(posted 7983 days ago)The Times - Law
June 11, 2002Beware when a judge's power goes to his head
by David Pannick QCLike a Big Brother contestant who complains about bad taste, or England football fans who believe their team will win the World Cup, a judge who tells others what to wear on their head makes himself ridiculous. Two weeks ago Judge Robert Orme failed to appreciate that if you are balancing a lump of horsehair on your bald spot, you are in no position to lecture a Rastafarian on his headgear.
Terence Lynch was sitting in the public gallery in Birmingham Crown Court. Judge Orme ordered him to remove his cap or remove himself. Mr Lynch replied that he is a Rastafarian and that it was against his religion to take off his hat (or “tam”). Judge Orme ordered Mr Lynch to be arrested for contempt of court. He was detained in the cells for two hours. The next day Judge Orme made a statement in court, emphasising that “if what occurred has been misunderstood or interpreted as disparaging Rastafarianism, that is a matter that I very much regret and was not my intention”.
Judge Orme missed the point, both when ordering Mr Lynch’s detention and when making his statement. Judges have enough to occupy their minds directing juries on the law, keeping barristers in order and deciding how long convicted criminals should spend in prison, without also taking on sartorial responsibilities for those who visit their courtrooms. If someone in the public gallery is disrupting the proceedings by using a mobile phone, shouting abuse, or eating a mushroom pizza, judges will need to leap into action. But if the cap fits, judges have no business trying to stop the owner from wearing it.
There are many mysteries of the legal universe. Why do solicitors brief that barrister? How did this judge get appointed to the Court of Appeal? Where shall we go for lunch? But not even the Oxford Professor of Jurisprudence could explain why so many judges over the years have concerned themselves more with couture than with the common law. In 1926 a magistrate fined a borough councillor for failing to remove his hat on entering the courtroom. In 1970 a woman was rebuked by a judge for wearing a trouser suit when attending court. In 1992 a magistrate ordered a defence solicitor out of court because his shoelaces were undone. In 1993 another magistrate told a defence advocate to leave the courtroom because he was wearing a tweed sports jacket. In 1990 a judge in Arkansas found a woman in contempt of court because her breasts were “obviously showing” through her blouse.
No doubt the judge was justified in fining a man £50 for wearing a horror mask as he was about to be sworn in as a juror at Croydon Crown Court in 1979. Remarkable judicial self-restraint was displayed at the Falkirk Sheriff Court in 1994 when a lawyer was unable to prevent his musical socks (a Christmas present) from disrupting proceedings. The Chief Justice of Borneo may well have been right when ruling in 1964 that it was improper for a barrister to have another job as a travelling salesman in ladies’ underwear and dresses. But too often, the appropriate reaction to judicial directions about the attire of others is that of John Mortimer’s Rumpole when the barrister was told by Mr Justice Prestcold that his collar-stud was visible: “What was this, a murder trial or a bloody fashion parade?” A tip for Judge Orme, and any other members of Her Majesty’s judiciary, who fancy themselves as fashion critics. If you insist on telling other people what they should wear, do try to bear in mind that their hats, dresses and safetypins may be the result not of slavish adherence to the dictates of Paris or Milan, but the consequence of their religious beliefs. Judges in other jurisdictions have better understood the rights of Rastafarians. In 1988 in the United States Court of Appeals, Seventh Circuit, Judge Posner ruled that the prison authorities could not compel a Rastafarian to cut his hair in breach of his religious beliefs. In 1995 in the Supreme Court of Zimbabwe, Chief Justice Gubbay allowed an appeal by a Rastafarian who had been refused registration as a lawyer because a lower court judge had found his dreadlocks to be “unkempt”.
Last October the Court of Appeal correctly recognised that there are limits to the rights of religious minorities. It rejected the claim by a Rastafarian that it was a breach of the European Convention on Human Rights for him to be convicted of possessing 90 grammes of cannabis with intent to supply because he had been preparing for a “regular act of worship” in a Rastafarian temple in Kennington. But wearing a hat in court is as much a religious right for a Rastafarian as for an Orthodox Jew.
Even if Mr Lynch had no religious beliefs, he should, if he wishes, be allowed to sit quietly in court wearing a beret, a fez, or a stetson. Judge Orme made a very unfashionable decision. Appearances do matter. And he now looks very foolish.
The author is a barrister at Blackstone Chambers in the Temple, and a Fellow of All Souls College, Oxford.