JUDGES ON TRIAL

The second edition of Judges on Trial articulates the rules, assumptions

and practices which shape the culture of independence of the English
judiciary today. Enhanced by interviews with English judges, legal
scholars and professionals, it also outlines the factors that shape the
modern meaning of judicial independence. The book discusses the
contemporary issues of judicial governance, judicial appointments,
the standards of conduct on and off the bench, the discipline and liability
of judges and the relationship between judges and the media. It is
accessible to an international audience of lawyers, political scientists and
judges beyond the national realm.

shimon shetreet holds the Greenblatt Chair of Public and Inter-

national Law at the Hebrew University of Jerusalem, Israel. He is the author
and editor of many books on the judiciary. He is President of the Inter-
national Association of Judicial Independence and World Peace and the
leader of the International Project on Judicial Independence and the
Mt Scopus International Standards of Judicial Independence 2008. Between
1988 and 1996 he served as Member of the Israeli Parliament and was a
cabinet minister under Yitshak Rabin and Shimon Peres.

sophie turenne is a fellow and lecturer in Law at Murray Edwards

College, University of Cambridge, where she teaches comparative law,
constitutional law and European law. She was one of a number of experts
who took part in an OSCE–ODIHR Research Project, which led to the
publication in 2010 of the Kyiv Recommendations on Judicial Independ-
ence in Eastern Europe, South Caucasus and Central Asia. She will act as
General Reporter on the topic of judicial independence at the nineteenth
International Congress of Comparative Law in Vienna (July 2014).

Published online by Cambridge University Press

CAMBRIDGE STUDIES IN CONSTITUTIONAL LAW
The aim of this series is to produce leading monographs in constitutional law. All
areas of constitutional law and public law fall within the ambit of the series,
including human rights and civil liberties law, administrative law, as well as
constitutional theory and the history of constitutional law. A wide variety of
scholarly approaches is encouraged, with the governing criterion being simply that
the work is of interest to an international audience. Thus, works concerned with
only one jurisdiction will be included in the series as appropriate, while, at the same
time, the series will include works which are explicitly comparative or theoretical –
or both. The series editors likewise welcome proposals that work at the intersection
of constitutional and international law, or that seek to bridge the gaps between civil
law systems, the US, and the common law jurisdictions of the Commonwealth.

Series Editors
David Dyzenhaus
Professor of Law and Philosophy, University of Toronto, Canada
Adam Tomkins
John Millar Professor of Public Law, University of Glasgow, UK
Editorial Advisory Board
T.R.S. Allan, Cambridge, UK
Damian Chalmers, LSE, UK
Sujit Choudhry, Toronto, Canada
Monica Claes, Maastricht, Netherlands
David Cole, Georgetown, USA
K.D. Ewing, King’s College London, UK
David Feldman, Cambridge, UK
Cora Hoexter, Witwatersrand, South Africa
Christoph Moellers, Goettingen, Germany
Adrienne Stone, Melbourne, Australia
Adrian Vermeule, Harvard, USA
Books in the series:
Judges on Trial: The Independence and Accountability of the English Judiciary
Shimon Shetreet and Sophie Turenne
Proportionality and Constitutional Culture
Moshe Cohen-Eliya and Iddo Porat
The Politics of Principle, The First South African Constitutional Court, 1995–2005
Theunis Roux
The New Commonwealth Model of Constitutionalism, Theory and Practice
Stephen Gardbaum
Searching for the State in British Legal Thought, Competing Conceptions of the
Public Sphere
Janet McLean
Judging Social Rights
Jeff King
Proportionality, Constitutional Rights and their Limitations
Aharon Barak
Parliamentary Sovereignty, Contemporary Debates
Jeffrey Goldsworthy

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JUDGES ON TRIAL: THE
INDEPENDENCE AND
ACCOUNTABILITY OF THE
ENGLISH JUDICIARY
second edition

SHIMON SHETREET
and
SOPHIE TURENNE

Published online by Cambridge University Press

University Printing House, Cambridge cb2 8bs, United Kingdom

Published in the United States of America by Cambridge University Press, New York

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781107013674
© Shimon Shetreet and Sophie Turenne 2013
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published by Elsevier 1976
Second edition Cambridge University Press 2013
Printed in the United Kingdom by CPI Group Ltd, Croydon CR0 4YY
A catalogue record for this publication is available from the British Library
Library of Congress Cataloging-in-Publication Data
Shetreet, Shimon.
Judges on trial : the independence and accountability of the English judiciary / By Shimon
Shetreet and Sophie Turenne. – Second edition.
pages cm.
ISBN 978-1-107-01367-4 (Hardback) – ISBN 978-1-107-62937-0 (Paperback)
1. Judges–Great Britain. 2. Judicial power–Great Britain. I. Turenne, Sophie. II. Title.
KD7285.S54 2013
347.410 014–dc23 2013009534
ISBN 978-1-107-01367-4 Hardback
ISBN 978-1-107-62937-0 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.

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CONTENTS

Foreword vi
Acknowledgments viii
Table of cases x
Table of legislation xxvi
List of abbreviations xxix

1. Introduction 1
2. Constitutional steps towards judicial independence 21
3. The structure and governance of the English judiciary 47
4. Judicial appointments 102
5. Standards of conduct on the bench 179
6. Standards of conduct in extra-judicial activities 243
7. Immunity, discipline and removal of judges 272
8. Freedom of expression and public confidence
in the judiciary 357
9. Conclusions 419

Annex 1 Courts and tribunals structure 430

Index 433

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FOREWORD

Professor Shetreet’s seminal work on judicial independence published in

1976 provided a systemisation of the rules and practices that safeguarded
the independence of the judiciary of England and Wales at a time when
the office of Lord Chancellor was of central importance. A detailed
historical survey underpinned that systemisation. Lord Scarman was
right to commend it in his preface to that edition. My well-thumbed
copy is a measure of its use by me in the period from 2003.
That period began with the decision in June 2003 first to abolish, but
then only to reform, the office of Lord Chancellor, and to create a
Supreme Court and a new system for judicial appointments. The legisla-
tive changes in the Constitutional Reform Act to give effect to those
decisions came into effect in 2006. Although as with many major
reforms, the changes are still evolving, this is an excellent time to take
stock and provide a systemisation of the new system. A second edition is
not only needed, but most welcome. The stated aim is to make explicit
the rules, assumptions and practices in force within our judiciary in
consequence of the changes.
Underpinning that aim is a detailed exposition of the way in which the
judicial system operates. Subjects that might not at first sight appear
important are explained in such a way that their significance becomes
apparent. The flexibility of case assignment (or listing) is assessed in
comparison to the principles applicable in Germany. As the authors
perceptively observe, that flexibility is accepted because of the culture
of trust that underpins our judicial system.
Old issues are carefully re-analysed in the light of some changes that
antedate the 2003 decisions. Although judges have always given lectures
that have, with a greater or lesser degree of self-restraint, addressed
matters of controversy, until 1987, the Kilmuir rules constrained judges
from speaking in other circumstances, particularly to the media. The
authors analyse the changes that have occurred and tentatively conclude
that the applicable principle is one of free but circumspect speech guided
vi

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foreword vii

by long-standing constitutional culture. Although principles of judicial

conduct have long rested on Magna Carta, the judicial oath and accepted
practice, in 2002 detailed rules were for the first time set out in the Guide
to Judicial Conduct. These required and receive critical evaluation – for
the most part favourable.
The changes initiated in 2003 are subjected to critical appraisal; again
matters that might not seem very significant are carefully considered –
one of the nine chapters is devoted to the structure and governance of the
judiciary. The role of the Judicial Appointments Commission is also
carefully examined. Whilst applauding its creation as a step taken
towards greater judicial independence, it rightly subjects to critical exam-
ination the need for greater diversity, the concept of a judicial career and
the role of training in supporting progression and mobility.
Many fundamental questions are asked. For example, whether the
safeguards in the Constitutional Reform Act will in fact safeguard the
judiciary from political pressure or interference, whether there are suffi-
cient checks and balances to govern the inherent tension between judicial
independence and accountability and whether the balance between the
fundamental values of a justice system are, in the context of diminishing
resources, properly balanced with efficiency and performance. Although
no specific answers are given, the detailed research and clear explanations
of the system contain clear pointers to realistic answers.
Like Lord Scarman in 1976 I would unreservedly commend this new
edition to anyone who wishes to understand the role of the judicial
branch of the state, what its independence and accountability actually
entail and what remains to be done to foster its continued constructive
role in the good governance of the state. Judges on Trial remains the apt
title.
Sir John Thomas
President of the Queen’s Bench Division
June 2013

Postscript from the authors (July 2013): since he wrote this Foreword,
Sir John Thomas was appointed Lord Chief Justice of England
and Wales, with effect from 1 October 2013.

https://doi.org/10.1017/CBO9781139005111.001 Published online by Cambridge University Press

ACKNOWLEDGMENTS

Judicial independence, as a core condition for a democratic state, engages

all of civil society. The first edition of Shetreet’s Judges on Trial: a Study of
the Appointment and the Accountability of the English Judiciary (1976,
North-Holland Publishing Company) was the first book in which the
corpus of rules, assumptions or standards, and practices that shape the
culture of independence within the English judiciary were made explicit.
Thirty-seven years later, our aim is to offer a distinctive contribution
to the modern meaning and practice of the vexed notion of ‘judicial
independence’. This book provides a systematic discussion of the
requirements of judicial independence and accountability, buttressed by
interviews with leading judges and jurists. The text takes into account
developments until mid-January 2013, when the book was presented
for publication. It has been possible to acknowledge further events, until
the end of April 2013, but only in the footnotes. We have been involved
in the International Project of Judicial Independence (of the Inter-
national Association of Judicial Independence, sponsored by the Hebrew
University and the University of Cambridge) of which Professor Shetreet
is the general coordinator and Dr Turenne is a member. We drew on this
project in the course of writing this book, as well as on the publications
that accompany the regular meetings of scholars involved with this
project. Our sincere thanks go to those participants.
Professor Shetreet expresses his gratitude to the University of
Cambridge Faculty of Law for his appointment as a Herbert Smith
Visiting Professor in 2008, and his revisit to the university in 2010.
He is also grateful to Clare College, Cambridge, for his appointment as
Senior Academic Visitor in the years 2008, 2010 and 2011 (Michaelmas
Term). In addition, Professor Shetreet expresses his gratitude to the
Hebrew University, to the Faculty of Law at the Hebrew University of
Jerusalem and to the Harry and Michael Sacher Institute of Comparative
Law at the Hebrew University of Jerusalem, for supporting the project
of writing this book.
viii

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acknowledgments ix

Dr Turenne owes a debt of gratitude to a large number of people who

have facilitated this research. She gives hearty thanks to John Bell for
being available when needed and his helpful comments on ideas or
drafts, and to Anja Seibert-Fohr for enabling her stay, and the fruitful
discussions which followed, at the Max Planck Institute in Heidelberg in
2011. This research was partly funded by Murray Edwards College,
Cambridge. Albertina Albors-Llorens, Paola Filipucci, Isabelle Guinard
and Eleanor O’Gorman were true supporters; her partner, Jonathan, and
her parents lived through the writing process with her and kept her son,
Jérôme, away from her desk – but they all offered welcome distractions
too. Dr Turenne dedicates this work to the memory of her grandmother,
Estelle Bénazéraf. Carolyn Fox, Finola O’Sullivan and Richard Woodham,
from Cambridge University Press were most efficient and reliable in
overseeing the publishing process.
We wish to express our deep gratitude to all the judges and senior
jurists who gave generously of their time. Their help increased our
understanding of the contemporary issues of the English judiciary.
Sophie Briant, the Honourable Mr Justice Hickinbottom, Her Honour
Judge Isobel Plumstead, the Right Honourable Lord Justice Beatson, the
Right Honourable Lady Hallett, the President of the Queen’s Bench
Division, the Right Honourable Sir John Thomas, Robin Auld, Lord
Phillips and the late Lord Bingham deserve particular mention. Any
deficiencies are entirely our own.

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TABLE OF CASES

UK
A v. Home Secretary (No. 2) [2005] UKHL 71 2.14(42); 8.10(369)
A v. Secretary of State for the Home Department [2004] UKHL 56 2.13(39)
A v. Secretary of State for the Home Department [2005] 2 WLR 87 2.12(37)
Addis v. Crocker [1961] 1 QB 11 7.3(276)
Ahnee and others v. Director of Public Prosecutions [1999] 2 WLR
1305 (PC) 8.41(407); 8.46(413)
Allinson v. General Council of Medical Education and Registration (1894)
1 QB 750 5.20(217)
Ambard v. Attorney General for Trinidad and Tobago [1936] AC 322 8.45(412)
Almeida v. Opportunity Equity Partners Ltd [2006] UKPC 44 5.22(223)
Amjad and others v. Steadman-Byrne [2007] EWCA Civ 625 5.1(179); 5.6(195)
Anderson v. Gorrie [1895] 1 QB 668 7.1(273); 7.5(278); 7.31(320)
Ansar v. Lloyds TSB Bank Plc [2006] EWCA Civ 1462 5.18(214); 5.31(241)
Anufrijeva v. Southwark London Borough Council [2003] EWCA Civ 1406 7.7(281)
Arenson v. Arenson [1977] AC 405 7.3(275)
Arenson v. Casson [1975] 3 WLR 815 (HL) 7.3(276)
Arthur JS Hall & Co v. Simons [2002] 1 AC 615 1.2(5); 7.1(273)
Ashby v. White (1705) 2 Ld. Raym. 938; 92 Eng. Rep. 126 2.10(32)
Assange v. The Swedish Prosecution Authority (Rev 1) [2012] UKSC 22 3.9(60)
Attorney General v. Colchester Corporation [1955] 2 QB 207 7.21(302)
Attorney General v. Guardian Newspapers Ltd (No. 2) [1990] AC 109 8.25(387)
Attorney General v. Lingle [1995] 1 SLR 696 8.42(408)
Attorney General’s Reference (No. 1 of 1990) 95 Cr App R 296 3.42(97)
Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68 3.42(97)
AWG Group v. Morrison Ltd [2006] EWCA Civ 6 1.2(4); 5.4(187–189)
AXA General Insurance Ltd v. Lord Advocate (Scotland) [2011] UKSC 46 2.15(45)
Baigent and Anor v. The Random House Group Ltd [2007] EWCA Civ 247 5.21(222)
Baker v. Quantum Clothing Group and others [2009] EWCA Civ 499 (CA) 5.8(199)
Bennett v. Southwark London Borough Council (Bennett) [2002] ICR 881 8.40(406)
Birmingham City Council v. Yardley [2004] EWCA Civ 1756 5.15(208)
Bolkiah v. State of Brunei Darrussalem [2007] UKPC 62 5.8(198)

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table of cases xi

Bond v. Dunster Properties Ltd [2011] EWCA Civ 455 5.24(228; 230)
Bottomley v. Brougham [1908] 1 KB 584 7.3(275)
Brassington v. Brassington [1962] P 276 5.6(195); (12); 5.2(183); 5.21(220)
Brown v. Stott [2001] 2 WLR 817 5.1(179)
Bynner v. The Queen (1846) 9 QB 523 7.20(301)
C v. DPP (1996) AC 1 1.2(5)
Cadder v. HM Advocate [2010] UKSC 43 3.27(78–79)
Campbell v. MGN Ltd [2004] UKHL 22 2.14(40)
Case of Commendams, Colt & Glover v. Bishop of Coventry & Lichfield 80 ER 290
(KB) (1616) 2.3(23)
Case of the Proclamations, 12 Co Rep 74; (1610) 77 ER 1352 2.3(23)
Cassell and Co Ltd v. Broome (No. 1) [1972] 2 WLR 645 5.29(237–238)
CDC2020 v. Ferreira [2005] EWCA Civ 611 3.42(98)
Chagos Islanders v. The Attorney General, Her Majesty’s British Indian Ocean
Territory Commissioner [2004] EWCA Civ 997 7.7(281)
Chief Baron John Walter’s Case (1630) 3 Coke Reports 203 2.3(23); 7.12(288)
Clancy v. Caird (No. 1) 2000 SC 441, [2000] HRLR 557 4.18(24)
Cobham v. Frett [2001] 1 WLR 1775 3.42(97); 5.24(228)
Cohen and Bateman [1909] 2 Cr App R 197 5.23(225)
Colt and Glover v. Bishop of Coventry sub nom. Hobart 140, 80 ER 290 2.3(23)
Constantinou v. Wilmot Josife [2010] EWCA Civ 747 5.28(235–236)
Cooper v. HM Attorney General [2010] EWCA Civ 464 5.2(183)
Co-operative Group (CWS) Ltd v. International Computers Ltd [2003] EWCA
Civ 1955 5.2(183)
Darker v. Chief Constable of the West Midlands [2001] 1 AC 435 7.1(273)
Davidson v. Scottish Ministers (No. 2) [2005] 1 SC (HL) 7 5.4(188)
Dawkins v. Lord Rokeby [1873] LR 8 QB 255 7.1(273); 7.3(276)
De-Winter Heald v. Brent LBC [2010] 1 WLR 990 5.1(182)
Dimes v. Proprietors of Grand Junction Canal (1852) 3 HL Cas 759 5.12(203–204);
5.4(187)
Dobbs v. Triodos Bank NV [2005] EWCA Civ 468 5.18(214)
DPP v. Humphreys [1977] AC 1 3.10(61)
Dr Bonham’s Case (1608) 8 Coke Reports 107a, 77 ER 638 2.4(26); 5.1(182)
Dr Sacheverell’s Case (1709) 4 Hatsell 265 7.25(308); 7.26(308–309)
Drury v. BBC and another [2007] All ER (D) 205 5.1(181); 5.18(214)
E v. Merchant Taylors School [2009] EWCA Civ 1050 5.16(209)
Earl of Derby’s Case (1613) 77 ER 1390 5.1(182)
El-Farargy v. El-Farargy (2007) EWCA Civ 1149 5.6(194–195)
English v. Emery Reimbold and Strick Ltd [2002] 1 WLR 2409 (CA) 1.2(5)
Ex parte Blackburn (No. 2) [1968] 2 WLR 1201 8.33(395); 8.41(407); 8.45(412)
Ex parte Ramshay (1852) 18 QB 174 7.15(292); 7.11(287); 7.31(320)
Ezsias v. North Glamorgan NHS Trust [2007] EWCA Civ 330 5.6(196)

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xii table of cases

Facey v. Midas Retail Ltd [2000] IRLR 812 5.31(241)

Flaherty v. National Greyhound Club Ltd [2005] EWCA Civ 1117 5.8(199); 5.9(201)
Floyd v. Barker (1607) 77 ER 1305 7.1(273); 7.3(276)
FM v. Sir Jan Peter Singer and others [2004] EWHC 793 7.7(280)
Frampton [1917] 12 Cr App R 202 5.22(225)
Fray v. Blackburn (1863) 122 ER 7.1(273)
Fuller’s Case (1607) 77 ER 1322 2.3(23)
Gardiner Fire Ltd v. Jones [1998] All ER (D) 474 5.2(184); 5.24(229)
Garnett v. Ferrand (1827) 6 B & C 611 1.2(5); 7.1(273); 7.3(276)
Ghaidan v. Godin-Mendoza [2004] UKHL 30 2.14(42)
Gillies v. Secretary of State for Work and Pensions [2006] UKHL 2 5.7(197);
5.8(198–199)
Goold v. Evans & Co [1951] 2 TLR 1189 1.4(12); 5.2(183)
Goose v. Wilson Sandford [1998] EWCA Civ 245 5.24(228)
Great Charte v. Kennington (1730) 2 StR 1173 5.4(187)
Green and the Hundred of Buccle-Churches 74 ER 294 (1 Leo. 323) 7.5(279)
Groenvelt v. Burwell 91 ER 343 (KB 1700) 7.1(273)
Guardian v. Ministry of Justice, Information Tribunal, EA/2008/0084, 10 June
2009 7.13(290)
Habib Bank Ltd v. Liverpool Freeport (Electronics) Ltd [2004] EWCA Civ 1062
3.42(204)
Haggart’s Trustees v. Lord President (1824) 2 Shaws Rep. 125 7.1(273)
Hamilton v. GMB Northern Region [2007] IRLR 391 5.8(200)
Hammond v. Howell (1674) 86 ER 1035 7.4(278)
Harcourt v. Fox (1693) 1 Show KB 425 7.11(285)
Heath v. Metropolitan Police Commissioner [2004] EWCA Civ 943 7.3(275–276)
Helow v. Secretary of State for the Home Department [2008] 1 WLR 2416 5.4(186);
5.8(198); 5.20(218–219)
Hester v. McDonald [1961] SC 370 7.3(276)
HM Treasury v. Ahmed [2010] UKSC 2 2.14(42)
Hinds v. Liverpool County Court and others [2008] EWHC 665 7.7(280)
Hobbs v. Tinling [1929] 2 KB 1 5.2(183); 5.21(220)
Hoekstra v. HM Advocate (No. 3) [2000] HRLR 410 8.9(368)
Howell v. Lees Millais [2007] EWCA Civ 720 5.16(210–211)
In re B (Children) (FC) [2008] UKHL 35 5.24(230)
In re Medicaments and Related Classes of Goods (No. 2) [2000] EWCA Civ 350
5.4(189); 5.7(197); 5.8(199)
Jameel v. Wall Street Journal Europe SPRL (No. 3) [2007] 1 AC 359 5.2(183–184)
Jones v. DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071 5.5(191–192)
Jones v. National Coal Board [1957] 2 QB 55 5.21(220)
Kataria v. Essex Strategic Health Authority [2004] EWHC 641 (Admin) 5.7(197)
Kay v. Lambeth LBC [2006] UKHL 10 5.29(238)
Laker Airways Inc v. FLS Aerospace Ltd [2000] 1 WLR 113 5.15(208)

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table of cases xiii

Lane v. Wills [1972] 1 WLR 326 5.29(236)

Laurence v. Thomas [2003] QB 528 5.4(187)
Lawal v. Northern Spirit Ltd [2003] UKHL 35 5.1(189); 5.7(197–198); 5.8(198–199);
5.15(209)
Locabail (UK) Ltd v. Bayfield Properties Ltd and another [2000] QB 451 5.7(198);
5.8(200); 5.10(202); 5.12(204–205); 5.13(206); 5.16(210); 5.18(214); 5.31(241);
6.13(262); 8.6(363)
Lord Bruce’s Case (1728) 2 Strange 819; 93 ER 870 7.21(301)
Manchester City Council v. Pinnock [2010] UKSC 45 4.39(153); 5.29(238)
Manisty v. Kenealy (1876) 24 WR 918 7.19(300)
Marrinan v. Vibart [1963] 1 QB 502 7.3(275)
Marshalsea Case (1613) 10 Co Rep 68b; (1613) 77 ER 1027 2.3(23); 7.4(278)
Martin v. Lord Advocate [2010] UKSC 10 2.5(45)
Matthews v. Ministry of Defence [2003] UKHL 4 7.5(279)
McKennitt v. Ash [2006] EWCA Civ 1714 5.2(183–184)
McLeod v. St Aubyn [1899] AC 549 8.40(406); 8.41(407)
Meadow v. General Medical Council [2007] 1 All ER 1 8.23(383)
Mears v. R [1993] 1 WLR 818 5.22(225)
Metropolitan Properties Ltd v. Lannon [1969] 1 QB 577 1.2(4); 5.7(197); 5.13(206)
Millar v. Dickson [2002] 1 WLR 1615 (PC) 5.5(191)
Millar v. Procurator Fiscal, Elgin [2000] UKPC D4 [2002] 1 WLR 1615 4.18(124)
Miller v. Seare (1773) 96 ER 673 7.5(279)
Mostyn v. Fabrigas (1774) 98 ER 1021 7.4(278)
Munster v. Lamb (1883) 11 QBD 588 7.1(273); 7.3(275)
National Assembly of Wales v. Condron [2006] EWCA Civ 1573 5.6(194)
Nye Saunders & Partners v. Alan E Bristow (1987) 37 BLR 92 5.15(208)
O’Brien v. Ministry of Justice [2010] UKSC 34 4.48(174)
O’Brien v. Ministry of Justice [2013] UKSC 6 4.48(174)
O’Connor v. Waldron [1935] AC 76 7.3(275)
O’Reilly v. Mackman [1982] 3 WLR 604 7.3(276)
Onslow’s and Whalley’s Case (1873) LR 9 QB 219 8.40(406)
Paty’s Case (1705) 2 Ld. Raym. 1105, 92 ER 232 2.10(32); 7.43(337)
Pepper (Inspector of Taxes) v. Hart [1992] 1 All ER 42 7.32(321)
Percy v. Board of National Mission of the Church of Scotland [2005] UKHL 73
4.48(175)
Perera v. R [1951] AC 482 (PC) 8.40(406)
Peter v. Kendel (1827) 6 B & C 703, 108 ER 610 7.21(301)
Porter v. Magill [2001] UKHL 67 3.42(97); 5.1(181–182); 5.7(197–198); 5.8(199);
5.22(223)
Pretty v. Director of Public Prosecutions and Secretary of State for the Home
Department [2001] UKHL 61 2.14(43); 8.30(391)
Procurator Fiscal v. Watson and Burrows [2002] UKPC D1 3.42(97)
Prohibitions Del Roy Mich 5 Jacobi 1; (1608) 77 ER 1342 2.3(23)

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xiv table of cases

QiuYeu (unreported) Southwark Crown Court (2009) Law Society Gazette, 21 May
2009, 22 May 2009 and 17 March 2010 4.23(129)
Quinland v. Governor of Swaleside Prison [2002] EWCA Civ 174 7.3(275)
R (A) v. Croydon LBC [2009] 1 WLR 2557 5.1(182)
R (Alconbury Developments Ltd) v. Secretary of State for the Environment [2003]
2 AC 295 5.1(182)
R (Anderson) v. Secretary of State for the Home Department [2002] UKHL 46
2.14(41)
R (Brooke) v. Parole Board [2008] EWCA Civ 29 1.2(7)
R (Butler) v. HM Coroner for the Black Country District [2010] EWHC 43
(Admin) 5.16(210)
R (Cart) v. UT [2011] UKSC 28; [2012] 1 AC 3.8(59); 4.28(135)
R (Chief Constable of Lancashire) v. Crown Court at Preston [2001] EWHC 928
(Admin); [2002] 1 WLR 1332 5.1(180)
R (Countryside Alliance) v. Attorney General [2007] UKHL 52 2.15(45)
R (F and Thomson) v. Secretary of State for the Home Department [2010]
UKSC 17 8.38(404)
R (Gentle) v. Prime Minister [2008] UKHL 20 2.14(40)
R (Georgiou) v. Enfield LBC [2004] EWHC 779 (Admin) 5.6(194)
R (Gillan) v. Metropolitan Police Commissioner [2006] UKHL 12 4.35(145)
R (Guest) v. Director of Public Prosecutions [2009] EWHC 594 (Admin) 3.10(62)
R (Jackson) v. Attorney-General [2005] UKHL 56 2.15(45); 8.8(366)
R (Jones) v. First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19
3.8(59)
R (Kehoe) v. Secretary of State for Work and Pensions [2005] UKHL 48 7.5(279)
R (King) v. SSJ [2010] EWCA Crim. 2522 5.1(181)
R (L) v. Secretary of State for Justice [2009] EWCA Civ 2416 5.1(182)
R (Lewis) v. Redcar and Cleveland BC Longmore [2009] EWHC 954 5.6(194)
R (MR (Pakistan) v. UT (Immigration and Asylum Chamber) and SSHD [2011]
UKSC 28 4.28(135)
R (Persimmon Homes) v. Vale of Glamorgan Council [2010] EWHC 535
(Admin) 5.6(194); 5.8(199)
R (Pounder) v. HM Coroner for North and South Districts of Durham and Darlington
[2010] EWHC 328 (Admin) 5.9(201)
R (Purdy) v. Director of Public Prosecutions [2009] EWCA Civ 92 5.29(238)
R (Purdy) v. Director of Public Prosecutions [2009] UKHL 45 2.14(40); 3.11(62);
8.7(366); 8.30(391)
R (Q) v. Secretary of State for the Home Department [2004] QB 36 8.38(403)
R (Q, D, J, M, F and B) v. SSHD (2003) EWHC 195 (Admin) 8.38(403)
R (S) v. Chief Constable of South Yorkshire [2004] UKHL 39 5.29(239)
R (S) v. SSHD (2006) EWHC 1111 8.38(402)
R (Shoesmith) v. OFSTED and others [2011] EWCA Civ 642 8.31(393–394)

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table of cases xv

R (Ullah) v. Special Adjudicator [2004] UKHL 36 2.14(42–43)

R (Woolas) v. Speaker of the House of Commons [2010] EWHC 3169 (Admin)
6.6(250)
R v. Abdroikov [2007] 1 WLR 2679 4.27(134); 5.2(182); 5.7(198); 5.8(198–199);
5.9(201)
R v. Aboulkadir and others [2009] EWCA Crim 956 (20 May 2009) 5.25(232)
R v. Almon (1765) Wilm 243; 97 ER 94 8.41(407)
R v. Bailiffs of Ipswich (1706) 2 Salkeld 435; 91 ER 378 7.21(301)
R v. Barnes (1970) Cr App R 100 5.26(233)
R v. Barnsley Licensing Justices, ex parte Barnsley and District Licensed Victuallers’
Association [1960] 2 QB 167 5.1(179)
R v. Behman [1967] Crim LR 597 5.26(234)
R v. Bentley [2001] 1 Cr App R 307 5.23(225–226); 8.24(386)
R v. Betson [2004] EWCA Crim 254 CA (Crim Div) 5.21(221)
R. v. Biage (1561) 73 Eng. Rep. 436 7.21(301)
R v. Bingham Justices, ex parte Jowitt (1974) QBD 5.6(193)
R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2)
[2001] 1 AC 119 5.4(189–190); 5.20(216); 5.20(218–219)
R v. Bristol Betting and Gaming Licensing Committee, ex parte O’Callaghan [2000]
QB 451 5.12(204); 6.13(263)
R v. Cain (1936) 25 Cr App R 204 5.22(204)
R v. Camborne Justices, ex parte Pearce [1955] 1 QB 41 5.12(204)
R v. Cameron [2001] EWCA Crim 562 5.22(224)
R v. Cannings [2004] 1 WLR 2607 8.23(383–384)
R v. Canny [1945] 30 Cr App R 143 5.22(224)
R v. Clewer (1953) 37 Cr App R 37 5.22(224)
R v. Colsey, ex parte Director of Public Prosecutions, The Times, 9 May 1931
8.43(408)
R v. Conlon, The Times 20 October 1989 8.25(387)
R v. Copsey [2008] EWCA Crim 2043 5.22(225)
R v. Director of Public Prosecutions, ex parte Kebeline and others [1999] UKHL
43 3.10(61)
R v. Editor of The New Statesman, ex parte Director of Public Prosecutions (1928) 44
TLR 300 8.42(407–408)
R v. Eston (1562) 2 Dyer 198a; 73 Eng. Rep. 437 7.21(301)
R v. Ford [1989] QB 868 5.19(216)
R v. Furlong and others 34 Cr App R 79 5.21(221)
R v. G [2008] UKHL 37 4.35(145)
R v. Gilson (1944) 29 Cr App R 174 5.22(200); 5.27(235)
R v. Goodyear (Karl) [2005] EWCA Crim 888 3.10(61); 5.26(234)
R v. Gough [1993] AC 646 5.7(197); 5.12(205)
R v. Gray [1900] 2 QB 36 8.40(406)

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xvi table of cases

R v. Green [2007] UKHL 37 5.9(201); 7.5(279)

R v. Hamilton [1969] Crim LR 486 5.22(222)
R v. Hampden (1637) 3 State Trials 825 7.27(311)
R v. Harirbafan [2008] EWCA Crim 1967 5.22(224)
R v. Hasan [2005] UKHL 22; [2005] 2 AC 467 4.35(145)
R v. Henley [1892] 1 QB 504 5.1(180)
R v. Hircock [1970] 1 QB 67 5.21(220); 5.25(231)
R v. Horden [2009] EWCA Crim 388 5.27(235)
R v. Horncastle [2009] UKSC 14 2.14(43); 4.39(153)
R v. Hulusi and Purvis (1973) 58 Cr App R 378 5.22(222)
R v. Inner West London Coroner ex parte Dallaglio [1994] 4 All ER 139 5.6(196);
5.8(199); 5.16(210)
R v. J [2005] 1 AC 562 4.35(145)
R v. Kay Gilderdale, Lewes Crown Court (unreported) January 2010 8.14(373)
R v. Knollys (1695) I Ld. Raym. 10; 91 Eng. Rep. 904 2.5(27)
R v. L [2007] EWCA Crim 764 5.22(224)
R v. Langham [1972] Crim LR 457 5.21(220); 5.30(240)
R v. Lashley [2005] EWCA Crim 2016 5.25(232)
R v. Lee ex parte Shaw (1882) 9 QBD 394 5.1(180)
R v. Marr [1990] 90 Cr App R 154 5.22(225)
R v. Marshall (1855) 4 El. & Bl. 475; 119 Eng. Rep. 174 7.21(303)
R v. Matthews (1984) 78 Cr App R(S) 23 5.22(222)
R v. McKenna [1960] 1 QB 411 5.21(220); 5.23(226)
R v. McIlkenny [1992] 2 All ER 417 8.25(387)
R v. Metropolitan Police Commissioner, ex parte Blackburn (No. 2) [1968] 2 QB
150 8.33(395); 8.41(407); 8.45(412)
R v. Minister of Labour, ex parte National Trade Defence Association [1931]
47 TLR 8.43(408)
R v. Mirza [2004] 1 AC 1118 7.3(276)
R v. Mitchell [2004] EWCA Crim 1665 5.23(227)
R v. Perks [1973] Crim LR 388 5.22(224)
R v. Perren (2009) EWCA Cr App 348 5.22(223–224)
R v. Ptohopoulos (1968) Crim LR 52 5.25(231)
R v. Pwlheli Justices, ex parte Soane [1948] 2 All ER 815 5.1(180)
R v. Rand (1866) LR 1 QB 230 5.12(204)
R v. S. [2010] 1 WLR 2511 5.18(213)
R v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2
AC 513 1.7(19)
R v. Secretary of State for the Home Department, ex parte Fayed [2001] Imm AR
134 (191)
R v. Secretary of State, ex parte Kirkstall Valley [1996] 3 All ER 304 5.6(194)
R v. Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115
2.14(41); 2.15(45)

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R v. Secretary of State for Transport, ex parte Factortame Ltd [1990] 2 AC

85 7.8(283)
R v. Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC
603 7.8(283)
R v. Sharp [1994] QB 261 5.22(224)
R v. Sharp [1998] 94 Cr App R 144 5.22(222)
R v. Skinner (1772) 98 ER 529 7.3(276)
R v. Spear [2003] 1 AC 734 1.2(6)
R v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 5.1(179)
R v. Tedjame-Mortty [2011] EWCA Crim 950 5.25(231)
R v. The Eastern Archipelago Co. (1854) 43 Eng. Rep. 483 7.21(301)
R v. Toly (1561) 73 Eng. Rep. 436 7.21(301)
R v. Turner [1970] 2 QB 321 5.26(234)
R v. Warr (1 969) Crim LR :n I 5.27(237)
R v. Wells (1767) 98 Eng. Rep. 41 7.21(301)
R v. Wilkes (1770) 4 Burr 2527; 98 Eng. Rep. 327 8.29(390)
R (GC) v. Commissioner of the Police of the Metropolis [2010] EWHC 2225
(Admin) 5.29(239)
Randall v. R [2002] 2 Crim App R 267 5.21(220–221)
Re McC (A minor) [1985] AC 528 7.1(275); 7.4(277–278); 7.5(278); 7.45(354)
Re P (A Barrister) [2005] 1 WLR 3019 5.8(199); 7.19(298)
Re Wright [2007] NICA 24 6.7(255)
Red River UK Ltd v. Sheikh [2009] EWHC 3257 (Ch) 5.6(193); 5.9(202)
Rolled Steel v. British Steel [1985] 2 WLR 908 5.24(228)
Rothermere v. Times Newspapers Ltd [1973] 1 All ER 1013 5.18(214)
Roy v. Prior [1971] AC 470 7.1(275)
Royal Aquarium and Summer and Winter Garden Society Ltd v. Parkinson [1892]
1 QB 431 7.3(275)
Sanders v. Chichester (1994) SJ 225 6.6(250)
Scott v. Scott [1913] AC 417 8.48(418)
Seldon v. Clarkson Wright and Jakes [2012] UKSC 16 6.16(267)
Sharon Shoesmith v. OFSTED and others [2010] EWHC 852 (Admin) 8.31(393)
Sirros v. Moore (1975) QB 118 1.2(5); 7.1(273); 7.3(275); 7.4(277–278); 7.5(278);
7.45(354)
Skipworth’s Case (1873) LR 9 QB 230 8.40(406)
Slingsby’s case (1680) 3 Swans 178; 36 ER 821 7.12(288)
Smith v. Kvaerner Cementation Foundations Ltd (Bar Council intervening) [2006]
EWCA Civ 242 5.5(191;193); 5.15(209)
Southwark LBC v. Jiminez [2003] EWCA Civ 502 5.6(193–195); 5.31(241)
Spiers (Procurator Fiscal) v. Ruddy [2007] UKPC D2 3.42(97)
Secretary of State for the Home Department v. AF [2009] UKHL 28 1.5(14)
SSHD v. Reh man [2002] I ALL ER 122 5.26(234)
Stansbury v. Datapulse Plc UKEAT 966 98 0905, [2001] ICR 287 5.31(241)

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Starrs v. Procurator Fiscal, Linlithgow [2000] HRLR 191 4.18(124)

Starrs v. Ruxton 2000 JC 208; The Times 17 November 1999 1.7(18)
Stevenson v. Watson [1879] 4 CPD 148 7.3(276)
Stewart v. Secretary of State for Scotland 1998 SC (HL) 81 7.18(296)
Stowball v. Ansell 90 ER 377 7.3(276)
Sutcliffe v. Thackrah [1974] AC 727 7.3(276)
Sutton v. Johnstone (1786) 99 ER 1215 7.3(276)
Swain-Mason and others v. Mills & Reeve [2011] EWCA Civ 14 5.18(212)
Taafe v. Downes (1813) 13 ER 15 7.1(273)
Taylor v. Director of the Serious Fraud Office [1991] 2 AC 177 7.3(276)
Taylor v. Lawrence [2003] QB 528 5.4(188); 5.15(208)
Terrell v. Secretary of State for the Colonies [1953] 2 QB 482 7.31(320)
The Case of Prohibitions (1607) 77 ER 1342 2.3(23); 2.4(26)
The Earl of Shrewsbury’s Case (1609) 9 Coke Reports 42a 7.11(286)
Thoburn v. Sunderland City Council [2003] QB 151 4.38(151)
Thomson v. Sheriff Kenneth Ross and others [2000] Scot CS 202 7.3(276)
Timmins v. Gormley [2000] 1 All ER 65 5.18(215–216); 6.2(246); 8.9(367)
Trapp v. Mackie [1979] WLR 377 7.3(275)
Tughan v. Craig [1918] 2 IR 245 7.1(273)
Vidyasagara v. The Queen [1963] AC 589 8.43(408)
Virdi v. Law Society [2010] EWCA 100 5.8(199)
Vogon International Ltd v. Serious Fraud Office [2004] EWCA Civ 104
5.2(183–184)
Woodside (Alexander) v. HM Advocate [2009] HCJAC 19 (HCJ) 4.23(129)
Yuill v. Yuill [1945] P 15 5.21(220); 5.22(224)

