“Hell on earth” Gaza judge reprimanded

7 October 2010 by Adam Wagner

Updated | George Bathurst-Norman, the judge at the centre of the controversial acquittal of five activists against the 2008/9 Gaza war, has been officially reprimanded by the Office for Judicial Complaints.

The news was reported on Joshua Rozenberg’s Standpoint blog. The OJC press release says:

At short notice, the judge assigned to try a politically sensitive trial at Hove Crown Court on 28 and 29 June 2010 was unable to sit. To avoid an adjournment, His Honour Bathurst-Norman agreed to replace to him.

A number of complaints were made about some of the observations he made during the trial and summing up. An investigation found that a number of these observations did not arise directly from the evidence at trial and could be seen as an expression of the judge’s personal views on a political question. This was an error.

The Lord Chancellor and Lord Chief Justice considered the conclusions of the investigation and HH Bathurst-Norman was formally reprimanded.

The five activists were acquitted for causing £180,000 damage to an arms factory after successfully deploying the defence of lawful excuse. I asked in a post in July whether the judge’s politically coloured summing up of the evidence to the jury render the trial a miscarriage of justice.

In his summing up the judge presented the evidence of the activists in unusually colourful terms:

Now you have to look at the evidence coldly and 
dispassionately. It may be as you went through what I can only describe as horrific scenes, scenes of devastation to civilian population, scenes which one would rather have hoped to have disappeared with the Nazi regimes of the last war, you may have felt anger and been absolutely appalled by them, but you must put that emotion aside.

Equally, you must put aside any feelings of being 
thoroughly ashamed of our Government, of the American
 Government and the United Nations and the EU in doing nothing
 about what was happening.

The judge went on to suggest to the jury: “You may think that
 perhaps “Hell on Earth” would be an understatement of what the
 Gazans endured at that time.”

Rozenberg brought the case to light in a recent Guardian article, as well as a longer post on his blog. I agree with him that this is the right outcome, as it is a clear breach of judicial standards for a judge to express political opinions, even when those opinions are partially hidden in an unbalanced evidence summary to a jury. This is even more crucial in cases where politically sensitive and controversial issues are being considered.  As I have said previously

Unchecked bias in the courts is a problem for all, not just for the owners of arms factories. Moreover, as Lord Hoffmann warned, the more dangerous outcome in cases such as that of the Gaza activists is to encourage vigilante justice; surely even those with strongly held views on international issues will see the danger in that.

Thankfully, this bias has now been exposed and addressed. Unless there is a retrial – which as far as I am aware, cannot happen due to double jeopardy rules – we will never know what the outcome of the case would have been if the judge had given a balanced summing up. At least judges will be more careful in the future.

Update, 8 October: Joshua Rozenberg provides more detail, including the fact that the CPS did not agree that the Israeli airforce was guilty of warcrimes, as implied by the judge’s reference to “agreed evidence” that Palestinians were unlawfully killed. The OJC have also told complainants that “The decision does not affect nor seek to comment upon the outcome of the trial and the verdict reached by the jury in the case“, so the defendants need not worry about the status of their acquittals.

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