No further action will be taken against a lawyer who criticised a judge as being unfit to sit on the bench.

Auckland barrister Catriona MacLennan's statements were the subject of an investigation following her public criticism in the Herald of Judge John Brandts-Giesen.

A Lawyers Standards Committee has decided to take no further action against her.

This decision has drawn support from the New Zealand Bar Association who said freedom of debate about judicial decisions is crucial to maintaining a just society and upholding the rule of law.


Lawyers are free to speak out against the judiciary, NZLS president says

In December 2017, MacLennan criticised a judicial decision made by Queenstown District Court Judge Brandts-Giesen.

The judge had reportedly decided to discharge without conviction a male defendant who was reportedly charged by the New Zealand Police for assaulting his wife, his children and a male friend following the defendant's discovery of a text message between his wife and friend declaring their love for each other.

The judge said, "This is a situation that does your wife no credit and does the [male] no credit" and "there would be many people who would have done exactly what you did, even though it may be against the law to do so."

MacLennan then reportedly said it was inappropriate for the judge to continue sitting on the bench as "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."

A member of the public complained about MacLennan's criticism of the judge, prompting the committee to investigate.

Acting executive director of the New Zealand Law Society, Mary Ollivier, said the Standards Committee considered the explanation MacLennan provided for her comments.

"It accepted that lawyers can express their views on the performance of judges but that those comments must be considered and not cross a line that could cause the public to lose confidence in the role of the judiciary and the role judges play in the administration of justice.


In a decision, released today, the Standards Committee took into account that MacLennan was a "recognised expert in the field of domestic abuse" and did not feel that her comments had crossed the line.

"Her experience as an advocate for victims of domestic violence and the sentiment in which the comments were made were factors in the decision."

MacLennan had shown an "objective foundation" for the statements.

She had also satisfied the committee that she made her statements in good faith and did not intend to bring the administration of justice into disrepute.

The decision noted that the High Court had also observed that the judge's comments were inappropriate.

NZBA President Clive Elliott said it welcomed the decision by the committee.

"The freedom to criticise judicial decisions is a fundamental right in a free society and an important means of protecting the rule of law," he said.

"Lawyers should speak out when they see injustice in our system and should not be discouraged from doing so.

"Every person, including barristers, has the right to voice their concerns about judges who may express views that are not aligned with a fair and progressive community seeking equality and diversity.

"Lawyers are uniquely placed to comment upon the application of laws by Judges, and should be able to criticise judicial decision-making within established parameters."

Elliott said while barristers should have the right to speak up, they do have the added responsibility to make comments that are measured and informed and to do so in a way that upholds court processes, and public confidence in the judiciary, and respect for the rule of law.

"To that end, it is also crucial that any comments are made with the necessary context to ensure accuracy and regard to any ongoing judicial processes, such as appeals," he said.