Parliamentary cases
Abinger’s Case (1843) 66 Parl. Deb., 3rd Ser., 1129 7.35(326); 7.37(328); 7.41(333);
7.44(340; 346–347)
Barrington’s Case (1830) Parl. Deb., 2nd Ser., 484 7.21(301); 7.30(317); 7.32(322);
7.33(324); 7.35(326); 7.36(327); 7.39(330–332); 7.40(332–333); 7.41(334–335);
7.44(340; 345; 346)
Best’s Case (1821) 4 Parl. Deb., New Ser., 918 7.23(304–305); 7.30(317); 7.36(327);
7.40(333); 7.43(337); 7.44(342)
Ellenborough’s Case (1816) 34 Parl. Deb., 1st Ser., 104 7.23(304–305); 7.34(325);
7.36(327); 7.37(328); 7.44(340; 342)
Fox’s Case (1806) 7 Parl. Deb., 752 7.21(301); 7.22(303); 7.30(317); 7.36(326–327);
7.42(335–336); 7.44(340–341; 348)
Grantham’s Case (1906) 160 Parl. Deb., 4th Ser., 369 7.29(313); 7.32(322–323);
7.34(325); 7.35(326); 7.36(326); 7.37(328–329); 7.41(335); 7.44(340; 348; 350–351)
Gurney’s Case (1843) 69 Parl. Deb., 3rd Ser., 189 7.37(327); 7.44(347)

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Kelly’s Case (1867) 185 Parl. Deb., 3rd Ser., 257 7.12(288); 7.32(323); 7.36(327);
7.37(327); 7.40(333); 7.44(349)
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138 7.12(288); 7.23(304–305);
7.28(313); 7.30(317); 7.36(327); 7.37(327–328); 7.38(330); 7.39(330); 7. 40(332);
7.41(334); 7.43(339); 7.44(340)
McCardie’s Case 175 HC Deb 6(23 June 1924) 7.32(322); 7.41(335); 7.44(352)
McClelland’s Case (1819) 40 Parl. Deb., 1st Ser., 851 7.23(305); 7.36(327); 7.37(328)
Monahan’s Case (1861) 163 Parl. Deb., 3rd Ser., 984 7.44(340)
O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360 7.21(301); 7.29(315); 7.30(317);
7.32(322); 7.35(326); 7.36(327); 7.39(330); 7.40(332–333); 7.41(334);
7.44(340; 343)
Page’s Case (1722) 7 Parl. Hist. 962 7.40(332); 7.44(340)
Smith’s Case (1834) 21 Parl. Deb., 3rd Ser., 694 7.34(325); 7.37(327–328); 7.38(330);
7.39(330); 7.40(333); 7.41(333; 335); 7.44(340); 7.45(345)
Westbury’s Case (1865) 177 Parl. Deb., 3rd Ser., 1203 7.44(349)
Torrens’ Case (1856) 140 Parl Deb, 3rd Ser., 1544 7.23(304–305); 7.35(326);
7.44(340; 348)

European Court of Human Rights

A v. UK (2003) 36 EHRR 51 7.5(279)
Al-Khawaja v. UK (2009) 49 EHRR 1 7.5(279); 2.14(43); 4.39(153); 5.29(238)
Al-Khawaja v. UK [2011] ECHR 2127 7.5(279); 2.14(43); 4.39(153); 5.29(238)
Amihalachioaie v. Moldova (2004) 17 BHRC 689 8.46(414)
Buscemi v. Italy [1999] ECHR 70 8.9(367)
D v. Ireland App. no. 11489/85 ECtHR 3 December 1986 5.5(191)
De Cubber v. Belgium (1984) Series A no. 86; (1985) 7 EHRR 236 5.7(198); 5.17(212)
De Haes Gijsels v. Belgium (1998) 25 EHRR 1 8.43(409–410); 8.46(413–414)
Deumeland v. Germany (1986) 8 EHRR 448 3.42(97)
Demicoli v. Malta (1992) 14 EHRR 47 7.43(338)
Dulaurans v. France (2001) 33 EHRR 45 7.6(50)
Fey v. Austria (1993) 16 EHRR 387 5.17(212)
Findlay v. UK (1997) 24 EHRR 221 1.2(7); 5.1(181); 5.7(198)
Fogarty v. UK (2001) 12 BHRC 132 7.5(279)
Gillan and Quinton v. UK (2010) 50 EHRR 45 4.35(145)
Goodwin v. UK (1996) 22 EHRR 123 8.46(414)
Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (No. 2) App. no. 26740/02
ECtHR 31 May 2007 5.20(218); 6.10(259)
Greens and M.T. v. UK App. nos. 60041/08 and 60054/08 ECtHR 23 November
2010 8.38(404)
H v. Belgium (1987) 10 EHRR 339 7.5(279)
Hauschildt v. Denmark (1990) 12 EHRR 266 5.7(198); 5.17(212)

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xx table of cases

Hirst v. UK (No. 2) [2005] ECHR 681 2.14(41); 4.39(154); 8.38(404)

James v. UK (1986) 8 EHRR 123 7.5(279)
Jersild v. Denmark (1994) Series A no. 298, 23 September 1994 8.46(414)
Kingsley v. UK (2002) 35 EHRR 177 5.4(187); 7.6(280)
Konig v. Federal Republic of Germany (1978) 2 EHRR 170 3.42(97)
Kyprianou v. Cyprus (2007) 44 EHRR 27 8.44(410–411)
Lawrence v. UK App. no. 74660/01 ECtHR 24 January 2002 5.16(210)
Lingens v. Austria (1986) 8 EHRR 103 8.45(411)
McGonnell v. UK (2000) 30 EHRR 289 1.2(7); 5.5(191–192)
Pabla K v. Finland (2004) 42 EHRR 688 5.18(216)
Pfeifer and Plankl v. Austria (1992) 14 EHRR 692 5.5(191)
Pinder v. UK (1985) 7 EHRR 464 7.5(279)
Prager and Oberschlick v. Austria (1995) Series A no. 313; (1996) 21 EHRR 1
7.5(279); 8.43(410)
Pretty v. UK (2002) 35 EHRR 1 2.14(43)
Procola v. Luxembourg (1995) 22 EHRR 193 1.2(7)
Pullar v. UK (1996) 22 EHRR 391 5.7(198)
R v. UK [1997] 24 EHRR 221 1.2(6)
S v. UK (2009) 48 EHRR 50 5.29(239)
Salaman v. UK App. no. 43505/98 ECtHR 15 June 2000 5.20(217);
6.10(259)
Scoppola v. Italy (No. 3) [2012] ECHR 868 8.38(404)
Sigurdsson v. Iceland [2003] ECHR IV 5.12(204)
Skalka v. Poland (2004) 38 EHRR 1 8.44(411)
Sunday Times v. UK (No. 1) (1979–80) 2 EHRR 245 8.45(411–412)
The Gypsy Council and others v. UK App. no. 66336/01 ECtHR 14 May 2002
5.18(213–214)
Thorgeirson v. Iceland (1992) 14 EHRR 843 8.45(411)
Tsfayo v. UK (2004) 39 EHRR SE22 5.1(182)
Walston v. Norway, App. no. 37372/97 ECtHR 11 December 2001 5.13(206)
Wettstein v. Switzerland [2000] ECHR 695 5.13(406)
Wingrove v. UK (1996) 24 EHRR 1 8.45(411)

Court of Justice of the European Union

Case 106/77, Amminstrazione delle Finanze dello Stato v. Simmenthal [1978]
ECR 629 7.8(283)
Joined cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v. Federal Republic of
Germany, R v. Secretary of State for Transport ex parte Factortame Ltd and others
[1996] IRLR 267 7.8(282)
Case C-393/10, Dermod Patrick O’Brien v. Ministry of Justice, 1 March 2012
8.41(407); 8.45(412)

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Case 6/64, Flaminio Costa v. ENEL [1964] ECR 585 4.38(150); 7.8(283)
Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für
Getreide und Futtermittel [1970] ECR 1125 7.8(283)
Case C-224/01, Köbler v. Republik Österreich [2003] ECR 1-10239 7.8(282–283)
Joined Cases C-4/02 and C-5/02, Schönheit and Becker [2003] ECR I-12575
4.48(174)
Case C-213/89, R v. Secretary of State for Transport, ex parte Factortame Ltd and
others [1990] ECRI-2433 7.8(283); 4.38(151)
Case C-173/03, Traghetti del Mediterraneo SpA v. Repubblica Italiana [2006] ECR
I-5177 7.8(282; 284)
Case C-486/08, Zentralbetriebsrat der Landeskrankenhäuser Tirols [2010] ECR
I-3527 4.48(174)

Australia
Attorney General for New South Wales v. Mundey [1972] 2 NSWLR 887 8.41(407);
8.45(412)
Bretherton v. Kaye & Winneke [1971] VR 111 7.3(276)
Clark v. Vanstone (2004) 81 ALD 21 7.18(295)
Clenae Pty. Ltd and others v. Australia and New Zealand Banking Group Ltd [1999]
VSCA 35 5.12(204)
Ebner v. Official Trustee (2000) 205 CLR 337 5.4(189)
Ex parte CJL (1986) 161 CLR 342 5.18(214); 8.5(362)
Herald & Weekly Times Ltd v. Popovic (2003) 9 VR 1 8.47(415)
John Fairfax Publications Pty Ltd v. O’Shane [2005] NSWCA 164 8.47(415)
John Fairfax Publications Pty Ltd v. O’Shane (No. 2) [2005] NSWCA 291
8.47(415)
Johnson v. Johnson (2000) 201 CLR 488 5.8(198)
Kirk v. Industrial Court (NSW) (2010) 239 CLR 531 2.15(46)
Lewis v. Judge Ogden [1984] 153 CLR 682 8.40(406)
M v. Islington LBC [2002] 1 FLR 95 5.1(180)
Mann v. O’Neill 71 ALJR 903 7.3(276)
McCawley v. R (1918) 26 CLR 9 7.30(317); 7.31(320)
McCawley v. R [1920] AC 691 (PC) 7.31(320)
Moll v. Butler (1985) 4 NSWLR 231 7.4(277)
Newcastle City Council v. Lindsay [2004] NSWCA 198 5.18(215); 8.9(367)
Northern Territory of Australia v. Mengel (1996) 185 CLR 307 7.5(278)
Rajski v. Powell (1987) 11 NSWLR 522 7.4(277)
Re JRL, ex parte CJL (1986) 161 CLR 342 5.18(214); 8.5(362)
Shell Co. Australia v. Federal Commissioner of Taxation [1931] AC 275 7.30(317)
Vakauta v. Kelly (1989) 167 CLR 568 8.9(367)
Yeldham v. Rajski (1989) 18 NSWLR 48 7.3(276)

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Bahamas
Jervis v. Skinner [2011] UKPC 2 3.42(97)
In the Matter of a Special Reference from the Bahama Islands [1893] AC 138
8.40(406); 8.41(407)
Takitota v. Attorney General [2009] UKPC 11 7.7(281)

Barbados
Hinds v. Attorney General of Barbados [2001] UKPC 56 7.7(282)

Belize
Meerabux v. The Attorney General of Belize [2005] UKPC 12; [2005] 2 AC 513
5.8(199); 5.20(217)
Reyes v. The Queen, R. v. Hughes, Fox v. The Queen [2002] UKPC 11, 12, 13 2.15(44)

Ceylan
Vidyasagara v. The Queen [1963] AC 589 8.43(408)

Canada
Beauregard v. Canada [1986] 2 SCR 56 4.43(159)
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System)
[1997] 3 SCR 440 6.7(252)
Mackin v. New Brunswick (Minister of Finance) [2002] 1 SCR 405 4.43(160)
Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice) [1997] 3
SCR 3 4.43(158)
Minister of National Revenue v. Coopers & Lybrand [1979] 1 SCR 495 7.3(276)
Morier v. Rivard [1985] 2 SCR 716 7.4(277)
Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of
Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta;
Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec
(Attorney General) [2005] 2 SCR 286 4.43(160)
R v. Koptyo (1987) 47 DLR (4th) 213 (Ont. CA) 8.41(407); 8.45(413)
R v. S (RD) [1997] 3 SCR 484 5.4(189)
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island;
Reference re Independence and Impartiality of Judges of the Provincial Court of
Prince Edward Island; R v. Campbell; R v. Ekmecic; R v. Wickman; Manitoba
Provincial Judges Assn. v. Manitoba (Minister of Justice) [1997] 3 SCR 3
4.43(158–160); 4.44(162); 4.44(164); 4.45(166)
Reference re Secession of Quebec [1998] 2 SCR 217 4.43(160)

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Rice v. New Brunswick (Minister of Finance) [2002] 1 SCR 405 4.43(160)

Valente v. The Queen [1985] 2 SCR 673 4.43(159)

British Crown Dependency: Jersey

Michel v. The Queen [2009J UKPC 41 5.22(224)

Federation of Saint Christopher and Nevis

Fox v. The Queen [2002] UKPC 13 2.15(44)

France
Gestas, 18 June 2008 (n° 295831), Conseil d’Etat 7.8(282)

Gibraltar
Hearing on the Report of the Chief Justice of Gibraltar [2009] UKPC 43 7.18(295)

Grenada
Lawrence v. Attorney General of Grenada [2007] UKPC 18 7.18(295)

Hong Kong
Wong Yeung Ng v. Secretary for Justice [1999] 2 HKLRD 293 (CA) 8.41(407)

India
EMS Namboodiripad v. TN Nambiar AIR 1970 SC 2015 8.44(410)
Narmada Bachao Andolan v. Union of India and Others (1999) 8 SCC 308 8.41(207)

Jamaica
Hinds v. The Queen [1977] AC 195 2.15(44)

Mauritius
Ahnee v. DPP [1999] 2 AC 294 8.40(406)
Badry v. DPP of Mauritius [1982] 3 All ER 973 8.41(407)

New Zealand
Attorney General v. Blomfield (1914) 33 NZLR 545 8.43(408)

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xxiv table of cases

Auckland Casino Ltd v. Casino Control Authority [1995] 1 NZLR 142 (CA)
5.12(204)
Collier v. Attorney General [2002] NZAR 257 (CA) 5.20(219)
Harvey v. Derrick [1995] 1 NZLR 314 7.4(278)
Nakhla v. McCarthy [1978] 1 NZLR 291 7.4(277)
S-G v. Radio Avon Ltd [1978] 1 NZLR 225 8.43(408)
Simpson v. Attorney General (Baigent’s Case) [1994] 3 NZLR 667 7.7(281)
Solicitor-General v. Radio Avon Ltd [1978] 1 NZLR 225 (CA) 8.41(407)
Wilson v. Attorney-General [2011] 1 NZLR 399. 7.18(298)

Republic of Ireland
McMenamin v. Ireland [1994] 2 Law Reports Monthly 4.44(162–163)
O’Byrne v. Minister of Finance [1959] IR 1 4.44(163)
O’Callaghan v. Mahon [2006] IR 32 6.7(252)

Singapore
Attorney General v. Barry Wain [1991] 2 MLJ 525 8.42(408)

South Africa
In re Phelan (1877) Kotzé 5 8.41(407)
Industries South Africa (Pty) Ltd v. Metal and Allied Workers’ Union [1992] 3 SA
673 5.12(204)
S v. Harber and another [1988] ZASCA 34 8.41(407)
S v. Kaakunga 1978(1) SA 1190 (SWA) 8.41(407)
South Africa v. Mamabolo (2001) 10 BHRC 493 8.1(357); 8.48(418)

St Lucia
R v. Hughes [2002] UKPC 12 2.15(44)

Trinidad and Tobago

Attorney General of Trinidad and Tobago v. McLeod [1984] 1 WLR 522 7.7(282)
Attorney General of Trinidad and Tobago v. Romanoop [2005] UKPC 15 7.7(281)
Benjamin v. Trinidad and Tobago [2012] UKPC 2.15(44)
Boodhoo v. Attorney General of Trinidad and Tobago [2004] UKPC 17 5.24(228)
Chokolingo v. Attorney General of Trinidad and Tobago [1981] 1 WLR 106 7.1(274);
7.6(281)
Harrikissoon v. Attorney General of Trinidad and Tobago [1980] AC 265 7.7(281)
Hearing on the Report of the Chief Justice of Gibraltar [2009] UKPC 43 7.18(295)

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table of cases xxv

Jaroo v. Attorney General [2002] UKPC 5 7.7(281–282)

Maharaj v. A.-G. of Trinidad and Tobago (No. 2) [1979] AC 385 (PC) 7.4(277)
Suratt v. Attorney General of Trinidad and Tobago [2007] UKPC 55 2.15(44)

US
Doyle v. Hofstader 257 NY 244, 268(1931) 8.29(390)
Laird v. Tatum 93 S. Ct. 7(1972) 5.1(180)
Pennekamp v. State of Florida, 328 US 331(1946) 8.1(358)
United States v. Will 449 US 200(1980) 4.44(162)

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TABLE OF LEGISLATION

Administration of Justice Act 1973 4.23(128); 4.41(156); 4.44(161–162); 7.11(289)

Appellate Jurisdiction Act 1876 3.6(53)
Appellate Juri sdiction Act 1888 3.6(53)
British North America Act 1807 4.44(162)
Constitutional Reform Act 2005 1.2(7–8); (10–11); (13); (16); 2.1(17); 1.7(20);
2.1(21); 2.11(34–5); 2.12(36); 2.16(46); 3.1(47–48); 3.4(52); 3.7(54); 3.13(65);
3.14(66–67); 3.17(69); 3.22(72); 3.26(75); 3.27(78–79); 3.34(85–86); 3.36(89);
3.43(99); 4.1(103); 4.3(105); 4.5(108); 4.6(109–110); 4.7(110–112); 4.9(114);
4.13(117); 4.15(120); 4.19(124); 4.25(132); 4.29(137); 4.33(141–142); 4.34(143);
4.35(144); 4.36(147); 4.43(158–9); 4.44(162); 4.47(170); 4.50(177); 5.2(183);
5.31(241–242); 6.2(246); 6.3(247); 6.5(249); 7.1(272); 7.2(274); 7.10(284–285);
7.11(286–287); 7.12(288–289); 7.15(292); 7.16(293); 7.22(303); 8.15(375);
8.18(378–379); 8.36(399); 8.38(401); 9.1(419); 9.2(420); 9.4(421); 9.5(423); 9.6(424);
9.7(425); 9.9(427)
Contempt of Court Act 1981 8.40(406)
Coroners and Justice Act 2009 4.42(157–158)
County Courts Act 1984 4.18(123); 4.44(161)
Courts Act 1971 3.22(72); 3.29(81); 3.36(88); 4.23(127–128); 4.44(162); 6.16(267);
7.11(287)
Courts Act 2003 3.22(72); 3.23(73); 3.30(82); 3.35(88); 3.36(88); 3.38(91); 6.16(267);
7.3(276); 7.4(278); 7.5(278); 7.11(287)
Courts and Legal Services Act 1990 3.3(50); 3.17(69); 3.24(74); 3.37(90); 4.17(123);
4.18(123); 4.23(128); 4.44(161); 6.13(261)
Crime and Disorder Act 1998 1.2(5)
Criminal Justice Act 1988 5.21(222); 7.6(280)
Criminal Justice Act 2003 2.14(41); 3.11(62); 3.40(94); 8.36(399)
Crown Proceedings Act 1947 7.6(279); 7.8(283); 7.21(302); 7.45(355)
Employment Act 2002 4.31(139)
Employment Rights Act 1996 4.31(139)
Equality Act 2010 4.15(120); 4.35(144); 4.38(152)
Factories Act 1961 5.1(180)
Financial Emergency Measures in the Public Interest (No. 2) Act 2009 4.44(163)
Government of Wales Act 2006 2.15(44); 3.6(53)
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table of legislation xxvii

House of Commons Disqualification Act 1975 6.2(246)

Human Rights Act 1998 1.1(3); 1.2(7); 1.5(14); 1.7(19); 2.1(21); 2.12(36–37); 2.13(38);
2.14(39); 2.14(41–44); 2.16(46); 3.7(55); 4.36(147); 4.39(153); 5.29(238); 6.4(249);
6.8(256); 7.1(274); 7.5(279); 7.7(280–281); 7.43(337); 8.1(358); 8.16(375); 8.17(377);
8.26(388); 8.36(400); 8.39(405); 8.41(406); 9.2(420); 9.3(421); 9.4(421)
Inquiries Act 2005 6.7(251); 6.7(255); 6.8(257)
Judges’ Remuneration Act 1954 4.44(161)
Judges’ Remuneration Act 1965 4.44(161)
Judges Remuneration and Conditions of Employment Act No. 42 2001 4.43(158)
Judicature Act 1873 3.21(70)
Judicial Offices (Salaries) Act 1952 4.44(161)
Judicial Offices (Salaries and Pensions) Act 1957 4.44(161)
Judicial Pensions and Retirement Act 1993 4.47(170–171); 4.47(173); 6.16(267);
7.11(287)
Justices Jurisdiction Act 1742 5.1(180)
Justices of the Peace Act 1997 4.47(170)
Legal Services Act 2007 7.19(299)
Licensing Act 1964 5.1(180)
Magistrates’ Courts Act 1980 3.38(92)
National Economy Act 1931 4.44(161); 5.3(186)
Northern Irela nd Act 1988 2.15(44); 3.6(53)
Pensions Act 2011 4.47(172–173); 4.49(176)
Pensions (Increase) Act 1971 4.47(170)
Prisons Act (NI) 1953 6.7(255)
Prosecution of Offences Act 1985 3.9(59); 3.11(63)
Public Bodies Act 2011 3.7(58); 3.24(74)
Public Health Act 1875 5.1(180)
Public Sector Pay Reduction Act (1996) 4.43(158)
Scotland Act 1998 2.15(44); 3.6(53)
Senior Courts Act 1981 1.2(4); 1.4(11); 2.7(30); 3.4(52); 3.34(86); 3.35(88);
3.36(88–89); 4.18(123); 4.29(126); 4.43(159); 4.44(162); 5.12(205);
7.11(286); 7.43(337–338); 7.45(356)
Supreme Court Act 1981 2.7(30)
Supreme Court of Judicature Act 1873 4.4(105)
Supreme Court of Judicature (Amendment) Act 1944 3.34(86)
Supreme Court of Judicature (Consolidation) Act 1925 3.34(86)
Tribunals, Courts and Enforcement Act 2007 2.7(30); 3.7(54); 3.7(56–57);
3.8(58–59); 3.34(86–87); 4.6(110); 4.17(123); 4.18(124); 4.24(130); 4.28(134–135);
7.11(286)

Australia
Commonwealth of Australia Constitution Act 1900 4.44(162)

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xxviii table of legislation

Ireland
Financial Emergency Measures in the Public Interest (No. 2) Act 2009 4.44(163)

New Zealand
Summary Proceedings Amendment Act (No. 2) 1995 7.4(276)

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ABBREVIATIONS

ABA American Bar Association

AIJA Australian Institute of Judicial Administration
AJCL American Journal of Comparative Law
Am Pol Sci Rev American Review of Political Science
BIICL British Institute of International and Comparative Law
Cardozo L Rev Cardozo Law Review
CJA UK Commission for Judicial Appointments
CJQ Civil Justice Quarterly
CLJ Cambridge Law Journal
CLP Current Legal Problems
CRA Constitutional Reform Act 2005
Crim LR Criminal Law Review
CYELS Cambridge Yearbook of European Legal Studies
DCA UK Department for Constitutional Affairs
Denning LJ Denning Law Journal
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EHRLR European Human Rights Law Review
FLR Family Law Reports
HLR Harvard Law Review
HoC House of Commons
HoL House of Lords
HRA Human Rights Act 1998
ICLQ International and Comparative Law Quarterly
Ir Jur The Irish Jurist
Israel LRev Israel Law Review
JLS Journal of Law and Society
JPN Justice of the Peace
J Pub Teach Law Journal of of the Society of Public Teachers of Law
Jud Judicature
LJ Lord Justice/Lady Justice
LQR Law Quarterly Review

xxix

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xxx abbreviations
LRB London Review of Books
LS Legal Studies
MLR Modern Law Review
NLJ New Law Journal
OJLS Oxford Journal of Legal Studies
PL Public Law
Pol Quart Political Quarterly
Pol Sc Quart Political Science Quarterly
Sydney L Rev Sydney Law Review
UBC Law Rev University of British Columbia Law Review
U Chi JIL Chicago Journal of International Law
U Ill L Rev University of Illinois Law Review
YLJ Yale Law Journal

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1

Introduction

1.1 Judicial independence is an essential pillar of liberty and the rule of

law; ‘without a judiciary which can and will administer law fairly and
fearlessly between the parties, no other guarantee given to the litigants by
the law is likely to be of value’.1 The many requirements of judicial
independence can be found in international and domestic foundational
texts.2 Yet its modern meaning and practice is as unique as the character
of each judiciary is, fashioned by checks and balances generated through
history by various stakeholders in the judiciary. The protagonists in the
story of judicial independence most noticeably comprise the executive

1
J.A. Jolowicz, ‘Angleterre’, in M. Cappelletti and D. Tallon (eds.), Fundamental Guarantees
of the Parties in Civil Litigation (Milan: Giuffrè, 1973), p. 121; Montreal Universal
Declaration on the Independence of Justice, Preamble.
2
Art. 10 Universal Declaration of Human Rights; Art. 14 International Covenant on Civil
and Political Rights; the Montreal Universal Declaration on the Independence of Justice,
1983; Basic Principles on the Independence of the Judiciary, adopted by the United
Nations General Assembly, GA Res. 40/32 of 29 November 1985, para 5, UN GAOR,
40th Session, Supp. No. 53, at 205 (UN Doc A/40/53 (1985)) and GA Res. 40/146 of 13
December 1985, para. 2, UN GAOR 40th Session, Supp. No 53, at 254, UN Doc A/40/53
(1985); International Commission of Jurists, ‘The Rule of Law and Human Rights: The
Judiciary and the Rule of Law’ 1959–62. The Montreal Universal Declaration on the
Independence of Justice builds upon The Syracuse Draft Principles on the Independence
of the Judiciary 1981 (‘the Syracuse Principles’), the Independence of the Judiciary in
the LAWASIA Region: Principles and Conclusion, 1982 (‘the Tokyo Principles’) and The
International Bar Association Code of Minimum Standards of Judicial Independence,
1982 (‘the New Delhi Standards’); the Bangalore Principles; Beijing Statement of Prin-
ciples of the Independence of the Judiciary in the LAWASIA Region, 1995. See also
Committee of Ministers, Council of Europe, ‘On the Independence, Efficiency and Role
of Judges’ (1994) Recommendation No R (94 12, adopted by the Committee of Ministers
on 13 October 1994, 518th meeting of the Ministers’ Deputies, Principle I, s2(d); Consulta-
tive Council of European Judges, Council of Europe, ‘On Standards Concerning the
Independence of the Judiciary and the Irremovability of Judges’, (2001) CCJE, OP.
No 1, (23 November 2001) and ‘On the Principles and Rules Governing Judges’ Profes-
sional Conduct, in Particular Ethics, Incompatible Behaviour and Impartiality’ (2002)
CCJE, OP. No 3 (19 November 2002)’; Council of Europe, European Charter on the
Statute of Judges (1998).

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2 introduction

and the legislature. In England and Wales,3 they also include a number of
autonomous bodies with statutory powers, such as the Judicial Appoint-
ments Commission. Judicial independence depends thus to a significant
extent on the constitutional relations external to the judiciary, such as
the relationship between Parliament and the government.4 It is also a
significant component of government culture to the extent that it must be
supported by the political climate and social consensus.5 The political
leadership and the legal elite must work together to develop a culture
of judicial independence underlined by some significant guidelines.
This process is of necessity gradual and ongoing.
The checks and balances regarding the judiciary create, however,
a continuous tension between judicial independence and the public
accountability of judges in a democracy.6 This tension, in turn, reflects
a line of demarcation for the judicial power of the state, according to the
principles of parliamentary sovereignty and separation of powers.7 This
means that the model of judicial accountability adopted in a given society
determines, to a large extent, the independence of the judiciary.8
In this book, we examine the requirements of judicial independence
and accountability in England, in the light of the process of constitutional

3
The United Kingdom has three separate legal jurisdictions: England and Wales; Northern
Ireland, and Scotland. While references to Northern Ireland and Scotland may occasion-
ally be made, the judiciary of England is the primary subject of our study. England and
Wales currently share a single legal jurisdiction, but note the debate on whether Wales
should be a separate legal jurisdiction, Welsh Government, ‘Consultation Document.
A Separate Legal Jurisdiction for Wales’, WG-15109 (27 March 2012); Welsh Govern-
ment, ‘A Summary of Consultation Responses. A Separate Legal Jurisdiction for Wales’,
WG-16277 (17 August 2012).
4
V. Bogdanor, The New British Constitution (Oxford: Hart, 2009), pp. 282–4.
5
For this reason, other important political, legal events or controversies are occasionally
referred to in this book, but we do not consider the whole legal system; topics such as legal
aid and the legal profession are only incidentally considered.
6
Lord Hailsham, ‘The Independence of the Judicial Process’ (1978) 13 Israel LRev 1, 8–9;
J. Beatson, ‘Judicial Independence and Accountability: Pressures and Opportunities’
(2008) Judicial Review 1, G. Canivet, M. Andenas and D. Fairgrieve (eds), Judicial
Independence and Accountability (London: BIICL, 2006); S.B. Burbanks and B. Friedman
(eds), Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand
Oaks, California: Sage Publications, 2002).
7
W. Blackstone, Commentaries on the Laws of England (1765), vol. I, ch. 7, p. 258;
R. Masterman, The Separation of Powers in the Contemporary Constitution (Cambridge
University Press, 2010).
8
M. Cappelletti, ‘Who Watches the Watchmen? A Comparative Study on Judicial Respon-
sibility’ (1983) 31 AJCL 1; S. Shetreet and J. Deschenes (eds.), Judicial Independence: The
Contemporary Debate (Boston: M. Nijhoff, 1985), pp. 570–5.

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introduction 3

reform which started with the Human Rights Act 1998. The conceptual
requirements of judicial independence and the necessary elements for
maintaining a culture of judicial independence are closely related.9 Our
analysis develops through a series of studies of the judiciary as an insti-
tution and as a collective:10 thus we look at judicial governance, judicial
appointments, the mechanisms for monitoring judges and the standards
of conduct on and off the bench, as well as the relationship between
freedom of expression, judges and public confidence in the courts. These
topics constitute case studies of the interactions between judges and a
range of actors, such as the Lord Chancellor/Secretary of State for Justice
or the Judicial Appointments Commission for England and Wales and
Parliament. We consider the judiciary as a social organisation within
a context of expectations set by legal norms and by other institutions.
Our premise is that the historical political context is a major determinant
in the interpretation of the principle of judicial independence within a
legal system.11
In keeping with the first edition of the book, our approach combines a
theoretical with a practical analysis buttressed by interviews with judicial
office holders and ‘stakeholders’ in the judiciary. We interviewed more
than twenty-five judicial office holders and a similar number of stake-
holders in the judiciary, including legal practitioners, scholars, retired
judges and others involved in the appointment or monitoring of judges.

9
This is the approach adopted by the International Association of Judicial Independence
and its International Project of Judicial Independence conducted by a research group of
international jurists – to which the authors belong, which approved the Mt. Scopus
Approved Revised International Standards of Judicial Independence, 2008 (hereafter
Mt. Scopus) available at www.jiwp.org.
10
J. Bell, Judiciaries within Europe, A Comparative Review (Cambridge University Press,
2006), p. 4; Thomas LJ, ‘The Position of the Judiciaries of the United Kingdom in the
Constitutional Changes’, Address to the Scottish Sheriffs’ Association (Peebles, 8 March
2008); Lord Phillips, ‘Judicial Independence’ – Commonwealth Law Conference (Nairobi,
Kenya, 12 September 2007); for other perspectives, see C. Guarnieri and P. Pederzoli, The
Power of Judges: A Comparative Study of Courts and Democracy (Oxford University
Press, 2002); P. Derbyshire, Sitting in Judgment. The Working Lives of Judges (Oxford:
Hart, 2011).
11
Bell, Judiciaries within Europe, 355, R.A. Macdonald and H. Kong, ‘Judicial Independence
as a Constitutional Virtue’, in A. Sajo and M. Rosenfeld (eds), The Oxford Handbook of
Comparative Constitutional Law (Oxford University Press, 2012), p. 831; P.H. Russell,
‘Towards a General Theory of Judicial Independence’, in P.H. Russell and D.M. O’Brien
(eds), Judicial Independence in the Age of Democracy (Charlottesville/London: University
of Georgia, 2001), p. 1; C.M. Larkins, ‘Judicial Independence and Democratization:
A Theoretical and Conceptual Analysis’ (1996) 44 American Journal of Comparative
Law 605.

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4 introduction

The judges interviewed included judges from all benches and other
judicial office holders, such as tribunal judges. The questions addressed
selected general issues with some additional questions specific to the role
and knowledge of the interviewees. The interviews were used to support
and shape the analysis of the literature considered, from judicial statistics
to the existing academic discussions on judicial independence, including
judicial writings.12

Individual and collective or institutional independence

1.2 Judicial independence must be secured both at the institutional level
and at the individual level for judges to be protected from threats to their
personal or professional security that may influence their official duties.13
The collective and individual aspects of judicial independence are
embedded in the English judicial oath to do justice – ‘I will do right by
all manner of people, after the law and usages of this realm, without fear
or favour, affection or ill will’.14 Institutional or collective independence
may be undermined by fear or favour, when ‘affection or ill-will’ jeop-
ardises the independence of the individual judge. Either way, impartiality
is central to the independence of the individual judge. ‘Justice must be
rooted in confidence: and confidence is destroyed when right-minded
people go away thinking: “The judge was biased”.’15 It is the fundamental
principle of justice both at common law and under Article 6 of the
European Convention on Human Rights (ECHR):16 accordingly, impar-
tiality is a fundamental guarantee of justice at common law and is
enshrined in Article 6 of the European Convention on Human Rights.

12
Publicly available but internal documents to the judiciary, contacts and personal recom-
mendations helped us define a varied list of interviewees, with some narrowly involved in
judicial governance and others familiar with judges but external to them. Interviews were
conducted under the Chatham House Rule, ensuring that any statement made in an
interview would not be attributed to the interviewee in the book; for that reason, even
though we make a judicious use of non-attributed quotations, a list of interviewees is not
included in this publication. Approximately half of the interviews lasted one hour, with
the other half lasting significantly longer; in practice the discussion of the topics con-
sidered in Chapters 3, 4 and 8 took most of the interview time.
13
Mt. Scopus, ss. 2.2, 2.12 and 2.13.
14
Senior Courts Act 1981, s. 10(4); Promissory Oaths Act 1868.
15
Metropolitan Properties Ltd v. Lannon [1969] 1 QB 577. See also Arts. 41 and 47 Charter
of Fundamental Rights of the European Union.
16
AWG Group v. Morrison Ltd [2006] EWCA Civ 6, para. 6 [Mummery LJ].

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individual and institutional independence 5

But the independence of the individual judge rests upon two concepts.
It first entails a substantive independence, independence in the conduct
of the judicial business – the judge’s core activity being to decide cases
and, in the case of higher courts, to give judgments that may constitute
precedents. Individual judges are subject to no other authority for their
decisions than the appeal courts. A basic requirement for maintaining
public confidence in the legal system is the court’s duty to provide a
reasoned judgment for its decisions.17 Once a judge has decided what the
applicable legal principle is, he may not discard it through personal
dislike or belief that the principle might soon be changed by Parliament
or overruled by the higher courts, or through a sense that the judgment
might cause popular outrage. Instead he must apply the law as it is
understood to be and leave it to the higher courts or the legislature
to decide to effect any change.18 It is to some extent a myth that judges
do not change the common law; instead they find more accurate ways of
expressing it, so that some previous cases are not overruled but rather
distinguished or ‘better explained’.19
Further guarantees of individual and substantive independence
include relieving judges of personal civil liability for acts performed in
the course of their judicial duties. Since the seventeenth century, judges
of the High Court and above have enjoyed exemption from civil liability
for anything done or said by them in the exercise of their judicial
function, and provided that they acted in good faith. Circuit and district
judges, in certain circumstances, may be liable in tort for actions beyond
their jurisdiction. The exclusion of civil liability for judicial acts is
granted as a matter of public policy, ‘not so much for [the judges’] own
sake as for the sake of the public, and for the advancement of justice, that
being free from actions, they may be free in thought and independent in
judgment, as all who administer justice ought to be’.20 A fear of being

17
English v. Emery Reimbold and Strick Ltd [2002] 1 WLR 2409 (CA), para. 12.
18
See Lord Lowry’s statement in C v. DPP [1996] AC 1. In that case, the House of Lords
refused to abolish a long-established common law defence in criminal law for very young
defendants on the ground that it had become obsolete, and Parliament duly did so instead
in Crime and Disorder Act 1998, s. 34.
19
Bell, Judiciaries within Europe, 337; T. Etherton, ‘Liberty, the Archetype and Diversity:
A Philosophy of Judging’ [2010] PL 727; Lord Reid, ‘The Judge as Law Maker’ (1972) 12
J Pub Teach Law 22.
20
Garnett v. Ferrand (1827) 6 B & C 611, 625 [Lord Tenterden CJ], adopted by the Court of
Appeal in Sirros v. Moore [1975] QB 118, 132 [Lord Denning MR]; Arthur JS Hall and
Co v. Simons [2002] 1 AC 615.

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6 introduction

sued could influence a judge’s decision; the judicial immunity thus

protects the independence of the judiciary and the integrity of the judicial
process. The only ‘fear’ a judge has in making a decision is rather that of
being overruled on appeal.21
Second, the independence of the individual judge involves some per-
sonal independence in the sense that the terms and tenure of the judicial
office are adequately secured. Thus the Act of Settlement 1701 estab-
lished judicial tenure during good behaviour to senior judges and
gave them protection from unilateral removal by the Crown. Personal
independence is characterised by judicial appointment during good
behaviour terminated at retirement age, and by safeguarding an adequate
judicial remuneration and pension against the executive’s discretion.
Thus, executive control over the judges’ terms of service, such as remu-
neration or pensions, is inconsistent with the concept of judicial
independence. Rules of judicial conduct at the same time pursue the
similar aim of excluding the judge from financial or business entangle-
ments which are likely to affect (or rather to seem to affect) him in the
exercise of his judicial functions.
A further dimension of judicial independence transcends the distinc-
tion between substantive and individual independence of judges. Internal
independence of judges demands that individual judges be free from
unjustified influences, not only from entities external to the judiciary,
but also from within. Judges need safeguards for their independence from
peers or more senior judges in the discharge of their official duties.22 But
a judge cannot rely on internal independence as a shield against guidance
from other judges who are responsible for court administration. It may
be argued that internal independence only applies to the substantive and
procedural aspects of adjudication, however the distinction between an

21
However, the possible impact of this concern on decision making should not be under-
estimated, especially in areas where the law is overly complex, as is the case with
sentencing. One recorder has freely told members of his Inn that when he started to
sentence criminals, he would try to avoid sentencing them to prison for fear of being
corrected on appeal. He only changed his practice when he actually did find himself
forced to sentence a defendant to prison for supplying prohibited drugs, upon which he
noticed that the defendant and his family seemed remarkably pleased at the sentence, and
he later gingerly inquired of his clerk whether he thought that they might have been
expecting a longer prison sentence.
22
Cappelletti, ‘Who Watches the Watchmen?’, 7–9; J. Beatson, ‘Reforming an Unwritten
Constitution’ (2010) 126 LQR 48; R v. UK [1997] 24 EHRR 221 and R v. Spear [2003] 1
AC 734; Mt. Scopus, s. 9.

