Cheriegate – the full story

It started when Cherie Booth QC (also known as Cherie Blair) — acting in her role as judge — made her now-infamous remark in court to Shamso Miah that she would not be sending him to prison despite the fact that he attacked a man for no apparent reason and broke his jaw. Recorder Booth told Mr Miah that he was being given a suspended sentence because he was “a religious man” who knew what he did was wrong.

Naturally, as secularists, we at the NSS were outraged at the implications of this remark. Was Cherie saying that if he hadn’t been a religious man he might have ended up behind bars?

We felt the issue needed clarification. After all, it was possible that Mrs Blair had not said what she was reported to have said. So we approached the Office for Judicial Complaints (OJC), which is the only body that handles complaints against members of the judiciary, including judges, magistrates, tribunal members and coroners. Last year it produced 22 rulings. Its website states that it seeks "to ensure that all judicial disciplinary issues are dealt with consistently, fairly and efficiently". The complaint was accepted, and the investigation began.

It was several months later, as we awaited the outcome, that we were approached by the Press Association with the news that the OJC had issued a terse statement saying that our complaint had been dismissed and that no disciplinary action was to be taken against Mrs Blair. This is the OJC statement in its entirety:

"After receiving a number of complaints about comments reportedly made by Cherie Booth QC in her capacity as a Recorder, in connection with the trial of Shamso Miah, the Office for Judicial Complaints investigated the matter in accordance with the Judicial Discipline (Prescribed Procedures) Regulations 2006 (as amended). That investigation has concluded and found that Recorder Booth's observations did not constitute judicial misconduct. The Lord Chancellor and Lord Chief Justice have considered the conclusions of the investigation and agree that no disciplinary action is necessary."

So, unsurprisingly, it was widely reported that Mrs Blair had been completely exonerated – and, implicitly, that we had made a fuss over nothing.

We sought more information by telephone from the OJC, but to no avail, and no mention was made by them of any letter in the post to us. With such meagre information, we were unable to comment about what had transpired, so we confined ourselves to bemoaning the lack of transparency.

A few days later, however, a letter arrived, 2nd class, at the NSS from the OJC. It was headed: “RESTRICTED – This information is intended for the recipient only and should not be copied to a wider audience without the permission of the author.” The letter revealed that, in fact, our complaint had been “partially substantiated” and, although Recorder Booth would not be formally disciplined, she would receive 'informal advice from a senior judge' – an embarrassing rap across the knuckles.

One key paragraph in the letter, that was not included in the press statement, read: “The Lord Chancellor and Lord Chief Justice have expressed some concern about the impact Recorder Booth [sic] comments may have had on the public perception of the judiciary and the sentencing process. All judges must, of course, be very mindful of how they express themselves when dealing with sensitive issues of equality and diversity so as not to create the impression that some individuals can expect more leniency than others.” The letter said that Lord Chancellor Ken Clarke and the Lord Chief Justice Igor Judge had expressed “some concern about the impact [of the comments] on the public perception of the judiciary and the sentencing process.”

So why the disparity between what had been said in the press statement and what was contained in the letter to the NSS? It had all the makings of a cover up. That the letter was sent 2nd class, and could not have reached us before the press were informed just might have been mistake, but the OJC’s enthusiasm to keep its contents out of the public domain are not in doubt.

We immediately wrote to the OJC asking them to issue another statement putting the full facts before the public. We asked them to do it within 24 hours or we would reveal the contents of the letter ourselves. No such press release was issued, so we went to the press some days later.

On the day we released the information and the press started calling the OJC for comment, we suspect in quite large numbers, did we receive another letter, this time by email, from the OJC which stated:

“It is unfortunate that you did not receive my letter informing you of the outcome of your complaint until 14 June 2010. It had been the intention that all parties receive their letters on 10 June 2010, when the press statement would be released, to ensure everybody had the information on the same day. Your letter was posted on the morning of 9 June 2010 and any delays that occurred thereafter were outside of the OJC’s control. As explained below, release of the additional information contained in the letter to you as complainant, would be a breach of statutory duty of confidentiality contained in Section 139 of the Constitutional Reform Act 2005 (CRA)....

“...As complainant, additional information was given to you on a confidential basis, that informal action would be taken as a result of your (and others) complaint. This information, which is personal confidential information, is contained in paragraph 10 and 11 of your letter. Section 139 of the Constitutional Reform Act (CRA) 2005 says that any person who obtains confidential information, or to whom confidential information is provided, under or for the purpose of a relevant provision must not disclose it, unless he/she has a lawful authority to do so. The information provided in your letter is supplied under a relevant provision as defined in S139(2) of the CRA as including regulations and rules made under Part 4 of the CRA. Specifically, Regulation 40 of the Judicial Discipline (Prescribed Procedures) Regulations 2006 (as amended) which provides that the Lord Chancellor and Lord Chief Justice shall inform the complainant about the outcome of the complaint.

“In respect of the last point in your letter, regarding the OJC’s use of restrictive markings, I have drawn your attention to the relevant statutory provision which explains the reason for the warning at the foot of our correspondence. I do accept that this will not apply to information that is already within the public domain. However, I do wish to stress that the majority of the letter to you is not within the public domain. The letter was written to you as a complainant in confidence, hence the reason for the restrictive markings. The statutory duty of confidentiality applies to the additional information.”

This attempt to intimidate us into silence did not work. As the legal expert Joshua Rozenberg said in an article in Standpoint:

“It is true that section 139 makes it unlawful to disclose confidential information. The section covers Part 4 of the 2005 Act, which deals mainly with judicial appointments. It also covers section 108, which deals with disciplinary powers. But, of course, there is an exception. Subsection 6 of section 139 says:

“This section does not prevent the disclosure with the agreement of the Lord Chancellor and the Lord Chief Justice of information as to disciplinary action taken in accordance with a relevant provision.

“Without the exemption contained in that subsection, the OJC would not have been able to write its letter of 9 June to the National Secular Society. Disclosure of the information contained in that letter had clearly been made with the agreement of the Lord Chancellor and the Lord Chief Justice.

“If that had not been the case, Ms Booth would have been able to sue the author of OJC's letter for breach of statutory duty. She would have been well placed to do so, since there is a 944-page textbook on the negligence of public authorities written by one Cherie Booth QC.

“But section 139 does not apply to the OJC's letter of 9 June. That being the case, disclosing it more widely cannot be a breach of statutory duty.

“If there is any doubt on the matter, a reading of the Human Rights Act should make it clear that the National Secular Society's right to freedom of expression under article 10 and the right to a public hearing under article 6 would trump Ms Booth's right to respect for her private life under article 8.

“It was mischievous of the OJC to suggest otherwise. Officials working for the Ministry of Justice really ought to get the law right.”

We did release the letter and the story received a great deal of publicity and there may be more to come.

We still have no idea how the OJC reached its conclusions and requests from journalists for the papers relating to the case have been refused. We do now know that Mrs Blair did not deny saying the words in court that had sparked the original complaint. We do not know why the Lord Chancellor et al did not think this was worthy of disciplinary action, and it is likely that we will never know.

What is clear is that the OJC tried to keep the full story of this investigation out of the public domain, even resorting to threats of legal sanction which at least one legal expert thinks were incorrect. If there are further developments, we’ll let you know. Watch this space.

Listen again: Cheriegate coverage on Radio 4's Today Programme

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