The recent remarks made by Judge Robinson regarding counsels’ attire in his court have sparked considerable discussion.
While the importance of maintaining decorum and professionalism is widely acknowledged, it is also essential to ensure that such expectations are communicated respectfully and applied consistently. Constructive dialogue between the bench and the legal profession helps foster mutual respect and upholds the dignity of court proceedings.
In this case a Dunedin barrister was appearing for a defendant facing a charge of wilful trespass. Both he and she (the barrister) were wearing dark T-shirts with the words: "It’s a climate emergency".
This particular attire concerned the judge, who considered the writing to be a protest slogan which was visible in the court he was presiding in. He was of the opinion that to have such a slogan visible in the court was not in accordance with the "solemnity of the court" and that counsel "should not dress in such a way".
At the outset I should clearly state that the judge was in charge of both the court and the courtroom and without doubt not allowing a person appearing to wear specific items of clothing was entirely within his power.
The judge did not have to give reasons or enter into a debate about it. He did do so, however.
Back in the day judges were fully robed and bewigged when presiding in the higher courts. In New Zealand the magistrates, the forerunners of the District Court judges, sat unrobed and bareheaded.
With the advent of the District Court, judges were supplied with formal black gowns, which they wear when sitting in court. (In more recent times the gowns have been adorned with a colourful Māori te aro Mārama banding.)
Persons appearing in the court were, in the past, neatly and tidily dressed in appropriate clothing. I recall, in my early days of sitting as a District Court judge, being openly critical of defendants who appeared dressed in T-shirts and/or jeans.
Particularly where in one example a person appeared in a Speight’s T-shirt with product advertising prominently displayed. This person was appearing on a charge which involved his excessive consumption of the sponsor’s products.
I was not prepared to accept his attire and required him to leave the court and turn the shirt inside-out.
In the end it was entirely Judge Robinson’s call to set what the acceptable parameters of the counsel’s dress were on that day. That was his right.
But are there any markers or guidelines in place? Was counsel in this case breaking any rules?
The Courts of New Zealand website has detailed "etiquette guidelines for counsel in court".
In addressing the "what to wear" question it states: "Wear appropriate attire. This should be reasonably formal. For men this will be a dark-coloured suit with a collared tie, and for women attire of an equivalent standard."
The Conduct and Client Care Rules 2008 (yes, there are such rules) confirm the duty of any legal counsel to maintain professional standards in furtherance of their overriding duty as officers of the court not to engage in conduct that is of a kind to bring the profession into disrepute and not to engage in any discriminatory conduct.
OK, but other than a consultative process which brought in very loose controls over the use of cellphones in a courtroom (prohibiting the use of such items to send or receive texts or to make or receive emails and similar such things) there are no rules establishing a dress code as such.
It is my view that so long as the person appearing is wearing neat and tidy clothing that must be acceptable. My own views on defendants appearing in T-shirts and jeans are not in accordance with current times and standards.
We all see our politicians and other professionals wearing open-neck shirts with no ties. In the words of the famous song "times are a-changing".
Balancing all of this there is the clear and acceptable argument that the barrister could appear in court wearing a T-shirt and conform to the accepted court norms.
This leaves the words "It’s a climate emergency" and a question: is it a statement of protest or a statement of fact?
If it was a protest then it would render wearing the T-shirt in court, in my view, inappropriate and a breach of the court etiquette standards.
If, on the other hand, it was a statement of fact then it could hardly be construed as inappropriate.
All the available information leads to the inevitable conclusion that there is a real climate emergency existing in New Zealand right now. The prevailing weather patterns, the storms and floods around the planet establish an emergency (again, in my view).
I see the statement as a statement of fact not protest. With all due deference to the judge’s views, the wording is not a protest slogan in my view.
A final point is that the barrister was representing a person who was charged with wilful trespass, not in relation to a protest. He was not charged with committing any offence, per se, in relation to his wearing of the T-shirt and the message on it. That person could safely walk the length of Stuart St without adverse comment.
But here the cardinal rule is the one about who governs the courtroom and its processes. That is the presiding District Court judge, Judge Robinson.
His view was clear. It was that the words were a slogan of protest, which breached the solemnity of his court. Counsel was required to remove the offending words.
Counsel showed her innate ability to overcome the difficulty and enable the hearing to continue by retiring, turning the T-shirt inside out, and thus facilitating the continuation of the sentencing hearing.
— Kevin Phillips is a retired judge.