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individual and institutional independence 7

administrative action and a purely adjudicative action which is a form of

dispute resolution may not be straightforward.23
Until the Constitutional Reform Act 2005 (CRA), judges were
appointed by and managed within the Lord Chancellor’s Department.
For as long as the judiciary was under the leadership of the Lord
Chancellor, independence from political authorities was the main defin-
ing factor for judicial independence, and the independence of the English
judiciary would appear mostly a characteristic of individual judges.24
Judicial independence has been a matter of legal culture, solidly resting
upon conventions developed over times. Yet England, where the first
phase of judicial independence began over 300 years ago, also provides a
vivid illustration of the mutual impacts of domestic and international
law and jurisprudence. Cultures of judicial independence are built on
both the domestic and international fronts, and in their more advanced
stages reinforce each other. Article 6(1) of the ECHR provides the right
to be tried by an impartial and independent tribunal established by law.
This, in the case law of the European Court of Human Rights, placed an
emphasis on a formal separation of powers between the judiciary and the
executive.25 In combination with personal tensions within the Cabinet in
England and Wales, it led to the abolition of the Lord Chancellor’s
position as head of the judiciary. Parliament enshrined in the CRA the
obligation for government ministers to ‘uphold the continued independ-
ence of the judiciary’.26 A wider duty is placed upon the Lord Chancellor
and Secretary of State (two distinct government offices to which one

23
Cappelletti, ‘Who Watches the Watchmen’, 7–9.
24
R. Stevens, The English Judges: Their Role in the Changing Constitution, rev. edn (Oxford:
Hart, 2005); Lord Irvine, Human Rights, Constitutional Law and the Development of the
English System (Oxford: Hart, 2003), p. 205.
25
Human Rights Act 1998, s. 1(3) sch. 1 incorporates the European Convention on Human
Rights into UK law; Procola v. Luxembourg (1995) 22 EHRR 193; McGonnell v. UK
(2000) 30 EHRR 289; Findlay v. UK (1997) 24 EHRR 221, para. 52; R (Brooke) v. Parole
Board [2008] EWCA Civ 29, paras. 78–80.
26
CRA, s. 3 provides: (1) the Lord Chancellor, other Ministers of the Crown and all with
responsibility for matters relating to the judiciary or otherwise to the administration of
justice must uphold the continued independence of the judiciary . . . (5) the Lord
Chancellor and other Ministers of the Crown must not seek to influence particular
judicial decisions through any special access to the judiciary; (6) the Lord Chancellor
must have regard to (a) the need to defend that independence; (b) the need for the
judiciary to have the support necessary to enable them to exercise their functions; (c) the
need for the public interest in regard to matters relating to the judiciary or otherwise to
the administration of justice to be properly represented in decisions affecting those
matters.

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8 introduction

person is appointed) to ‘have regard’ to both ‘the need to defend’

the independence of the judiciary and ‘the need for the public interest
in regard to matters relating to the judiciary or otherwise to the adminis-
tration of justice to be properly represented in decisions affecting those
matters’.27
The impact of the formal separation of powers on judicial independ-
ence, under the CRA, is substantial. The Lord Chief Justice has become
head of the judiciary but he is not a politician, nor a member of the
Cabinet or a Speaker in the House of Lords as had been the Lord
Chancellor before. Instead the Lord Chief Justice is chosen by a specially
appointed committee, convened by the Judicial Appointments Commis-
sion. The creation of a new Judicial Appointments Commission also
greatly reduced the role of ministers in judicial appointments. Full-time
members of the judiciary are excluded from the House of Commons and
from the House of Lords. Equally, by statute, no Member of Parliament
can be appointed to the Judicial Appointments Commission. Yet, while
the formal recognition of the principle of separation can only support
the culture of judicial independence, the continuation of judicial inde-
pendence is not a matter of course; it is subject to continuous challenges.

Judicial governance
1.3 The type of judicial governance and leadership over the organisation
of the judiciary will influence its susceptibility to external influence.
In England and Wales, judicial independence is not understood as self-
government in the sense of judges having control of and managing
judicial appointments, career progress or termination of office, in add-
ition to running the administration of justice.28 Indeed, Lord Bingham
observed that ‘many judges resented what they perceived as an adminis-
tration breathing down their necks treating them as pawns on a bureau-
cratic chess board’.29 This can otherwise be described as greater scrutiny
of public services in light of the new public management values of
effectiveness, efficiency and economy, which developed in the 1980s

27
CRA, s. 3(6).
28
Lord Woolf, ‘The Rule of Law and a Change in the Constitution’ (2004) CLJ 317.
Compare with the experience in the United States regarding executive control over court
administration: until 1939 the central responsibility for court administration at the
federal level was vested in the Attorney General; in 1939 the responsibility went to the
judiciary, see 28 USCA § 605.
29
T. Bingham, The Business of Judging (Oxford University Press, 2000), p. 67.

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judicial governance 9

and coincided with the growth in size (and budget) of the judicial system.
The tensions were formally resolved in the 2004 Concordat, a soft law
agreement of constitutional importance between the Lord Chancellor
and the Lord Chief Justice. The Concordat set out the principles and
practices supporting the transfer of functions to the Lord Chief Justice in
relation to the administration of justice.30
The senior judiciary thereby negotiated a shared leadership structure
in the administration of justice, through the executive agency of the
Ministry of Justice, today known as Her Majesty’s Courts and Tribunals
Service. The Concordat emphasises both the need for cooperation and
the dividing lines between the judicial business and the responsibilities of
the Lord Chancellor for the provision of financial, material or human
resources:31 the judiciary and the executive have distinct functions but
they must work together in a proper relationship as a part of the overall
government of the country. A system of consultation and joint decision
making between the Lord Chief Justice and Lord Chancellor characterises
their ‘close working relationship’.32 The judicial system is thus defined
by the association of an independent judiciary with the Courts and
Tribunals Service, which provides for the administrative infrastructure
supporting the conduct of the courts’ and tribunals’ business.
The Lord Chief Justice now exercises some considerable responsibil-
ities in respect of the judiciary and of the business of the courts of
England and Wales. This is done with the assistance of the Judicial
Executive Board, a small cabinet with the general responsibility for
judicial administration, and through a number of delegations to senior
judges. The Senior Presiding Judge, in particular, acts as a point of liaison
between the judiciary, the courts and government departments, and
oversees the work of Presiding Judges of the circuits. The Senior
President of Tribunals is at present a separate judicial office with similar
responsibilities to the Lord Chief Justice. More than 200 full-time equiva-
lent civil servants now report directly to the Lord Chief Justice;33 senior

30
HL Committee on the Constitution, ‘Relations between the executive, the judiciary and
Parliament’ (2006–07, 151) para. 13; HL Committee on the Constitution, ‘Meetings with
the Lord Chief Justice and Lord Chancellor’ (2010–11, 89) Q. 11. On ‘concordats’ as soft-
law instruments, see R. Rawlings, ‘Concordats of the Constitution’ (2000) 116 LQR 257.
31
Concordat, para. 19; see the text reproduced in Appendix 6, Report from the Select
Committee on the Constitutional Bill, Volume I, HL Paper No. 125-I (24 June 2004).
32
Lord Woolf’s response to the Lord Chancellor’s statement to the House of Lords on 26
January 2004 announcing his agreement on the Concordat with the judiciary.
33
Judicial Office Business Plan 2012–2013, p. 20.

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10 introduction

judges have private offices and jurisdictional teams; the Judicial College
and the Office of Judicial Complaints fall within the remit of the Lord
Chief Justice’s responsibilities. The new governance arrangements under
the CRA therefore map out a new regime of accountability, with the exact
terms of this regime left open.
Although the CRA puts on a statutory footing most of the Concordat,
the principle of separation of powers enshrined in the CRA did cast a
light on the ‘politically-charged process’ of obtaining resources.34 The
judicial system has been reconceived as a public service which must meet
reasonable public expectations within necessarily finite resources.35 The
approach adopted to adjust demand and supply for judicial services has
been to request courts to do more with less, and such efficient judicial
management has relied upon the development of the organisation of
justice. The drive for efficiency and economy in the conduct of judicial
business entails greatly increased managerial responsibilities upon judges,
relating to caseload, deployment and the allocation of particular cases.
However, the organisation of justice also determines the way in which
judges relate to each other and achieve a sense of collective independ-
ence.36 The traditional sense of social responsibility that the judiciary
imparts to individual judges is a strong instrument for ensuring its
independence, and interference with the judiciary as a whole is likely to
have a negative impact on the sense of independence of individual judges.
The wider range of tasks now allocated to the judiciary requires that the
concept of judicial independence is not confined to the personal and
substantive independence of the individual judge, but also extends to the
independence of the judiciary as a whole. The concept of institutional or
collective independence of the judiciary calls for scrutiny of the range of
activities which support the judicial role of decision making.37 It requires
greater judicial involvement in the administration of justice, including
the preparation of budgets for the judicial system. The degree of judicial
engagement ranges from consultation, sharing responsibility with the
executive (or the legislature) to exclusive judicial responsibility. Though
it is generally accepted that judges cannot claim independence from

34
J. Mackay, ‘The Role of the Lord Chancellor in the Administration of Justice’, Earl Grey
Lecture, University of Newcastle, 24 February 1990.
35
A. Zuckerman, ‘Civil Litigation: a Public Service for the Enforcement of Civil Rights’
(2007) 26 CJQ 1.
36
Mt. Scopus, ss. 2.12 and 2.13.
37
S. Shetreet, ‘The Administration of Justice: Practical Problems, Value Conflicts and
Changing Concepts’ (1979) 13 UBC Law Rev 52, 57–62.

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discipline and removal of judges 11

required and necessary guidance and supervision in the administration of

justice, the aggregate work of the courts and tribunals requires vigilance
about the daily interactions between administrative and judicial actions.
Justice may require time and, for public confidence to be maintained, the
values of efficiency and economy in the conduct of judicial business must
be reconciled with procedural fairness.

Discipline and removal of judges

1.4 The power to remove and discipline judges directly affects individual
judges and the judiciary as a collective and institution. Tenure of judicial
office is a fundamental tenet of judicial independence; however judges from
the High Court and above hold office subject to a power of removal by the
Queen on an address presented to her by both Houses of Parliament. It is
important to recognise that this mechanism aims to protect senior judges
from executive interference but also gives Parliament a ‘sacrificial’ tool of
accountability.38 Removal of judges below the level of the High Court on
grounds of misbehaviour is by the Lord Chancellor with the concordance of
the Lord Chief Justice.39 Perceived inability is not grounds for removal.
The grounds for disciplinary procedures express some self-imposed
standards of judicial conduct. They reflect the values and history that
shape the way in which judges perceive their role. They have also
emerged from the parliamentary debates regarding complaints against
judges for improper conduct. The more homogeneous and narrow the
judiciary was, the less need there was to write standards down as every-
one assumed knowledge of the rules learnt at the Bar. The increasing size
and greater diversity of the judiciary, the greater the need to issue
guidelines, and the publication of a Guide to Judicial Conduct in 2002
constructs standards of judicial conduct as a defining component of
public trust in the judiciary. The Guide introduces in broad terms
the six principles developed under the Bangalore Principles of Judicial
Conduct: judicial independence, impartiality, integrity, propriety (and
the appearance of propriety), equality of treatment to all before the
courts, and competence and diligence.40 In addition, the Guide

38
V. Bogdanor, ‘Parliament and the Judiciary: The Problem of Accountability’, Third
Sunningdale Accountability Lecture, 2006.
39
Senior Courts Act 1981, s. 11; CRA, s. 33.
40
Judge’s Council of England and Wales, Guide to Judicial Conduct, rev. version 2011 Guide
to Judicial Conduct, see also, UK Supreme Court, Guide to Judicial Conduct, 2009; The

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12 introduction

introduces guidance on personal relationships and perceived bias as well

as on activities outside the courts, in relation to the media, for example,
or after retirement. The Guide’s section on propriety is effectively a
checklist of potential activities each of which is capable of a possible
reprimand or even removal: from having to accept a level of public
scrutiny higher than that normally experienced by the average citizen,
to financial probity and the need to avoid all possible potential or actual
conflicts of interest.
Core to the Guide is the idea that judges must strive to maintain and
enhance the confidence of the public, the legal profession and litigants, in
the impartiality of the judge and of the judiciary.41 It is, however, also a
valid principle that no party may choose its tribunal whether by insisting
on a particular judge or by objecting to one without sufficient cause.42
This must be balanced against the principle that judges should show
sensitivity to a party who may still nurse a genuine (though baseless)
reservation about, for example, a judge’s relationship with a firm of
solicitors who has instructed his opponent. The Court of Appeal has
always played an important disciplinary role in maintaining high stand-
ards of judicial behaviour in court. It consistently upholds the fundamen-
tal requisite that justice must not only be done but must also manifestly
be seen to be done.43 Rightly so, as one judge’s manner of conducting a
trial or adjudicating a dispute may have consequences when the outcome
is taken to appeal. Whether it reverses the judgment, quashes the convic-
tion, reduces the sentence or changes the judgment in any manner, the
disapproval and condemnation of the misconduct may restore the public
confidence in the courts, which might otherwise have been impaired.
This disciplinary power of the court has a restraining and preventive
effect on judges.
The effectiveness of the standards of judicial conduct rests upon a
combination of individual voluntary compliance, peer pressure (informal
sanctions) and legally imposed sanctions (reprimand, suspension or

Bangalore Draft Code of Judicial Conduct 2001 adopted by the Judicial Group on
Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices
held at the Peace Palace, The Hague, 25–26 November 2002).
41
Guide to Judicial Conduct, para. 3.1 and s. 7; the Guide refers to the common law for
guidance on bias in particular. The guidance applies to fee-paid as well as full-time and
part-time judges.
42
S. Sedley, ‘When Should a Judge Not Be a Judge?’ (2011) 33 LRB 1, 9.
43
Goold v. Evans & Co [1951] 2 TLR 1189, 1191 [Denning LJ]; Brassington v. Brassington
[1962] P 276, p. 282; Hobbs v. CT Tinling & Co Ltd [1929] 2 KB 1, 48.

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discipline and removal of judges 13

removal) following a formal complaints procedure before the Office

for Judicial Complaints, a newly established body under the CRA. In
addition, until that constitutional settlement, the power to discipline was
in the hands of the Lord Chancellor, also the head of the judiciary, albeit that
few judges have had charges established against them. The formal handling
of complaints about the personal conduct of judges is now dealt with under
a new regulatory framework introduced in the CRA.44 The power to
discipline judges is shared between the Lord Chief Justice and the Lord
Chancellor, and follows an investigation from the Office for Judicial Com-
plaints, thus placing safeguards upon the use of their disciplinary power.
The option of making a complaint to the Office for Judicial Com-
plaints is an additional and separate remedy to launching an appeal. Only
by appealing can a litigant hold out any hope of reversing a decision by
the judge or of affecting the outcome of the case. Equally, only by making
a complaint via the Office for Judicial Complaints might he see an official
acknowledgement of the misconduct of an identified judge accompanied
by a sanction. There is yet potential overlap between the two remedies.
Bad behaviour in court, such as falling asleep or displaying impatience
with one party or showing that the outcome has been decided before
the end of the trial, can both trigger an appeal and also an application to
the Office of Judicial Complaints (either by one of the parties or by the
Presiding Judges of the court). Equally, an egregious decision to hear a
case in which the judge has an apparent interest may trigger both an
appeal and complaint. Yet judges can take steps to make their decisions
appeal-proof, for example by making it clear that they have had regard to
all the factors to which the law requires them to have regard when
finding facts.45 While one may hope that the appeal procedure will be
sufficiently rigorous to provide remedies where misconduct is in play,
having a procedure for complaints to the Office of Judicial Complaints
might be thought to be a necessary addition to ensure judicial account-
ability even in cases where there is apparent overlap in jurisdiction.

44
Under CRA 2005, s. 115, ‘the Lord Chief Justice may, with the agreement of the Lord
Chancellor, make regulations providing for the procedures that are to be followed in: (a)
the investigation and determination of allegations by any person of misconduct by
judicial office holders; (b) reviews and investigations (including the making of applica-
tions or references) under ss. 110–12 [CRA 2005]; the Judicial Discipline (Prescribed
Procedures) Regulations 2006 and the Office for Judicial Complaints, The System for
Handling Magistrates’ Conduct, Pastoral and Training Matters, April 2006, para. 1.2.1.
45
M. Friedland, A Place Apart: Judicial Independence and Accountability in Canada
(Ottawa: Canadian Judicial Council, 1995), p. 157.

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14 introduction

Public confidence
1.5 The media acts as a powerful check upon the judiciary by reporting
the courts’ activities; media reporting supports the principle of open
justice which, in turn, feeds public confidence in the courts. The judicial
system and judges should not be immune from fair criticism, so long as it
is done in good faith and in good taste, and judges should use sparingly
the extreme measure of contempt of court to address criticism of the
courts. Public trust46 in the courts and the judiciary, however, is also
reliant upon an accurate reflection of the professional character of judicial
business. One should be aware of the dangers that lie in undue popular
pressures on judges. Excessive popular pressure and irresponsible jour-
nalists hungry for sensational pieces may put judges in an unbearable
position. It may threaten the independence of the judges who often
have to act against popular wishes to protect dissenters and members of
minority groups. It is no surprise that it is the vulnerable and outcast
members of society who stand to gain from the human rights protection
introduced by the Human Rights Act 1998, and it is no surprise that it is
members of these groups who have been readiest to invoke the Act.47
Most prominently, senior judges have struck down central aspects of the
government’s efforts to detain or monitor terrorist suspects whom
the Crown Prosecution Service does not wish to prosecute.48 The recent
tensions that have developed between executive and judiciary have to
be kept in proportion for public confidence to be maintained in the
independence of the judiciary and the integrity of government.49
The need for an ‘outward-looking’ English judiciary, increasingly
engaging with the media, is evident. In practice, the provision of infor-
mation about judges and the judicial system has multiplied. The trad-
itional right to a public hearing and the right of access to information has
been enhanced by solutions for new media, specific press rules, and an

46
We consider public opinion to the extent that it constitutes a defining factor behind some
of the constitutional changes, such as the creation of the Judicial Appointments Com-
mission and the need to have regard to diversity in appointments, and to the extent that
the judiciary shows greater awareness of it, for example the Office of Lord Chief Justice
having now developed a more efficient communications strategy with the media and so
forth.
47
T. Bingham, ‘The Human Rights Act’ (2010) 6 EHRLR 568, 569.
48
A v. Secretary of State for the Home Department [2004] UKHL 56; Secretary of State for
the Home Department v. AF [2009] UKHL 28.
49
A. Bradley, ‘Relations between Executive, Judiciary and Parliament: an Evolving Saga?’
[2008] 4 PL 470, 488.

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judicial appointments and judicial career 15

unprecedented amount of judicial statistics or documents relating to the

role and functions of courts and judges. This greater transparency of the
courts’ functioning and judicial workings increases public accountability
and responsiveness. It is another sign that judges’ obligations are to inform
public knowledge and understanding about the law and its application.50
It should be encouraged as a form of social accountability that does not
compromise judicial independence. Rather, it gives ‘space and peace of
mind to judges to work according to the best possible professional and
legal standards in conducting hearings and writing judgments’.51
But the projection of a positive image of the judiciary and the judicial
system in the media remains unfinished business. Media reporting on the
judiciary tends – appropriately – to focus on the possibility of a miscar-
riage of justice. The extra-judicial activities of judicial office holders will
however also be scrutinised. Their published views in particular may
trigger issues of bias which may influence the image of the judiciary as an
institution and a collective. Whether and to what degree a judge should
pursue certain extra-judicial activities – such as conducting political
inquiries – is a matter of legal culture. The concern for public confidence
in the court imposes restrictions on the behaviour of judges even outside
the courtroom. In England, judges get involved on their own initiative
in their local communities. Upon appointment they are expected to give
up all activities with political flavour, such as membership of Parliament,
and it is almost axiomatic that full-time judges should not engage in
political controversy. Exposure on internet social networks or blogs may
yet blur the distinction between the private and public spheres for judges.

Judicial appointments and judicial career

1.6 An aspect of maintaining public confidence in recent times has been
the overt concern for diversity in the composition of the judiciary, as in all
other areas of public life. This had been part of the drive for the consti-
tutional reform in 2005. The English judiciary is made up of separate
groups of judges: the circuit and district benches, and the High Court
bench. A Queen’s Counsel who wished to enter the judiciary would either
be a part-time recorder then circuit judge, or he would be directly
appointed to the High Court bench. Before 1971 solicitors had no access
to the bench; there were only 2,500 barristers. The legal profession was

50
P. Langbroek, International Journal for Court Administration, editorial, April 2011.
51
Ibid.

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16 introduction

small and getting references through what is known today as ‘secret

soundings’ was the accepted norm. Although that appointment process
based on consultation was praised for appointing individuals on merit, it
was also perceived as encouraging self-replication, with judges being from
a narrow social elite.52 As alluded to above, the narrow social background
of the judiciary and the under-representation of women, as well as black
and Asian minorities, has long been the source of heated public debate.
Public confidence in the courts is enhanced by broad reflection in the
judiciary of all social strata, ethnic groups and geographical regions in a
given country. There is currently a sense of urgency in promoting in
effective ways the appointment of individuals from under-represented
groups to the bench.
In addition, the judiciary has grown in size and complexity with the
merging of administration of tribunals (with distinct tribunal benches)
and of the magistracy into one single administrative entity, Her Majesty’s
Courts and Tribunals Service. The traditional perception of a single cadre
for the judiciary – the High Court and above – is thus under strain,
though it is inappropriate to characterise the English judiciary as a
hierarchically integrated professional corps, unlike its counterparts on
the European continent. But we do refer, in this book, to judicial office
holders in the most inclusive way (including tribunal members and
magistrates) and when we refer to the ‘senior judiciary’, we mean the
High Court judges and above.53 It is fair to say at once that some
interviewees were more discomfited than others by accepting that
magistrates are part of the ‘judicial family’, suggesting that this current
discourse is not one to which many professional judges subscribe.
A most significant constitutional change under the CRA is thus the
creation of the Judicial Appointments Commission. The Judicial Appoint-
ments Commission has sought to remove political patronage from the
appointments system. The requirements of merit and good character for
appointment to the Bench are underpinned by the principles of transpar-
ency, independence from politics and a concern for a fair reflection of
society in the appointment process. Transparency in particular supports
the prioritisation of merit and a fairer reflection of society.54

52
J.A.G. Griffith, The Politics of the Judiciary, 5th edn (London: Fontana, 2010), pp. 18–22.
53
CRA, s. 109(4).
54
See J. Limbach et al., Interrights Report on ‘Judicial Independence: Law and Practice of
Appointments to the European Court of Human Rights’, May 2003; Montréal Inter-
national Declaration of Independence, Art. 2.13.

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constitutional adjudication 17

Parliament also requires the Judicial Appointments Commission to

have regard to the need to encourage diversity in the pool of applicants.
However, the concern for diversity plays a role primarily in collecting a
pool of diverse candidates for judicial appointments.55 A shift from a
focus on individual appointments to the concept of a judicial career was
recommended in 2010 by an Advisory Panel to the Lord Chancellor, with
the aim of achieving greater diversity within the judiciary.56 It was later
clarified that this was not a call for a career judiciary, where judges are
appointed after graduating from university and trained for the bench, but
rather a call to the legal profession to bring about further changes in its
composition.

Constitutional adjudication
1.7 The judiciary is a branch of the government beyond being a dispute-
resolution institution. Democratic accountability demands some fit
between the model of constitutional review chosen and the method of
judicial appointments, in order to account for an unelected court acting as
guardian of the constitution over an accountable political branch.57 The
development of the English model of constitutional adjudication appears
distinct from its European counterparts or the United States. The European
model, adopted by several countries, including Germany and Italy, entrusts
the power of constitutional review not to the ordinary court system, but
rather to specialist constitutional courts. These courts meet requirements of
democratic accountability by providing for special procedures for selection
of their members. Those procedures are usually more political than the
ordinary system appointment procedures, which are primarily based on
judicial career. By contrast, the American model promotes the accountabil-
ity of judicial power by giving all courts the power of constitutional review,
but circumscribing that power by ensuring democratic input into the
federal and state systems of judicial appointments.58

55
CRA, s. 64(1).
56
Report of the Advisory Panel on Diversity, 2010, panel chaired by Baroness Julia
Neuberger; S. Turenne, ‘Decisions, Decisions: the Best Case Scenario’, The Guardian,
11 October 2011.
57
We recognise that the rationale for judicial independence needs to be differentiated in
different levels or types of courts, with a greater emphasis on the democratic legitimacy of
high-level judges who often take politically or socially far-reaching decisions.
58
Within the European model there is, however, considerable variety in the constitutional
review structures with constitutional courts, constitutional councils or other tribunals

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18 introduction

In the English context, constitutional adjudication relates to courts

reviewing whether Acts of the UK Parliament or governmental measures
are compatible with the ECHR or European Union law. A declaration of
incompatibility is ‘the nearest that English judges come to a constitu-
tional review’.59 It does not invalidate the law but invites the government
to decide whether to amend the law or to remedy the incompatibility
by registering a formal derogation from the ECHR. Twenty-seven dec-
larations of incompatibility have been made since 2000.60 This, however,
does not include some occasions where the courts have avoided a declar-
ation only by controversially stretching their interpretation of the legis-
lation. Constitutional adjudication can also refer to devolution matters,
when the legislation of the three devolved assemblies (Wales, Scotland
and Northern Ireland) is referred to the UK Supreme Court.61 The
English declaratory model of constitutional adjudication, like that of
Sweden, is situated between the European tradition of constitutional
courts (with a separate appointment process) and the American model
(based on political appointments of judges).62
The English judiciary’s international reputation for impartiality and
probity has greatly contributed to London being a leading commercial
centre.63 Multinational corporations will be attracted to invest and will
engage in international trade in jurisdictions where they have confidence
in the impartiality and independence of the courts. In the public sphere,
following the realisation of the public that the ordinary administrative

exercising constitutional review powers in some countries, while others rely on consti-
tutional chambers within the supreme court, see S. Shetreet, ‘Models of Constitutional
Adjudication’, in Essays in Honour of Konstantinos D. Kerameus (Athens/Brussels: Ant.
N. Sakkoulas/Bruylant, 2009), p. 1259; M. Rosenfeld, ‘Constitutional Adjudication in
Europe and the United States: Paradoxes and Contrasts’, in G. Nolte (ed.), European and
United States Constitutionalism (Cambridge University Press, 2005), p. 197; M. Shapiro
and A. Stone Sweet, On Law, Politics, and Judicialization (Oxford University Press, 2002);
D. Rousseau (ed.), La Question prioritaire de constitutionalité (Paris: Lextenso, 2010).
59
J. Bell, ‘United Kingdom: Constitutional Courts as Positive Legislators’, in A.R. Brewer
Carias (ed.), Constitutional Courts as Positive Legislators. A Comparative Law Study
(Cambridge University Press, 2011), p. 809.
60
Ministry of Justice, ‘Responding to human rights judgments. Report to the Joint Com-
mittee on Human Rights on the Government’s response to human rights judgments
2010-11’, Cm 8162 (HMSO, September 2011), p. 5.
61
Starrs v. Ruxton 2000 JC 208 (appointment of temporary judges (‘sheriffs’) held contrary
to judicial independence).
62
J. Resnik, ‘Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure’
(2005) 26 Cardozo L Rev 579, 593–4.
63
Stevens, The English Judges, p. 82

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constitutional adjudication 19

and political institutions are failing to solve issues, judicial redress has
been sought where these institutions have failed. The executive can also
sometimes refrain from resolving certain matters, thus avoiding the
political price of the decision. This shifts the questions to the courts
in order to secure a judicial resolution of disputes that are economic
or political in nature.64 Thus, as Parliament became overburdened,
so judges have taken on more creative roles both in court and in
pre-legislative institutions such as the Law Commission.65
The constitutional role of the courts in protecting the rule of law
through the development of judicial review and the advent of the Human
Rights Act 1998 have, however, exposed the political impact of judicial
decisions to the wider community. The increasing readiness of the courts
to intervene in administrative decision making has led to a significant
development of the principles of review66 in recent decades. This follows
the development of broad statutory powers of the executive and the
perception that ministerial responsibility to Parliament falls short of
adequately protecting citizens against a misuse of executive powers.67
The advent of constitutional adjudication under the Human Rights Act
1998 has strengthened the position of the judiciary yet it also exacerbated
the opportunities for politicians and judges to come into conflict, under
the courts’ obligation to declare legislation incompatible if it does not
admit of a reading compatible with the ECHR.68 Judges can also disapply
national law on the ground of incompatibility with European Union law.
The aggregate work of the judiciary as a collective entity has come
under scrutiny beyond the legal community as a consequence not only of
that increase in judicial power. The development of accountability for
resources within the public service has also brought to light the great
range of activities that support the judicial role of deciding cases. English
judges, whose independence was mostly an individual attribute, now
share with continental judges the constraints of a bureaucratic institution
such as the Courts and Tribunals Service. The existence of a formal
appointment process and a regulatory framework for judicial conduct, as
well as the greater emphasis on training certainly constitute foundation

64
N. Stephen, ‘Judicial Independence – A Fragile Bastion’, in Shetreet and Deschenes (eds.),
Judicial Independence, 529, 543.
65
Bell, Judiciaries within Europe, 353.
66
J. Jowell, ‘Restraining the State: Politics, Principle and Judicial Review’ (1997) 50 CLP 189.
67
R v. Secretary of State for the Home Department, ex p. Fire Brigades Union [1995] 2 AC
513, 567 [Lord Mustill].
68
Human Rights Act 1998, s. 3.

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20 introduction
stones towards the professionalisation of the judiciary. This is done in the
English way, where the skills and wealth of experience acquired as a legal
practitioner are a prerequisite for entry to the bench.
But still, the independence of the judiciary must be reinforced. The
measurement of courts’ and tribunals’ performance, judicial conduct and
judicial appointments are, since the CRA, subject to close monitoring.
The use of parliamentary questions and debates and the appearance of
judges during Select Committee inquiries as well as reports to Parliament
have multiplied in recent years. Parliamentary accountability is likely
to develop in order to build support for judicial independence against
the executive. The first overt step was observed in 2012 when the English
candidates for the seat in the European Court of Human Rights were
questioned by MPs in addition to ministers, although the final decision
was made by the European institutions in Strasbourg itself. Constitu-
tional arrangements are as yet not settled and further changes to the
constitutional position of the judiciary are not to be excluded. Nonethe-
less, the culture of judicial independence is strong.
Judicial independence is a cornerstone of Britain’s constitutional
arrangements,69 and it has predominantly been a matter of conventions
and practices rather than legal rules. These conventions and practices
respond to the organisational structure of the judiciary; they relate to the
legal community of academics, lawyers and lay judges, and to the wider
community that includes the political community and public opinion.
Our aim is to make explicit the rules, assumptions and practices in force
within the English judiciary today. The case study of judicial independ-
ence in England shows the multiple influences upon the culture of
judicial independence, from the institutional structure of the judiciary,
the constitutional conventions and statutes which safeguard the inde-
pendence of the judiciary, the standards of judicial conduct adopted by
the judiciary on and off the bench, to the legal developments relating to
judicial independence in the courts’ case law.

69
Lord Irvine, ‘Parliamentary Sovereignty and Judicial Independence: Keynote Address’, in
J. Hatchard and P. Slinn (eds.), Parliamentary Supremacy and Judicial Independence:
A Commonwealth Approach (London: Cavendish Publishing, 1999) p. 167.

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2

Constitutional steps towards judicial independence

Introduction
2.1 The history of judicial independence has been well documented by
Robert Stevens.1 With the purpose of setting the constitutional back-
ground to this work, we sketch, over the centuries, the position of the
judiciary in relation to the executive and Parliament, before considering
the further step towards judicial independence under the Constitutional
Reform Act 2005 (CRA) and the consequences of the Human Rights
Act 1998 (HRA). A sense of the existing strains allows us to understand
better the concern that the Lord Chancellor’s duty to preserve the
independence of the judiciary should be put on statutory footing in
the CRA.

I. History
2.2 Our brief historical account focuses upon the emergence of the
foundations of the modern judiciary in the events of the seventeenth
century. In the sixteenth and seventeenth centuries, judges were an
integral part of the royal administration and, at the direction of the
Crown, performed many administrative duties.2 To Tudor and early
Stuart men the distinction between judicial and administrative duties
would have been rather obscure. Holdsworth’s observation that the
Chancery was ‘a branch of the civil service as well as a judicial court’3
applied in varying degrees to many institutions that we now refer to as

1
R. Stevens, The Independence of the Judiciary. The View from the Lord Chancellor’s Office
(Oxford: Clarendon Press, 1993); The English Judges: Their Role in the Changing Consti-
tution, rev. edn (Oxford: Hart, 2005).
2
W.J. Jones, Politics and the Bench (London: Allen & Unwin, 1971), pp. 18–19, 21–2, 51–2;
A.F. Havighurst, ‘The Judiciary and Politics in the Reign of Charles II’ (1950) 66 LQR 62,
65–6; W. Holdsworth, History of English Law, vol. I, 2nd edn (1937), p. 273, vol. IV, p. 75.
3
Holdsworth, History, vol. V, p. 245.

21

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22 constitutional steps towards judicial independence

‘courts of law’.4 As long as the King and Parliament did not come into
conflict and did not look to the courts of law for support in the struggle
for power, the independence of the judges was not an important issue.5
Thus, under the Tudors, the issue of judicial independence did not give
rise to difficulties. During this period the judges undoubtedly were not
independent: they were under strict royal control and the Crown enjoyed
their cooperation. Since judges were not sought by the sovereign of the
day to be instruments in political struggles, this harmonious cooperation
met with popular approval.6 Similarly, because judges were outside the
sphere of politics, very few were removed for political reasons during this
period, even though they held office at the King’s (or Queen’s) pleasure.7
In the seventeenth century the situation changed. The King and
Parliament no longer worked harmoniously together, and in the struggle
for power both the Crown and Parliament appealed to the law for
support. The determination of individual cases that came before the
courts required the demarcation of the boundaries of parliamentary
privilege and of royal prerogative. The judges thus became so important
to the political struggle that both Crown and Parliament began to
exercise every available form of control over the judiciary. At this junc-
ture of history the independence of judges became an important issue.

A. Royal control over judges

2.3 With respect to control over the judiciary, the advantage lay with the
Crown, which could exercise this control in various ways. The primary
and most extreme form of control was removal from office. The judges
held their offices at the King’s pleasure and could be removed by
the Crown without cause. In the seventeenth century the power of
removal was frequently exercised by the King to ensure that those who

4
W.J. Jones, Politics and the Bench (London: Allen & Unwin, 1971), 18.
5
S.R. Gardiner, A Student’s History of England, vol. I, pp. 1–2 (London: Longman, Greens
and Co, 1890); A. Harding, Social History of English Law (Harmondsworth: Penguin,
1965), pp. 252–3.
6
Holdsworth, History, vol. V, 347.
7
Chief Justice Cholmley and Montague were dismissed at the accession of Mary; another
judge was imprisoned for his religious principles; Elizabeth is suspected of having removed
a judge (Robert Manson) on political grounds: E. Foss, The Judges of England (London:
Longman, Brown, Green, and Longmans, 1857), vol. V, pp. 343–4, 370–3; 527–8; Gardiner,
A Student’s History, vol. II, 7–8. Holdsworth describes this case as a ‘doubtful instance’:
Holdsworth, History, vol. V, 346.

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i. history 23

did not submit to the royal command would no longer remain on the
bench. The dismissal of Chief Justice Coke by James I in 1616 for his
refusal to submit to Royal intervention in the Case of Commendams8
foreshadowed a long series of removals of judges for political reasons.9
A secondary form of control was suspension. Thus, Sir Edward Coke had
been suspended from office in June 1616 before he was finally removed in
November 1616.10 Further, not all the judges held office during pleasure.
The Barons of the Exchequer, unlike their brethren in the Court of
Common Pleas and the King’s Bench, held their office during good
behaviour.11 Likewise, for some time in the seventeenth century other
judges also held office during good behaviour. If displeased, the King
might merely forbid them to sit in court,12 thereby in actuality suspend-
ing them from office.
The King did not always resort to the powers of removal and suspen-
sion. Less extreme measures for securing judicial subservience were
available. Despite the Case of Prohibitions,13 in which Coke affirmed
Bracton’s dictum that the King was subject to the law and custom of
England, the Crown would attempt to interfere with the ordinary course
of justice.14 In the Case of Commendams15 Chief Justice Coke and the rest
of the judges refused to obey a royal order not to proceed to judgment

8
Colt and Glover v. Bishop of Coventry, 80 ER 290 (KB) (1616).
9
For an analysis of the prolonged conflict between James I and Sir Edward Coke, see C.D.
Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke 1552–1634
(Boston: Little, Brown, 1957). See also, for other examples of the exercise of removal:
Foss, The Judges, vol. VI, 291, 322–4, vol. VII, 4, vol. VIII, 201; C.H. McIlwain, ‘The
Tenure of English Judges’ (1913) 7 Am Pol Sci Rev 217, 222; for an account of the
removals of Charles II and James II, see A.F. Havighurst, ‘James II and the Twelve Men in
Scarlet’ (1953) 69 LQR 522.
10
Foss, The Judges, vol. VI, 118; J. Campbell, Lives of the Chief Justices (London: John
Murray, 1849), vol. I, pp. 288 and 292.
11
Coke’s Institutes, vol. IV, p. 117. After 1631, Barons were also appointed during pleasure,
McIlwain, ‘Tenure of English Judges’, 219–21; E. Haynes, Selection and Tenure of Judges
(Littleton, Co: Rothman & Co., 1944), p. 77.
12
See John Walter’s Case, Coke Reports, vol. III, 203 (1630); Foss, The Judges, vol. VI, 216,
372; John Archer’s Case (1672); Foss, The Judges, vol. VII, 52–3.
13
Prohibitions Del Roy Mich 5 Jacobi 1; (1608) 77 ER 1342.
14
See Jones, Politics, 137; Coke also denied that the King was entitled to change the
common law or to create any new offence by proclamation, see the Case of the Proclam-
ations, 12 Co Rep 74; (1610) 77 ER 1352; Fuller’s Case (1607) 77 ER 1322. Sir Edward
Coke also indicated that lower courts would lose their immunity from suit if they acted
outside their jurisdiction, see the Marshalsea Case, 10 Co Rep 68b; (1613) 77 ER 1027.
15
Case of Commendams, Colt & Glover v. Bishop of Coventry & Lichfield 80 ER 290 (KB)
(1616).

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24 constitutional steps towards judicial independence

until they had spoken with the King. Thereupon they were summoned
before King James I, and all the judges, except Coke, were forced into
submission.16 But in some cases the attempted interference with judicial
proceedings was successfully resisted by the judges.17
Likewise, the control of the Crown over the judiciary was exercised by
consulting the judges on the legality of a proposed course of action. The
result was that the judges were often called upon to take part in cases in
which they had already committed themselves by the delivery of an
extra-judicial opinion. In the sixteenth century the Crown consulted
the judges when the law appeared to be doubtful, and generally their
opinions were followed.18 In the seventeenth century the judges were
asked by the Crown to render extra-judicial opinions sustaining disputed
royal prerogatives and regarding pending cases.19
As a subsidiary form of royal control over the judiciary, a judge would
be transferred from one judicial office to another. Threat of transfer could
be used either to persuade the judge to submit to the royal wishes or to
punish him for previous behaviour that was unsatisfactory to the Crown.20
Moreover, under the fiscal system then in existence, judges’ salaries and
pensions were paid directly by the King out of the royal revenue and were,
of course, dependent upon his discretion. Similarly, the promotion of
judges depended upon the King’s discretion. Royal control over judicial
remuneration and promotion was therefore not devoid of significance.21

16
H. Broom, Constitutional Law Viewed in Relation to the Common Law and Exemplified
by Cases (London: W. Maxwell, 1866), pp. 147–8.
17
Broom, Constitutional Law, pp. 147–8: under the Tudors, judges also resisted royal
interference with the judicial process; Holdsworth, History, vol. V, 348; Brooke LJ,
‘Judicial Independence – Its History in England and Wales’, in H. Cunningham (ed.),
Fragile Bastion. Judicial Independence in the Nineties and Beyond (Sidney: Judicial
Commission of New South Wales, 1997), pp. 94–5.
18
Holdsworth, History, vol. V, 348.
19
Gardiner, A Student’s History, vol. II, 277; T.P. Taswell-Langmead, English Constitutional
History, l0th edn by T.F.L. Plucknett (London: Sweet and Maxwell, 1946), pp. 392n,
430–1; E.C.S. Wade, ‘Consultation of the Judiciary by the Executive’ (1930) 46 LQR 169,
181–2. The practice of consulting the judges and eliciting extra-judicial opinions did not
come to an end until the second half of the eighteenth century, when it fell into
desuetude, see Broom, Constitutional Law, 151.
20
For example, the transfer of Coke from the office of Chief Justice of the Common Pleas to
that of Chief Justice of the King’s Bench in 1613 after the Case of Commendans, see D.J.
Medley, A Student’s Manual of English Constitutional History (Oxford: Blackwell, 1894),
p. 488.
21
W.E. Hearn, The Government of England: its Structure and its Development, 2nd edn
(London: Longmans, Green & Co., 1886), p. 79.

