The Judge Who Thought He Was Defence Counsel

This is a guest post by Jonathan Hoffman

Some ten days ago I wrote here about the acquittal in the UK of seven defendants who admitted to causing £187,000 of criminal damage at the EDO MBM armaments factory in January 2009, at the time of Israel’s Operation Cast Lead in Gaza. The factory was exporting military equipment to Israel.

Until today I did not have the 87 page transcript of Judge Bathurst-Norman’s summing-up in the case (Lewes Crown Court, 28/29 June 2010). Remember that these are his comments to the Jury, prior to their deliberation in the Jury room which acquitted all seven defendants.

Earlier, many people suspected that the Judge’s comments were biased and this transcript proves the case conclusively. On the evidence of his summing-up, Bathurst-Norman was a member of the defence’s legal team, rather than the Judge.

If you do not have time to read this long article, just consider two excerpts:

The Judge illustrates the concept of “chain reaction” thus:

Page 9: We will all have read of Israel’s attack upon a ship on the high seas, killing nine people on board, and somehow, as the aggressors (puzzling for a lawyer like me) seemed to claim that they were acting in self defence. But the result of all that, of course, is that the nature of the blockade on Gaza changed, because for once there was such a huge outcry of world opinion that Israel thought it had better try and regain face in the situation. (Pause)

No mention of the fact that the Marmara was sponsored by the IHH with proven terrorist links (Germany has just banned it as a terrorist organisation); that there were known Jihadis on board; that warnings were ignored; that Israel soldiers were attacked with clubs as they boarded; that they carried only paintguns and handguns, to be used only if their lives were in danger. And so on. You can already perhaps see how distorted is the Judge’s summing-up.

Page 19: When it was all over, the United Nations Human Rights Agency set up a Commission to investigate what had happened. That Commission was headed by an eminent international Juris Justice Goldstone, who is himself Jewish. Because his report was not to the liking of Israel, he was condemned by Israel as being anti-semitic.

Of course Goldstone’s religion is relevant to nothing, except to those malefactors who (a) use it as a specious reason to argue a Report written by a Jew could not possibly be biased against Israel and/or (ii) use it (as this Judge has) in a ‘double lie’ which says (a) that the Israeli government called the author of the UN Report “anti-Semitic” (of course it did not) and (b) to demonise the Israeli government for calling a Jew an anti-semite.

I will now go through the transcript seriatim pointing out errors which amount to bias. These might be termed “sins of commission”. Purely for reasons of length, I will be sparing in pointing out sins of omission. But in tone this summing-up is similar to the typical CIF piece on Israel, eg by Seth Freedman. It has no place in a Judge’s summing-up in a Court of Law in Iran – let alone in the United Kingdom, the home of “British Justice”.

Page 10: Now you may be wondering what on earth has the actions of the Israeli air force to do with this country. The short answer is that if the Israeli Air Force was committing crimes in the way that the agreed evidence outlines in the unlawful killing of Palestinians in Gaza and in the unlawful causing of damage to property in Gaza, then under the War Crimes Act and other legislation any member of the Israeli Air Force who set foot in this country and who acted in that way would be liable to arrest and prosecution, as is anyone within this country who knowingly helps the Israeli Air Force to commit such war crimes.

 A subliminal seed is being planted in the minds of the Jury here. Sure the Judge says “if” the Israeli Air Force was committing crimes …… But then he speaks of “agreed evidence” which, he says, “outlines” the “unlawful” killing of Palestinans and damage to property. Then he tells the Jury that it follows that Israelis who serve in the Air Force would be liable to “arrest and prosecution” in the UK. By this time, the average Juror would have forgotten all about that “if”. And nowhere does Bathurst-Norman refer to the reason for Operation Cast Lead – namely, the rockets that were fired continually at Southern Israel by Hamas terrorists. And nowhere does he tell the Jury that the UK government and the vast majority – perhaps all – of Western governments said that Operation Cast Lead was legal because Israel – like all countries – has the right – nay, duty – to defend its citizens.

Page 13: Democracy would not exist unless there were reporters and members of the public who were prepared to stand up for what they believe to be right, and sometimes, as in the case of the suffragettes, even to go to prison for their beliefs. As Edmund Burke says: “For injustice to flourish, all that is needed is for good men to do nothing.” Indeed, people like Mr Osmond [Christopher Osmond, the leader of the seven who admitted causing £187,000 of damage to the EDO factory] who put themselves in harm’s way to protect others may, in fact – there may be much to be admired about people like that. Perhaps if he had done it in this country in the last war he would probably have received a George Medal.

