question from office.

Background

The investigation is detailed in an article by Ms MacLennan titled Lawyer: I will not be silenced published on the newsroom.co.nz website on 13 April 2018. I understand that the comments themselves were reported in an article by Anna Leask titled Police reviewing judge’s decision to discharge man who assaulted wife published on the nzherald.co.nz website on 13 December 2017.

As reported in the New Zealand Herald article, Ms MacLennan’s comments were in response to remarks made by his Honour Judge Brandts-Giesen in discharging without conviction a man charged with domestic violence offences.

The facts involved the man grabbing his daughter by the throat, pushing her down and holding her; and then kicking his wife in the ribs, causing her to fall backwards. That came after an assault on his friend, who in turn had exchanged text messages with the man’s wife in which they declared their love for each other.

Again as reported in the article, the Judge’s remarks included the following:

“Really, this is a situation that does your wife no credit and does the [man] no credit. There would be many people who would have done exactly what you did, even though it may be against the law to do so. I consider that the consequences of a conviction are out of all proportion to what happened on this occasion.”

Ms MacLennan’s comments to the New Zealand Herald as set out in the article were, in full:

“It is inappropriate for Judge Brandts-Giesen to continue sitting on the bench. His reported comments and the sentence imposed display a complete lack of understanding of domestic violence. He victim blames and minimises assaults on three people. [The Judge’s comments were] abhorrent. It is the role of the judiciary to uphold the law and foster respect for the law. Stating that ‘many people would have done exactly what you did’ condones and excuses domestic violence. [The Judge’s comments and sentence in this case] run completely contrary [to a statement by the Chief District Court Judge]. They also demonstrate that judges need far more education about domestic violence. The education provided to date has plainly been inadequate. The police should appeal the discharge without conviction. It is inappropriate and out of line with penalties in similar cases. Judicial attitudes like this and the lack of penalty are part of the reason why women do not come forward to report domestic violence.”

The Committee’s decision to investigate her has therefore not only impinged upon Ms MacLennan’s protected exercise of her freedom of expression, it has adversely affected the rule of law and the reputation of New Zealand’s legal system.

The National Standards Committee’s investigation

Ms MacLennan now reports that a National Standards Committee has written to her advising that it has commenced an investigation in relation to those comments, and that it has now also decided to conduct a hearing on the papers.

As you know, under the Lawyers and Conveyancers Act 2006 that necessarily entails that either the Committee decided to conduct an own-motion investigation, or it decided to conduct an investigation and now a hearing rather than take no or no further action on a complaint received. Either way, it has made a conscious decision to proceed.

As is customary, the Committee’s letter included a request that Ms MacLennan address a series of questions referring to the ethical obligations of lawyers currently embodied in the Act and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. These included:

“Whether [Ms MacLennan] undermined the dignity of the judiciary?

"Whether [Ms MacLennan] failed to comply with a lawyer’s fundamental obligation to uphold the rule of law and facilitate the administration of justice in New Zealand?”

That is a perversion of the principles of legal ethics. It is a perversion of the regulatory function of the New Zealand Law Society. It is a perversion of its powers of professional discipline.

In deciding to commence its investigation, the Committee has demonstrated a profound misunderstanding of the statutory framework by which the New Zealand legal profession is regulated; of elementary principles of New Zealand’s common law constitution, including the independence and accountability of the judiciary; and of the application and content of New Zealand Bill of Rights Act 1990.

Catriona MacLennan's comments were in response to remarks made by a judge who discharged without conviction a man charged with domestic violence offences. Photo: Supplied

With proper regard to those principles, it is inconceivable that Ms MacLennan is guilty of unsatisfactory conduct or misconduct, of any other breach of the Act, or of anything at all that would justify the commencing or continuing of an investigation. Her comments were targeted, professional, and related to matters within her (considerable) expertise.

Of course, there are cases in which comments by lawyers about judges can constitute a professional breach. But this is not one of those cases. The Committee’s investigation should have been over before it began. Ms MacLennan has done nothing wrong.

The Committee’s mistakes go deeper. By bringing to bear the coercive power of its disciplinary machinery, it has stifled, or attempted to stifle, valuable comment on important issues, including domestic violence and the proper functioning of the criminal justice system. Such comment — and in particular comment by lawyers, who are uniquely qualified to pass it — is essential to the proper functioning of a liberal democracy.

The Committee’s decision to investigate her has therefore not only impinged upon Ms MacLennan’s protected exercise of her freedom of expression, it has adversely affected the rule of law and the reputation of New Zealand’s legal system.

The merits

Although I do not know her personally, it is my view that Ms MacLennan has demonstrated courage in publicising these events. But, as you are aware, a disciplinary investigation is a very serious matter for any lawyer, and will inevitably cause worry. That makes the Committee’s decision all the more reprehensible. However, Ms MacLennan is far from alone in her views.

As Ms MacLennan notes, soon after Judge Brandts-Giesen made his remarks, the Chief District Court Judge made statements broadly supportive of Ms MacLennan’s point of view in comments to the New Zealand Herald, in a letter replying to correspondence from concerned members of the public, and apparently to Judge Brandts-Giesen himself.