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i. history 25

The choice of the form of control to be exercised in a particular case

depended on the importance of the royal interest at stake, and the degree
of independence and resistance demonstrated by the judges. It seems that
the Crown first offered favours in the hope of influencing the judges to
respond favourably to the royal wishes. Sometimes, however, the judges
demonstrated an independent stand and were not tempted by the royal
smile and favour ‘to take a broad view of the extent of their master’s
prerogative’.22 Likewise, the royal interest at stake was sometimes too
important to be put at the slightest risk. In those instances the Crown had
to resort to the more extreme measures of suspension and removal,
partly because Parliament succeeded in cutting down royal control over
the judges and partly because there was no confidence that less extreme
measures would be effective. However, royal control over judges was
exercised at the cost of political repercussions. As Gardiner observed:
From henceforth [the Crown] could no longer expect to obtain that moral
support which it had hitherto received from the decisions pronounced
from the Bench by the judges who were, comparatively at least with the
men who held office subsequently to Coke’s disgrace, independent of the
favours and the anger of the Crown.23

B. Coke versus Bacon

2.4 It was the struggle between the Crown and Parliament in the early
Stuart period that gave rise to the conflict between Coke and Bacon on
the duties and functions of the judges. Bacon expressed the view that the
judges were lions ‘but yet lions under the throne, being circumspect that
they do not check or oppose any points of sovereignty’.24 Thus: ‘it was a
happy thing in a state when Kings and states do often consult with Judges
and again when judges do often consult with the King and state’. In short,
he believed that the judges’ function was not merely to declare the law
but to support the government.25
Coke, however, claimed that judges must impartially expound and
apply a supreme law which governs the royal prerogatives, parliamentary

22
T.R.S. Anson, The Law and Custom of the Constitution, 3rd edn (Oxford: Clarendon,
1907), vol. I, p. 30.
23
Gardiner, A Student’s History, vol. III, 27.
24
F. Bacon, ‘Essays: Of Judicature’, in J. Spedding, R. Ellis. and D. Heath (eds.), Works of
Francis Bacon (New York: Hurd and Houghton, 1861 reprint), vol. VI, pp. 506 and 510.
25
Anson, The Law and Custom, vol. I, 30.

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26 constitutional steps towards judicial independence

privilege, and the rights of the individual.26 Coke believed that in passing
their judgments, the judges were under no duty to consult the King when
their decisions affected the powers of the Crown. As history has shown, it
is Coke’s view that has prevailed,27 and in Bonham’s Case he went on to
say that a ‘repugnant’ act of Parliament can be ‘controlled’ by the courts.
Coke probably meant to express a belief that there are some fundamental
principles of English law which Parliament should not violate. He did not
propose a judicial review of legislation in violation of the fundamental
laws but advocated the strictest interpretation of statutes which appeared
to alter them.28

C. Parliamentary control over judges

2.5 In the face of strong Royal influence over the judges, Parliament, in
turn, sought to exercise its own control over the judiciary. Those who gave
decisions which Parliament deemed inconsistent with parliamentary privil-
ege or with the rights of the people and those who were guilty of miscon-
duct in the discharge of their judicial functions were either impeached or
called before Parliament to defend and explain their decisions or alleged
misconduct. Parliamentary action against judges was in the main motivated
by political considerations. Judicial activities were labelled ‘illegal’, ‘contrary
to fundamental laws’ or ‘corrupt’, but in effect the judges were proceeded
against by Parliament to protect the political interests at stake and to curb
royal powers.29 Thus, in 1680, Lord Chief Justice William Scroggs of the
King’s Bench was impeached by the Commons for illegal and arbitrary
behaviour in court and charged also for having ‘traitorously and wickedly
endeavoured to subvert the fundamental laws’. Though the Lords refused to
impeach him, he was removed from the bench.30
Similarly, impeachment proceedings were initiated against the judges
who delivered the opinion in the Ship Money case in 1637, upholding
the power of the King to levy indirect taxation for ships without the
consent of Parliament.31 In 1698 the Lords summoned Chief Justice

26
The Case of Prohibitions 77 ER 1342 (1607); Dr Bonham’s Case 77 ER 638 (1608); see
above para. 2.3.
27 28 29
Harding, Social History, 260. Ibid. See generally Havighurst.
30
(1680–1692) 2 Parl. Deb., 1, 22–5.
31
R v. Hampden (1637) 3 State Trials 825; D.L. Keir, ‘The Case of Ship Money’ (1936) 52
LQR 546; 3 Howell’s State Trials 1260; J. Hatsell, Precedents of Proceedings in the House of
Commons, with Observations (London: Printed for L. Hansard and Sons, 1818), vol. IV,
pp. 139 et seq.

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i. history 27

Holt and asked him to give reasons for his decision in R v. Knollys.32
In that case, it was held that the court had the right to determine
the existence of a privilege claimed by the House of Lords. Holt refused
to comply with the demand of the Lords, and categorically stated
that the Lords had no power to interfere with a decision of the court
unless it came before them on appeal. The Lords dared not commit
Holt and escaped an embarrassing situation by adjourning. Whether or
not this interference was warranted, the public strongly supported
Holt.33
Parliament did not confine its efforts to questioning and impeaching
judges for past behaviour. In 1629 the House of Commons attempted
to persuade the Barons of the Exchequer to change their minds on a
particular matter. The King protested at this attempt, insisting that
judges should not be so approached.34

D. Legislation to secure judicial independence

2.6 Parliament not only proceeded against judges for allegedly encroach-
ing upon its privilege and favouring the Crown, but also passed
legislation aimed at the elimination of royal interference with the judicial
process.35 In passing this legislation, Parliament was motivated less by a
commitment to judicial independence than by the political consideration
of curbing royal powers. Whatever the motives behind it, such legislation
contributed to strengthening the independence of the judges. The Act
establishing the judicial oath provided that the judges should swear that
they would not receive any fee or present from a party to a case before

32
R v. Knollys (1695) I Ld. Raym. 10; 91 ER 904.
33
Campbell, Lives, vol. II, 148–152. For further discussion of Parliamentary inquiry into
legal proceedings and impeachment proceedings against judges see Jones, Politics, 75–7,
137–43. In particular, see the Commons investigation into the conduct of Chief Justice
Kelynge in 1667, who fined one jury for disobeying his directions and on other occasions
imprisoned juries who delivered verdicts contrary to his directions, 9 Commons Journal
4, 18, 20, 29, 35–7; 6 Howell’s State Trials 992–1019; Campbell, Lives, vol. I, 509–510
(1849); the impeachment of Sir Richard Watson for improperly charging a jury; (1680–1692)
2 Parl. Deb., 15; Hatsell, Precedents, vol. IV, 128; the questioning of Justice Pemberton by
the House of Commons about the opinion of the Court in two important constitutional
cases, 10 Commons Journal 210, 213, 217, 224 (1688–1693); J. P. Kenyon, The Stuart
Constitution (Cambridge University Press, 1996), p. 445.
34
See Jones, Politics, 53, 169.
35
For example, 2 Edward III c.8, I Statutes at Large 425; II Richard II c.10, 2 Statutes at
Large 297.

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28 constitutional steps towards judicial independence

them except from the King who paid their salaries. Nor were they to give
counsel when the King was party, and further they would not regard any
letter or message from the King with relation to any point pending before
them.36 This and other legislation also played an important role in
improving the standards of judicial behaviour, as well as in reducing
royal influence over the judges and the judicial process.
It was not until the second half of the seventeenth century that
Parliament touched the heart of the problem: judicial tenure. In January
1640 the Lords presented a petition to Charles I, praying that judges
should hold office during good behaviour,37 and in June Charles
I conveyed to Parliament ‘that the judges hereafter shall hold their places,
quam diu se bene gesserint’.38 For some thirty years all judges’ patents
were during good behaviour. Writers have disagreed as to the exact
periods prior to the Act of Settlement in which judges held office during
good behaviour, but it is generally admitted that after 1688 all judges
were appointed during good behaviour.39
In 1669 Charles II substituted ‘during pleasure’ for ‘during good behav-
iour’ in the judges’ patents, as did James II. As has briefly been shown, they
frequently exercised their power of removal to dismiss judges from office
on political grounds. In 1680 the House of Commons summoned several
judges who had been removed and questioned them about the circum-
stances of and motives for their removal.40 In the same year a resolution to
draw up a bill providing that thereafter judges should hold their office
during good behaviour was passed by the Commons,41 but nothing came
of it. Earlier in 1673 the Commons debated a bill, which failed to become
law, providing that judges should hold office during good behaviour.42
In 1691 ‘an Act for ascertaining the commissions and salaries of judges’

36
See also 20 Edward III c.4, 2 Statutes at Large 17; 20 Edward III c.l, 2 Statutes at Large 22;
c.2; c.3, 2 Statutes at Large 22–3.
37
4 Lords Journal 130 (12 January 1640); McIlwain, ‘Tenure of English Judges’, 222; A.F.
Havighurst, ‘The Judiciary and Politics in the Reign of Charles II’ (1950) 66 LQR 62, 65.
38
Lords Journal 132 (15 January 1640).
39
McIlwain, ‘Tenure of English Judges’, 222–4; Lord Birkenhead, Points of View (London:
Hodder and Stoughton, 1922), vol. II, pp. 159–61; H. Cecil, Tipping the Scales (London:
Hutchinson, 1964), p. 26; Holdsworth, History, vol. I, 195 n. 2; Havighurst, ‘The Judi-
ciary’, 65. For the period prior to 1688, we are inclined to believe that the period
suggested by Lord Birkenhead and Professor Havighurst (1640–1668) is accurate.
40
9 Commons Journal 683 (17 December 1680).
41
9 Commons Journal 308 (13 February 1673).
42
M.A. Thomson, A Constitutional History of England. 1642–1801 (London: Methuen,
1938), p. 282.

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i. history 29

was passed by both Houses43 but failed to receive the royal assent, the
apparent reason being that salaries were to be charged out of the royal
revenue without obtaining the prior approval of the Crown.44

E. The Act of Settlement 1701

2.7 Security of judicial tenure was finally established in 1701 by the Act of
Settlement,45 which provided that ‘judges’ commissions be made quam diu
se bene gesserint and their salaries be ascertained and established, but upon
the address of both houses of Parliament it may be lawful to remove them’.
Even after the Act of Settlement, however, the independence of the judges of
the Crown was still incomplete. Their commissions ceased on the death of
the reigning King, and their salaries were still inadequately established, as no
step had been taken to implement the command of the Act of Settlement
that they ‘be ascertained and established’.46 By an Act passed in the reign of
Queen Anne,47 it was provided that the commissions of the judges should
continue six months after the death of the reigning sovereign unless the new
King chose to remove the judge before the expiration of that period. This
measure did not cure the deficiency, since it was still within the unlimited
discretion of the new monarch either to remove the judges before the six
months were over or not to reappoint them after that period.48
Since the Acts of Anne did not spell out the patents of judges but
rather spoke of ‘patent or grant of any office or employment, either civil
or military’, it is not clear whether these Acts applied to the judges.49

43
10 Commons Journal 678 (February 1691).
44
Hearn, The Government, 82; for another possible reason, see H. Hallam, The Consti-
tutional History of England from the Accession of Henry VII to the Death of George II, 5th
edn (London: John Murray, 1846), vol. II, p. 357.
45
It was originally resolved that judges should be removable on the address of either House
of Parliament, but it was later amended to both Houses, Hallam, Constitutional History,
vol. II, 358; see generally Stevens, The English Judges.
46
Lord Sankey LC, 90 HL Deb, 77 (23 November 1933).
47
1 Ann. Statute I c.8, 10 Statutes at Large 415; 6 Ann. c.7, II Statutes at Large.
48
In fact, in 1714 and 1727 a number of judges failed to be reappointed on the accession of
George I and George II and other judges were removed from office before the six months
had expired, McIlwain, ‘Tenure of English Judges’, 224; Thomson, A Constitutional
History, 282; Foss, The Judges, vol. VIII, 99; Hearn, The Government, 82; but see Camp-
bell, Lives, vol. V, 149.
49
See Holdsworth, History, vol. X, 434. Campbell doubts whether legislation was needed to
provide that the judges’ patents should not cease at the death of the King, arguing that
this method of removing a judge was excluded by the Act of Settlement, Campbell, Lives,
vol. V, 149.

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30 constitutional steps towards judicial independence

Whether the Acts of Anne applied to the judges and whether the
Act of Settlement excluded their removal at the death of the King,
remain merely academic questions for the issue was expressly settled
by the Act of 1760 passed in the first year of the reign of George III.50
Upon accession, George had earnestly suggested in a speech before
Parliament that the commissions and salaries of judges be better
safeguarded.51 The Act subsequently provided that judges should
continue to hold office ‘during good behaviour’, rather than quam
diu se bene gesserint and notwithstanding the demise of the monarch.
This clause was only the first of the many re-enactments of the
original provision in the Act of Settlement establishing judicial tenure
during good behaviour and providing that a judge may be removed
upon an address of both Houses. Nevertheless, while subsequent
legislation introduced some changes in the wording of the clause, the
meaning of the clause remained unchanged. The present formulation
of the clause is found in the Senior Courts Act 1981 and the Tribunals,
Courts and Enforcement Act 2007: all judges of the High Court and
of the Court of Appeal as well as the Senior President of Tribunals
hold office ‘during good behaviour’, until retirement age subject to a
power of removal by His Majesty on an address by both Houses
of Parliament.52 A similar provision applies to the UK Supreme Court
Justices.53
2.8 Developments since the Act of Settlement have further secured the
independence of the judiciary. An Act of 1760 first established judicial
salaries, and provided that they should be made a permanent charge
upon the Civil List.54 In 1799 legislation established judicial pensions.55
Only in the nineteenth century did judges’ remuneration take the form of
comprehensive salaries coupled with a prohibition against supplement-
ing it. Until then judicial salaries were supplemented by additional
sources of income such as judicial fees, presents, profits arising out of
sale of offices, allowances for robes and loaves of sugar. The additional

50
1 George III c.23, 23 Statutes at Large 305.
51
28 Commons Journal 1094; The King’s words were recited in the preamble to the Act.
52
Senior Courts Act 1981 (formerly known as the Supreme Court Act 1981), s. 11(2); sch.
Tribunals, Courts and Enforcement Act 2007, sch. 1, para. 6.
53
CRA, s. 33.
54
1 Geo. III, c.23 (1760), 23 Statutes at Large 305; on judicial salaries, see below paras. 4.43
and 7.30.
55
39 Geo. III, c.110, s.7 (1799).

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i. history 31

sources of income were eliminated in a very long, gradual evolution

extending over three centuries.56

F. Judgment on the judiciary of the Stuart period

2.9 The Whig historians passed a severe verdict on the bench under the
Stuarts. It seems, however, that the judiciary under the Stuarts was not as
subservient as has been generally suggested and that the quality of the
judges at that time was higher than is generally believed.57 Even ‘Bloody
Judge Jeffreys’ has been defended, on the ground that the judges regarded
themselves as a branch of the royal administration and sincerely believed
in the theory of monarchy which, until the appalling political blunders of
James II, was supported by the majority of Englishmen. It has also been
suggested that the achievement of judicial independence should not be
attributed to the efforts of the Opposition, who frequently acted in this
matter from purely political motives.58 While some have argued that the
severe verdict of the great Whig historians on the judicial bench under
Charles II and James II remains,59 it seems that a scrutiny of the role of
the judiciary in the constitutional struggle preceding the Glorious Revo-
lution and the Act of Settlement leave serious doubts as to the validity of
the prevailing view on the judiciary of the Stuart period.

G. Crown, Parliament and judges after 1700

2.10 The introduction of good behaviour tenure for judges did not create
an independent judiciary at the stroke of a pen. The judiciary, having
been for so long a branch of the executive and at the storm centre of
affairs during the Stuart era, could not immediately and entirely be
removed from the entanglements of politics. Parliamentary attempts at

56
Holdsworth, History, vol. I, 252–3; T. Mathew, For Lawyers and Others (London: Hodge,
1938), pp. 71–87; Cecil, Tipping the Scales, 209–30; Lord Sankey LC, 90 HL Deb., 75 et
seq. (23 November 1933).
57
G. Keeton, ‘The Judiciary and the Constitutional Struggle 1660–88’ (1962) 7 J Pub Teach
Law 56; Jones, Politics, 18–19, 147–8.
58
According to Keeton, ‘it was the fact that the reaction to the excesses of James II came
from the nation as a whole, irrespective of political belief, that made possible the
evolution of the modern conception of the function of the judiciary’, Keeton, ‘The
Judiciary and the Constitutional Struggle’, 67.
59
R.F.V. Heuston, Lives of the Lord Chancellors (1885–1940) (Oxford: Clarendon Press,
1964), p. 39.

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32 constitutional steps towards judicial independence

exerting political pressure on the bench continued even after the Act of
Settlement60 and more than a century passed before the modern concept
of judicial independence as we know it today emerged. The King and
his ministers also sought to put pressure on judges concerning pending
cases long after the Act of Settlement. In 1770, two members charged in
Parliament that a minister tampered with a judge, and the King sent the
judge a letter which he returned unopened.61 There is also evidence that
in 1767 politicians tampered with the integrity of judges by giving them
lottery tickets which they sold openly.62 The influence of the Crown
on the bench did not pass away with the Act of Settlement. Having been
for so long a branch of the executive, judges had strong tendencies to
support the Crown.63
The judges in the eighteenth century and in the first half of the
nineteenth century were charged with having been overly zealous in
enforcing the repressive measures of the legislature against political oppon-
ents. As one writer put it, ‘the sternest upholder of authority could not
have accused the judges of any undue predilection for liberty of opinion’.64
Campbell and Erskine May suggested that the laws of libel were adminis-
tered by the judges in such a way as to leave little room for free speech,
and trials conducted in such a manner as to persuade the juries to convict
those who stood on trial for expressing criticism of the government.65

60
The story of the attempt to question Chief Justice Holt about his decisions in Ashby v. White
(1705) 2 Ld. Raym. 938, 92 ER 126, and Paty’s Case ((1705) 2 Ld. Raym. 1105, 92 ER 232) and
his strong resistance is an instructive illustration. (These cases dealt with the courts’ deter-
mination of Parliamentary privilege.) Lord Campbell, however, who also relates the story,
argues that no such proceedings ever took place: Campbell, Lives, vol. II, 164–5.
61
(1765–1771) Parl. Hist. 1228–9, 1295. There is good reason to believe that the charges
were not unfounded, see Foss, The Judges, vol. VIII, 412.
62
Cecil, Tipping the Scales, 19.
63
In light of this, Hallam suggested that ‘we should look upon them with some little
vigilance, and not come hastily to a conclusion that, because their commissions cannot
be vacated by the Crown’s authority they are wholly out of reach of its influence’, Hallam,
Constitutional History, vol. II, 358. See also Hearn, The Government, 86–8; Medley,
A Student’s Manual, 490; Lord Brougham, Present State of the Law: the Speech of Henry
Brougham, Esq, MP, in the House of Commons on Thursday February 7 1828 (London:
Henry Colburn, 1828), p. 20 where he quotes his famous speech before the Commons in
1828: ‘Whenever a question comes before the Bench, whether it is upon prosecution of
libel or upon any other matters connected with politics, the counsel at their meeting take
for granted that they can tell pretty accurately the leaning of the court, and predict exactly
enough which way the consultation of the judges will terminate.’
64
Medley, A Student’s Manual, 490.
65
Campbell, Lives, vol. VI, 516–17; the story is also told of Chief Justice Ellenborough who
presented the draft of a letter of resignation after failing to persuade the jury to convict in

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i. history 33

The Whiggish view on the judges of the eighteenth and early nine-
teenth centuries, as reflected in the preceding passages, should be read
with a degree of scepticism. In the Stuart era it was easier to blame
the judges for the difficulties than to admit that the whole system had
failed.66 In the eighteenth and early nineteenth centuries, it was similarly
easier to put the responsibility for the suppression of free speech upon
the judges than simply upon the law of libel which they had to apply.
For the purpose of this study it may be pointed out that judicial inde-
pendence in this period was in the process of gradual evolution, as
were other concepts of modern British government, such as Opposition
and Cabinet.
This takes us to another aspect of judicial association with the execu-
tive. In the eighteenth century and at the beginning of the nineteenth
century there were several instances of judges who served as members of
the Cabinet and took an active part in the political arena on the side
of the Crown. Lord Hardwicke kept the office of Chief Justice of the
King’s Bench for about four months after he had entered the Cabinet as
Lord Chancellor (from February to June 1737).67 Chief Justice Mansfield
served as a minister in the Cabinet for some nine years (1757–1765). This
appointment did not pass without criticism;68 yet, half a century later
Chief Justice Ellenborough was appointed to the Cabinet. Lord Ellenbor-
ough’s appointment to the Cabinet was severely condemned in the press
and in Parliament as unconstitutional conduct. However, the govern-
ment was strong enough to defend the appointment, for a resolution
of censure was decisively rejected in both Houses of Parliament.69 In
defending the appointment, Lord Erskine, then the Lord Chancellor,
correctly argued that there was nothing unconstitutional in summoning
the Chief Justice to the Privy Council and further pointed out that the
word Cabinet was unknown to the law and constitution. Likewise, the
precedent set by Lord Mansfield was heavily relied upon.70 To Lord
Campbell, Lord Erskine’s arguments appear to be based on ‘mere for-
mality and in complete disregard of the practice’.71 As has been shown by

the trial of Howe in 1817, Erskine May, The Constitutional History of England, edited and
continued by F. Holland (London: Longman, Greens, 1912), pp. 75–6.
66
Jones, Politics, 32.
67
Holdsworth, History, vol. XII, 244; Campbell, Lives, vol. V, 39–40; A. Todd, On Parlia-
mentary Government in England: its Origin, Development and Practical Operation
(London: Longmans, Green & Co., 1867–69), vol. II, p. 157.
68 69 70
Campbell, Lives, vol. III, 188. Ibid., 186. Campbell, Lives, vol. VI, 584–5.
71
Ibid., 686.

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34 constitutional steps towards judicial independence

Foord,72 Cabinet and Opposition developed only in the nineteenth

century. Lord Erskine, therefore, was right when he argued in 1805 that
‘Cabinet’ was then unknown to the law of the constitution.
Whether or not the service of judges in executive positions was
inconsistent with the concept of judicial independence, as it was then
understood, there is little doubt that the severe criticism in the press and
Parliament of Lord Ellenborough’s serving in an executive position
helped in establishing the proposition that judges should not sit in the
Cabinet. No subsequent case of a judge serving as a Cabinet minister is
recorded. Common law judges were excluded from the House of Com-
mons in 1805, but the Master of the Rolls continued to sit in the
Commons until the passing of the Supreme Court of Judicature Acts
1873 and 1875, which excluded all superior judges from sitting in the
House of Commons. Before the Judicature Acts, the disqualification of
the judges from the House of Commons rested on the law and custom
of Parliament.73

II. The Constitutional Reform Act 2005

2.11 Elsewhere in this book we document the continuing struggles
between the judiciary and the executive over salaries and pensions and
other matters. It is difficult to identify moments of crises in the twentieth
century; such anomalies as undoubtedly persisted, such as the fact that
the Lord Chancellor was at the same time a Cabinet minister, member of
the House of Lords and able to sit in the House of Lords in its judicial
capacity, caused surprisingly few difficulties in practice. As far as public
confidence was concerned, the greater concern was almost certainly the
lack of transparency in judicial appointments which lay in the gift of the
Lord Chancellor but which went to white men from the same privileged
backgrounds.
Reform, when it came, arrived almost overnight. It was not prompted
by any particular crisis or alleged scandal. The Labour government
announced the formal separation of powers between the judiciary and
the other two branches of government without consultation with the
judiciary or any planning of its profound consequences on judicial

72
A. Foord, Her Majesty’s Opposition 1714–1830 (Oxford University Press, 1964).
73
For historical accounts of disqualification of judges from the House of Commons,
see Hatsell, Precedents, 3rd edn (1796), vol. II, 26–9; Birkenhead, Points of View, vol. II,
151–7.

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ii. the constitutional reform act 2005 35

governance and accountability. In June 2003, a government press release

stated plans to abolish the office of the Lord Chancellor, to separate the
most senior judges who used to sit as members of the House of Lords
into a new Supreme Court of the UK, and to establish a new system for
judicial appointments in England and Wales. No draft Bill was pub-
lished at the time of the press release. It seems that the move was
informed by the tensions within the Cabinet between Lord Irvine, the
then Lord Chancellor, and the Prime Minister Tony Blair, and the press
release was accompanied by a Cabinet reshuffle leading to the departure
of Lord Irvine.74 Commentators criticised the proposals variously as
having been written on the back of an envelope, or the product of policy
making on the hoof.75 Some intense parliamentary debate followed in
both Houses: the Conservative Opposition in the House of Lords
moved a successful amendment to the Loyal Address after the Queen’s
Speech, calling on the government ‘to withdraw their current proposals
and to undertake meaningful consultation with Parliament and the
senior judiciary before proceeding with legislation’, and the House of
Commons Constitutional Affairs Committee set up a major inquiry and
report into it.76 At the second reading of the Constitutional Reform Bill
in March 2004, the House of Lords relied upon a procedure that had
not been used for decades and referred the bill to a special committee
with powers to take evidence and amend the bill before recommitting it
to a Committee of the whole House.77 ‘Carried over’ to the 2004–05
session, the bill was modified in significant ways in both Houses before
receiving royal assent five days before Parliament was prorogued for the
2005 general election. In due course, then, the CRA effected the changes

74
Lord Irvine only learnt of the constitutional reform a week before it was announced, see
his paper submitted to the HL Committee on the Constitution, ‘The Cabinet Office and
the Centre of Government’, HL 30, 2009–2010, Evidence 81–4; Lord Windlesham, ‘The
Constitutional Reform Act 2005: Ministers, Judges and Constitutional Change: Part 1’
[2005] PL 806; Lord Windlesham, ‘The Constitutional Reform Act 2005: The Politics of
Constitutional Reform: Part 2’ [2006] PL 35.
75
A. Le Sueur, ‘The Conception of the UK’s New Supreme Court’, in A. Le Sueur (ed.),
Building the UK’s New Supreme Court (Oxford University Press, 2004), p. 4; see also Lord
Steyn, ‘The Case for a Supreme Court’ (2002) LQR 382.
76
A. Le Sueur, ‘From Appellate Committee to Supreme Court: A Narrative’, in L. Blom-
Cooper, B. Dickson and G. Drewry (eds.), The Judicial House of Lords 1876–2009 (Oxford
University Press, 2009), chapter 5; House of Commons Constitutional Affairs Committee,
‘Judicial Appointments and a Supreme Court (Court of Final Appeal)’ HC 2003–04, 48.
77
Various Lords took part in the debates and Lord Hoffman voted against the government,
see Le Sueur, ‘From Appellate Committee to Supreme Court: A Narrative’.

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36 constitutional steps towards judicial independence

announced in 2003 through a belated consultation process. The legisla-

tion provided that the Lord Chancellor need only ‘appear to the Prime
Minister to be qualified by experience’78 but also that he had the duty to
preserve the independence of the judiciary.79
All three elements of the reforms – the transfer of the role of head of
the judiciary to the Lord Chief Justice, the creation of the UK Supreme
Court and the establishment of a new Judicial Appointments Commis-
sion, are essential elements of the constitutional settlement in England
and Wales today. They are considered in detail in the rest of this book to
the extent that they help us ‘unpack’80 the meaning of judicial independ-
ence in England and Wales today. We consider at length the transfer to
the Lord Chief Justice of the Lord Chancellor’s main responsibilities in
relation to the judiciary in our third chapter; the role of the Judicial
Appointments Commission in our fourth chapter, and the impact of the
creation of the UK Supreme Court in our ninth chapter on constitutional
adjudication. We shall also consider the creation of the new Ministry of
Justice, the minister for which also acts as the Lord Chancellor for
statutory purposes but sits in the House of Commons. The Ministry, as
we shall see, took over a collection of responsibilities from other minis-
tries: it encompasses responsibility for judges (taken over from the
Department for Constitutional Affairs) and for prisons (taken over from
the Home Office) and this curious amalgamation sparked concerns
among judges about the possible budgetary arrangements in the new
Ministry, as we shall see in Chapter four.

III. The impact of the Human Rights Act 1998

2.12 We should, at this point, introduce the Human Rights Act 1998,
which has been the origin of the majority of criticism of judges, from
both politicians and the media, in recent years. Until the HRA came into
force on 2 October 2000, the ECHR was not incorporated into UK
domestic law, even though the UK had been a leading contributor to
the process that led to adoption, by the Council of Europe, of the ECHR
in 1950. The HRA thus brought in a recalibration of the relationship
between the individual and the state.81 It makes specified rights under the

78 79
CRA, s. 2. CRA, s. 3.
80
Stevens, The Independence of the Judiciary, introduction.
81
T. Bingham, ‘The Human Rights Act’ (2010) European Human Rights Law Review 568,
570; N. Bamforth, ‘Parliamentary Sovereignty and the Human Rights Act 1998’ [1998] PL

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iii. the impact of the human rights act 1998 37

ECHR (Convention rights) part of national law, thereby giving indi-

viduals the right to bring some claims under the European Conven-
tion directly in UK courts. Significantly, acts – including decisions –
of public authorities are said to be ‘unlawful’ under section 6(1) HRA if
they violate a Convention right, and it was for that reason that the Act
took so long to come into force. All public authorities were thought to
need time to absorb the implications of the Act. Chief among them was
the judiciary: courts are themselves ‘public authorities’ and might act
unlawfully if they pass judgments that amount to violations of any
incorporated Convention right – albeit that the Act makes clear that
the only remedy for any judicial unlawful act would lie on appeal to a
higher court.
The Act does not allow for the possibility that Parliament too
might act ‘unlawfully’ in passing or declining to pass any legislation,
but it provides that the minister of the Crown in charge of a bill in
either House of Parliament is required, before the second reading,
either to make a statement that ‘in his view’ the provisions of the bill
do not infringe the Convention or to make a statement that although
he was unable to make a statement of compatibility, the government
nevertheless wished to proceed with the bill.82 Parliamentary sover-
eignty is carefully preserved by confining the courts to a declaration
of incompatibility83 in cases where compatibility with the Convention
cannot be achieved by interpretation, however, where ‘it is possible to
do so’, the courts must interpret a statutory provision in order to
render its meaning compliant with the Convention rights; and that
exercise in interpretation may involve ‘reinterpretation’.84 Similarly
acts of public authorities which violate Convention rights are not
‘unlawful’ if they are required under primary legislation that cannot
be reinterpreted.85
A declaration of incompatibility does not affect the validity or effect-
iveness of the incompatible legislation. Thus, despite the House of Lords’
decision that their detention violated Articles 5 and 14 of the ECHR, the
suspected international terrorists remained in Belmarsh prison awaiting
new legislation.86 The political impact of declarations of incompatibility,
however, compensates for the lack of legal remedy. Parliament tends

572; Stevens, The English Judges, 129–36; White Paper, ‘Rights Brought Home: The
Human Rights Bill’ (Cm 3782, 1997).
82 83 84 85
HRA, s. 19(1). HRA, s. 4. HRA, s. 3(1). HRA, s. 6(2).
86
A v. Secretary of State for the Home Department [2005] 2 WLR 87.

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38 constitutional steps towards judicial independence

to enact or approve amending legislation to address the incompatibility.

If this becomes a convention, it would reduce the gap between a system
which has full judicial review of legislation (a power to strike down
incompatible legislation) and the UK’s compromise solution.87
2.13 The future of the HRA is in some doubt.88 It seems safe to say that
opposition to the Act is partly a matter of power. Although the Labour
government passed the Act, Labour ministers (especially successive Home
Secretaries) were quick to deride judges for adverse decisions under the
Act when in power. The tendency for the Act to be used as a trump card in
certain judicial review cases is one reason for its unpopularity for any party
in government. One chief effect is that claimants in judicial review may ask
the judge for a higher degree of scrutiny of an executive decision if the
decision interferes with one of their Convention rights – as will be the case
when, for example, people stand to be deported, denied (or forcibly given)
medical treatment, rehoused or have their children taken into care. In
particular, the Home Office, whose system for dealing with immigration
was famously said by one of its former ministers while he held office in
2006 (John Reid) to be ‘unfit for purpose’, is thought to have its errors and
inefficiencies exposed much more clearly in deportation cases: here, the
applicant is able to rely on his right to a family life in Article 8 ECHR to
force the ministry to give timely and coherent reasons for its decisions.
However, to Conservative eyes too, the basic rights which the Act affords
to individuals are contentious. Thus in 2011 the present Home Secretary
derided at the Conservative Party Conference a decision in which an
immigrant was given leave to remain under Article 8 ECHR on the basis
that he had a cat. In the furore which resulted from the Home Secretary’s
anecdote (during which it emerged, on reading the judgment, that the
ownership of the cat had not been a significant reason for the decision
but was mentioned as an aside) the Prime Minister supported the Home
Secretary. The new Justice Secretary, Chris Grayling, a non-lawyer, has now
suggested that withdrawal from the ECHR might feature in the Conserva-
tive Party’s election manifesto for the next general election in 2015.

87
D. Feldman, ‘The Impact of the Human Rights Act 1998 on English Public Law’, Keynote
address delivered at the conference ‘European Influences on Public Law: 5 Years of the
Human Rights Act 1998 in English Law and Recent Developments in France’, BIICL,
London (7 October 2005), para. 8.
88
Commission on a Bill of Rights, ‘A UK Bill of Rights? The Choice Before Us’, vol.
I (December 2012); C. O’Cinneide, Human Rights and the UK Constitution (London:
British Academy Policy Centre, 2012).

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iii. the impact of the human rights act 1998 39

2.14 This takes us to the arguments in opposition to the HRA. Claims

that have been made of the HRA are (i) that it allows or even requires
judges to pronounce on political matters; (ii) that section 3 HRA effect-
ively allows senior judges to rewrite primary legislation when they hold
that it is necessary and yet ‘possible’ to do so in order to avoid incompati-
bility with a Convention right; and (iii) that judges may be required to
impose in England and Wales rules which derive rather from the author-
ity of the various judges in the European Court of Human Rights in
Strasbourg.
In relation to the first criticism, it is difficult to find examples where
judges have relied on essentially political arguments in making deci-
sions under the Act. Whether a person’s rights are affected by executive
action or inaction is a question of law, and questions of proportionality
of executive interference and public policy are also familiar to them
from cases of judicial review and negligence (among other areas of
domestic law). Judges, unlike politicians, work within a legal framework
where they can only give opinions which may seem to have a political
element where such opinions are required, and when they do so, they
must give reasons for their decisions, and those reasons must address
the arguments that are made to them. Reasons, rather than status, are
the foundation of their authority.89 Judges are accountable through the
reasoning in their decisions, with the appeal mechanism as a check
upon their decisions. Lord Bingham, in the Belmarsh case, considered
that it was ‘wrong to stigmatise judicial decision-making as in some way
undemocratic’ since ‘the function of independent judges charged to
interpret and apply the law is universally recognised as a cardinal
feature of the modern democratic state, a cornerstone of the rule of
law itself’;90 giving effect to rights not to be imprisoned on discrimin-
atory criteria only supported the rule of law.
Moreover, the willingness of judges to find violations under the Act
depends on the issue at stake. In the Belmarsh case, the House of Lords
was willing to apply a high standard of scrutiny in relation to the alleged
discrimination against foreign nationals under Article 14 ECHR, but it
was deferential to the government in its assessment of an emergency
threat to the life of the nation, notwithstanding its own clear scepticism.

89
D. Feldman, ‘Human Rights, Terrorism and Risk: the Roles of Politicians and Judges’
[2006] PL 364, 375; ‘The Impact of the Human Rights Act 1998 on English Public Law’,
n. 87 above.
90
A v. Secretary of State for the Home Department [2004] UKHL 56, para. 42 [Lord Bingham].

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40 constitutional steps towards judicial independence

Their Lordships have been just as astute not to use the Act as a vehicle for
reviewing the legality of the Iraq War, remarking that such an inquiry
would be better served by legal and other historians.91
Besides, some matters have been left to the courts for resolution. Thus,
rights of privacy under Article 8 ECHR have been successfully asserted in
favour of some applicants in cases of media intrusion under the cloak of
the remedy for breach of confidence,92 while it was clear that this remedy,
which states must provide in recognition of the Strasbourg jurisprudence,
was not likely to be afforded by the government, whose relationship
with the media is a regular subject of (negative) comment. Similarly,
their Lordships held that Article 8 ECHR required a suicidal person who
needed assistance to die to be able to ascertain the likelihood that a family
member who might assist her would be prosecuted.93 This was necessary
to give a remedy to people who find themselves trapped in this invidious
situation, since Parliament is unwilling to legislate in the area of eutha-
nasia.94 Yet the legislature welcomed this solution, and a few years after
the decision, a House of Commons debate ended favourably to those who
supported the Director of Public Prosecutions’ new guidelines which
resulted from the decision.95
The courts may also return the matter to the political domain for
resolution. When the House of Lords held that detention of foreign
suspects of terrorism was incompatible with Articles 5 and 14 of the
Convention, the government responded with control orders, which for
some time were thought to be compatible with the Convention – the
main doubts about their inherent compatibility with Article 6 ECHR
came first from Strasbourg.96 When the courts decide that some persons
cannot be extradited because they would not receive a fair trial abroad,
typically efforts are made to negotiate with the requesting state to ensure
that a trial would meet minimal Convention standards. When the House

91
In R v. Prime Minister [2008] UKHL 20, the House of Lords declined to rule that
compliance with Art. 2 ECHR required the Prime Minister to order a public inquiry into
the legality of the Iraq War which had led to the death of the applicant’s son. It was
thought to be too remote from the cause of death of the soldiers concerned and such
a wider declaration would be better delivered ‘in the history books’.
92
Campbell v. MGN Ltd [2004] UKHL 22.
93
R (Purdy) v. Director of Public Prosecutions [2009] UKHL 45.
94
Ibid., paras. 57–9 [Lady Hale].
95
Hansard, HC, vol. 542, cols 1363–1440, 27 March 2012.
96
A and others v. UK, Application No. 3455/05, 19 February 2009.

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iii. the impact of the human rights act 1998 41

of Lords decided that the Home Secretary does not act as an impartial or
independent tribunal when deciding the minimum term a murderer
should spend in prison,97 the government responded with legislation
which set statutory minimums for certain types of cases.98 Now that
the courts have declared, following the lead of Strasbourg,99 that blanket
bans on prisoners voting are incompatible with the Convention, it is
expected that legislation will similarly specify which categories of pris-
oner will automatically forfeit the vote.
The second argument, that judges have a de facto power to rewrite
offending legislation, is also exaggerated. The common law itself pro-
hibited torture, recognised some freedom of expression, rights against
arbitrary detention and gave effect to fair trial rights and so much
else that is incorporated in the ECHR. Before the Human Rights Act
came into force, the House of Lords gave effect to a journalist’s right
of freedom of expression (in the context of investigating a possible
miscarriage of justice) in striking down secondary legislation that seemed
to deny him access to interview the prisoner in question. Yet still
parliamentary sovereignty was preserved, as Lord Hoffmann explained
in ex parte Simms:
In the absence of express language or necessary implication to the con-
trary, the courts . . . presume that even the most general words were
intended to be subject to the basic rights of the individual. In this way,
the courts of the UK, though acknowledging the sovereignty of Parlia-
ment, apply principles of constitutionality little different from those
which exist in countries where the power of the legislature is expressly
limited by a constitutional document.100

This also means that Parliament can legislate contrary to fundamental

principles of human rights provided that, through the use of explicit
language, it is willing ‘to accept the political cost’.
Allan accordingly rejects the claim that section 3 HRA authorises an
interpretative approach that would otherwise be unprecedented and
illegitimate. He instead argues that judges have a ‘continuing responsi-
bility to bring [a] provision into harmony with present expectations
and constitutional needs’. Legal interpretation is as much a matter of
construction, highly sensitive to context, as it is a matter of ‘instruction’,

97
R (Anderson) v. Secretary of State for the Home Department [2002] UKHL 46.
98 99
Criminal Justice Act 2003, sch. 21. Hirst v. UK (No. 2) [2005] ECHR 681.
100
R v. Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 [Lord
Hoffmann].

