Obiter, who once fell asleep in Winchester Crown Court in the unamused presence of his late honour Judge Ian Starforth Hill, has a great deal of sympathy with Mrs Justice Parker. According to the Judicial Conduct Investigations Office, the senior Family Division judge was issued with ‘formal advice’ after a party in a case complained that she had momentarily dozed off.
The comatose judge is one of the great staples of legal anecdote. But surely in these days of mineral-water lunches and fixed retirement ages the phenomenon is rarer than it used to be? Possibly not: the JCIO lists ‘falling asleep in court’ as one of the three examples of judicial misconduct that might attract complaint (the others are ‘making a racist remark’ and ‘inappropriate use of social media’).
Oddly, it seems that the mere fact of falling asleep in a criminal trial is not in itself reason to declare a subsequent conviction unsafe. Obiter’s authority for this is the Court of Appeal’s judgment in the Millennium Dome diamond robbery trial, which ruled that ‘it is the effect, not the fact, of such inattention which is crucial’. However the appeal in R v Betson  goes on to note that ‘no judge ought, in any circumstances, to fall asleep during any stage of a criminal trial’.
Perhaps with the demands of extended court hours, cutbacks in judicial overnight accommodation and the other pressures of the job, we will see dozy judges making a comeback.