09:26, October 18 79 0 theguardian.com

2017-10-18 09:26:03
Judge sues over lack of whisteblowing protection

A judge who has spoken out over the impact of austerity on the justice system has taken a test whistleblowing case to the appeal court.

Claire Gilham, a district judge, who warned about courtroom dangers including death threats, violent claimants and hostage-taking, is fighting employment tribunal rulings that do not class judges as “workers”.

Denying judges worker status also removes their entitlement to the standard legal protections granted to whistleblowers to make disclosures in the public interest.

Gilham’s experience in Warrington county court of the worst strains inside the family court system reflect wider concerns about the pressure imposed by an influx of unrepresented claimants.

While there she complained about the lack of appropriate courtroom accommodation, the impact on district judges’ workloads and dangers for judges and court staff.

Cuts to legal aid meant that family law claimants were often unrepresented resulting in her being “seriously overworked”, she has said. On one occasion she was attacked in her court; on another occasion the police warned her that someone was threatening to kill her.

At the opening of the case in London, three appeal court judges allowed lawyers for Public Concern at Work (PCaW), a charity supporting whistleblowers, to intervene in the hearing. They also agreed to hear arguments that Gilham’s human rights had been breached because she suffered discrimination as a whistleblower.

Gilham was formerly deputy director of the Independent Police Complaints Commission before she became a judge in 2006. The Ministry of Justice argues that she is an an “office-holder” therefore does not have a contract of employment with the department.

Since the 1701 Act of Settlement, judges have been deemed to hold their office “during good behaviour”. In order to guarantee judicial independence, they can only be removed through misbehaviour or inability to perform their duties. They have to retire at the age of 70, unless appointed before 1995 when the retirement age is 75.

Public Concern at Work, represented by law firm Leigh Day, says that to deprive those who hold judicial office from whistleblowing protection is incompatible with human rights laws – including the right to freedom of expression without interference by public authority.

In a statement ahead of the case, it said: “District Judge Claire Gilham is suing the MoJ after whistleblowing about excessive workloads whilst working in Cheshire which she claims damaged her health and wellbeing and led to potential miscarriages of justice due to under-funding in the justice system.”

Roger Easy, head of legal services at PCaW, added: “The danger of not affording judges, for example, with access to whistleblowing protection is that they can be ignored when raising genuine concerns and then silenced or discouraged from ever speaking up again.

“When we consider the important role played by district judges in the administration of justice, excluding them from whistleblowing protection is unacceptable.”

Kiran Daurka, solicitor in Leigh Day’s employment team, said: “At a time when public services are chronically under-resourced, whistleblowing is a valuable tool which allows those on the inside to raise important concerns.

“Legal protection for whistleblowing for the judiciary is crucial to ensure that they can safely raise concerns about our legal system.”

The appeal court case is being heard by Lady Justice Gloster, Lord Justice Underhill and Lord Justice Singh.

The employment appeal tribunal ruled that there were adequate safeguards in place to protect freedom of speech for district judges.

Gilham is still a judge but is currently not sitting. Before the hearing started, she said: “I’m whistleblowing in the public interest. The management of the Ministry of Justice should be subject to the same scrutiny as the public sector.”

The hearing continues.