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42 constitutional steps towards judicial independence

where some substantive judgments come into play. The ‘instruction’

comes from the common law principles and presumptions which clarify
the meaning of a particular statute.101 Allan suggests that section 3 HRA
‘reproduces a fundamental feature of the common law constitution; for
the common law also recognises basic constitutional rights and requires
their protection against unjustified encroachments’. This seems to be the
better explanation of the leading case Ghaidan, where the court con-
sidered that homosexual partners were afforded the various protections
of the Rent Act 1977, despite the statute’s implicit requirement that
partners must be ‘of the opposite sex’.102 This robust interpretation
accords with what must now be regarded as the common law’s evolved
understanding of the intolerability of discrimination on the grounds of
sexual orientation. This decision is accepted for what it is – the removal
of an outdated discriminatory provision in the 1970s which no contem-
porary politician would seek to defend.103
Similarly, the decision in the House of Lords that the Special Immi-
gration Appeals committee could not receive evidence which was
procured by torture by foreign agents (thus striking down secondary
legislation to the opposite effect) was based on common law and not on
the HRA.104 If this is right, then the HRA itself does not give the judges
significant extra power to reinterpret legislation; such interpretative
powers have already been assumed at common law without courting
political controversy.
The third argument is that the Strasbourg judges have themselves
extended the scope of the Convention beyond that which was intended
in the 1950s, or that they have been interpreting it according to a
continental style of reasoning, and that it is inappropriate that our judges
should follow their interpretations of the Convention. Yet section 2 HRA
only requires English courts to ‘take account of’ the Strasbourg jurispru-
dence. As was said in R (Ullah) v. Special Adjudicator,105 ‘the duty of
national courts is to keep pace with the Strasbourg jurisprudence as it

101
T.R.S Allan, ‘Human Rights Act in Constitutional Perspective’ (2006) 59 CLP 27, p. 36.
102
Ghaidan v. Godin-Mendoza [2004] UKHL 30, para. 30 [Lord Nicholls].
103
Whether the reach of s. 3 HRA goes beyond that of the principle of legality is the subject
of extensive debate, but see Ghaidan v. Godin-Mendoza [2004] UKHL 30, 32–3 [Lord
Nicholls], 49 [Lord Steyn]; (Wilkinson) v. Inland Revenue Commissioners [2005] 1 WLR
1718, para. 17 [Lord Hoffman]; HM Treasury v. Ahmed [2010] UKSC 2, paras. 11–138
[Lord Phillips].
104
A v. Secretary of State for the Home Department [2005] UKHL 71.
105
[2004] UKHL 26.

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iii. the impact of the human rights act 1998 43

evolves over time: no more, but certainly no less’. Where a Strasbourg

decision has been made in apparent ignorance or misunderstanding of
an English legislative scheme, the English courts have felt free to depart
from it. Thus, between 2009 and 2011, there was uncertainty about
whether the reception of hearsay evidence would result in an unfair trial
within the meaning of Article 6 ECHR, if that evidence would have
decisive effect. This was said to be so by the Fourth Section of the
European Court in Al-Khawaja and Tahery v. UK.106 To some extent,
this was a peculiarly English difficulty, because there is no facility for
both parties to arrange to put questions to witnesses before a trial in
England, when many European countries have such facilities and thus
the prohibition on ‘decisive’ hearsay evidence was less problematic for
them. But the Supreme Court, applying section 2 HRA, decided to depart
from the Strasbourg ruling and held that there were sufficient safeguards
elsewhere in the legislative scheme to enable any such evidence if the judge
thought that an unsafe verdict might result from admitting the evidence.107
When the issue returned to the Grand Chamber of the European Court
of Human Rights, the decision of the Fourth Section of the European
Court in Al-Khawaja was largely reversed.108
More often, however, English courts do follow Strasbourg jurisprudence
as they do not strongly disagree with it. Thus, the House of Lords had itself
doubted whether Article 8 ECHR was engaged by the wish of a person to
know whether someone who might assist her suicide would be pros-
ecuted;109 but when Strasbourg accepted the argument, it followed suit.110
However, as already noted, this decision enabled it to solve in some
compromised way the problem of prosecutions for minor acts in eutha-
nasia which Parliament was unwilling to face. For the purpose of our
discussion, this suffices to show that English judges do not import a
jurisprudence of a foreign court; rather, they recognise it as a fuller
articulation of many of the norms of the common law and apply its rulings
where it does not disturb the considered development of English law.
Our suggestion, then, is that the judiciary, in the main, have used the
powers of reinterpretation of statutes and of declaring acts of public

106
Al-Khawaja v. UK (2009) 1 EHRR 49.
107
R v. Horncastle and others [2009] UKSC 14.
108
Al-Khawaja v. UK [2011] ECHR 2127.
109
Pretty v. Director of Public Prosecutions and Secretary of State for the Home Department
[2001] UKHL 61.
110
Pretty v. UK (2002) 35 EHRR 1.

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44 constitutional steps towards judicial independence

authorities to be unlawful under the HRA in cases where the Convention

rights confirm or go only incrementally beyond the values of the common
law itself.

IV. Constitutional adjudication

2.15 The independence of the judiciary is conceived within the realm
of boundaries between the courts and Parliament, yet these boundaries
are subject to ‘whether the courts and Parliament neatly complement
each other, whether there is competition or rivalry between them, and, in
the event of disagreement, how it may be resolved’.111 Constitutional
adjudication, in the sense of reviewing the compatibility of an Act of
Parliament against a national constitution, is not, however, unknown to
the Law Lords sitting in the Judicial Committee of the Privy Council. It
has, from time to time, considered a range of constitutional matters, from
death row cases112 to matters pertaining to judicial independence. Lord
Diplock thus affirmed in Hinds v. The Queen the ‘outstanding public
importance’ of judicial independence as a safeguard of the judicial
determination of each individual citizen’s civil and criminal responsi-
bilities,113 while, in Suratt v. Attorney General of Trinidad and Tobago114
views differed on the degree of protection from outside influence of the
office holder of a particular jurisdiction that is required by the principle
of judicial independence.
The Privy Council had also had, since 1998, jurisdiction in relation to
devolution matters.115 This competence was transferred to the UK
Supreme Court, which therefore has appellate jurisdiction and special
statutory powers to consider referred questions, including questions by
the relevant law officer or ministers of the devolved entities. This is akin
to constitutional adjudication to the extent that the UK Supreme Court is
ready to review the distribution of powers between the UK and the
national Parliaments of Scotland, Wales and Northern Ireland. While

111
A. Bradley, ‘The Sovereignty of Parliament – Form or Substance ?’, in J. Jowell and D.
Olivier (eds.), The Changing Constitution, 7th edn (Oxford University Press, 2011),
pp. 34 and 37.
112
Reyes v. The Queen [2002] UKPC 11; R v. Hughes [2002] UKPC 12; Fox v. The Queen
[2002] UKPC 13; Benjamin v. Trinidad and Tobago [2012] UKPC.
113
Hinds v. The Queen [1977] AC 195, 210, 221-G [Lord Diplock].
114
[2007] UKPC 55.
115
See the Scotland Act 1998, the Northern Ireland Act 1988 and the Government of Wales
Act 2006.

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iv. constitutional adjudication 45

the impact of devolution on the courts is a matter that falls outside the
remit of this book, Lady Hale’s comment that ‘the UK has become a federal
state with a Constitution regulating the relationships between the federal
centre and the component parts’116 bears relevance to our setting, in this
chapter, of the constitutional landscape in which the English judiciary
operates. The decision of the UK Supreme Court in AXA General Insurance
Ltd v. Lord Advocate,117 in particular, engaged with the question of judi-
cially reviewing the legislative powers of the Scottish Parliament on the
alleged grounds of incompatibility with a Convention right and irration-
ality. Having found that devolved legislatures, unlike the Westminster
Parliament, are not sovereign legislatures, Lord Hope, giving the leading
judgment, and addressing the issue as one of principle,118 stated that:
It is not entirely unthinkable that a government which has that power may
seek to use it to abolish judicial review or to diminish the role of the courts
in protecting the interests of the individual. Whether this is likely to happen
is not the point. It is enough that it might conceivably do so. The rule of law
requires that the judges must retain the power to insist that legislation of
that extreme kind is not law which the courts will recognise.119

In addition, Lord Reed rightly suggested that devolved legislatures, in the

absence of express contrary provision in the devolution Acts, cannot
legislate incompatibly with fundamental rights, whether or not enshrined
in the ECHR, or the rule of law, or confer on another body the power
to do so.120
While generally the Acts of the Scottish Parliament are not amenable
to common law judicial review, Lord Hope’s judgment provides the basis
for the constitutional jurisdiction of the Supreme Court in exceptional
circumstances.121 The necessary reliance upon the democratic process
justifies such narrow jurisdiction: in the words of Lord Bingham, ‘the
democratic process is liable to be subverted if, on a question of political
or moral judgment, opponents of an Act achieve through the courts what
they could not achieve through Parliament’.122 In the context of tensions

116
Lady Hale, ‘The Supreme Court in the UK Constitution’, Legal Wales (12 October 2012).
117
[2011] UKSC 46; see also Martin v. HM Advocate [2010] UKSC 10.
118
AXA General Insurance Ltd v. Lord Advocate (Scotland) [2011] UKSC 46, para. 48.
119
Ibid., 46, 51; R (Jackson) v. Attorney-General [2005] UKHL 56.
120
AXA General Insurance Ltd v. Lord Advocate (Scotland) [2011] UKSC 46, para. 152
[Lord Reed]; R v. Secretary of State for the Home Department ex parte Simms [2000]
2 AC 115.
121
C. Himsworth, ‘Case Comment’ [2012] PL 205, 213.
122
R (Countryside Alliance) v. Attorney General [2007] UKHL 52, para. 45.

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46 constitutional steps towards judicial independence

about the boundaries of judicial action in relation to the Westminster

Parliament, this is a pointed marker of the courts’ jurisdiction with
regard to the conceivable abolition of judicial review by Parliament,
be it Westminster or a devolved legislature. Judicial review affords the
protection of the rule of law and cannot be lightly interfered with. Yet,
shortly before this book was completed, the Prime Minister suggested
that he had plans to restrict the opportunity for judicial review. If taken
forward, in the absence of a written constitution protecting it, it would
create ‘islands of power immune from supervision and restraint’.123

Conclusions
2.16 In the absence of a written constitution, constitutional reform in the
UK is, by necessity, piecemeal in nature. The various steps taken towards
judicial independence are no different. Gradually Parliament won its
battle with the Crown so that the judges should be free from royal
influence and patronage. But having won this freedom, the judges proved
mostly resistant to being under the patronage of Parliament, or more
accurately the governing party which holds the majority in Parliament.
Any arrangements whereby judges would sit in Parliament, let alone
Cabinet, were criticised and during the nineteenth century Parliament
would be pressed into passing legislation guaranteeing judicial salaries
and tenure and barring them from political office. By the late twentieth
century, politicians who wished to influence the judiciary would be more
likely to use the media for their purposes, and this trend has become
most apparent since the passing of the HRA, since when it has not always
been clear whether ministers have meant to attack the legislation itself or
the judges who would reach adverse decisions on account of it.
Despite the complaints that may be justly levelled at the way in which
the reforms in the CRA were presented and implemented, it remains
the case that the reforms were to enhance separation of powers and
transparency in appointments. Whether the CRA safeguards judges
from political pressure or interference is perhaps an ambitious question,
for this is rather to be determined by the maturity and integrity of
politicians, and the robustness of the senior members of the judiciary.
This theme too runs through the rest of this book.

123
Kirk v. Industrial Court (NSW) (2010) 239 CLR 531, para. 55 [French CJ, Gummow,
Hayne, Crennan, Kiefel and Bell JJ).

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3

The structure and governance of the

English judiciary

Introduction
3.1 This chapter comprises four sections. First, we set out an overview
of the structure of the courts and tribunals. Second, we consider the
judicial hierarchy of those courts, with some observations on tribunals.
Third, we examine the recent transfer of judicial governance by civil
servants to the partnership with the judiciary and Her Majesty’s Courts
Service (HMCS, recently relabelled HMCTS (Her Majesty’s Courts and
Tribunal Service) to reflect the inclusion of tribunals). Fourth, we discuss
three particular administrative responsibilities which are now transferred
to judges, namely decisions on deployment and case assignment given
to senior judges and the increased emphasis on case management for
all trial judges.
Laws are of little value if the legal system does not provide an efficient
method for enforcing them and obtaining redress for their violation. This
requires an efficient organisation of the judiciary and an efficient judicial
process, characterised by consistency and constancy. In this respect,
the Concordat1 and the Constitutional Reform Act 2005 (CRA) vest in
the Lord Chief Justice some considerable responsibilities in respect of the
judiciary and of the business of the courts of England and Wales. This
may explain why for most judges interviewed the administration of
justice was seen as one the main areas where changes had deeply affected
the judiciary. The Lord Chief Justice exercises these responsibilities by
delegation,2 thereby formalising the existing hierarchy and leadership
positions within the judiciary and reflecting specific arrangements for

1
See the text of the Concordat reproduced in Appendix 6, Report from the Select Commit-
tee on the Constitutional Bill, vol. I, HL Paper No. 125-I (24 June 2004).
2
It was not intended that the Lord Chief Justice should exercise all these powers and
functions personally, and thus the organisation of the judiciary was adjusted to support
the various transferred responsibilities, Evidence to HL Select Committee on the Consti-
tutional Reform Bill, 2004, HL Paper 125–II, cols. 218, 233.

47

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48 structure and governance

judicial governance. These structures and practices determine the way in

which judges relate to each other and achieve a sense of collective
independence.3 The Senior President of Tribunals is at present a separate
judicial office with similar, but not identical, responsibilities to the Lord
Chief Justice.
While judges did not play a major role in supervising the conduct of
business of the courts before the CRA came into force, the managerial
trend seems unavoidable. It seems to be accepted now that ‘Judges today
have to be far more business-like and professional than ever before’, as
Lady Justice Hallett noted in 2011,4 and the dual leadership structure of
the administration of justice, in partnership with HMCTS, reflects the
more managerial roles allocated to judges in recent times. Decisions
taken by judges in the exercise of their judicial office can affect the use
of courts’ resources. If the judge decides that a case is to be transferred to
another court because something has gone wrong in the judicial process –
for example, there has been a suggestion of interference with jurors –
this can have a financial impact on the HMCTS’s resources and other
agencies involved in the justice system. It is not simply a matter of the
judges being aware of the economic impact of their decisions; it is also
about their having the last word where the interests of justice are at stake,
so that the more costly route in a case may be insisted upon when it
seems truly necessary. Lord Chief Justice Judge commented that ‘the
public rightly sets great store in an efficient, effective and impartial justice
system – with an independent judiciary at its heart’.5 It is part of our
argument in this chapter that judicial independence does not exclude
managerial accountability for delivering a public service of justice.

I. The structure of courts and tribunals

3.2 The courts of law are the most visible feature of the English legal
system,6 and tribunals have also gradually become a regular feature. The

3
J. Bell, Judiciaries within Europe, A Comparative Review (Cambridge University Press,
2006), pp. 21, 26, 359–60, 368.
4
Lady Justice Hallet, ‘How the Judiciary is Changing’, in Judicial Appointments Commis-
sion (ed.), Judicial Appointments: Balancing Independence, Accountability and Legitimacy
(2010), p. 94; J. Resnik, ‘Managerial Judges’ (1982) 96 HLR 374.
5
Judicial Office, ‘Judicial Business Plan 2010–2011’.
6
See, for a thorough grasp of the English legal system, S.H. Bailey, J.P.L.Ching and N.W.
Taylor, Smith, Bailey and Gunn on the Modern English Legal System, 5th edn (London:
Sweet and Maxwell, 2007).

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i. the structure of courts and tribunals 49

courts’ and tribunals’ structure is set out below, with two charts available
in Annex 1 to this book. The greatest volume of cases is dealt with by the
lower judiciary and tribunals, who rely greatly upon part-time judges
at this level.

A. Courts
3.3 The judiciary is traditionally divided into corps. Lay magistrates sit
in magistrates’ courts and the closely allied youth courts. Tribunal
members sit in tribunals. District judges and circuit judges hear a mixture
of ‘first instance’ civil and criminal cases, including presiding over jury
trials in the Crown Court. Judicial reviews and appeals on points of law
from magistrates’ courts are heard in the High Court. Then there is the
Court of Appeal which comprises a civil and criminal division and from
either division there may be an appeal to the UK Supreme Court.
The magistrates’ court is the lowest court of criminal jurisdiction and
they deal with the great majority of criminal cases – summary motoring,
indictable and youth proceedings. They initially decide early issues in
criminal procedure; whether police can hold suspects for further ques-
tioning after the statutory 36-hour period expires; whether police may
search people’s houses, and whether people facing charges should be
given bail; they may impose anti-social behaviour orders (ASBOs), and
they license pubs and strip clubs and so forth. There were 25,170 serving
magistrates in England and Wales in 2012, and 1.62 million criminal
proceedings were completed in magistrates’ courts in 2011 (excluding
adult breaches).
County courts deal with about 1.5 million claims a year, with a
majority of civil cases (by contrast with family claims).7 The civil cases
typically relate to debt, repossession of property and personal injury,
whereas the family cases relate to divorce or separation.8 There is at least
one circuit judge (known as county court judges before 1971) in some of
these county courts, and they generally hear cases which are worth over
£25,000 or have greater importance or complexity.9 District judges

7
Annual Tribunals Statistics, 1 April 2011 to 31 March 2012, published 28 June 2012, p. 21.
8
The county court judiciary, established in 1846, was long known as the ‘poor man’s court’,
as a route for local judges and small claims, P. Polden, A History of the County Courts
1846–1971 (Cambridge University Press, 1999), p. 1.
9
Circuit judges sometimes have an appellate jurisdiction as well, see, e.g., Part 30 of the
Family Procedure Rules 2010.

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50 structure and governance

(known as registrars before the Courts and Legal Services Act 1990), who
are assigned to county courts, will hear other cases but they also case-
manage proceedings, deal with repossession matters, and make contested
and uncontested assessments of damages.
The civil court judge is not to be confused with the stipendiary
magistrate who also has the title of district judge (magistrates’ court)
and whose judicial culture has more in common with lay magistrates.
The district judge (magistrates’ court) has been said to perform the same
work as thirty-two lay (and thus part-time) magistrates, though the role
of the magistracy is one that is well recognised.10 A district judge is likely
to sit in any case potentially involving legal difficulty or publicity.
Appointment as a circuit or district judge is an entry-level position
traditionally characterised by the greater diversity in the profile of judges,
by comparison with judges from the High Court and above. There were
ninety-four women out of 548 circuit judges (14 per cent) in 2010, and a
low number of solicitors. Entry to the lower judiciary is attractive, with
almost 1,500 applications for the last selection exercise for the post of
district judges in 2012, with twenty-eight positions available. The attrac-
tion of such posts is similar across judiciaries: they provide a mid-career
move bringing a more predictable and less strenuous workload compared
with private practice.11 In addition, the efforts of the Judicial Appoint-
ments Commission to widen the pool to black and Asian minority ethnic
candidates and women have been particularly successful at this level. At
the level of district judges, the Judicial Shadowing Scheme is an equally
successful initiative from the Lord Chief Justice. It provides legal practi-
tioners with a genuine interest in judicial appointment an insight into the
role and experience of being a judge.12
3.4 The High Court and the Court of Appeal are generalist courts, a
distinguishing factor from many European jurisdictions – and a relevant
consideration in considering facilitating deployment or stints of work

10
P. Seago, C. Walker and D. Wall, ‘The Development of the Professional Magistracy in
England and Wales’ [2000] Crim LR 631.
11
Bell, Judiciaries within Europe, 310; A. Clarke, ‘Soliciting Justice’ (1999) 96 Law Society
Gazette 28.
12
The Advisory Panel on Judicial Diversity strongly supports it as a way of encouraging
diversity within the judiciary. From 2006 to 2012, the scheme received 1,121 applications
to shadow a district judge (Civil), the highest number compared to requests to shadow
any other type of judge. In 2011–12, the scheme received 505 requests for work
shadowing and out of those, 327 requests were to shadow a district judge (Civil, Family,
Magistrates).

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i. the structure of courts and tribunals 51

from the lower courts to the High Court.13 This said, judges are appointed
to one of the three divisions of the High Court: Queen’s Bench, Chancery
or Family, and many judges are deployed to some specialised courts
within each division, such as the Administrative Court,14 which hears
judicial review cases, or the Commercial Court, the Technology and
Construction Court and the Admiralty Court in the Queen’s Bench; or
the Companies Court, the Bankruptcy Court or the Patent Court in the
Chancery Division.
There were 16,600 proceedings started in the Queen’s Bench Division
in 2010, the majority of which (11,800) were issued at the High Court
District Registries around the counties, against 4,900 issues at the Royal
Courts of Justice in London.15 The existence of High Court centres in the
provinces requires judges of the High Court to spend time ‘on the circuit’
away from home, a substantial factor in particular mitigating against
attracting women to the High Court.
Some statistics can be briefly mentioned in distinguishing the type of
work done at the High Court. It received 11,200 applications to apply
for permission to apply for judicial review in the Administrative Court
in 2011 and 1,220 were granted.16 The majority of these applications, as
in previous years, concerned asylum and immigration matters and this
has highlighted the scarcity of judges expert in immigration laws. There
were 571 appeals/applications disposed of in the Administrative Court
during 2011, with 396 applications for judicial review dealt with during
that year. The transfer of reconsideration applications to the Upper
Tribunal in 2010 resulted in a steep reduction in appeals and applications
received by the Administrative Court. The Administrative Court is also
competent to hear appeals by way of case stated where received. There
were, in 2011, 79 such appeals, 73 per cent of which were appeals from
magistrates’ courts, most of which relate to criminal matters – which
shows the broad scope of ‘administrative’ law in England and Wales.
The Chancery Division deals with technical law relating to land and
property, taxation, competition disputes, intellectual property, contract,
professional negligence and generally business and industry matters

13
See below, para. 3.34.
14
Practice Direction (Administrative Court: Establishment) [2000] 4 All ER 1071.
15
Ministry of Justice, ‘Judicial and Court Statistics’, 28 June 2012.
16
Ibid., 64–5; V. Bondy and M. Sunkin, ‘The Dynamics of Judicial Review Litigation: the
Resolution of Public Law Challenges Before Final Hearing’ (London: The Public Law
Project, 2009); see also M. Sunkin et al, ‘The Positive Effect of Judicial Review on the
Quality of Local Government’ [2010] Judicial Review 337.

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52 structure and governance

(e.g. partnership). There were more than 35,000 proceedings started in

the Chancery Division in 2011 and more than 12,000 applications filed at
the Bankruptcy Court in 2011. In 2011, fifty-two appeals were disposed
of out of ninety-one appeals set down for hearing by the Chancery
Division.17
The Family Division of the High Court is one of the three levels of
courts, with the county courts and family proceedings courts (which are
part of the magistrates’ courts) dealing with family matters; High Court
judges will take on the most complex family work.18
The Crown Court, by contrast, is a unitary court, but is currently based
at seventy-six centres across England and Wales. High Court judges sit in
the more serious criminal cases.19 They sat in 2 per cent of all trial cases
dealt with in the Crown court in 2011.20 Circuit judges (who have had
criminal jurisdiction at the Crown Court since 1971) sat in 89 per cent of
all trial cases dealt with in the Crown Court in 2011, and recorders, who
deal with the less complex or serious cases, in 9 per cent of all trial cases
dealt with in the Crown Court that year. In 2011, 148,000 cases were
received in the Crown Court, and 91,910 cases were committed/sent for
trial to the Crown Court that year. There were 93,960 disposals of cases
committed/sent for trial in 2011 (in light of the outstanding caseload).
Some 42,981 cases were committed to the Crown Court for sentence in
2011; 13, 359 appeals were made against magistrates’ decisions.
Since the passing of the CRA, the High Court, the Court of Appeal
and the Crown Court are considered as the senior courts of England
and Wales.21

17
Ministry of Justice, ‘Judicial and Court Statistics 2011’, 54–5.
18
Most matters are dealt with under the Children Act 1989 in all three levels of courts.
There were 29,500 public law applications involving children made by local authorities in
2011, against 109,700 private law applications involving children, which usually follow a
breakdown in their parents’ relationship: Judicial and Court Statistics 2011, 21–2.
19
Ibid., 44. The Crown Court has jurisdiction to deal with the cases sent for trial by
magistrates’ courts in respect of ‘indictable only’ offences (i.e. those which can only be
heard by the Crown Court); ‘either way’ offences committed for trial (i.e. those which can
be heard in either a magistrates’ court or the Crown Court); defendants committed from
magistrates’ courts for sentence; and appeals against decisions of magistrates’ courts.
20
For the purpose of trial in the Crown Court, offences are divided into classes of
seriousness, according to directions given by the Lord Chief Justice, with the concurrence
of the Lord Chancellor, since 6 June 2005. High Court judges sat in 27% of all Class 1
cases compared to only 2% in each of Class 2 and Class 3 cases: Judicial and Court
Statistics 2011, 44.
21
Senior Courts Act 1981, as amended by CRA (c. 4), ss. 59, 148, sch. 11 para. 26(1).

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i. the structure of courts and tribunals 53

3.5 In the Court of Appeal, the Criminal and the Civil Divisions hear
appeals from the High Court, Crown Court and county courts. The great
bulk of the Criminal Division’s work is appeals against the sentence
imposed in the Crown Court (5,623 appeals in 2011 out of 7,475 appli-
cations), the remaining being appeals against conviction (1,535 in
2011).22 Most of these applications for permission are considered by a
single judge (4,600 in 2011), they would otherwise be considered by one
Lord Justice of Appeal assisted by one or two High Court judges.
The Civil Division hears appeals mainly against decisions of the High
Court and county courts and certain other courts such as the Patents
Court. In the Court of Appeal Civil Division, a total of 3,758 applications
were filed or set down and 3,709 disposed of in 2011. The Civil Division
saw more than 1,200 appeals filed in 2011 and disposed of 1,180 appeals
on civil matters.23 The growing work comes from the Asylum and
Immigration Tribunal (a quarter of the appeals in 2011), followed by
appeals from the county courts on non-family matters, and appeals from
the Administrative Court of the High Court Queen’s Bench Division.
Courts of two or three judges are normally constituted from the Master
of the Rolls and the Lords Justices.
3.6 The UK Supreme Court is a United Kingdom institution. Even
though it was created without consultation, its existence is grounded on
its quasi-federal nature. The UK Supreme Court Justices also serve as
members of the Privy Council, a supreme court for a number of members
of the Commonwealth.24 It assumes, in other words, the jurisdiction of
the House of Lords under the Appellate Jurisdiction Acts 1876 and 1888,
and it also has jurisdiction in relation to devolution matters under the
Scotland Act 1998, the Northern Ireland Act 1988 and the Government of
Wales Act 2006.25 Its workload is yet minimal in comparison with many
other supreme courts – between April 2011 and March 2012 it heard
sixty-nine appeals and gave eighty-five judgments:26 it concentrates on
appeals on points of law general public and constitutional importance.

22 23
Ministry of Justice, ‘Judicial and Court Statistics 2011’, 62–3. Ibid., 64.
24
For a recent, and critical, analysis, see P. O’Connor QC, ‘The Constitutional Role of the
Privy Council and the Prerogative, a JUSTICE Report’ (2009).
25
See paras. 2.12, 2.15 and 2.16 and, generally, L. Blom-Cooper, B. Dickson and G. Drewry
(eds), The Judicial House of Lords 1876–2009; A. Paterson, The Law Lords (London:
Macmillan, 1982); L. Blom-Cooper and G. Drewry, Final Appeal: A Study of the House of
Lords in its Judicial Capacity (Oxford: Clarendon Press, 1972).
26
The Supreme Court Annual Report and Accounts 2011–2012, HC 26.

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54 structure and governance

B. Tribunals
3.7 Tribunals deal with a growing number of claims. HMCTS managed
739,600 receipts or claims to all tribunals during 2011–12, with 732,600
cases disposed of that year.27 The three largest tribunals in terms of
volume of claims are the Social Security and Child Support Appeals
(47,700 receipts in 2011–12); the Employment Tribunals (31,800
receipts) and Immigration and Asylum (24,300 receipts).
There are about 5,000 judicial office holders in tribunals, including
those within Employment Tribunals in England and Wales and their
Scottish counterpart, and the Employment Appeal Tribunal. Until
recently, government bodies would set up tribunals to adjudicate between
citizens and themselves in respect of their decisions that might affect
citizens as individuals. They might deal with matters as disparate as tax,
immigration and parking appeals. Substantial structural reform of the
tribunal system was proposed in the Leggatt Review of Tribunals in
200128 and given effect by the Tribunals, Courts and Enforcement Act
2007. The Tribunals Service was formed as an executive agency of the
Ministry of Justice, with responsibility for the unified administration of
the tribunals system. The Tribunals, Courts and Enforcement Act 2007
Act extends the guarantee of judicial independence under the CRA to
the Senior Presidents of Tribunals and to most tribunals.29 Tribunals
are thus now a central part of the justice system. Tribunal members
themselves, whether lay members or professional judges, are regarded as
members of the ‘judicial family’ and appointments are subject to the
Judicial Appointments Commission’s procedures, while disciplinary
matters fall within the remit of the Office of Judicial Complaints. Tribu-
nal members are also required to take the oath of allegiance and the
judicial oath before the Senior President of Tribunals.30
The Leggatt Review was not the first occasion on which the essentially
judicial nature of tribunals was recognised, notwithstanding the relatively
informal procedures and substantial law involvement. The Committee on
Administrative Tribunals and Enquiries (the Franks Committee) had

27
Annual Tribunals Statistics 2011–2012, 28 June 2012, p. 3.
28
A. Leggatt, ‘Review of Tribunals, Tribunals for Users, One System, One Service’, HMSO
(2001).
29
Tribunals, Courts and Enforcement Act 2007, s. 1. The duty, under the CRA, on the Lord
Chancellor and other ministers to ‘uphold the continued independence of’ the court
judiciary is extended to the tribunal judicial offices listed in sch. 14 of the CRA.
30
Tribunals, Courts and Enforcement Act 2007, sch. 3 para. 10.

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i. the structure of courts and tribunals 55

argued in 1957 that tribunals should be fully integrated into the civil
justice system: ‘In all these cases Parliament has deliberately provided
for a decision independent of the Department concerned . . . and the
intention of Parliament to provide for the independence of tribunals is
clear.’31 It considered that tribunals had certain ‘practical’ advantages
over courts as providers of administrative adjudication. Tribunals, it has
generally been argued, can provide administrative justice more quickly,
cheaply, accessibly, flexibly, informally and expertly.32 But from the
1970s onwards, the increasing emphasis on alternative dispute reso-
lution, for example, is thought to have reduced the comparative advan-
tages of tribunals over lower civil courts.
In the early part of the twenty-first century, the coming into force of
the Human Rights Act 1998 (HRA) has had a significant impact on the
way tribunals are organised. It became a matter of concern that tribunals,
most of whose case work would involve determining litigants’ civil rights
or obligations, would not be regarded as sufficiently ‘independent’ for the
purposes of Article 6(1) of the European Convention on Human Rights
(ECHR) if those of its members who had to hear alleged complaints
about administrative blunders were themselves paid out of the budget of
the same ministry. The fact that the tribunals would typically hear cases
in the same building as their sponsoring department was in itself far from
ideal. However, the merger under HMCTS means that a number of
tribunals may suffer from a relative lack of resources due to becoming
only a small part of the Ministry of Justice. The Employment Tribunal
and the Employment Appeal Tribunal remain outside this system; how-
ever, they are served by the Tribunals Service and are led by the Senior
President of Tribunals. Presumably the issue of independence raised
under Article 6(1) ECHR is not a pressing one here because employment
tribunals hear cases where neither side is allied to the executive.
Aside from concerns about independence, the Leggatt Review of
Tribunals made recommendations which set the foundations for the
Tribunal system to be ‘independent, coherent, professional, cost-effective
and user-friendly’.33 It suggested the creation of a new, independent

31
Committee on Administrative Tribunals and Enquiries, Cmnd. 218 (London: HMSO,
1957), para. 128.
32
G. Richardson, ‘Tribunals’, in D. Feldman (ed.), English Public Law (Oxford University
Press, 2004), ch. 20; H.W. Wade and C.F. Forsyth, Administrative Law, 10th edn (Oxford
University Press, 2009), p. 773; Cooke v. Secretary of State for Social Security [2001]
EWCA Civ 734.
33
Leggatt, ‘Review of Tribunals’, para. 1.

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56 structure and governance

tribunal service to take over the management of the tribunals from

their sponsoring departments, and the creation of a composite, two-tier
tribunal structure, under the leadership of a senior judge. These
recommendations reflect the view that the provision of external and
independent review is central to the role of tribunals. In response, in
2004, a government White Paper promoted the development of a new
approach to administrative justice, in order to strengthen access to
redress within the administrative justice field.34 Two years later the larger
tribunal systems were transferred from their parent departments such
as the Department for Work and Pensions (for the Appeals Service, now
Social Security and Child Support Appeals) and Department of Health
(for the Mental Health Review Tribunal) to the newly created Tribunals
Service.
In addition, the Tribunals, Courts and Enforcement Act 2007 acts
upon a ‘logic of judicialisation’35 with a radical reform of the tribunal
system. The Act restructured the existing tribunal jurisdictions into a
two-tier model, the First-tier tribunal and the Upper Tribunal, which has
now absorbed over thirty individual tribunals in addition to taking on a
number of new jurisdictions.36 The establishment of the Upper Tribunal
brought a welcome rationalisation of the confused network of appeal
routes which tribunal claimants had to negotiate under the present law,
and the introduction of a common set of procedural rules across the
tribunal system, as proposed by Leggatt, has been a strong unifying
element of tribunals.
The majority of tribunals’ adjudication process involves the resolution
of disputes between (typically) citizens and the state arising out of

34
See the government’s response to the Leggatt review in the White Paper, ‘Transforming
Public Services: Complaints, Redress and Tribunals’, Cm 6243 (2004). The problems of
access to redress in this field have been illustrated by Hazel Genn’s 2006 Report,
‘Tribunals for Diverse Users’ (DCA Research Series 1/06, Department for Constitutional
Affairs, London, 2006); see also the Consultation Paper No. 187, ‘Administrative Redress:
Public Bodies and the Citizen’, 3 July 2008; T. Cornford, ‘Administrative Redress: the Law
Commission’s Consultation Paper’ [2009] PL 70.
35
P. Cane, ‘Judicial Review in the Age of Tribunals’ [2009] PL 479, conclusion. See, for an
overview of tribunals, W. Wade and C. Forsyth, Administrative Law, 10th edn (Oxford
University Press, 2009), ch. 24.
36
See Annex 1 for a relevant chart; Tribunals, Courts and Enforcement Act 2007, ss. 3 and
7. The jurisdictions of these tribunals are organised into ‘chambers’ within the Upper
First-tier Tribunal and the Upper Tribunal with a senior judicial leader (Chamber
President) for each Chamber. There are still some tribunals outside the scope of that
reform, such as the Parking and Traffic Appeals Service (Parking Adjudicators), for
practical reasons mainly, relating to the complexity of the organisation.

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i. the structure of courts and tribunals 57

administrative decision making.37 There are, therefore, two sets of insti-

tutions performing administrative adjudication: courts have inherent
jurisdiction via judicial review while tribunals have selected statutory
jurisdiction. Judicial review is of last resort, with courts discouraging
applicants who have a choice between review by a tribunal and review by
a court, from opting for the latter. Thus, courts, as of last resort, remain a
necessary component of the administrative justice system.
The Tribunals and Courts Enforcement Act 2007 also created the role of
Senior President of Tribunals, whose task it is to ‘lay before Parliament
matters concerning tribunal members and the administration of justice by
tribunals’.38 The Senior President is concerned with high-level matters
while Tribunal and Chamber Presidents are responsible for the day-to-
day administration of their chamber or tribunal. They work closely with
the Chief Executive of Tribunals, particularly on the budget; perhaps due to
being historically located within the administrative branch of the govern-
ment, tribunal judges have a tradition of working closely with tribunals’
administrators. Tribunal representatives are also closely involved in judicial
governance.39 The Senior President of Tribunals is nonetheless responsible
to the Lord Chancellor and is required to report to him.40 He is required to
cover matters in relation to relevant tribunal cases, and the Annual Report
produced in 2012 details the ‘interesting cases’ and the ‘use of judicial
review powers’ for various chambers, thus drawing attention to changes or
tensions in the substance of the law in a way that goes beyond the report
presented from time to time by the Lord Chief Justice.
The 2007 Act also substituted for the previous Council on Tribunals a
new Administrative Justice and Tribunals Council, with lay and legal
members (lay members forming the majority), and the Parliamentary
Commissioner for Administration a member ex officio. It is a permanent
advisory body whose duty it is to keep under review the administrative
justice system as a whole, and the tribunal organisation and procedure.41

37
G. Richardson and H. Genn, ‘Tribunals in transition: resolution or adjudication?’ [2007]
PL 2007 119; C. Harlow and R. Rawlings, Law and Administration, 2nd edn (London:
Butterworths, 1997).
38
Tribunals, Courts and Enforcement Act 2007, sch. 1 para. 13.
39
The Senior President attends the Judicial Executive Board as a full member, and the
Judges’ Council. There is a Tribunals Committee of the Judges’ Council, which includes
representatives of the First-tier judges and members, nominated through the Tribunal
Judges’ Forum. Tribunal judges are also represented on the Judges’ Council committees.
40
Tribunals Courts and Enforcement Act 2007, s. 43.
41
Tribunals, Courts and Enforcement Act 2007, sch. 7.