Furthermore, as urged by Ms MacLennan, the New Zealand Police referred the matter to the Crown, and Judge Brandts-Giesen’s decision was appealed. The appeal was successful, which means that the High Court found that Judge Brandts-Giesen was wrong in deciding to discharge the man without conviction.

I add mine to those voices. Although I now practice commercial law, I was formerly a Crown prosecutor employed by the office of the Wellington Crown Solicitor. I have therefore seen, up close and in detail, crimes of the kind Ms MacLennan was commenting on. Domestic violence is a scourge. As Ms MacLennan notes, with clarity and rigour, it is also endemic in New Zealand society. There can be no excuse for it. It justifies a firm — and considered and evidence-based — response in criminal law.

I therefore repeat and adopt as my own Ms MacLennan’s remarks (and note that simultaneously with sending this letter to you, I am publishing it on social media and distributing it to media and to friends and colleagues in the New Zealand legal profession). In my view:

It is inappropriate for Judge Brandts-Giesen to continue sitting on the bench.

In my view, based on the matters above the convenor and members of the National Standards Committee have satisfied that criterion for removal. They have revealed patent misunderstandings of foundational legal principles. They have made an astonishing and inexcusable error of judgment.

His reported comments and the sentence imposed displayed a complete lack of understanding of domestic violence. He victim-blamed and minimised assaults on three people. His comments condoned and excused domestic violence, and were abhorrent. And on that, let me be more specific:

His remark that the “situation [did] your wife no credit” demonstrates a Victorian disposition to control and pass judgment on the personal choices of women that is completely at odds with the shared standards of contemporary New Zealand (and has been for many years).

His remark that “there would be many people who would have done exactly what you did” is frankly alarming. It suggests deep flaws in the Judge’s understanding of, among other things, what it means to live in a civilised society; decades of feminist thought; and the history and enduring perniciousness of domestic violence. It also has an unfortunate resonance in New Zealand legal history because of similarity to the deplorable remark by Mr Justice Morris in summing up to the jury in a mid-1990s rape trial, to the effect that “if every man stopped the first time a woman said ‘no’, the world would be a much less exciting place”.

It is the role of the judiciary to uphold the law and foster respect of the law. The Judge’s remarks demonstrate that judges need far more education about domestic violence. The education provided to date has plainly been inadequate.

The police were right to seek an appeal of the discharge without conviction (and the High Court was right to allow it). It was inappropriate and out of line with penalties in similar cases.

Judicial attitudes like that shown by Judge Brandts-Giesen and the lack of penalty are part of the reason why women do not come forward to report domestic violence.

I should note that in calling for the resignation of a sitting Judge, Ms MacLennan and now I are hardly alone. You may be aware that in recent years in England and Wales there was sustained criticism of the conduct of a High Court Judge, Mr Justice Peter Smith. Prominent among his critics were Lord Pannick QC, a practising barrister and a member of the House of Lords, and Joshua Rozenberg, a respected legal journalist. Both called for Mr Justice Peter Smith’s resignation, and both did so in the most strident terms. Lord Pannick was not subject to disciplinary action as a result of those comments. Mr Rozenberg was recently appointed Queen’s Counsel honoris causa. The contrast with the National Standard Committee’s wrong-headed decision to commence an investigation could not be starker.

Removal from office of the Committee

What should you, as President of the New Zealand Law Society, do now?

You have both general oversight of the Society’s exercise of its regulatory functions under section 65 of the Act, and sit on its Executive Board, which has particular duties and powers in relation to Standards Committees under the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008.

As you will be aware, the Board is responsible under regulations 14(1) and 17(1) of the Regulations for appointing, respectively, lawyer and lay members of Standards Committees. Non-exhaustive criteria to be applied in making those appointments are set out in regulations 15(2) and 18(4).

Regulation 21 stipulates circumstances in which the Board may remove members of a Standards Committee from office. They include, in regulation 21(a), that the Board is satisfied that “the member has for any reason displayed an inability to perform the functions of that office”.

In my view, based on the matters above the convenor and members of the National Standards Committee have satisfied that criterion for removal. They have revealed patent misunderstandings of foundational legal principles. They have made an astonishing and inexcusable error of judgment. They have, in terms of the legislation, displayed an inability to perform the functions of their office.

It is also my view that their missteps are sufficiently serious to warrant their immediate removal, rather than any lesser action.

I therefore ask that your Board remove the members of the National Standards Committee in question from office.

I note that there is no restriction in the Regulations on removal of members of a Standards Committee during the pendency of an investigation or a paper hearing. For obvious reasons, it is necessary that your Board consider my request and — if it agrees with me — effect the removals from office before the Committee reaches a substantive decision.

I should conclude by noting that I, along with many others I know, was disappointed in the response of the New Zealand Law Society to well-publicised recent events concerning sexual assault and harassment of female lawyers. Deficiencies in that response have rightly lessened the standing of the Society in the eyes of the New Zealand legal profession and the general public. I urge you to consider my request in that context, and to reflect on what is required to avoid further damage.

I look forward to your response. Yours sincerely,

Benedict Tompkins

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