The Judge is clearly telling the Jury that he regards Osmond as a hero. He compares him to the suffragettes, clearly identifies him with Burke’s “good men” and admires the way that Osmond “puts himself in harm’s way to protect others” (Osmond was formerly in the disputed territories with ISM). He even suggests that Osmond deserves the George Medal (this ranks second to only the Victoria Cross in awards for bravery in the UK). This is a highly confused analogy. Is Bathurst-Norman suggesting that someone who attacked a British armaments factory during World War Two deserved the George Medal? Or rather someone who threw themselves in the path of a British tank? Or maybe in the path of a German tank? Whatever the Judge meant, it has no place in a British Court of Law, because it is a deliberately emotional statement designed for one reason and one reason only: to vilify Israel.

It is relevant here to mention the Judge’s (later) comment about Rachel Corrie:

Page 67: He [Osmond] knew of the Philadelphi corridor, the corridor made around the boundaries of Gaza by the illegal demolition of Palestinian homes by the Israeli army, during which Rachel Corrie, one of the International Solidarity Volunteers bravely stood in front of a bulldozer which was being driven by an Israeli soldier and was effectively murdered when he drove the bulldozer over her in 2003.

Now for the truth. Corrie was not “murdered”. The IDF investigation concluded that the driver of the bulldozer could not see her and that her death was an unfortunate accident. The IDF Judge Advocate’s Office concluded:

The driver at no point saw or heard Corrie. She was standing behind debris which obstructed the view of the driver and the driver had a very limited field of vision due to the protective cage he was working in.

An autopsy revealed that the bulldozer never rolled over Corrie: she was killed when debris dislodged by the bulldozer struck her head.

Page 14: I am going to start with the background relating to Israel and Palestine and to the evidence which points to the war crimes being committed by Israel in Gaza, an area over which Israel has imposed a blockade. The evidence shows that those war crimes are committed against the civilian population of Gaza and against the property of its residents, including the United Nations by the Israeli Forces.

This is pure demonisation of Israel to the Jury. There is no evidence that Israel committed war crimes in Gaza. Israel did pay the UN compensation for UN properties in Gaza that were damaged but what Bathurst-Norman failed to tell the Jury was that Hamas terrorists deliberately hid among among civilians and in the vicinity of UN installations. There is no such country as “Palestine” – surely a Judge briefing a Jury has an obligation to be accurate about such things?

 Page 14: 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.

Justice? This is pure insidious poison. The Judge is whipping up the emotions of the Jury against Israel, then purely for form he tells them to “put that emotion aside”. He even throws in a Nazi/Jew comparison (antisemitic, see EUMC Working Definition). Of course the civilian casualties in Gaza were horrific – but that is war. Where is his reference to the Israeli casualties of suicide bombers; to the rocket attacks on Sderot; to the fact that Israel waited for years before taking action in Gaza; to the fact that Israel was careful to as far as possible only hit combatants, shown by the fact that 75% of the casualties were males over the age of 16, a demographic which forms only 25% of the Gaza population?

In the next paragraph he reveals more of his own prejudices:

Pages 14/15: 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.

On page 15 he refers to evidence by a ‘Dr. Taylor’ (a woman). In fact he means Dr Mandy Turner, an academic from Bradford University. (He could not even get her name right!)  It is not hard to establish that Dr Turner is also an Israel demoniser (and CIF Israel-bashing contributor).

Here is what the Judge reminded the Jury about Dr Turner’s testimony:

Page 15: She told us how the immunity which the United States by the veto affords – in the Security Council affords the protection to Israel and prevents it from suffering any reprisals for its actions. The result enables Israel to cock a snook at any decision of the United Nations or of the International Court of Justice by simply ignoring anything that is decided ….. Israel has been able to ignore resolutions like 242, calling on it to withdraw from Palestinian lands and calling for a United Nations Force to protect peace. However calls are made for Israel to pull – so whatever calls are made for Israel to pull down the barrier, and the judgment of the International Court holding it illegal and to stop building settlements in the West Bank are simply ignored by Israel in the occupied territories seized in 1967. One can see from the maps produced by Dr. Taylor that effectively Israel takes from the Palestinians more and more and more of their land.

 There is so much wrong with this: where to start….

First, the Judge again conveys to the Jury the assumption that Israel’s action to defend its citizens was illegal. It was not.  Second, he misleads the Jury into thinking that Israel flouts Security Council Resolutions. Third, he fails to tell the Jury that the ICJ is for the most part purely advisory and has no powers of sanction. It is a creature of the UN and moreover there is no Israeli Judge on it. Fourth, his explanation to the Jury of UN Resolution 242 is hopelessly biased. 242 was two-sided. It called on Israel to withdraw but only in exchange for peace from the other side. By leaving out one half of the Resolution in his information to the Jury, Bathurst-Norman is derelict in his duty as an impartial Judge. Fifth, he suggests that the ICJ called on Israel to stop building settlements in Judea and Samaria. It did no such thing. Sixth, he suggests to the Jury that “Israel takes from the Palestinians more and more and more of their land”. This really is appalling. What is omitted? The fact that Israel took the lands as a result of the defensive war of 1967; that it offered all the lands back at Khartoum in that year but was rebuffed; that it withdrew the IDF from Gaza in 2005; that it has no designs on any lands; that it is a Party to the Quartet negotiations which envisage Judea and Samaria and Gaza forming a sovereign Palestinian State and substantial Israeli withdrawal from the settlements.