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58 structure and governance

It is meant to be more influential than the previous Council.42 A draft

order abolishing the new Council, however, has now been laid before
Parliament under the Public Bodies Act 2011.43 The Public Adminis-
tration Select Committee and the Justice Select Committee have ques-
tioned the resources and expertise of the Ministry of Justice to take on
some of the Council’s functions, but to no avail.44 In particular, the
Justice Select Committee rightly suggests that ‘greater accountability to
ministers is not appropriate in this instance because of the extent to
which the administrative justice and tribunal system deals with disputes
between the citizen and the executive’.45
3.8 It has been suggested that the persistence of the division of admin-
istrative jurisdiction between tribunals and the High Court might be
explained by the long-held view that in certain areas and on certain
issues, only judges of superior courts have the status to stand up
effectively to central government.46 But one may point to the presence
of High Court judges in the tribunal system: in 2012, the heads of three
out of the four chambers in the Upper Tribunal were High Court judges.
This introduction of the post of ‘tribunal judge’ has increased the
flexibility in deploying judges, allowing bridges between the court and
the tribunal systems. One may recall that the unified tribunal system’s
aim, under the Leggatt review, was to acquire ‘a collective standing
to match that of the Court System and a collective power to fulfil the
needs of users in the way that was originally intended’.47 Indeed, the
Upper Tribunal has a supervisory function of the principles developed
under the various specialists jurisdictions, and it is seen as having the
potential to be a force of administrative justice.48 It is a ‘superior court of

42
Wade and Forsyth, Administrative Law, 782.
43
Draft Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order
2013, 18 December 2012, see s. 11(1) Public Bodies Act 2011.
44
Justice Committee, ‘Eighth Report, Scrutiny of the draft Public Bodies (Abolition of
Administrative Justice and Tribunals Council) Order 2013’ (March 2013); Public Admin-
istration Committee, ‘Twenty First Report of Session 2010–12, Future oversight of
administrative justice: the proposed abolition of the Administrative Justice and Tribunals
Council’, HC 1621 (February 2012); Justice Committee, ‘Fifth Report of Session 2012–13,
Draft Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order
2013’, HC 927 (January 2013).
45
Justice Committee, ‘Eighth Report, Scrutiny of the draft Public Bodies (Abolition of
Administrative Justice and Tribunals Council) Order 2013’ (March 2013), para. 25.
46 47
Cane, ‘Judicial Review’. Leggatt, ‘Review of Tribunals’, para. 8.
48
It has limited statutory review jurisdiction under Tribunals, Courts and Enforcement Act
2007, ss. 15–17; see A. Leggatt, ‘Review of Tribunals’, para. 6.32; T. Buck, ‘Precedent in

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i. the structure of courts and tribunals 59

record’49 and in 2011, the Supreme Court ensured that, though strictly
defined, judicial review would be available against unappealable deci-
sions of the Upper Tribunal, thus clarifying some essential features of
the relationship of the Upper Tribunal with the higher courts.50

C. Prosecutors
3.9 There is still a much greater distance between prosecutors and
the judiciary in England than in some continental countries, where
both are seen as arms of the state and may be trained for their roles at
a very early stage of their careers. Some major developments reflect the
growing power of public prosecutors, however, and create the possibility
of tension with the judiciary. England did not even have a professional
public prosecutorial service in the 1970s. The office of the Director of
Public Prosecutions existed but he only had the power to consent (or not
to consent) to prosecuting certain types of cases under statute and to
advising on particularly sensitive cases that might be referred to him.
For the main part, the police would instruct solicitors, who would then
instruct counsel, about cases which they thought should be prosecuted.
By virtue of the Prosecution of Offences Act 1985,51 the Crown
Prosecution Service was set up with the task of making final charging
and prosecution decisions in relation to all cases with which the police
previously dealt. By late 2012 the Director of Public Prosecutions had
some 7,000 staff working nationally in distinct areas, dealing with around
one million prosecutorial decisions each year, a tenth of which result in
prosecutions. Once employed by the Crown Prosecution Service – as
opposed to remaining independent counsel who may simply be
instructed by the Crown Prosecution Service to advise on individual

Tribunals and the Development of Principles’ (2006) 25 CJQ 458; Wade and Forsyth,
Administrative Law, 781; R. Carnwath, ‘Tribunal Justice – a New Start’ [2009] PL 48; E.
Laurie, ‘Assessing the Upper Tribunal’s Potential to Deliver Administrative Justice’
(2012) PL 288.
49
Tribunals, Courts and Enforcement Act 2007, s. 3(5).
50
R (Cart) v. UT [2011] UKSC 28; Eba v. Advocate General for Scotland (Scotland) [2011]
UKSC 29; see also R (Jones) v. First-tier Tribunal (Social Entitlement Chamber) [2013]
UKSC 19; E. Laurie, ‘Assessing the Upper Tribunal’s Potential to Deliver Administrative
Justice’ (2012) PL 288.
51
Prosecution of Offences Act 1985, s. 1(1); A. Sanders, ‘Prosecutions in England and
Wales’ in J.-P. Tak (ed.), Tasks and Powers of the Prosecution Services in the EU Member
States, Vol. I (Nijmegen: Wolf Legal Publishers, 2004).

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60 structure and governance

cases or to present them in court – they are, unlike judges, civil servants,
and so must follow and apply internal policies.
Crown prosecutors are appointed on account of legal aptitude and
experience though some non-legally qualified case workers are employed
by the Crown Prosecution Service too. Training is provided on CPS
policies upon appointment. The decision to prosecute must be taken in
the light of the duty to drop cases which are likely to fail, with the aim
that fewer cases would come to court only to be stopped by the judge for
lack of evidence. A first Code for Crown Prosecutors was promulgated in
order to ensure consistency across the service and, since then, the Crown
Prosecution Service has bound itself only to prosecute a case which it
thought it was more likely than not to prove in court and the prosecution
of which could be said to serve the public interest.52 It is often said too
that the role of the prosecutor is to seek just outcomes, not to achieve
convictions at all costs.53 This can affect the way in which cases are
presented in court – prosecutors should alert the court to authorities that
favour the defendant if they appear to have been overlooked – and there
remains a prohibition on arguing for a particular form of sentence upon
conviction.
It is the police who take the initial decision to investigate offences and
to arrest suspects. Once the decision to prosecute has then been taken by
a Crown prosecutor on the basis of evidence supplied by the police, the
fate of the defendant is mainly in the hands of the judiciary. This is
evident at the outset, when the defendant is charged, because he is then
summoned to appear at the magistrates’ court and it is they – not the
police or the prosecutor – who decide whether the defendant shall
remain at liberty pending trial, and if so, under what conditions. Consid-
eration of this distinction led to the Supreme Court case of Assange54 in
2012, which concerned the procedural steps that must be satisfied in
England in order to extradite a suspect to another European country
under the European Arrest Warrant. The Extradition Act 2003 only

52
See now the sixth version of the Code (February 2010).
53
Para. 2.4 of the Code provides that ‘Prosecutors must always act in the interests of justice
and not solely for the purpose of obtaining a conviction’ and, under para. 3.5, ‘Prosecu-
tors must make sure that they do not allow a prosecution to start or continue where to do
so would be seen by the courts as oppressive or unfair so as to amount to an abuse of the
process of the court.’ On the ‘quasi-judicial’ and ‘quasi-executive’ responsibilities of the
public prosecutor, see J. Rogers, ‘Restructuring the Exercise of Prosecutorial Discretion in
England’ (2006) 26 OJLS 775.
54
Assange v. The Swedish Prosecution Authority (Rev 1) [2012] UKSC 22.

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i. the structure of courts and tribunals 61

permitted the extradition where the request from the other country had
been approved by a ‘judicial officer’ in that country, and the question was
whether a public prosecutor (in Sweden, in this case) could be said to be
regarded as a ‘judicial officer’ for the purposes of the English legislation.
The Supreme Court held by a 5:2 majority that the Swedish Prosecutor
was a judicial authority, because it is common on the Continent for the
public prosecutor to assume a judicial role in deciding such important
matters as detention before trial; the English Act should be read with this
common understanding in mind, having regard to practice in the other
member states.55
3.10 After charge, the prosecutor’s core decisions relate to deciding who
should be charged with what offence. The prosecutor may still decide to
add or to drop some charges. It is rare for the courts to entertain judicial
review of a decision to prosecute, reasoning that this would involve
satellite litigation and that defendants can generally be expected to ‘make
their point’ at the criminal trial itself.56 Irregularities by the prosecutor
may more conveniently be challenged as an abuse of process in the
criminal court, when the trial starts. This may occur if, for example,
the prosecutor has reneged on a promise, but it will not succeed if the
defendant simply wishes to argue that there was no public interest in the
prosecution. It is settled law that even if the judge considers the case to
be trivial and unworthy of the attention of the courts, he may not stay the
case merely on account of his own disapproval or contrary view of the
public interest. If he were to have this power, then juries might start to
entertain the (arguably, prejudicial) notion that any case which is put to
them for adjudication does have the approval of the judge as well as the
prosecutor.57
The judiciary is not involved in plea bargaining, that is, where the
defendant may indicate a willingness to plead guilty to a lesser offence
than one for which he has been charged, in return for a more serious
charge being dropped, before the trial starts.58 But after the defendant has

55
However, the two dissenters thought that, in the absence of any provision defining the
term, the interpretation of ‘judicial officer’ in an English Act of Parliament had to be read
in accordance with its ordinary English meaning, which precluded the validity of
authorisation by a public prosecutor.
56
R v. Director of Public Prosecutions, Ex parte Kebeline and others [1999] UKHL 43.
57
DPP v. Humphreys [1977] AC 1.
58
The judge may, however, elect to give the defendant an indication of the maximum length
of sentence he would receive if he were to plead guilty, R v. Goodyear (Karl) [2005]
EWCA Crim 888.

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62 structure and governance

formally pleaded guilty or not guilty to a particular charge, control of the

case passes altogether from the prosecutor to the court. Charges can only
be withdrawn, added or amended with the approval of the court.
3.11 Two possible sources of tension between the public prosecutor and
the judiciary may arise from prosecutorial decisions not to prosecute ‘in
the public interest’. First, the prosecutor may be thought to be usurping
the role of the judiciary if he considers some arguably serious cases not to
be worthy of prosecution. With this in mind, the Code for Crown
Prosecution cautions that, even if the public interest assessment seems
finely balanced, it may be prudent to prosecute and to allow the judge to
decide what weight should be given in sentencing to the various mitigat-
ing factors that may be present. Yet the advent of conditional cautions in
the Criminal Justice Act 2003 has encouraged prosecutors to divert cases
of some seriousness from the courts, by offering the defendant a condi-
tion of being cautioned (and thus, a condition of not being prosecuted
instead) if they consider that the condition in question might meet the
sort of outcome which the judge or magistrate would have wanted. This
may include payment of a financial penalty as a condition for avoiding
prosecution in the courts. It is assumed that, where the defendant accepts
a penalty by way of conditional caution, the right to a fair trial under
Article 6 ECHR is not breached because the defendant thereby waives his
right to an independent tribunal. The extent of conditional cautioning
may be questioned; the Divisional Court has, on judicial review, quashed
a decision of the Crown Prosecution Service to administer a conditional
caution on the basis that the offence was so serious that any decision
short of prosecution was irrational.59
The second source of tension may come from decisions by prosecutors
effectively to decriminalise certain acts by not prosecuting them ‘in the
public interest’, even though the law laid down by the courts clearly holds
that the alleged acts are criminal. In the leading case in England60 it was
held that if the Director of Public Prosecutions is minded not to pros-
ecute minor cases of assisted suicide in the public interest then he must
openly declare his policy so that others may make informed decisions
about their own prospects of being prosecuted, should they choose to
offend. It is not clear how influential this case will be; it was decided on

59
R (Guest) v. Director of Public Prosecutions [2009] EWHC 594 (Admin).
60
R (Purdy) v. Director of Public Prosecutions [2009] UKHL 45; J. Rogers, ‘Prosecutorial
Policies, Prosecutorial Systems, and the Purdy Litigation’ [2010] Crim LR 543–4.

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i. the structure of courts and tribunals 63

the basis that assisted suicide itself engages the victim’s right to a private
life under Article 8 ECHR. But it may influence a culture whereby many
parts of the criminal law will need to be studied according to two sources –
the substantive law as declared by the judges, and the policy decisions
of the Crown Prosecution Service regarding certain types of criminality
because these decisions will signify in greater detail the likelihood of
prosecution in practice.
Another source of tension comes from the Attorney General’s duty to
superintend the discharge of the duties of the Director of Public Pros-
ecutions, the Director of the Serious Fraud Office, and the Director of
the Revenue and Customs Prosecutions Office61; he also oversees the
functions of the Director of Public Prosecutions for Northern Ireland.
The Attorney General, however, may face a fundamental conflict of
interest in deciding whether or not to pursue a prosecution in the public
interest. By convention, and in order to guard against the risk of ‘instru-
mentalisation of criminal justice’, the Attorney General acts independ-
ently of the government in making his decision.62 In practice, this
convention, like all constitutional conventions, ends by those involved
just ceasing to respect it. It is arguable that the current convention fails
to support the political independence of the administration of justice: the
perceptions of a lack of independence and of political bias risk an erosion
of public confidence in the office.63 Thus, public controversy followed the
decision to drop a Serious Fraud Office investigation into allegations
that Saudi officials were bribed to win an order for a British arms firm.
The media speculation was that the Attorney General changed his mind
about his decision whether or not to prosecute as a direct result of
political pressure from Downing Street.64
One may doubt whether it would be appropriate that an Attorney
General (as a member of the executive) should have the legal right to stop
a prosecution, for the same reason that it can be abused. The need for

61
Prosecution of Offences Act 1985, s. 3(1); Attorney General’s Office, ‘Protocol between
the Attorney General for England and Wales and his Prosecuting Departments’ (July
2009), paras. 2.2–2.4, 2.6 and 4.3.
62
J. Spencer, Evidence 106, HC Constitutional Affairs Committee, ‘Constitutional Role of
the Attorney General. Fifth Report of Session 2006–07’ (HC 306, 2007).
63
HC Constitutional Affairs Committee, ‘Constitutional Role of the Attorney General’,
para. 54.
64
See, on this subject and others (such as the ‘cash for honours’ investigation and allega-
tions of political pressure to amend legal advice on the war in Iraq), HC Constitutional
Affairs Committee, ‘Constitutional Role of the Attorney General’.

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64 structure and governance

reform of the role and responsibilities of the Attorney General was high-
lighted by the House of Commons’ Constitutional Affairs Committee:
‘Allegations of political bias, whether justified or not, are almost inevitable
given the Attorney General’s seemingly contradictory positions as an
independent head of prosecutions, his or her status as a party political
Prime Ministerial appointment, and his or her political role in the formu-
lation and delivery of criminal justice policy.’65

D. Court estate
3.12 Quality of justice relates partly to the services provided by court staff in
terms of reception or waiting areas etc. The lack of building maintenance
has been a problem66 and in 2003 the Judge’s Council reminded the
government of the already urgent problems which were not being addressed
because of a lack of resources, citing leaking roofs in courts across the
country, and the fact that the Commercial Court was very poorly housed.
A brand new Commercial Court opened in December 2011 in London,
encompassing the Chancery Division of the High Court, the Admiralty and
Commercial Court, and the Technology and Construction Court.
The principle of local justice is an important one and access to justice
within reasonable travelling distance is essential. In a context of financial
cuts, the principle of efficiency of resources seems to prevail. Estates
integration, with magistrates’ courts and county courts sharing premises,
or rationalisation has been pursued in order to lower running costs by
merging and closing courts, on the ground that this was disposal of
underused or outdated courthouses. Thus in December 2010 the closure
of ninety-three magistrates’ courts and forty-nine county courts and the
merger of various local justice areas were announced, with the first courts
closing in April 2011. The move was presented also as an opportunity to
reinvest for modernisation in other magistrates’ and county courts. To
date, 129 courts have closed.
An efficient use of judicial resources is, however, relevant to the
principle of access to justice. To that purpose the Crime and Courts Bill
2012 creates a unitary County Court and a unitary Family Court.67

65
HC Constitutional Affairs Committee, ‘Constitutional Role of the Attorney General’,
para. 56.
66
Lord Chief Justice, ‘The Review of the Administration of Justice in the Courts’ (HC 448,
2008), pp. 48–50.
67
Crime and Courts Bill 2012, cl. 17.

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ii. judicial leadership 65

In effect, it lifts the geographical boundaries on county courts, allowing

for a better allocation and transfer of cases between court centres. It also
provides for a maximised use of judicial and administrative resources in
the courts, as the new courts will sit at various locations, and will operate
in a way similar to the way in which the High Court and the Crown
Court operate. While this should reduce waiting times, it is likely to limit
the local presence of county courts, as they become hearing centres with
reduced court staffing. District judges will be based in trial centres and
deployed to smaller courts as necessary. It also builds on pilot projects
with centralised telephone contact with the county courts, identifying the
most common queries and thus addressing the customer needs more
effectively and efficiently.68
The judiciary have supported the reform in principle and practice,
with judges supervising work at the centres. Moves to increase e-working,
and the ability of parties to conduct business electronically must be
encouraged.

II. Judicial figures with administrative roles

3.13 The long-standing perception of the judiciary as a collection of
individuals rather than a collective entity explains the rather informal
governance structure of the judiciary, traditionally based upon the idea
that individual judges in their judicial capacity must be free from any
interference. In practice, however, there has always been a sense of hier-
archy with an oversight of the administration of justice This hierarchy
became more and more apparent as the judiciary grew in size and the
senior judges gradually expanded their administrative responsibilities. The
rushed announcement of the separation of powers between the judiciary
and the Lord Chancellor meant that no one was given much time to
anticipate the needs created by the transfer of a vast range of responsi-
bilities to the Lord Chief Justice under the CRA. We examine, in this
section, how the existing positions of leadership within the judiciary
absorbed the delegations of responsibilities from the Lord Chief Justice
arising from the CRA. The Lord Chief Justice is assisted by the Judicial
Executive Board, a small cabinet with the general responsibility for
judicial administration. The Senior Presiding Judge acts as a point of
liaison between the judiciary, the courts and government departments,

68
HMCS Annual Report and Accounts 2010–11, HC 1281, p. 10.

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66 structure and governance

and oversees the work of Presiding Judges. The Presiding Judges and the
Family Division Liaison Judges and Chancery Supervising Judges have a
general oversight of the courts’ administration on the circuits, while the
Resident and Designated Civil and Family Judges also provide leadership
to the judiciary within their court centre or group of courts. The Judges’
Council is a sounding board rather than an institution of governance,69
but must be mentioned here for its influential working parties. The
Senior President of Tribunals is at present a separate office and will be
briefly considered.

A. The leadership from the Lord Chief Justice

3.14 The CRA transferred the role of head of the judiciary from the Lord
Chancellor to the Lord Chief Justice, who is chosen by a specially
appointed committee convened by the Judicial Appointments Commis-
sion. Under the CRA, the Lord Chancellor is responsible for the adminis-
trative functioning of the courts, while the Lord Chief Justice has
responsibility for the judicial function of the courts, which comprises
the deployment of individual judges, their welfare, training and guidance,
and the judicial business of the courts (including the allocation of work
within the courts). The Lord Chief Justice shares responsibility with the
Lord Chancellor for the provision of the complaints and disciplinary
system for the judiciary.70
A ‘quiet revolutionary step’ has been the ‘mini-Concordat’, whereby
the Judicial Office for England and Wales was created to support the
Lord Chief Justice and other members of the senior judiciary in their
administrative – and constitutional – role. The Judicial Office builds on
the pre-existing small private offices of the Lord Chief Justice, the Master
of the Rolls and President of the Family Division. It has regularly grown
in size since it was established in 2006, as the professionalisation of
the judiciary develops further and the administrative responsibilities of

69
Bell, Judiciaries within Europe, 322.
70
The Lord Chief Justice exercises these responsibilities through the Judges’ Council and
the Judicial Executive Board, a committee that comprises senior members of the judi-
ciary. The Mt. Scopus Standards, like the IBA Standards, support the shared responsi-
bility model as the best approach for the administration of lower courts in parliamentary
systems of government, see Mt. Scopus, paras. 2.13 and 2.14. It is not appropriate for the
executive to be involved or to have responsibility over judicial matters or judicial
functions, see Mt. Scopus, paras. 2.9, 2.12.

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ii. judicial leadership 67

the judiciary keep on expanding.71 Thus, when Lord Philips became Lord
Chief Justice in 2005, he had one person on his staff, against seventy
people when he left in 2008. As noted by one interviewee, the CRA was a
shock to most people in that respect too. The Judicial Office now
supports the Senior President of Tribunals too.
3.15 The Judicial Office is currently divided into groups reflecting the
key functions assumed by the Lord Chief Justice: a first group relates to
Strategy, Communications and Governance; a second to Human
Resources for the Judiciary (created in October 2011, with the transfer
of some judicial human resources functions from the Ministry of Justice
to the Judicial Office); the Judicial College (replacing the Judicial Studies
Board) forms the third group; Corporate Services constitute a fourth.
Resources are agreed with the Permanent Secretary of the Ministry of
Justice. A fifth group is concerned with senior judicial support through
Private Offices and Jurisdictional Teams. The Judicial Office includes
administrators, legal advisers and communication or human resources
experts. A sixth function was acknowledged with the addition of the
Office of Judicial Complaints to the Judicial Office in 2011.
The function of communication is key to the Judicial Office, as the
Lord Chief Justice is responsible for representing the views of the judi-
ciary to Parliament, to the Lord Chancellor and to ministers connected to
the administration of justice generally.72 This marks the formal
separation of the judiciary from the executive; one may wonder how, in
the past, the Lord Chancellor’s Office dealt with the judiciary wanting to
circulate views that may have been critical of the government through its
Press Office (as it was then known). The Judicial Office also ensures good
internal communications within the judiciary.

B. The Judicial Executive Board

3.16 Although, until 2005, the general responsibility for judicial adminis-
tration lay formally with the Lord Chancellor, in practice the Heads of
Division of the High Court73 took responsibility for the assignment
of judges to various duties. They were also responsible for the orderly

71
Lord Chief Justice, ‘The Judicial Studies Board Lecture 2010’, Inner Temple (17 March 2010).
72
Judicial Office, ‘Judicial Office Business Plan 2013–2014’; see below, paras. 8.12 and
8.15–8.18.
73
The Master of the Rolls, the Vice-Chancellor of the High Court (now known as Chancellor
of the High Court) and the President of the Family Division.

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68 structure and governance

running of the scheduling of cases (the cause lists).The Lord Chief Justice
would also maintain close contacts with the Presiding Judges of the
circuits in order to deal with matters affecting the divisions of the High
Court. There were informal meetings between the Heads of Division, and
the Judicial Executive Board created in 2005 derives from those informal
meetings. They progressively included the Deputy Chief Justice, the Vice-
President of the Queen’s Bench Division, the Deputy Heads of Family
and Civil Justice, the Judge in Charge of Modernisation and the Senior
Presiding Judge. There were no regular meetings but the meetings solved
numerous issues, such as filming court proceedings and orders restricting
the reporting of proceedings. They would also be the place to discuss
appointments to the High Court and Court of Appeal, in parallel with
regular meetings with the Lord Chancellor on judicial appointments.74
The Judicial Executive Board meets monthly and comprises ten
members: the Lord Chief Justice, the Heads of Division (The Master of
the Rolls, the President of the Queen’s Bench Division, the President of
the Family Division and the Chancellor of the High Court (the revised
title of the Vice-Chancellor)), the Vice-President of the Queen’s Bench
Division, the Chairman of the Judicial College, the Senior President of
Tribunals, the Senior Presiding Judge and the Chief Executive of the
Judicial Office. As a supervisory board, it enables the Lord Chief Justice
to make policy and executive decisions. It is a small cabinet where policy
is made on issues such as judicial deployment, appointment to non-
judicial roles or appointments criteria. It also manages the relationship
with the executive, with HMCTS and with Parliament, and approves,
in agreement with the Ministry of Justice, the budget for the Judicial
Office, which provides the administrative support for the Judicial Execu-
tive Board.

C. The leadership from senior judges

3.17 The engagement between judges and the courts’ administrative staff
goes back to 1971, when a centralised administration of justice was
introduced.75 Two (sometimes three) High Court judges were appointed
on each circuit to have a general oversight of the courts’ administration,
as a constitutional safeguard of the position of judges on the circuits.

74
Lord Mackay, ‘The Lord Chancellor in the 1990s’, inaugural Mischon Lecture at Univer-
sity College London (6 March 1991), para. 28.
75
See below, para. 3.32.

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ii. judicial leadership 69

These judges are now known as Presiding Judges.76 They manage the
deployment of individual judges and the judicial business of the courts
(including the allocation of cases on their circuit), for the Crown Court,
the High Court outside the Royal Courts of Justice and the county courts.
As the Lord Chief Justice gained new responsibilities under the CRA,
Heads of Divisions and the Presiding Judges have accordingly expanded
theirs, supported by the newly created Circuit Judicial Secretariats. They
assist the Lord Chief Justice in discharging his responsibility for general
supervision of judges, in relation to welfare and guidance (facilitating men-
toring, training or guidance on career development) and discipline. They
also have responsibility for the deployment and the welfare of district judges
(magistrates’ courts). Finally, they also advise the Senior Presiding Judge on
the needs for judicial appointments below the level of the High Court.
The Senior Presiding Judge, appointed from the Lord or Lady Justices
of Appeal, oversees the work of Presiding Judges. He or she acts as a
point of liaison between the judiciary, the courts and government depart-
ments and is also a board member of HMCTS and thus the overarching
link between the Administrative Court staff and judges. A Deputy Senior
Presiding Judge, appointed from High Court judges now assists him. It is
no coincidence that this position was created after the CRA, in response
to the increased workload of the Senior Presiding Judge. We were told
that the Senior Presiding Judge currently spends 90 per cent of his time
on administration, away from court sittings. This is for a limited period
of three years, as it would be, in the words of one interviewee, unpopular
among the judiciary to spend more time effectively as a civil servant.
3.18 Family Division Liaison Judges and Chancery Supervising Judges
have similar responsibilities for the Family and Chancery jurisdictions to
those of Presiding Judges, though they are accountable to the Head of the
Queen’s Bench division and the Head of the Chancery Division respect-
ively. The appointment of those managerial judges is largely a matter of
who happens to be available at the time a vacancy opens up. The position
requires a substantial number of days away from sitting in court, and it is
not necessarily perceived as a promotion. Interviewees presented this
responsibility as a substantial imposition, and a former Presiding Judge
mentioned a minimum of two hours daily spent on administrative tasks
while she was acting as a Presiding Judge.

76
Courts and Legal Services Act 1990, s. 72. There are two Presiding Judges per circuit and
they serve for a term of four years.

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70 structure and governance

3.19 Resident and Designated Civil and Family Judges, under the overall
responsibility of the Presiding and Family Division Liaison Judges, also
provide leadership to the judiciary within their court centre or group of
courts. They are in charge of the allocation and despatch of the business
of the court, the deployment of judges and they deal with matters relating
to welfare and guidance (facilitating mentoring, training or guidance
on career development). They liaise with the Circuit/Regional Director
and Area Director from HMCTS to discuss issues such as staff appoint-
ments77 and numbers, budgetary and accommodation issues, deploy-
ment and sitting days, the timeliness of and accuracy in the drawing
up of orders.
Resident Judges of the Crown Court similarly deal with the monitoring
of various matters: the volume of work coming into court, the trials that
are not heard when listed, the delays and the disposal rates for trials; the
efficient use of jury service (a matter obviously specific to their court); on
the one hand, witnesses who are called to testify but in the end are not
required and, on the other hand, the amount of time such witnesses have
to wait before being called.78
3.20 At all levels, these managerial judges are expected to work in
collaboration with courts’ managers to improve the efficiency and econ-
omy of the system. They need adequate administrative support, as
emphasised by the Lord Chief Justice in 2008.79 While there are reports
of improvement since then, some have further questioned the replication
of tasks between the Ministry of Justice and the judiciary.

D. The Judges’ Council

3.21 The Judges’ Council was set up under the Judicature Act 1873 and
continued to function until 1981. It was chaired by the Lord Chancellor
and all the judges of the Supreme Court were members. The then Lord
Chief Justice, Lord Lane, set up a new Judges’ Council in 1988, chaired by
the Lord Chief Justice, with an exclusive membership of the more senior
judges. It was set up with the purpose of marking the separation of the
judiciary from Parliament, specifically from the House of Lords, which

77
In particular the appointment, transfer or removal of the court manager, listing officer,
diary manager and case progression officer at the court or courts for which they are
responsible.
78 79
Lord Chief Justice, ‘The Review’, para. 5.35. Ibid., para. 4.11.

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ii. judicial leadership 71

was a traditional forum for judges to express their views. The Judges’
Council’s composition and structure was further renewed in 2002 and
2006.80 It acts today as an eighteen-member body representing the views
and interests of all parts of the judiciary, including the Magistrates’
Association and tribunals. It is still chaired by the Lord Chief Justice.
The Lord Chief Justice and the Senior Presiding Judge of the UK
Supreme Court serve ex officio; the usual period of membership for the
other members is three years. There are no direct elections to the
Council. Each level of the judiciary has its own association or council81
where elections are held and the officers of those associations or councils
(or their delegates) serve on the Judges’ Council.
Though the English judiciary lacks any union activity, the Judges’
Council traditionally transmits the collective views of the judiciary. It
played a substantial role in negotiations between the Lord Chief Justice
and the Lord Chancellor on the Concordat. It informs and advises the
Lord Chief Justice and has discussions with the Lord Chancellor in
relation to the financing of the courts82 and other issues relating to the
judiciary as a whole, such as judicial welfare and the promulgation and
updating of guidelines on judicial conduct. It also publishes an annual
report. It is separate from the Judicial Appointments Commission,
although it also selects the three judicial members of the Commission.83
The Judges’ Council is particularly effective through its working
groups, such as, e.g., a working group on performance and efficiency in
the operation of the courts, which allow judges to influence the develop-
ment of the law and of the judicial institution. To a great extent, it is a
sounding board rather than an institution of governance,84 and this
justifies its wide membership. It is unlikely that the English will follow
the Spanish and French models of judges’ associations based on political
allegiance,85 however the diversity of activity between judges at different

80
Thomas LJ, ‘The Judges’ Council’ [2005] PL 608.
81
The Council of Circuit Judges, the Association of District Judges and the Magistrates’
Association, the Association of District Judges, the Forum of Tribunal Organisations, the
Council of Appeal Tribunal Judges.
82
Under para. 24 of the 2004 Concordat, the Council meets with the Chief Executive of Her
Majesty’s Court Service (now HMCTS) to provide judicial input on resources.
83 84
CRA, sch. 12, para. 7(7). Bell, Judiciaries within Europe, 322.
85
These are more like their German counterparts as voluntary associations with some interest
in professional education, see Bell, Judiciaries within Europe, 322. In 2004 the Council
became a member of the European Network of Judges’ Councils, an organisation set up ‘to
promote judicial independence and to analyse and exchange information on issues of
common interest such as case management, judicial conduct and judicial functions’.

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72 structure and governance

levels may require structures additional to the Judges’ Council to channel

views more effectively and indeed, a High Court Association has recently
been created.

III. The judicial partnership with HMCTS

3.22 The engagement between the administrative staff from HMCTS
and the judiciary pre-dates the CRA, though the current terms of gov-
ernance of HMCTS are the result of the conflict that arose following the
creation of the Ministry of Justice in 2007. It was clear in 1971 that the
‘antiquated’86 system for criminal trials had to be reformed, and a unified
Court Service for all courts other than the magistrates’ courts and House
of Lords and a centralised administration of justice were introduced
under the Courts Act 1971. The small secretariat of the Lord Chancellor
was converted into a department of state employing around 10,000 civil
servants. The Court Service became an executive agency of the Lord
Chancellor’s Department in 1995. It was, in 2005, replaced by Her
Majesty’s Courts Service (HMCS),87 which took over the unified man-
agement of the criminal, family and civil courts, as agreed under the 2004
Concordat. One interviewee described the creation of HMCS as ‘trouble
avoidance’ from the government in shifting responsibilities to an agency.
HMCS also gained responsibility for the administration of the magis-
trates’ courts.88
The Ministry of Justice then became responsible for criminal justice,
prisons and penal policy, three areas formerly within the remit of the
Home Office. It also took responsibility for courts services and legal aid,
previously within the remit of the Department for Constitutional Affairs.
As a result, the Lord Chancellor has to balance the cost of maintaining
prisons with the courts budget. This concern led senior judges, during
2007, to negotiate with the government for greater autonomy over the

86
G. Lane, ‘Judicial Independence and the Increasing Executive Role in Judicial Adminis-
tration’, in S. Shetreet and J. Deschenes (eds.), Judicial Independence: The Contemporary
Debate (Leiden: M. Nijhoff, 1985), p. 525.
87
Courts Act 2003, s. 2(1); Framework Agreement dated 1 April 2005. Some have argued
that the change was aimed primarily at improving criminal justice, A. Reeves, The Path to
Justice: A Review of the County Court System in England and Wales (Brighton: Emerald
Publishing, 2006), p. 80.
88
Until then, the circuit courts only managed the Crown Court and magistrates’ courts
committees managed magistrates’ courts. The Courts Act 2003 abolished the magistrates’
courts committees.

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iii. the judicial partnership with hmcts 73

disposal of the resources for the administration of justice, with dual

leadership over HMCS (now HMCTS) as a result.89 The partnership
structure adopted for HMCTS also explains why judges today are man-
agers of the judicial process. The purpose of a more expedient, effective
and efficient handling of court cases arises partly from the competition
between the Ministry of Justice and other departments for its budget, and
partly from the liberalisation of services and the reduction of the public
sector in England and Wales as in many states, which led to pressures on
the judicial process to abide by economic performance standards.90 But it
has also gained growing acceptance from the judiciary under the steer
from the Council of Europe and the European Court of Human Rights,
which assert the importance of a more efficient handling of judicial
business as a way to strengthen the rule of law in Europe.

A. The Court Service

3.23 The objectives of HMCTS include providing the supporting admin-
istration for a fair, efficient and accessible courts and tribunal system;
supporting an independent judiciary in the administration of justice; and
continuous improvement of performance and efficiency across all aspects
of the administration of the courts and tribunals.91 In practical terms,
HMCTS provides the support necessary for the day-to-day business of
the courts and tribunals. It deals with the operation of court facilities and
the treatment of court users, and provides the administrative system, the
staff and the infrastructure (IT, buildings). It is similar to a special agency
for the courts such as that in Spain or Sweden.92 Judicial governance thus
operates within the HMCTS framework. The Lord Chancellor remains
under the duty to provide the infrastructure supporting the adminis-
tration of justice,93 and the Chief Executive of HMCTS is under a duty to
ensure that all of its activities are in accordance with that agreement.

89
Her Majesty’s Courts Service Framework Document, Cm. 7350 (2008).
90
R. Jagtenberg and A. De Roo, ‘From Traditional Judicial Styles to Verdict Industries Inc’,
in N. Huls, M. Adams and J. Bomhoff (eds.), The Legitimacy of Highest Courts’ Rulings
(The Hague: TMC Asser Press, 2009), p. 301.
91
Her Majesty’s Courts and Tribunal Service, Framework Document 2011, Cm 8043
(2011).
92
J. Bell, ‘Sweden’s Contribution to the Governance of the Judiciary’, in M. Andenas and D.
Fairgrieve (eds.), Tom Bingham and the Transformation of the Law. A Liber Amicorum
(Oxford University Press, 2009), p. 221.
93
Courts Act 2003, s. 1.

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74 structure and governance

Prior to the Concordat, there is evidence of some formal structures

where judges and civil servants worked together: the IT board created in
2001 on which a judge of the Court of Appeal served as the ‘Judge in
Charge of Modernisation’, is the first example of a close working rela-
tionship between civil servants and senior judges, with its frustrations
and achievements.94
3.24 There was once a long-standing dispute between the Parliamentary
Ombudsman and the Lord Chancellor’s Department (as it was then) as
to whether the Parliamentary Commissioner was competent to review
allegations of maladministration against court staff. It was argued that
the courts were outside its jurisdiction, as a separate and independent
body. Unlike his predecessor Lord Hailsham, however, Lord Mackay did
not object to the scrutiny of his department by the Parliamentary
Ombudsman, or the Parliamentary Home Affairs Committee. The
Courts and Legal Services Act 1990 clarified that court staff actions
were within the remit of the Parliamentary Ombudsman, unless they
were under judicial instruction.95 The Parliamentary Ombudsman noted
in 2002, however, that it could be difficult to distinguish between an
administrative and a judicial action.96
Her Majesty’s Inspectorate of Court Administration was created in
2005 and abolished in 2011.97 The Inspectorate, though sponsored by the
Ministry of Justice, provided an independent review of the administra-
tion of the Crown Court, county courts and magistrates’ courts, but was
not to ‘inspect persons making judicial decisions, or exercising any
judicial discretion’.98 It sought to contribute to the improvements in
performance and service provision to users. The government justified
its abolition by the fact that the landscape in which the Inspectorate
operated has changed considerably since its inception in 2005, and
that HMCTS now has robust audit methods and management infor-
mation processes in place, which negates the need for independent
inspection. External audit by the National Audit Office completes the
scrutiny of HMCTS.

94
Brooke LJ, ‘Courts Modernisation and the Crisis Facing our Civil Courts’, 7th ILAS
Annual Lecture (24 November 2004).
95
Courts and Legal Services Act 1990, s. 110.
96
Parliamentary Ombudsman, Annual Report 2000–2001, HC 5 (2001–2002), p. 38.
97
Public Bodies Act 2011, sch. 1.
98
Her Majesty’s Inspectorate for Court Administration, ‘Annual Report 2006–2007’ (2007),
p. 9.

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iii. the judicial partnership with hmcts 75

3.25 On 1 April 2011, Her Majesty’s Courts Service and the Tribunals
Service were brought together into one integrated agency, Her Majesty’s
Courts and Tribunals Service.99 Some interviewees described it as a
‘Leviathan’. The integrated agency has led to some financial savings
and to a reduction in staff numbers, as part of the cuts in public
expenditure in all parts of the public sector. Since 2011 HMCTS has
been responsible for managing all courts (including the magistrates’
courts) and tribunals, except the UK Supreme Court. The Supreme Court
has its budget provided by the Ministry of Justice, but it has operational
autonomy.100

B. Dual leadership
3.26 The Ministry of Justice funds HMCTS and the Lord Chancellor
reports to Parliament on the administration of justice and spending. The
argument stands, therefore, that the budget for the courts may partly
depend on sentencing policy – the more people in prisons, the less
money there is for the courts. Additional pressure comes from expend-
iture on legal aid and legal services. The judiciary has now, however,
secured a position of greater influence in the administration of the court
system and its resourcing. This acts upon, to some extent, the transfer of
the role of head of judiciary from the Lord Chancellor to the Lord Chief
Justice under the CRA.101 The traditional consultation process has been
put on a basis that reflects the new constitutional settlement, so that the
judiciary has a greater voice in the strategic decision making on the
administration of the courts.

99
Her Majesty’s Courts and Tribunal Service, ‘Framework Document 2011’, Cm 8043
(2011). The Court Service has had 4 management structures over about 10 years. Some
10 years ago, one would talk about circuits. Then the court management structure was
divided into counties in order to reduce management costs. Four years later, there are
regions with 3 counties included per region and one regional manager. The adminis-
trator in charge of circuits is currently known as the regional administrator.
100
The judicial committee of the House of Lords drew its budget from that of the legisla-
ture. Under CRA, s. 50(1)(b) the Lord Chancellor must ensure that the UK Supreme
Court is provided with such resources as he thinks are appropriate for the Court to carry
on its business; the Supreme Court Chief Executive must ensure that the Court uses
those resources to provide an efficient and effective system to support the Court in
carrying on its business, CRA, s. 51. The Chief Executive of the Court must carry out his
or her functions in accordance with any directions given by the President of the Court,
CRA, s. 48(4).
101
CRA, s. 7.

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76 structure and governance

The operation of the HMCTS (as it is now) is no longer controlled by the

Ministry of Justice but it is not fully autonomous either.102 HMCTS is jointly
accountable to the Lord Chief Justice and the Lord Chancellor on matters
of its governance, financing and operation. The Lord Chancellor and Lord
Chief Justice jointly agree the aims, priorities and funding for HMCTS.
Day-to-day governance of the HMCTS is delegated to a board with
an independent chairman. Senior judges sit as board members of
HMCTS,103 ensuring that the Chief Executive and directors are aware
of concerns from the wider judiciary, including judicial salaries and the
needs of the courts. The monthly meetings of the board deal with issues
such as performance of HMCTS against targets, the budget or the needs
of the estate, which all affect and depend to some extent on the way the
business of the courts is conducted by the judiciary.
The Concordat aimed for an early engagement of the judiciary with
the (today) Ministry of Justice and HMCTS ‘at strategic level, including
issues on resource plans and bids’.104 This provides a necessary safeguard
to the interests of the judiciary, as the Lord Chancellor stopped acting as
head of the judiciary. Judges and the Ministry of Justice need to cooper-
ate to get the best possible outcome: judges are responsible for delivering
an efficient public service of justice and the executive finances the judicial
branch of government and the public service of justice.105 The reality of
such cooperation varies within each court, depending on the level of
interactions and the mutual understandings between judges and HMCTS
staff as to what is needed to achieve justice in an efficient and economic
way. Thus, the report on the Inspection of Leeds Magistrates’ Court,
published in March 2008, highlighted administrative failings for which
judges had no responsibility.106 In practice, judges have had a greater
input into defining the Court Service’s objectives since 2005. Thus, in
2006, HMTCS aimed for justice being done ‘as quickly as possible’. Since

102
The budget is still allocated by Parliament to the Ministry of Justice and then by the
latter to HMCTS.
103
The responsibilities of the board include giving advice and, where necessary, direction to
HMCTS (having been given direction by the Lord Chief Justice and Lord Chancellor);
ensuring a strong working relationship between staff of HMCTS and the judiciary at all
levels and ensuring that the planning, performance and financial management of the
agency is carried out efficiently and effectively and with openness and transparency,
Framework Document 2011, para. 4.1.
104 105
Concordat, para. 20. Lord Chief Justice, ‘The Review’, 16.
106
See Criminal Justice Joint Inspection, ‘Leeds Magistrates’ Court. A Report on the
Resulting and Warrant Withdrawal Procedures Used at Leeds Magistrates’ Court’
(March 2008).

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iii. the judicial partnership with hmcts 77

2008, a ‘timely access’ to justice has been the preferred formula. This
reflects a greater awareness of the tension between speedy delivery of
justice and the quality of justice itself.

C. Shared administration in question

3.27 In many judicial systems, resources for the judicial system are under
the responsibility of the executive and Parliament, on the ground that
the executive ultimately decides on the allocation of resources, with the
judiciary’s involvement in the allocation process. But the full transfer of
administrative responsibilities to judges has also been considered in
England. In 2003 the Judges’ Council argued for the running of the court
system to be fully entrusted to the judiciary or to a body independent of
the executive of which the judges are active members. Reference was
made to the federal courts of the United States and to Australia, where
the judiciary carry part of the responsibility for the running of the court
system.107 Similarly, in Ireland, Scotland or Denmark today, the adminis-
tration of justice is separate from the executive and lies fully in the hands
of the judiciary. Scotland must negotiate its budget directly from the
Treasury. In all cases, an institutionalised separation of powers is argued
for. However, while the Irish equivalent of HMCTS employs roughly 900
people, HMCTS employed 21,000 people in April 2011. It would seem
difficult then to transpose that solution to the English judiciary.
At the heart of the discussion lies the provision of resources for the
courts and judicial system. In the past, discussions between senior
members of the judiciary and representatives of the Court Service and
the Lord Chancellor would determine the allocation of resources for the
administration of justice, and the Lord Chancellor’s Department would
then negotiate with the Treasury. The results of these discussions would
be added up to find the total public expenditure. The allocation of
resources to the administration of justice was then one part of overall
government expenditure. Attempts to limit public expenditure led to a
change in the process, as an overall total was agreed first with the
Treasury before being divided between ministries. This system created
an ‘even more intense’108 competition for resources between the

107
‘Judges’ Council Response to the Consultation Papers on Constitutional Reform’
(November 2003), para. 57.
108
Lord Mackay, The Administration of Justice (London: Stevens & Sons/Sweet & Maxwell,
1994), Hamlyn Lectures, p. 20.

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78 structure and governance

ministries. In addition, following the public management revolution in

the 1980s, the Lord Chancellor’s Department applied ‘The Financial
Management and Value for Money’ regimes to courts, introducing
budgetary discipline and efficiency monitoring. The Lord Chancellor’s
Office thereby gained some of the aspects of a conventional ministry of
justice.109
Lord Browne-Wilkinson expressed his concern, in 1987, that judges
be appropriately involved in budget setting.110 He called for greater
judicial autonomy over the use of the resources made available for the
administration of justice. However, unless it is taken to its extreme, that
is, there are ‘no courtrooms, staff, books, pay, not even a palm tree’ (per
Lord Mackay), views differ on when questions of resources fetter the
independence of the judiciary.111 The Lord Chancellor has responsibility
for the provision of all kind of resources, whether financial, material or
human resources.112 Whether this duty is legally enforceable is a question
that has not arisen yet, though at least one judge interviewed thought that
extremely insufficient resources would lead to the ‘atomic option’ of
deferring the matter to Parliament for its ultimate say.113
Lord Phillips was also concerned, in 2011, that the UK Supreme
Court’s independence could be undermined by having its annual budget
dependent on what the Ministry of Justice could be persuaded to give
each year.114 The Lord Chancellor, Kenneth Clarke, responded that the
Supreme Court had to be accountable for its budget. Accountability or
effectiveness in using resources and judicial independence go hand in
hand, as stated by Lord Chief Justice Judge in 2010: ‘Times change, and
however they do change, for the purposes of the judiciary, our independ-
ence and effectiveness must be reinforced.’115 There is some basis to Lord
Phillips’s concerns, however. Following the decision of Cadder v. HM
Advocate, in which the UK Supreme Court held that questioning
detained suspects without access to legal advice before a police interview
breached Cadder’s rights, the Scottish Justice Secretary threatened to end

109
In terms of public expenditure and manpower, the Ministry of Justice is one of the
largest government departments, with about 76,000 people in February 2012 (including
those in the Probation Service, and 21,000 employees of HMCTS).
110
N. Browne-Wilkinson, ‘The Independence of the Judiciary in the 1980s’ [1988] PL 44,
53; Lord Ackner, The Erosion of Judicial Independence (John Stuart Mill Institute, 1997).
111 112
Lord Mackay, The Administration of Justice, 15. Concordat, para. 19.
113
See also HL Committee on the Constitution, ‘Meetings with the Lord Chief Justice and
Lord Chancellor (2010–11)’, 89, Q11.
114 115
See CRA, s. 50. Judicial Office, ‘Business Plan 2010–2011’.

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iii. the judicial partnership with hmcts 79

the Scottish funding for the Supreme Court, stating ‘He who pays the
piper, as they say, calls the tune.’116
The ‘corporate independence’ of the Court is currently under discus-
sion between the government and the Supreme Court. This follows a call
from Lord Phillips, in his capacity as Law Lord, for the Lord Chancellor
to relinquish his right to appoint the UK Supreme Court Chief Execu-
tive.117 The Chief Executive would be accountable to the UK Supreme
Court President and to Parliament only.118 This would increase the
separation of powers from the executive without diminishing account-
ability to Parliament.
Lord Philips’s speech may also reflect a concern about the loyalty of the
court administrators. The majority of judges interviewed praised the civil
servants working in courts, but some noted that some civil servants came
to courts with an agenda. They were sometimes referred to as ‘delivery
managers’ and it was suggested that they should not be appointed for life.
Yet, good interactions between court administrators and judges are neces-
sary for the partnership between the executive and the judiciary to work
effectively: the Senior Presiding Judge, the resident judges and the court
administrators need to trust each other to work together.
3.28 The call for greater autonomy illustrates a growing discrepancy
between the traditional understanding of judicial independence as indi-
vidual independence of the judge, and the reality of judicial adjudication
being considered as a public service for the enforcement of rights.119
Under the latter conception, judges are subject to accountability require-
ments of efficiency and transparency similar to any other public service.
The challenge lies in strengthening judicial self-governance as a means
towards independence, while enhancing judicial accountability. Indeed,

116
Cadder v. HM Advocate [2010] UKSC 43.
117
CRA, s. 48(2) provides that the Lord Chancellor must appoint the Chief Executive after
consulting the President of the Court; Hansard, HL, col. 649 (4 December 2012), cols.
1488–1500 (18 December 2012). Discussions between the government and the UK
Supreme Court are now concluded. The Crime and Courts Bill will amend the CRA
2005 so that the president of the UK Supreme Court, rather than the Lord Chancellor, is
made responsible for the appointment of the Chief Executive. It will be no longer
necessary for the Chief Executive to agree the staffing structure of the court with the
Lord Chancellor; see Hansard, HL, col. 835 (25 March 2013).
118
CRA, s. 54; Lord Falconer, Hansard, HL, col. 1237 (14 December 2004).
119
Cf. the call from the Council of Europe for greater autonomy of the judiciary in the
administration of justice: Council of Europe, ‘Allegations of Politically-Motivated
Abuses of the Criminal Justice System in Council of Europe Member States’, Resolution
1685 (2009), para. 5.4.1.

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80 structure and governance

the benefits of having judges chairing a body that many judges today
describe as a Leviathan seems questionable. It would be a change in the
constitutional arrangements, and an even greater imposition of adminis-
tration on judges. Additional resources would be needed to support the
Lord Chief Justice.120 In such configuration, the judiciary would go to
Parliament to negotiate its budget and would be directly involved in
the intense political discussions about resources. This does not seem
desirable. Besides, although judicial independence and judicial self-
government are often linked, the latter does not necessarily follow from
the former. Judicial independence does not in itself require full insti-
tutional autonomy, even though it requires checks and balances. Thus,
the judiciary must have a satisfactory input into the decision-making
process and that judicial input must be set on a statutory basis in order
to preserve separation of powers and judicial independence. But the
Ministry of Justice’s involvement also constitutes one check upon court
efficiency, and it prevents the corporatism that might arise from a fully
insulated judiciary.

D. Performance management as ‘quality management’

3.29 The potential impact of HMCTS on the conduct of judicial business
may be gleaned from the ‘Lean Programme’, introduced in 2008 as a pilot
in two courts in Liverpool and Birmingham, and now at the heart of how
HMCTS operates, looking for efficient and cost-effective services.
Described as a ‘working simpler program’,121 it is based on the European
Foundation for Quality Management Excellence model (EFQM), a non-
prescriptive framework for driving organisations towards excellence in
performance. EFQM was adopted from the inception of HMCS. Activ-
ities and court procedures are timed and timeliness targets can be set as a
result. The Lean Programme aims at introducing greater flexibility in the
use of resources, so that staff can be borrowed from one court to help an
overburdened court; or funding for additional sitting days can be allo-
cated where necessary to reduce the increasing workload and reduce
delay.122

120
I. Judge, ‘The Judicial Studies Board Lecture 2010’, Inner Temple (March 2010).
121
P.M. Langbroek (ed.), ‘Quality Management in Courts and in the Judicial Organisations
in 8 Council of Europe Member States’, CEPEJ (2010/3), CEPEJ Studies no. 13, p. 33.
122
HMCS, ‘HMCS Annual Report and Accounts 2010–11’ (HC 1281, 2011), p. 9.

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iii. the judicial partnership with hmcts 81

This ‘fundamental change to [HMCTS] working culture’123 can also be

seen as ‘quality management’, with a greater transparency and account-
ability of HMCTS, and a greater consistency of courts services across
England and Wales as a consequence.124 Quality is understood in a
quantitative way, with the measure of the resources and time needed
for numerous courts’ activities. The core procedural activities of the court
justify this approach: filing a case, procedures to manage and hear cases,
and procedures to pronounce judgment.125 Statistics deal with the
workload, capacity and time taken for cases to come to trial. The Key
Performance Indicators in 2010–11 are thus setting targets against, for
example, the proportion of days overall jurors sit on trial during their
period of service before the Crown Court; the reduction of the average
time taken from charge to disposal for adult charged cases before magis-
trates’ courts; community penalties within a certain period of time
following the relevant failure to comply with a court order; increasing
the volume of defended small claims completed otherwise than by a
hearing (settlement); the percentage of care and supervision cases that
achieve a final outcome for the child; maintaining the ‘very satisfied’
element of the HMCTS court user survey above a certain level.126
The performance standards are agreed by the Lord Chancellor and the
Lord Chief Justice though the HMCTS Board. They do not bind the
independent judiciary in deciding individual cases, but, as outlined
above,127 judges have been involved in the administration of justice since
the Courts Act 1971 with the creation of the position now known as
Presiding Judge. They are expected to be managers of the judicial process,
and they account to the Lord Chief Justice for their managerial position.
Presiding Judges and Resident Judges scrutinise performance statistics
for their court centres and work with them to find ways of improving
performance.128

123
Ibid.
124
F. Contini and R. Mohr, Judicial Evaluation: Traditions, Innovations and Proposals
for Measuring the Quality of Court Performance (Saarbruken: VDM Verlag, 2008),
pp. 36–42.
125
G.Y. Ng, Quality of Judicial Organisation and Checks and Balances (Antwerp: Inter-
sentia, 2007), p. 133.
126
HMCS Annual Report and Accounts 2010–2011, pp. 12–13, cf. L. Glanfield and T.
Wright, Model Key Performance Indicators for NSW Courts (Sydney: Justice Research
Centre, Law Foundation of NSW, 2000).
127
Paras. 3.22 and 3.27.
128
Lord Chief Justice, ‘The Lord Chief Justice’s Report 2010–2012’, para. 36.

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82 structure and governance

3.30 Importantly, a proper monitoring and evaluation of the courts’

standards depends upon an accurate and transparent system of data
collection. Statistics are thus expected to be crude. In 2008, however,
the Lord Chief Justice noted the lack of data in some parts of the
business, and some inconsistency between the figures collated and pub-
lished centrally and locally held data.129 The accuracy has improved, with
statistics now available in a systematic manner on criminal and civil
courts, the judiciary and some associated offices in England and Wales,
such as the Judicial Committee of the Privy Council.
Since 2005 the courts’ performance has been monitored monthly by
Courts Boards.130 The information is discussed at local level, and at
regional level, by the HMCTS Performance Committee, consisting of area
performance managers, chaired by a regional director. It reports to the
HMCTS Executive Committee, itself accountable to the HMCTS Board,
which includes judges in its membership. The statistics are perceived by
the judiciary as a way to assess future needs for judges, staff and court
buildings,131 with practical tools being developed, such as a new system
for determining the optimum staffing required to meet the demand in
courts and therefore determine the financial allocation to each court; or
another system for forecasting the number of court sitting days.132
3.31 The centralisation of judicial administration, however, has meant that
public servants from the Lord Chancellor’s Department are involved in the
listing as judges themselves, to the great concern of Lord Lane in 1997:
The bureaucratic machinery for running the courts is so huge that it is in
danger of swamping (albeit unconsciously) the proper powers of judges.
We are in danger of allowing the administrative tail to wag the judicial
dog. Inevitably, as the bureaucratic machine becomes larger and larger,
those who operate it will cease to have, as the staff did in times gone by,
loyalty towards the judge and the court; they will unconsciously have their
first loyalty to what they regard as the service which is the bureaucratic
machine . . . However in that division of loyalty, however understandable
it may be, lies the danger. It is essential that judges remain in control of
their courts, in control of their listing, in control of the allocation of
judges. Any serious encroachment by the executive on this territory can
spell the end of independence.133

129
Judiciary of England and Wales, ‘The Lord Chief Justice’s Review of the Administration
of Justice in the Courts’ (March 2008), p. 25.
130 131
Courts Act 2003, s. 5(5). ‘The Lord Chief Justice’s Review’, 25.
132
HMCS, ‘HMCS Annual Report and Accounts 2010–11’, 6.
133
Lane, ‘Judicial Independence’, 528.

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iii. the judicial partnership with hmcts 83

The concern for loyalty appeared as the operation of the Court Service
gradually became shaped by the new public management revolution, as
noted above.134 Under the new public management principles, perform-
ance management is key, and so are the values of efficiency, effectiveness
and economy of the judicial system. Yet the search for efficiency in the
administration of justice, if it improves productivity in some ways, can
affect the way judges work, beyond a more managerial role being
attached to the judicial function. We mentioned in our introduction
Lord Bingham’s comment that ‘many judges resented what they per-
ceived as an administration breathing down their necks treating them as
pawns on a bureaucratic chess board’.135 The Lord Chancellor himself
had acknowledged those tensions by inviting, in November 1994, the
Chief Executive of the Court Agency and the Agency staff to work closely
with judges, as well as consulting them before any major in-year change
in resource allocation was decided. This was to be formally resolved with
the shared leadership structure in the administration of HMCTS previ-
ously discussed.
The quality of court staff is one of several elements fundamental to the
effective and efficient operation of the courts. According to the Lord
Chief Justice in 2008, the ‘overall picture . . . is one that does give rise to
concern’.136 The pressure on staff to perform well created low morale and
a high turnover of staff was noted at the time.137 Interviews with judges
have also emphasised the importance of good interactions between
judges and staff for a court to run efficiently.
3.32 The European Commission for the Efficiency of Justice (CEPEJ),
a body created by the Council of Europe, has developed a ‘checklist’ for
scrutinising the quality of their judicial process – presented as no more
than an introspection tool for policy makers, court managers, court
presidents, judges and other judicial practitioners.138 It invites them to

134
Note also Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil
Justice System in England and Wales (London: HMSO, 1996).
135
Lord Bingham, ‘Judicial Independence’, Judicial Studies Board Annual Lecture
(5 November 1996), pp. 67–8.
136
Judiciary of England and Wales, ‘The Lord Chief Justice’s Review’, 20.
137
Ibid., 22–3, 26.
138
CEPEJ, ‘European Judicial Systems Edition 2012 (2010 Data): Efficiency and Quality of
Justice’, CEPEJ Studies no. 18 (Strasbourg: Council of Europe, 2012). National models
are also developed, e.g., the ‘Quality model’ of the Finnish Court of Appeal of Rovaniemi
or the ‘Rechtspraaq model’ in the Netherlands; the scrutiny of the court workings was
initiated in the United States with the creation of the Trial Court Performance Standards.

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84 structure and governance

review, in particular, the management of activities ranging from the

preparation of cases to the final decision making by a judge and its
execution, for example the allocation of cases between judges, court hear-
ings and case management itself. It also invites reflection upon the means
available for the adequate operation of the courts, assessing whether
sufficient financial resources are there to support the use of information
and communication technology (court management information systems,
electronic files, electronic data exchange, video conferencing).
The European checklist is premised on the ground that the adminis-
tration of justice is not simply about delivery of a service; as a sui generis
public service, justice produces social links139 and individuals are entitled
to demand an adequate level of protection for their rights, just as they are
entitled to demand an adequate health or transport service. As for any
other public service, then, good management is required for justice to be
delivered.140 The benchmarks for assessing the quality of the judicial
process, however, are based upon quantitative factors that relate essen-
tially to the resources used in terms of expenditure and staff numbers,
and to the number of cases concluded and the processing time needed for
handling and deciding cases. They do not apply to the judicial decision
itself, and they do not reflect the complexity of cases and specialism of
the law.141 Does greater efficiency in quantitative terms necessarily lead
to greater ‘quality’ of justice? The answer goes both ways. A speedier
process supports better quality of justice – ‘justice delayed is justice
denied’. But efficiency constraints may equally have a detrimental impact
on judicial behaviour: judges may become more strategic and, for
example, rely to a greater extent on the facts as presented by the Crown
Prosecution Service in order to gain time. Similarly, the development of
alternative dispute resolution allows courts to deal more accurately with
more complex cases but this assumes a consistent practice between
courts of filtering cases through alternative dispute resolution. A fine

139
CEPEJ, ‘Checklist for Promoting the Quality of Justice and the Courts’ (Strasbourg:
Council of Europe, 2008), p. 2.
140
Judicial adjudication has been argued to be a public service for the enforcement of rights,
A. Zuckerman, ‘Civil Litigation: a Public Service for the Enforcement of Civil Rights’
(2007) 26 CJQ 1; H. Fix-Fierro, Courts, Justice and Efficiency: A Socio-Legal Study of
Economic Rationality in Adjudication (Oxford: Hart, 2004); M. Fabri, J.P. Jean, P.
Langbroek, H. Pauliat, L’Administration de la Justice en Europe et l’Evaluation de sa
Qualité (Paris: Montchrestien, 2005).
141
‘Lord Chief Justice’s Report 2010–2012’, para. 56.

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iv. principles of case allocation 85

tuning of these efficiency requirements is thus required for public confi-

dence in the judicial process to be sustained.

IV. Deployment, assignment and case management

3.33 Deployment and assignment are subject to the principle of internal
independence, while case management illustrates the extent of the
involvement of judges in an efficient judicial system.

A. Deployment
3.34 Judicial deployment maximises the use of judicial resources in
the courts and tribunals. The judicial business varies in volume and in
the nature of cases brought before each court. It is therefore necessary to
regularly review and modulate the number and identity of judges in each
court, as they have different skills and different areas of knowledge, in
order to ensure that cases can be brought to trial in the most effective
and time-efficient manner.142 Judicial deployment is also subject to the
principle of internal independence. Transfer must be possible for the best
administration of justice, but it cannot be unlimited or unchecked for
fear that it may be exercised as a means of control over the judiciary: a
judge should not be moved to another court for taking a decision that has
created controversy, or fear that he would do so. We are not aware that
this has happened in England. One safeguard for internal independence,
however, might be provided by the dual leadership between the Lord
Chief Justice and Lord Chancellor: this is where the Lord Chancellor may
provide an independent yet authoritative view.143
The Lord Chancellor, in consultation with the Lord Chief Justice, sets
the geographical and functional jurisdictional boundaries of courts.144
The Lord Chief Justice is responsible for the posting and roles of individ-
ual judges within that framework.145 He maintains some appropriate
arrangements for the deployment of judges to courts and tribunals
(subject to having regard to the responsibilities of the Senior President
of Tribunals).146 The transfer of power from the Lord Chancellor to the

142
This is a matter of debate within the judiciary, see Judicial Working Group, ‘Justice
Outside London’ (2006).
143
J. Beatson, ‘Reforming an Unwritten Constitution’ (2010) 126 LQR 48.
144 145
Concordat, para. 26. Ibid., paras. 26–7 and 29–30.
146
CRA 2005, s. 7(2).

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86 structure and governance

Lord Chief Justice reflects the need for the head of the judiciary to deploy
judges free from executive influence. Similarly, the Senior President of
the tribunals assigns judges and members to the chambers of the First-
tier Tribunal and Upper Tribunal.147
Deployment is equally a matter of efficiency of resources, and so real
and effective consultation between the Lord Chief Justice and Lord
Chancellor is required on this matter.148 The Lord Chief Justice is
responsible, after consultation with the Lord Chancellor, for determining
which individual judge should be assigned to which division, circuit,
district, or county court.149 In practice, numerous statutes dealing with
court jurisdiction specify which judicial office holders may sit in that
court. The Vice-President of the Queen’s Bench Division coordinates
with the Heads of Division the deployment of High Court judges. He had
done so in practice before 2005 but formally the deployment and transfer
of judges was then for the Lord Chancellor. Senior judges can generally
be transferred without their consent,150 though a High Court judge can
only be moved with his consent within one division or from one division
to another.151
Below the High Court, the Lord Chancellor’s power, prior to the CRA,
was in practice exercised by the Court Service in consultation with
Presiding Judges. The latter now have the responsibility for the deploy-
ment of circuit and district judges and, in practice, the circuit judicial
secretariat consults judges and HMCTS on the needs of the courts in the
circuit. The workload, sitting patterns, performance pressures and judges’
preferences feed recommendations as to changes in deployment.152
Interviewees emphasised that judicial deployment to courts was not

147
Tribunals, Courts and Enforcement Act 2007, sch. 4.
148
Concordat, para. 28.
149
The introduction of a unitary County Court under the Crime and Courts Bill will reduce
the role of the Lord Chief Justice in this respect, see Crime and Courts Bill 2012, cl. 17.
150
Senior Courts Act 1981, s. 9(1) and (3).
151
Senior Courts Act 1981, s. 5(2); a High Court judge’s consent is not necessary for his
assignment to sit in the Court of Appeal nor is a Lord Justice’s consent necessary for his
assignment to sit in the High Court. See also R.E. Megarry, Miscellany-at-Law.
A Diversion for Lawyers and Others (London: Stevens and Son, 1956), p. 10 (transfer
of Sir Ford North from the Queen’s Bench Division to the Chancery Division). Until
1944 a judge could be transferred from one division to another at the executive’s
discretion, see the Supreme Court of Judicature (Consolidation) Act 1925, s. 4(2), as
amended by the Supreme Court of Judicature (Amendment) Act 1944, 7 & 8 Geo. VI,
c. 9, s. 1.
152
Thomas LJ, ‘The Judicial and Executive Branches of Government: a New Partnership?’
(2006) 63 Amicus Curiae 3.

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iv. principles of case allocation 87

rigid: it is possible to move judges within one circuit but making changes
from one circuit to another, for example from Leicester to Northampton,
would be harder, given some practical implications for witnesses, for
instance.
The senior district judge (Chief Magistrate) has responsibility for the
deployment of district judges (magistrates’ courts) and liaises with the
senior judiciary and Presiding Judges on those matters – it is ultimately a
delegated responsibility of the Lord Chief Justice.
The deployment of judges to particular levels of courts other than their
usual level, as noted in the previous paragraph, is the responsibility of
the Lord Chief Justice after consultation with the Lord Chancellor. A list
of suitable judges, to be agreed with the Judicial Appointments Commis-
sion,153 is drafted by the Lord Chief Justice, from which list the circuit
judges and recorders can be selected to sit in the High Court. Outside
this pool, the Senior President of Tribunals can also be requested to sit.
The Crime and Courts Bill 2012 introduces some new flexibility in the
deployment of judges across different courts and tribunals of equivalent
or lower status,154 thus bringing a clearer sense of mobility between
courts and tribunals. Under the bill, circuit judges may act in the Court
of Appeal (Criminal Division), under a process managed by the Judicial
Appointments Commission in concurrence with the Lord Chief
Justice.155 High Court judges and Court of Appeal judges may sit at the
Family Court and the county court in addition to the Crown Court where
they can already be deployed.156 Certain tribunal judges may sit in a
magistrates’ court; certain Crown Court and deputy district judges would
be allowed to sit in an employment tribunal, and district judges and
circuit judges could sit in the Employment Appeal Tribunal.157 The Bill
thus acts upon the unified structure of the tribunals system under the
Tribunals, Courts and Enforcement Act 2007, by allowing for moves
between the courts and tribunals systems. It creates a clearer sense of
career progression within the judicial ranks, helping suitable judicial
office holders to apply and be recognised. It is a noticeable step in

153
As acknowledged in the Concordat (para. 39), there is a range of nominations to various
posts, both permanent and temporary, which are very similar to deployment issues. For
example, particular judges may be nominated to deal with specific areas of business, such
as patents cases.
154
Crime and Courts Bill 2012, cl. 19 and sch. 13.
155 156
Crime and Courts Bill 2012, cl. 19. Crime and Courts Bill 2012, cl. 13 s. 1(1).
157
Crime and Courts Bill 2012, sch. 13 s. 4(1).

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88 structure and governance

supporting judicial career development, itself an important factor in

increasing judicial diversity.158
3.35 Increased flexibility in judicial deployment to magistrates’ courts
had already been obtained under the Courts Act 2003, which allows
district judges (magistrates’ courts) to sit as Crown Court judges and
gives judges of the higher courts all the powers of Justices of the Peace.159
The Crime and Courts Bill 2012 enlarges the range of judges who have
powers of Justice of the Peace to senior judges, certain tribunal judges,
district judges and deputy district judges, as well as members of a panel
of chairmen of employment tribunals.160 This follows a research paper
from the Ministry of Justice in 2011 which suggested that district judges
could be deployed on the more complex, serious or lengthy cases (though
defining those can be difficult) where their training and experience is an
advantage.161 There seems also to be data evidence, however, that district
judges may be more likely than magistrates to use custodial sentences for
comparable cases, so that any strategic deployment may influence the
sentencing outcomes.162
3.36 The deployment of judges must be considered in relation to the
number of judges. Until 1968 the number of judges at all levels was fixed
by statute and could be increased or decreased by legislation only. Since
the Administration of Justice Act 1968, the executive has control over the
increase in the number of judges.163 Consultation of the Lord Chief
Justice is expected before the Lord Chancellor determines the overall
number of judges required, including the number required for each

158
Advisory Panel (Baroness Neuberger Chairwoman), ‘The Report of the Advisory Panel
on Judicial Diversity 2010’, March 2010.
159
Courts Act 2003, ss. 25–26, ss. 65–66; Senior Courts Act 1981, s. 8.
160
Crime and Courts Bill 2012, sch. 13, s. 5(1).
161
See the Lord Chancellor’s Department Working Party (Lord Venne convenor), ‘The
Role of the Stipendiary Magistracy’ (1996).
162
Ipsos MORI, ‘The Strengths and Skills of the Judiciary in the Magistrates’ Courts’
(London: Ministry of Justice Research Series 9/11, 2011), pp. 62–3; see the ‘Response
from the Judicial Policy Committee of the Magistrates’ Association’, January 2012.
163
Senior Courts Act 1981, s. 2(4) (Court of Appeal); the resolution must be approved by
Parliament. The Maximum Number of Judges Order 2008, Order 2008 No. 1777,
increased the number of judges at the Court of Appeal from 37 to 38; for the High
Court, see Senior Courts Act 1981, s. 4(4). There is no statutory maximum number for
circuit judges; their number is to be determined by the Lord Chancellor with the
concurrence of the Minister for the Civil Service: Courts Act 1971, s. 16. See, for district
judges (magistrates’ courts) and deputy district judges (magistrates’ courts) Courts Act
2003, ss. 22–26. CRA, s. 23 regulates the number of UK Supreme Court justices.

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iv. principles of case allocation 89

division, jurisdiction and region and the number required at each level of
the judiciary.164 The number of divisions of the High Court can be
reduced or increased by an Order in Council.165 However, since the
CRA, the executive no longer has discretion to fill vacancies at the level
of the High Court and above: the duty falls to the Lord Chancellor unless
the Lord Chief Justice indicates that he is happy to leave the vacancy
unfilled.166
The Lord Chancellor’s power to assign certain judges to sit beyond
their retirement age or to continue hearing a specific case beyond their
retirement has also been transferred to the Lord Chief Justice, with a
requirement for the concurrence of the Lord Chancellor, since it may
have significant implications for resources.167
The statutory cap on the number of judges at the High Court in
particular is an important drive towards efficiency in deployment.168
While there is no fear that the executive would attempt to pack the courts
or otherwise use its control over the number of judges as a means of
control over the judiciary, the combination of a capped number of judges
and increasing administrative pressure is likely to make the judicial job
less attractive, and one senior judge drew attention to the possibility ‘that
we create a job where we end up dead, diseased or too tired!’.

B. Case assignment
3.37 Case assignment, or case allocation, is a judicial responsibility.169
The Lord Chief Justice is responsible, after consultation with the Lord
Chancellor, for deciding the level of judge appropriate to hear particular
classes of case (including the issuing of Practice Directions in that
regard).170 In practice, the judge in charge of each court decides how
and by whom each case will be heard, and district judges play a crucial
role here. Thus, the Presiding Judges of the circuits have the overall

164 165
Concordat, para. 29. Senior Courts Act 1981, s. 7.
166
CRA, s. 77 (Court of Appeal), s. 68 (Lord Chief Justice and Heads of Division), s. 86
(High Court).
167
Concordat, para. 42.
168
The Maximum Number of Judges Order 2003, 2003 no. 775, increased the number of
judges from 106 to 108. The Crime and Courts Bill 2012 provides for the existing
statutory limits on the number of High Court judges and judges of the Court of Appeal
to be calculated on the basis of full-time equivalents to take account of part-time
working, Crime and Courts Bill 2012, sch. 12.
169 170
Concordat, para. 36. Concordat, para. 37.

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90 structure and governance

responsibility for listing on each circuit/region, allocating the work

between judges or particular courts and deciding the priorities for hear-
ing cases, listing cases before particular judges.171
The Lord Chief Justice also issues authorisations or ‘tickets’ to individ-
ual judges to hear specified cases or classes of cases at a certain court
level.172 This relies upon training or experience judges might have
in a particular subject – thus a Crown Court judge can be ‘ticketed’
to try murder, rape and fraud cases, and similar procedures apply at
the Technology and Construction Court. Having the appropriate
ticket allows the judges to hear those specified cases in courts within their
assigned geographic area, beyond their own court. Ticketing is a decision
made internally within the judicial structure and without any external
interference.
In England, the assignment is, in practice, made by the listing officer.
One recurrent concern is to balance the caseload between judges; this
takes the form of allocating cases to the judge available rather than
weighting the case as can be done in some other countries. Listing reviews
can happen in order to equalise work, introduce greater flexibility and
reduce waiting time across the circuit in specialist courts in some areas.173
In practice, the day-to-day listing is dealt with by listing officers from the
Court Service (e.g., the Listing Officer in the Crown Court), who ensure
that the various judges with the relevant tickets are available to hear cases.
The decisions are made largely around time assessments – how long is the
case going to be in the court diary and when it is going to start? The needs
of the case – whether expert evidence is allowed, and the balance between,
e.g., family and civil law cases – are also relevant factors for listing.
Another consideration at play is the principle of continuity, so that the
same judge stays with the case: some judges will be sitting away on the

171
Courts and Legal Services Act 1990, s. 9. Each circuit court centre has a resident judge,
normally the senior judge, in charge of the criminal listing in the Crown Court, following
guidance or directions issued by the Lord Chief Justice and by the Senior Presiding
Judge – and subject to the supervision of Presiding Judges under para. IV. 33 of the
Consolidated Practice Direction. In the Magistrates’ Court, the judicial members of the
Justices’ Issues Forum for each area are responsible for determining the listing practice
in that area.
172
In relation to judges assigned to particular cases, the level of judiciary to which a judge
belongs and his or her experience or specialisation (‘ticketing’) will determine the level
or type of work he or she can undertake. Numbers, criteria and levels for the authorisa-
tion are decided by the Lord Chief Justice after consultation with the Lord Chancellor,
Concordat, para. 38.
173
Judiciary of England and Wales, ‘The Lord Chief Justice’s Review’, 19.

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iv. principles of case allocation 91

circuit and may not be available in a timely manner, with a hearing being
delayed as a consequence. Similarly, the case may also be delayed because
the length of the case may have been underestimated by the listing
officer, leading it to be adjourned and rescheduled. The shortage of space
within courts may compound the delay. A judge who takes over a case
from another is generally bound by any pretrial rulings already made by
his predecessor.
Efficient listing is also an administrative priority. Listing officers are
accountable for making the most efficient use of the courtrooms. The judge
must actively manage cases to further serve the overriding objective of
dealing with cases justly and at proportionate cost.174 Listing is thus one
area where managerial accountability and the integrity of the judicial process
may clash. Indeed, HMCTS performance targets can have an impact on case
listings because only certain elements of performance are measured. Thus,
if a court is below its targets for small claims in civil litigation, a listings
manager could file more small claims, causing a distortion in the overall
disposal of all the cases. In practice, barristers might raise unhappiness with
the judge about a particular listing, leaving the judge as arbiter, though it
seems that many judges tend to back up their listing office.
3.38 The type of proceedings shapes the practice and responsibilities of
judges and listing officers, as do case management or the availability of
alternative dispute resolution. In criminal proceedings, where the
accused stands trial depends partly on the type of offence he or she is
accused of and their age. Lord Steyn clarified that fairness requires the
court to consider a triangulation of interests in a criminal case, ‘taking
into account the position of the accused, the victim and his or her family,
and the public’.175 Prior to the 2005 Criminal Procedure Rules (set up
following Lord Justice Auld’s 2003 review of criminal courts), the prac-
tice and procedure in criminal courts were governed by some fifty sets of
rules and almost 500 individual regulations. The Criminal Procedure
Rules provide guidance on case management through the whole of the
criminal process, thus providing greater consistency through courts.176

174
Rule 1.1(1), Civil Procedure Rules 1998, SI 3132/1998, as amended by Rule 4, Civil
Procedure (Amendment) Rules 2013, SI 2013/262 (L. 1); J. Sorabji, ‘The Road to New
Street Station: Fact, Fiction and the Overriding Objective’ (2012) European Business Law
Review 23, p. 77.
175
Attorney General’s Reference No. 3 of 1999 [2000] UKHL 63.
176
Courts Act 2003, s. 69(4). In 2010 the Committee began a practice of consolidation of
the Rules every October, at the start of the legal year, with amendments made each April,

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92 structure and governance

Judges then play an effective role in listing and exercise an extensive

managerial role at the plea and case management hearing which takes
place in every Crown Court case.177
In relation to tribunals, expertise, performance in existing judicial
office(s), track record, potential and/or appraisal are relevant factors for
assignment.178 In general, the allocation of cases by the Tribunal Presi-
dent will follow the specialisation of judges. Specialisation by ticket is also
a defining principle for case allocation within the tribunals. Priority is
given to efficiency of listing:
The power to assign between chambers and tribunals exists primarily to
allow the work of the tribunals to be dealt with in the most efficient and
effective manner possible. The starting point for this policy, and decisions
made under it, is therefore business need – that is, the power to assign is
to be used where the chamber or tribunal would benefit from the extra
help which assignment can bring.179

In family proceedings and family court proceedings, where magistrates

have a broad jurisdiction,180 the Justice’s clerks and legal advisers
(formerly known as court’s clerks) to the magistrates have a quasi-judicial
role,181 deciding in some cases whether cases are transferred up to the
county court.182 Before the Commercial Court, settlement rates are high
and therefore the listing office will ‘overlist’ or overbook the Court, bearing
in mind the substantial paperwork often required for cases coming before

in order to make the Rules predictable and to increase the modernisation of the criminal
justice system, see ‘Lord Chief Justice’s Report 2010–2012’, paras. 46–9.
177
The Crown Court Manual, May 2005. The CPR apply to the criminal division of the
Court of Appeal, the Crown Court and all magistrates’ courts in England and Wales.
178
Senior President of Tribunals, ‘Assignment. Senior President’s Policy Statement’ (2009),
para. 23. ‘Assignment’ is the statutory term used to describe the function of locating a
judge or member within the tribunal structure by placing him or her in a chamber.
‘Ticketing’ is a non-statutory term used to describe the function of authorising a judge or
member to undertake a defined category of judicial work within a chamber. ‘Cross-
ticketing’ is an expression sometimes used to describe authorising a judge or member,
who is ticketed to undertake work within one jurisdiction in a chamber, to undertake
work in a different jurisdiction in that chamber: Senior President of Tribunals, Annual
Report 2012, p. 32.
179
Senior President of Tribunals, ‘Assignment. Senior President’s Policy Statement’ (2009),
para. 23; courts judges will come into the tribunals system if they bring some particular
expertise not otherwise available, or which is not available at the right level, ibid., paras. 4–5.
180
Magistrates’ Courts Act 1980, s. 65.
181
Practice Direction (Justices: Clerk to Court) [2000] 1 WLR 1886.
182
See, e.g., stage II of ‘The Protocol for Judicial Case Management in Public Law Children
Act Cases’ (June 2003) (2003) 2 FLR 719.

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iv. principles of case allocation 93

the Commercial Court. For many years, insufficient courtroom space and
outdated technology were also taken into account in listing.
Listing of cases to come before the Court of Appeal is marked by the
large (and rising) number of applications for appeal made by litigants in
person. Litigants in person generally take up more court time, both in
case management hearings and at final hearings.183 The lack of proper IT
is also noticeable.
3.39 These informal rules contrast with the principles embedded in the
German constitution.184 Under that system, the heads of court make
proposals for case assignment (and also for the allocation of judges
within the court), but the actual decision is made annually by the local
Judicial Council. The criteria established by that Council for case
assignment are binding and heads of courts are liable, in principle, to
disciplinary measures for not following them. The informal exchange of
cases between judges in England is thus unacceptable in Germany.
There the constitutional right to ‘the legal judge’ drives the manage-
ment plan for the courts, rather than the value of efficiency of resources
as in England.
The English flexibility, however, may be better seen as a structured
discretion which takes into account factors others than the human
resources issue. The clerk will undertake the distribution of cases, with
the aim, in particular, of avoiding judge shopping as far as possible. Cases
are allocated on a random basis at the UK Supreme Court, although
either the President or Deputy President will sit on most cases and, in
specialist areas, other judges with particular expertise may be selected.
The difference between the German and the English approaches seems
rather one of emphasis. The plans for case assignment reflect an
emphasis on process in Germany, that is, the need to define the jurisdic-
tional competence which shapes the right to a fair trial. In the common
law tradition, the emphasis is on the trial itself, such that the judge
conducting the hearing cannot generally leave the trial once a case starts.
The English system of allocation could be abused in theory but this does
not happen in practice. This illustrates a culture of trust within the

183
Civil Justice Council (Working Group), ‘Access to Justice for Litigants-in-Person (or
self-presented litigants). A Report and Series of Recommendations to the Lord Chancel-
lor and to the Lord Chief Justice’ (November 2011).
184
Article 101 I 2 Grundgesetz; M. Fabri and P.M. Langbroek, Is There a Right Judge for
Each Case? A Comparative Study of Case Assignment in Six European Countries
(Antwerp: Intersentia, 2007).