The Judge goes on to tell the Jury about the “Dahiya Doctrine” (page 17). He enunciates to the Jury a well-known trope of the Israel-bashers: that the “Dahiya Doctrine” is a policy for Israel to “apply disproportionate force and cause great damage and destruction to any village from which Israel was fired on”(it dates from the Lebanon invasion of 2006). In fact the “Dahiya doctrine” simply means that Israel targets civilian infrastructure used by terrorists. It is far more legitimate than the Hamas Charter which regards all Jews as fair game for slaughter. But of course Bathurst-Norman does not tell the Jury that.

He comes (page 17) to Cast Lead. He tells the Jury that the reason journalists were not allowed in Gaza was because Israel had something to hide. This is untrue. Journalists were not allowed into Gaza for reasons of safety. Moreover it was foreign journalists who were not allowed in. Palestinian journalists who lived in Gaza were of course free to report and they did. He then misleads the Jury about the use of ‘proportionate’ force, telling it that Israel used ‘disproportionate’ force when under international law, Israel was entitled to use the force that it used – which was proportionate in terms of eliminating the terror threat.

The covert Counsel for the Defence continues thus:

Page 18: On 15th January the Al Quds hospital was bombed. Hospitals, ambulance depots, mosques, United Nations compound, industrial and agricultural sites, the sewage and the electricity power plants were all targeted and damaged or destroyed

 The truth is that the Al Quds hospital was “back to normal in three to five days” after the repair of damaged water pipes. The mosques that were targeted had been used as weapons depots: there is evidence of secondary explosions. Hospitals and ambulance depots were similarly used for military purposes. And of course Bathurst-Norman did not tell the Jury that the power station in Ashdod continued to supply Gaza throughout Cast Lead even though the workers were in danger.

Here is the Judge effectively misleading the Jury again into thinking that Israel is allowed immunity from international law:

Page 18: Had the same events happened anywhere else, you may think, there would have been military intervention by the powers in question, as there had been in Bosnia and Kosovo, but you may think double standards were applied because it was Israel – to Israel, because nothing happened.

 Again, the Judge delegitimises Israel to the Jury. No doubt he would not tell a Jury that double standards are applied to the UK, which has intervened in Afghanistan. But Israel … now that is different. Far from “British Justice” this is pure venom.

 On page 19 of the transcript the Judge tells the Jury that Goldstone said that

….certain weapons, white phosphorous, flechettes and DIMES .. were used indiscriminately against civilians, and so their use should be regarded as a war crime.

In fact Goldstone never said that DIMES were used. He said:

While the Mission is not in a position to state with certainty that so-called dense inert metal explosive (DIME) munitions were used by the Israeli armed forces, it did receive reports from Palestinian and foreign doctors who operated in Gaza during the military operations of a high percentage of patients with injuries compatible with their impact.

 A bit different…..

On page 21, the Judge is recorded as telling the Jury that Israel has not carried out any investigations. Another untruth.

The bottom line is simple. Judge Bathurst-Norman behaved more like the Defence Counsel than the neutral Officer of the Court that he was supposed to be. The role of a Judge – far from advancing his own political agenda – is to clarify points of law to the lay members of the Jury. Bathurst-Norman’s comments reveal that he has an extreme anti-Israel agenda. This case must therefore be declared a mistrial and retried under a neutral Judge. And Bathurst-Norman should be prevented from ever presiding over such a case again. Quite apart from anything else, thousands of taxpayer pounds have been wasted as a result of his bias.

PS – Please complain to the Office for Judicial Complaints here.  The case is R vs Robert Nicholls and others at Lewes, case number t20097131. Please also ask your MP to write to the Justice Minister and Lord Chancellor, Ken Clarke.  


Page 10: The Judge refers the Jury to the UK War Crimes Act in the context of Gaza. This is yet another fundamental error of law. The War Crimes Act (1991) only applies to crimes committed in Nazi Germany or Nazi-occupied territory during the Second World War.

Page 10: The Judge suggested to the Jury that “the agreed evidence” was that the Israeli Air Force was committing crimes. This is blatantly misleading. The Prosecution (the Crown) never “agreed” this. 


Howard Jacobson’s view

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