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94 structure and governance

judiciary such that the values of impartiality and internal judicial inde-
pendence are strongly internalised. The interviewees questioned on this
matter did not see the need to display them through policies on case
assignment similar to those adopted in Germany.
As we now consider case management, we should note that case
management and listing are both organisational matters, however listing
uniquely affects the autonomy of the judicial process. It must therefore
remain under judicial control.

C. Case management
3.40 In 2003 Richard Susskind described management as ‘anathema to
the business of judging’ for many judges,185 because it imposed con-
straints, procedures and standards to which, it was thought, judges as
independent and impartial arbiters should not be subject. One judge
recalled in interview how judges would look at him ‘with glazed eyes’
when he would talk about ‘managing’ budget in the years 2000–07. Case
management requires judges to work actively with parties to litigation in
order to bring each particular case to trial in a speedy, cost-effective and
just manner. Judges can be active in making sure that a case is not taking
an unreasonable time. The introduction of case management in the civil
justice system and, at a later stage, into criminal cases, following Lord
Woolf’s report on access to justice in 1996, was a major trigger for the
change in attitudes and the greater involvement of judges in the adminis-
tration of the justice system.186 Also, in that year, section 35 of the
Criminal Procedure and Investigations Act 1996 allowed judges to give
pretrial rulings so that decisions on difficult points of law could then be
appealed immediately, an improvement on the previous situation where
the point could only be appealed, if at all, after the full trial had finished
(further interlocutory appeals by the prosecution were introduced in the
Criminal Justice Act 2003). Elsewhere, such as at the Commercial Court,
it had long been recognised that the judges had a responsibility for the
definition of the essential issues in a case before the trial.187

185
R. Susskind, ‘Management and Judges’, in M. Saville and R. Susskind (eds.), Essays in
Honour of Sir Brian Neill: The Quintessential Judge (London: LexisNexis UK, 2003), p. 53.
186
A. Clarke, ‘The Woolf Reforms: A Singular Event or an Ongoing Process?’, in D. Dwyer
(ed.), The Civil Procedure Rules Ten Years On (Oxford University Press, 2009), 33.
187
Thomas, ‘The Judicial and Executive Branches’, 6.

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iv. principles of case allocation 95

The Judicial Studies Board recognised in 2004 that case management

was a specific skill that might require training.188 The increasing
involvement of judges in the pretrial management of cases can be seen
in other jurisdictions too, on both sides of the Atlantic. Thus a French
report189 highlighted in 1997 the need for a more efficient use of the
courts, and a similar managerial trend can be seen in the United States.190
Judges retain some flexibility in their management of the case under the
Civil Procedure Rules, of the ‘overriding objective of enabling the court
to deal with cases justly’.191 This allows for a suitable balance between
the value of efficiency in the administration of justice and the value of
procedural fairness, a balance necessary to sustain the public confidence
in the courts. Case management aims to prevent abuse from the publicly
funded court system but procedural fairness must be preserved, and the
parties’ perspectives are not to be distorted by the search for economic
efficiency.192
3.41 The Senior Presiding Judge acts mainly to oversee a consistent
approach between the courts on processes. By way of example, the
scheme ‘Criminal Justice, Simple, Speedy and Summary Justice’ was
launched in 2007 by the judiciary, in the magistrates’ courts, where
adjournments and delay often occurred. It aimed to reduce the number
of unnecessary hearings in cases of low-level criminal activities (such as
drink driving or burglary), and reduce the overall time taken for such
cases to reach their conclusion.193 This required the police, the Crown
Prosecution Service, the courts and defence lawyers to work together to
attain maximum efficiency. The project was extended up towards the
Crown Court and into the youth criminal justice system. It is now
followed up by a joint initiative, ‘Stop Delaying Justice’, led by

188
Criminal Case Management Framework, July 2004.
189
J.M. Coulon, Réflexions et Propositions sur la Procédure Civile, Rapport au Garde des
Sceaux (Paris: La Documentation Française, 1997).
190
A.T. Kronman, The Lost Lawyer, Failing Ideals of the Legal Profession (Cambridge,
Mass.: The Belknap Press of HUP, 1993); O. Fiss, ‘The Bureaucratization of the Judi-
ciary’ (1983) 92 YLJ 1442.
191
CPR, r 1.1 (1), 1998, SI 3132/1998, as amended by Rule 4, Civil Procedure (Amendment)
Rules 2013, SI 2013/262 (L. 1).
192
See also H. Genn, Judging Civil Justice (Cambridge University Press, 2010), pp. 172–3:
‘The post-Woolf judge in the civil courts is an active case manager [who must] balance
values of efficiency, equality, expedition, proportionality and careful allocation of the
scarce resources of the court.’
193
Lord Chief Justice Judge, ‘Summary Justice in and out of Court, The Police Foundation’s
Harry Memorial Lecture’, speech given at Drapers’ Hall, London (7 July 2011).

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96 structure and governance

magistrates and district judges working together, which aims to ensure

that trials are fully case managed at the first hearing and disposed of at
the second hearing. It was also up to the Senior Presiding Judge to initiate
schemes in 2010–11 to ensure that guilty pleas would be made at the
earliest opportunity and early plea arrangements are now being rolled out
nationally in courts across the country.194
In parallel, alternative dispute resolution mechanisms have been
introduced to reduce the number of cases coming to courts. Judges can
redirect litigants, after a first screening of their case, to an external
mediator. This illustrates a global trend towards incitement or manda-
tory referral to mediation outside the courts, a trend also encouraged as
a means to save costs to the justice system and the parties.195 Alterna-
tive dispute resolution concerns the simple disputes, leaving the more
complex cases to courts. Awareness about mediation as an alternative
means of resolving family disputes is particularly emphasised; thus
applicants for legal aid can be exempted from Family Mediation Infor-
mation and Assessment sessions in certain circumstances only.196 Lord
Neuberger MR (as he was then) referred to ‘the insidious idea that
litigation is actually a bad thing; and that other, more consensual means
of resolving disputes are necessarily good things’; alternative mechan-
isms such as mediation, with its emphasis on resolution rather than
rights, ‘cannot be the norm, or approach the norm’.197 Access to court
should remain the main event as a matter of fundamental right; people
cannot be forced to mediate as a means of saving costs in the adminis-
tration of justice.198
Interviewees pointed to the government’s tendency to see the courts as
businesses; and a concern about the cost of access to justice was tangible.
In the context of this study, suffice it to mention that the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 enacted a series of

194
HMCS, ‘HMCS Annual Report and Accounts 2010–11’, p. 9; Lord Chief Justice’s Report
2010–2012, para. 37.
195
Genn, Judging Civil Justice, 68.
196
H. Genn et al., ‘Twisting Arms: Court-Referred and Court-Linked Mediation under
Judicial Pressure’, Ministry of Justice Research Series 1/07 (May 2007). Another example
would be the pilot scheme launched in 2012 to extend the Court of Appeal’s mediation
scheme to personal injury and contract disputes under a certain value, in order to avoid
the extra costs and demands of a full Court of Appeal hearing.
197
Lord Neuberger MR, ‘Swindlers (including the Master of the Rolls?) Not Wanted:
Bentham and Justice Reform’, Bentham Lecture (2 March 2011), paras. 41, 43–4; Genn,
Judging Civil Justice, 122–5.
198
Genn, Judging Civil Justice.

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iv. principles of case allocation 97

recommendations made by Lord Justice Jackson in 2009, in his review of

the costs of civil litigation. The abolition of the recoverability of a number
of add-on costs (such as referral fees), for example, is expected to reduce
costs and provide a more level playing field for litigation.199
3.42 Costs and delays are seen as paramount criteria of quality – or rather,
lack of quality – of judicial proceedings. The speed and timeliness of the
judicial process is a matter of right, with delays of judicial proceedings being
legally relevant at common law and under Article 6(1) ECHR.
In the criminal context, under Article 6(1) ECHR, the reasonable time
requirement limits the state of uncertainty of the defendant, and a violation
of the reasonable time requirement can occur in the absence of prejudice
caused by trial or judicial delay. The length of the delay, the reasons given
by the prosecutor for that delay and the efforts made by the accused to
assert his rights are all relevant factors to determine whether the delay was
‘unreasonable’. The remedy for a violation will not, however, be that the
trial is stopped for abuse of process, unless irredeemable prejudice has
been caused by the delay.200 In the European Court of Human Rights’ case
law, the question, under Article 6(1) ECHR, whether the fairness of the
trial has not been nor would be compromised by the delay in proceedings,
is answered according to each case’s circumstances.201
The House of Lords in Porter v. Magill202 adopted a similar approach
in civil proceedings. The right to a determination of a person’s civil rights
within a reasonable time does not require the complainant to show the
prejudice caused by the delay. A lack of resources and chronic under-
funding of the legal system generally cannot be an excuse for unaccept-
able delays, yet, as Lord Bingham explained, ‘there is nothing in the
Convention jurisprudence [that] requires courts to shut their eyes to the
practical realities of litigious life even in a reasonably well-organised
system’.203 Thus some exceptional circumstances could justify an exces-
sive lapse of time. Excessive delay can make a judicial decision unsafe and
it may be unfair or unjust to let it stand, thus leading to a retrial.204

199
Lord Chief Justice’s Report 2010–2012, para. 70; Jackson LJ, ‘Review of Civil Litigation
Costs: Final Report’ (Belfast: TSO, 2009).
200
Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68; Attorney General’s
Reference (No. 1 of 1990) 95 Cr App R 296.
201
Konig v. Federal Republic of Germany (1978) 2 EHRR 170; Deumeland v. Germany
(1986) 8 EHRR 448; Spiers (Procurator Fiscal) v. Ruddy [2007] UKPC D2.
202 203
[2001] UKHL 67. Procurator Fiscal v. Watson and Burrows [2002] UKPC D1.
204
Cobham v. Frett [2001] 1 WLR 1775; Habib Bank Ltd v. Liverpool Freeport (Electronics)
Ltd [2004] EWCA Civ 1062; Jervis v. Skinner [2011] UKPC 2 (Bahamas).

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98 structure and governance

The speedy administration of justice – or at least, one that is not

unduly delayed – is thus a matter of right. It follows that judges should
be active in drawing attention to unreasonable delays of which they are
aware. In CDC2020 v. Ferreira,205 Brooke LJ addressed the procedural
difficulties met by the appellant in seeking to file a notice of appeal. In
that case, the Central London County Court’s delays were prejudicial to
the marketing of a small residential development. Lord Justice Brooke
noted that the Central London County Court ‘now has a bad reputation
for misfiling documents and failing to record telephone messages’. He
referred to the ‘very high turnover of staff’ and stated that ‘HM Court
Service professes itself unable, with the resources currently provided to it,
to correct the position to any significant extent’.206 Unusually, he also
requested that a copy of the judgment be sent to the relevant director
within HM Court Service and to the Master of the Rolls as head of Civil
Justice, adding:
Somehow a way must be found of ensuring that the Central London
County Court provides a service of the quality that litigants in that court
and their legal advisers, and the staff, lawyers and judges of the Court of
Appeal should be entitled to expect from those whose business it is to
serve the courts and the members of the public who use them.207

Delays, late pleas in criminal courts and adjourned trials in all the courts
were highlighted by the Lord Chief Justice in 2008.208 Of course, delays
can sometimes be unavoidable, due to the complexity of some cases, with
some lengthy pretrial proceedings or a prolonged preparation of criminal
prosecutions on account of compliance with duties of disclosure; or
because of the heavy workload of judges, and/or the justified absence of
witnesses and other parties. Praising the ‘true professionalism’ of (now)
HMCTS, the Lord Chief Justice emphasised the need for the increase in
workload to be matched by increases in judicial and administrative
resources.209 In the current tight financial climate, that is not an
approach that is likely to be adopted in the coming years. The emphasis
is rather upon improvements in the timeliness of the court processes,
by reducing the length of trials, the number of late guilty pleas and the
number of unnecessary hearings.210

205 206
[2005] EWCA Civ 611. CDC2020 v. Ferreira [2005] EWCA Civ 611, para. 43.
207
Ibid., para. 45.
208
Judiciary of England and Wales, ‘The Lord Chief Justice’s Review’, 23, 27, 29, 34.
209 210
Ibid., 19–23. Lord Chief Justice’s Report 2010–2012, paras. 36–7.

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conclusions 99

Delays in judicial proceedings are not normally attributable to the

judge, but judges are very occasionally responsible for delays in then
giving judgments. A strong judicial policy aims for a prompt delivery of
judgments, with senior judges monitoring delays. All judges sitting in
family disputes should deliver judgment within one month, and judges
sitting in civil cases within two months. Judges must inform the Senior
Presiding and Liaison Judges about any delay, and explain the reasons for
it. Judgments which have been outstanding for more than three months
are monitored by senior judges.211 A grievance procedure is in place and
the decision can be appealed on the ground of an unreasonable delay, as
noted above, under Article 6 ECHR. We shall revisit this in our Chapter 5
on standards of conduct on the bench.212

Conclusions
3.43 Lord Woolf referred to ‘a close working relationship’ between the
judiciary and the executive, ‘a special quality of our justice system which,
in the interests of the public, it is important to preserve’.213 Their
partnership is characterised by a system of consultation and joint deci-
sion making between the Lord Chief Justice and Lord Chancellor in a
range of areas such as court management.214 It is difficult to assess the
partnership of the judiciary with the Ministry of Justice since it was not
entered into at times of severe financial cuts across all public services.
The idea that that Lord Chancellor ‘insulated’ judges from a political
process of resources allocation’ belongs to an era that was already long
gone when the CRA came into force. The greater scrutiny in the light of
the new public management values of effectiveness, efficiency and econ-
omy coincided with the growth in size (and budget) of the judicial
system. It had already contributed to an increase in administrative
responsibilities upon judges with a designated leadership role. This only
made more visible the need for renewed mechanisms of accountability.
It is similarly challenging, or too early, to assess the impact of the financial
cuts on the conduct of judicial business, though it seems that in times of
crisis, IT, building maintenance and training are most likely to suffer.

211 212
F. Gibbs, The Times, 10 February 2009. At para. 5.24.
213
Thomas LJ, ‘The Judicial and Executive Branches’, 3.
214
The Concordat was established following discussions between the Judges’ Council,
senior judges and the Department for Constitutional Affairs (DCA, as the Lord Chan-
cellor’s Department had been briefly rebranded).

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100 structure and governance

The increasing difficulty courts experience in coping with caseloads is,

in practice, a global trend, in both common law and civil law countries.
In England, in an attempt to match demand and supply for judicial
services, courts have been requested to do more with less. The search
for performance and efficiency in the administration of justice applies
across all aspects of the administration of the courts and tribunals,
signalling that judges fall within this remit, provided that they are not
concerned in their judicial capacity. This has resulted in the implemen-
tation of numerous standards, such as timeliness of a trial, which justify
the measuring and monitoring of the judicial process with the aim of
improving court efficiency. The management of the judicial process
illustrates how the exercise of judicial responsibilities constitutes a daily
interaction and engagement with HMCTS, which has set up a monitor-
ing and evaluation system rather similar to those applying to many
European judiciaries or to the Australian and Canadian judiciaries.
A large amount of data on the day-to-day business of the courts supports
HMCTS’s framework for court administration, and this has helped to
make courts more accountable, responsive and user friendly over a wide
range of activities. It has led to a more formal structure for judicial
governance. It also made clear, however, that judges had to be closely
involved in the longer-term planning of the administration of justice,
though some have suggested that the role of HM Treasury in the
modernisation of courts could rather act as a brake on modernisation.215
Nevertheless, one may wonder whether, under the HMCTS regime,
the judiciary is treated much differently from any executive agency. We
noted the increased managerial responsibilities that some judges have in
their division or circuit, relating to courts’ caseload, deployment and the
allocation of cases. Many of the judges interviewed believed that, though
the current system did not emasculate (sic) them, it had had a profound
impact on the judiciary as it endeavoured to reconcile the values of
procedural fairness with efficiency and economy in the conduct of judi-
cial business. While HMCTS sets out agency standards, senior judges
have a duty to make an effective use of their mandate to propose
standards or targets, in order to ensure the fine tuning of procedural
fairness with efficiency and economy in the conduct of judicial business.
The balance must be maintained between these fundamental values of
the justice system, so that the focus on efficiency and performance

215
H. Brooke, ‘Courts Modernisation and the Crisis Facing our Civil Courts’, 7th ILAS
Annual Lecture (24 November 2004).

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conclusions 101

standards is not excessive. The managerial drive also requires vigilance

as to the daily interactions between administrative and judicial actions.
As observed with listing, court officials may be caught between their
obligations as civil servants and their duty of loyalty to the judges who
hear the cases.
England spends slightly less than average on courts, legal aid and
prosecution services compared to other European countries,216 yet qual-
ity of justice cannot be measured ‘simply in terms of speed and cheap-
ness, or by how many cases we can persuade to go elsewhere’.217
Adequate resources to support the administration of justice must be
seen positively, as the way to vindicate rights and enforce obligations
through adjudication.

216
CEPEJ, ‘European Judicial Systems Edition 2012 (2010 Data): Efficiency and Quality of
Justice’, ch. 2, esp. p. 55.
217
Genn, Judging Civil Justice, 76–7.

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4

Judicial appointments

Introduction
4.1 In any system, the methods of appointment have direct bearing on
both the integrity and independence of the judges. Weak appointments
lower the status of the judiciary in the eyes of the public and create a
climate in which the necessary independence of the judiciary is liable to
be undermined. Similarly, political appointments that are seen by the
public as not based on merit may arouse concern about the judge’s
independence and impartiality on the bench. The quality of judicial
appointments depends upon the process and standards applied by the
appointing authorities, yet every appointment system has its limitations.
It is difficult to predict what sort of judge a man or a woman will be and
irreversible mistakes in judicial appointments are bound to occur, even
when the method of appointment is fair and efficient and the standards
are high, as they are in England. Such errors in selection apply equally to
appointing persons who were unfit for occupying a judicial office as well
as failing to appoint a person who might have been a good judge.
In this chapter, we consider the principles which shape the selection
process and criteria. Professional competence and integrity are a univer-
sal requirement for appointment to the bench, and are encompassed in
the English requirement of ‘merit and good character’. This requirement
is underpinned, however, by the principles of transparency, independ-
ence from politics, a concern for a fair reflection of society in the
appointment process and proper judicial accountability. Transparency,
in particular, supports the prioritisation of merit and a fairer reflection
of society. In England, the lack of diversity in the composition of the
judiciary is noticeable at the level of the High Court and above, and the
policies adopted to encourage diversity within the judiciary (from
the ‘trickle up’ policy to the ‘need to have regard to diversity’) should
not compromise the requirement of merit for judicial appointment. The
Judicial Appointments Commission, which now recommends all

102

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i. the appointment process and its criteria 103

appointments to the Lord Chancellor, can only have regard to the need to
encourage diversity in the pool of applicants.1 This duty aims to address
the persistent criticism of the judiciary that the judges have been white,
male and upper middle class, privately educated Oxbridge graduates and
barristers.2 We shall discuss whether this criterion and the lay involve-
ment in the Judicial Appointments Commission is sufficiently robust and
whether the Lord Chancellor should have the power to decline any of
its recommendations.
The principles mentioned above inform the design of a judicial
appointments process in a constitutional democracy, however only the
historical and constitutional context can explain developments and jus-
tify certain trends.3 So we start this chapter with a brief survey of practice
before the Constitutional Reform Act 2005 (CRA) set up the Judicial
Appointments Commission.

I. The appointment process and its criteria

4.2 We consider the dominant role of the Lord Chancellor in the
appointments process prior to the CRA before examining the role of
the Judicial Appointments Commission since then. While merit has been
the ‘touchstone for appointability’4 since the 1860s, its interpretation did
not exclude improper political considerations until the Lord Chancellor-
ships of Lords Loreburn and Haldane.5 Eligibility for the court and
tribunals judiciary relies upon some statutory qualifications, combining
‘merit’ and ‘good character’ with experience of legal practice and some
non-statutory qualifications, which aim to tailor the job description to
the specific needs of the court at issue.

A. The Lord Chancellor

4.3 The office of the Lord Chancellor has always been anomalous under
the traditional theory of separation of powers. Before the CRA, the Lord

1
CRA, s. 64(1).
2
J. Bell, Judiciaries within Europe, A Comparative Review (Cambridge University Press,
2006) 314.
3
HL Committee on the Constitution 2012.
4
Lord Clarke, ‘Selecting Judges: Merit, Moral Courage, Judgment and Diversity’ (2009) 5
High Court Quarterly Review 49.
5
R. Stevens, The English Judges: Their Role in the Changing Constitution, rev. edn (Oxford:
Hart, 2005), pp. 12–21.

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104 judicial appointments

Chancellor combined within his role the three functions of government:

judicial, executive and legislative. By tradition he was head of the judi-
ciary and exercised judicial powers; he was a member of the Cabinet,
having executive functions and being subject, like all other ministers, to
the doctrine of collective responsibility for the acts of the government;
and he was also the Speaker of the House of Lords, taking a leading part
in the legislative proceedings of the House and frequently defending and
expounding government policy. As a member of the Cabinet, he came
into office when his party gained power and, like the other ministers,
held office at the pleasure of the prime minister. His office would (and
still does) come to an end when his party left power or when the prime
minister dismissed him.
Save for a few exceptions,6 the appointment of the Lord Chancellor
was always political in nature. Usually, when forming his Cabinet, the
prime minister would take as Lord Chancellor a barrister of high stand-
ing who had rendered services to his party or at least had been in
sympathy with its views and policies. The common pattern was service
as an MP, Solicitor General, or Attorney General7 (sometimes service as a
minister), then Lord Chancellor. It was unlikely that the man chosen on
political grounds to hold the Great Seal would not be ‘of the highest
standing and eminence in the profession’.8 In practice, the prime minis-
ter always selected for the office of Lord Chancellor men who enjoyed the
confidence of both the dominant party and the Bar.9
The constitutional anomalies in the light of the principle of separation
of powers were seen as theoretical rather than having a practical impact.
Following the institution of the Appellate Committee of the House
of Lords shortly after the Second World War and the change of hours
of legislative sittings of the House of Lords, it became increasingly rare

6
Like Lord Sankey, Lord Maugham (1933–39) and Lord Simonds (1951–54) had not been
active in party politics and both were Law Lords when they were chosen to go to the
Woolsack.
7
For a survey of Attorneys General and Solicitors General who later became Lord Chan-
cellors, see J.L.J. Edwards, The Law Officers of the Crown: a Study of the Offices of Attorney-
General and Solicitor-General with an Account of the Office of the Director of Public
Prosecutions of England (London: Sweet & Maxwell, 1964), ch. 15; see also Toulson LJ,
‘Judging Judicial Appointments’, Pilgrim Fathers Lecture, Plymouth (3 December 2009),
p. 9.
8
R.F.V. Heuston, Lives of the Lord Chancellors (1885–1940) (Oxford: Clarendon Press,
1964), xxi.
9
G. Coldstream, ‘Judicial Appointment in England’ (1959) 43 Journal of the American
Judicial Society, 41, 44.

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i. the appointment process and its criteria 105

for the Lord Chancellor to participate in the hearing of appeals in the

House of Lords, for he usually presided over the legislative sitting of
the House at the same time that appeals were heard before the Appellate
Committee.
Under the CRA, the post of Lord Chancellor is combined with that of
Minister of Justice. He now sits in the House of Commons instead of the
House of Lords – he must now be elected directly by his constituents.
He is no longer head of the judiciary, and so his own legal prestige is less
important. Under section 2 CRA, the prime minister can now appoint
anyone whom he deems to be ‘legally qualified’ for the role and, in
September 2012, for the first time in the modern era, a non-lawyer
Conservative MP, Chris Grayling, became Lord Chancellor.
4.4 The method of appointment of the superior judges – High Court and
above – was, until the CRA, a matter of practice and convention.10 The
Lord Chancellor played the decisive role in the selection of the higher
judicial officers who were appointed by the Queen upon the advice of the
prime minister. In his capacity of President of the High Court, the Lord
Chancellor was responsible for the appointment of High Court judges.
He was also responsible for the appointment of ordinary High Court
judges (‘puisne judges’), circuit judges, recorders, deputy judges, stipen-
diary magistrates and lay magistrates, who were appointed by the Queen
upon his advice.11
Under the supervision of the Permanent Secretary, the Lord Chancel-
lor’s Department used to maintain records of potential candidates for
the High Court and for the lower judicial offices.12 At any given time
the Lord Chancellor’s Office had a list of qualified candidates who could
be considered for judicial vacancies. The Lord Chancellor’s staff also
processed the applications for Queen’s Counsel, which enabled them to
follow up the advancement of leading members of the Bar from among
whose ranks judges were drawn. In the process of selection of High Court

10
The Supreme Court of Judicature Act 1873 provided that judges were to be appointed ‘in
the same manner as heretofore’ and the following legislation followed this spirit.
11
The role of the Queen in the selection of judges has always been limited to issuing the
letters patent upon the advice of the Lord Chancellor, though George V tried to convince
Prime Minister Lloyd George that his choice of F.E. Smith for the office of Lord
Chancellor was not wise – see the letters sent on behalf of His Majesty to the Prime
Minister in Lord Birkenhead, The Life of F.E Smith, First Earl of Birkenhead (London:
Eyre & Spottiswoode, 1960), 332.
12
Stevens, The English Judges, 58.

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106 judicial appointments

judges, the Lord Chancellor, with the assistance of his permanent secre-
tary, would consult with the senior judiciary and the Bar.13
In the wake of an unprecedented resignation of a High Court judge
after a little more than two years on the bench, Lord Hailsham, then
Lord Chancellor, stated in Parliament that when he interviewed judges, he
would tell them that he ‘regard[ed their] irremovability by Parliament as
one reason for treating the career as a permanent one and that they should
approach the Bench with the enthusiasm of a bridegroom approaching
marriage, or of a priest approaching priesthood’.14 To modern eyes, this
speech also betrays the assumption that the Lord Chancellor would be
approaching male candidates.
In July 1993, following a review of the judicial appointments system,
the then Lord Chancellor Lord Mackay started to introduce open com-
petition procedures for judicial vacancies below the High Court. His aim
was to enlarge the field for selection and to make judicial appointment
procedures more transparent. Specific job descriptions were attached
to vacancies and interviews of candidates were required for all but the
appellate courts’ positions. Members of the Bar who wished to be con-
sidered for appointment filed applications accompanied by three letters
of recommendation from judges and leading barristers who knew them
well. The steady increase in the number of judicial appointments made it
difficult for the Lord Chancellor to have personal knowledge of all the
persons considered for appointment, and the role of the permanent
secretary and the Lord Chancellor’s staff in the process of selection grew
with time. Independent inquiries were conducted to learn more about
the character and professional ability of the applicant. At a later stage,
applicants were interviewed by senior officials of the Lord Chancellor’s
Office, usually sitting with one of the Presiding Judges to whose circuit
the appointed judge was to be assigned. Upon completing the examin-
ations, inquiries and interviews, recommendations were submitted to the
Lord Chancellor, who made the ultimate choice.
It was rare for the Lord Chancellor to involve himself in appointments to
lower courts. It took only a few weeks to appoint someone. High standards
in appointments were achieved through the practice of appointing judges

13
See Lord Hailsham, in 312 HL Deb, 1317–18 (19 November 1970): ‘Indeed, I always have
[the closest consultation] with heads of Divisions on any matter of importance affecting
judicial patronage’.
14
In a letter to an American lawyer, see M Erskine, ‘The Selection of Judges in England:
A Standard for Comparison’ (1953) 39 American Bar Association Journal 279.

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i. the appointment process and its criteria 107

from a small pool of candidates who shared a common professional

background, and were known by professional repute to those making
and advising on appointments. In addition, upon arrival in office in 1997,
Lord Irvine introduced public advertisement for High Court vacancies
arising after 1 October 1998, although the Lord Chancellor reserved his
right to recommend the appointment of persons who had not applied.
The changes made by the Lord Chancellor’s’ Department to the selection
process of the lower judiciary were thus extended to the High Court
appointments.
The criticisms of the process (for all levels of appointment) centred not
so much on the quality of appointments, nor the confidentiality of
consultation or the references of candidates. Rather the process was
challenged because it served to persuade candidates to apply by a ‘tap
on a shoulder’. The appointment thus heavily depended on the visibility
of the individual to the judges through social and professional net-
works.15 The Bar played a significant role in the process of selection
and should be credited (or held responsible, as the case may be) for the
quality of the appointments. The Law Society would have no part in the
process, believing it to be a waste of their and their members’ time as
only barristers were considered to be eligible. Thus, while this consult-
ation process could be praised for appointing individuals on merit, it was
perceived as encouraging self-replication, with judges coming from a
narrow social elite.16
Yet, as a branch of government, the judiciary cannot be composed
with a total disregard for the make-up of society.17 The perception of
judicial fairness is linked to a judiciary fairly reflective of society.18
Women began to enter the English judiciary in 1965, later than in a
number of European countries.19 As the entry rate into the Bar and into
the solicitor’s profession has reached equality between men and women,

15
Report on Judicial Appointments and QC Selection, Main Report (1999), (the ‘Peach
Report’), 5.
16
J.A.G. Griffith, The Politics of the Judiciary, 5th edn (London: Fontana, 1997), pp. 18–22.
17
S. Shetreet, ‘The Normative Cycle of Shaping Judicial Independence in Domestic and
International Law: The Mutual Impact of National and International Jurisprudence and
Contemporary Practical and Conceptual Challenges’ (2009) 10 U Chi JIL 275.
18
Under Art. 2.13 of the Montreal Declaration, ‘the process and standards of judicial
selection shall give due consideration to insuring a fair reflection by the judiciary of the
society in all aspects’. One speaks of ‘reflection’ of society as the principle of impartiality
excludes judges from ‘representing’ the views of a particular constituency or community.
19
C. McGlynn, ‘The Status of Women Lawyers in the United Kingdom’, in U. Schultz and
G. Shaw (eds.), Women in the Worlds’ Legal Professions (Oxford: Hart, 2003), ch. 9.

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108 judicial appointments

the ‘trickle’ policy considered in the (1999) Peach Report has not come to
fruition. Similar concerns about the low number of ethnic minority
candidates for judicial appointment have been raised. The need to sustain
public confidence in the courts led to the establishment of the Judicial
Appointments Commission, with a duty to have regard to the need to
encourage diversity in the pool of applicants.20

B. The Judicial Appointments Commission

4.5 JUSTICE called for a judicial nominating commission in 1972.21 The
idea of a Judicial Appointment Commission as an advisory or executive
body was regularly mooted until the Peach Report in 1999 recommended
a Commissioner for Judicial Appointments who would continuously
audit the appointment procedures. But the first three annual reports,
special investigations and responses to consultations by the first Com-
missioner for Judicial appointments, Sir Colin Campbell, only resulted in
more criticisms of the existing system22 and in 2003, a consultation paper
from the government gave the impulse for reform:
19. The fundamental problem with the current system is that a Govern-
ment minister, the Lord Chancellor, has sole responsibility for the
appointments process and for making or recommending those appoint-
ments. However well this has worked in practice, this system no longer
commands public confidence, and is increasingly hard to reconcile with
the demands of the Human Rights Act.
20. In the same way, the central role successive Lord Chancellors have
played in the selection of judges has taken up much of their time. This has
inevitably diverted their attention from the core business of administering
the justice system, and in particular running the courts.
21. The time has now come for a radical change to the judicial appoint-
ments system to enable it to meet the needs and expectations of the public
in the 21st century. Any system which is introduced must, in addition to
ensuring quality, also guarantee judicial independence. A Commission will
provide a guarantee of judicial independence, will make the system for
appointing judges more open and more transparent, and will work to

20
CRA, s. 64(1).
21
K.E. Malleson, ‘Modernising the Constitution: Completing the Unfinished Business’
(2004) 24 LS 119, 120.
22
K.E Malleson, ‘Rethinking the Merit Principle in the Judicial Appointments Process’
(2006) Journal of Law and Society 126; ‘Creating a Judicial Appointments Commission:
Which Model Works Best?’ [2004] PL 102.

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i. the appointment process and its criteria 109

make our judiciary more reflective of the society it serves. A Commission

will also free the Department to focus on its core responsibilities.23

The case was reinforced by the creation, in 2002, of a Judicial Appointment

Board in Scotland and the creation of the framework for establishing a
judicial appointment commission in Northern Ireland.
4.6 The Judicial Appointments Commission, launched in April 2006, is a
permanent public body sponsored by the Ministry of Justice. The Com-
mission consists of fifteen members appointed for relatively short part-
time terms of five years, with a maximum of ten years of service. Those
members comprise six lay people, five judges (taken from the different
levels of court), one solicitor, one barrister, and two lay judges (one
magistrate and one tribunal member).24 The three most senior judicial
members are appointed by the Judges’ Council. The other members are
appointed by open competition independent of the executive. No member
can be appointed to the Judicial Appointments Commission if he or she is
employed in the civil service, in order to ensure full independence of the
Judicial Appointments Commission. The composition of the Judicial
Appointments Commission ensures a judicial and public input into the
appointment of judges, and it removes the possibility of political influence.
The strong legal presence is mitigated by the fact that the chair of the
Commission is a lay member. In addition, the lay members must never
have been practising lawyers. Currently former senior public office holders
occupy the lay seats, and this may merit further discussion.
The Commission is responsible for recommending candidates for
most judicial offices in England and Wales outside the Supreme Court,
including all appointments to the High Court and below.25 For the more
senior judicial posts – Lord Chief Justice, other heads of division and
Lords Justices of Appeal, ad hoc selection panels are appointed by
the Judicial Appointments Commission following statutory criteria.26

23
UK Department for Constitutional Affairs, ‘Constitutional Reform: a New Way of
Appointing Judges’, report CP 10/03 (July 2003), pp. 17–18.
24 25
CRA, sch. 12. CRA, ss. 85–94.
26
CRA, ss. 67–84. The heads of division are the Lord Chief Justice, the Master of the Rolls,
the President of the Queen’s Bench Division, the President of the Family Division and the
Chancellor of the High Court. Amendments to the Crime and Courts Bill have recently
been tabled. If adopted, the Lord Chief Justice would be interviewed and appointed by a
panel of five, chaired by the chairman of the Judicial Appointments Commission. The
majority of members would be lay people rather than judges, ‘for the first time in the job’s
history’, see F. Gibbs, ‘Top Judge Could Be a Woman as Decision Goes to Lay Majority’,
The Times, 12 March 2013.

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110 judicial appointments

The Judicial Appointments Commission’s role for appointments to the

UK Supreme Court is limited to having one Commission member sitting
as one of the five members of the selection panel.27
Appointments to tribunals are also mainly made through the Commis-
sion, even for the few tribunals left outside the new tribunals structure.28
The CRA also established a Judicial Appointments and Conduct
Ombudsman to investigate complaints from candidates for judicial office
about the way in which their application was handled as well as proced-
ural matters.29
4.7 The Commission determines its own selection process subject to the
statutory requirements that selection must be solely on merit; the person
selected must be of good character, and the Commission must have
regard to the need to encourage diversity in the range of persons available
for judicial selection.30 This duty primarily lies in developing and col-
lecting a pool of diverse candidates, and its success is dependent upon the
legal professions’ own efforts to retain their best talents among women
and ethnic minorities, as we shall discuss below. The selection process
consists broadly of the following steps: advertising and applications are
followed by shortlisting and the shortlisted candidates attend a selection
day for assessment. The assessment is made in a panel report, which is
part of the information presented to the Commission. The latter then
proceeds to statutory consultation before sending a report with a single
recommendation to the Lord Chancellor, who can accept, reject or invite
reconsideration of that recommendation.
The selection exercises are widely advertised and, following an assess-
ment of good character upon reception of the applications, the shortlisting
of candidates is undertaken on the basis of written evidence (including the
candidate’s application form and references) or on the basis of tests
designed to assess the candidate’s ability to perform in a judicial role.
For those tests, the Judicial Appointments Commission uses various
(alternative or combined) methods. For all positions, a paper sift (refer-
ences and application form) is required. For specialist and the most

27
CRA, ss. 26–31 and sch. 8.
28
Tribunals, Courts and Enforcement Act 2007, Schs. 2–4 (First-tier and Upper Tribunals).
29
In 2011–12, only 7 cases out of 647 complaints concerned the handling of applications for
judicial appointment, and the Ombudsman noted the ‘generally very good’ investigation
processes for complaints from the Commission, Judicial Appointments and Conduct
Ombudsman, Annual Report 2011–2012, p. 8.
30
CRA, ss. 63–64.

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i. the appointment process and its criteria 111

senior appointments, there is more likely to be only one paper sift

followed by a panel interview. However for large selection exercises
(below senior circuit judge), the paper sift will only be considered after
qualifying tests, consisting of case studies, have been used to shortlist
candidates. The qualifying tests are considered as a more objective system
since there is less reliance on references than when a paper sift is used.
In addition, the large exercises will involve a selection day that is likely
to involve a combination of role-play exercises and a formal interview.
Interviews and role-play exercises in particular make the appointment
process more transparent, as they make the background of the applicants
as apparent as their abilities.
Some of our interviewees considered that the overwhelming number of
applications justified the introduction of a paper sift and a qualifying test.
The tests and the selection exercise materials themselves have been
developed as ‘equality-proof’, in collaboration with an advisory group
consisting of members of the Bar Council, the Law Society, and CILEX
(the Chartered Institute of Legal Executives) and through ‘dry runs’.
Interviewees familiar with the work of the Commission noted that setting
up qualifying tests had been a steep learning curve, and one interviewee
acknowledged that tests are better designed today.
All interviewees expressed reservations on the qualifying test, on the
basis that some top barristers failed the entry test, and that the tests were
still not conducive to judicial diversity. One interviewee commented:
‘Perhaps they failed because they didn’t prepare but they are very busy
people. If they failed the exam, it must be a bad exam.’ Candidates now
seem better prepared. Some other interviewees considered the qualifying
test ‘clunky’ or inappropriate for full-time appointments, on the assump-
tion that part-time judicial experience is the main prerequisite for full-time
appointments. Others expressed their fear that the qualifying test might
exclude diverse candidates. If the qualifying test requires ‘judge craft’,
then this might be a recipe for judicial cloning. Many of our interviewees
thought that the qualifying test had nothing to do with the ability of making
judgments and some claimed that there was some evidence of a lack of
correlation between having done a good test and doing well as a judge.
One recordership exercise was criticised for requiring some knowledge
of the criminal process or proceedings (a recordership requires three
weeks a year of hearing criminal cases), thus preventing civil or com-
mercial practitioners from success. The examples of questions given to
us, however, did not necessarily support these criticisms. One selection
exercise apparently included the following scenario: someone tells you in

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112 judicial appointments

your capacity of judge that the jury has an argument. They want a
cigarette break. What do you do? The right answer seems to be that the
judge should give them the cigarette break but ask them to leave all
papers and mobile phones behind, and give them instructions about what
they can or cannot do. Does one really have to go to training or to
practice in the criminal courts to answer this? Another question required
the candidates to say what they would do if they were to hear a case from
counsel with whom they, as a judge, had had an affair. The answer given
to us was that the judge has to disclose the fact to the other side.
Either way, our interviewees drew different conclusions from their
criticisms of the qualifying test. Some reported that the appointment
process seemed to be designed for people who spend time in courts,
when the establishment of the Judicial Appointments Commission was
set to go beyond the old boys’ network for appointments. Others thought
that the qualifying test had led to some unsatisfactory appointments
because (they suggested) it had nothing to do with the ability to make
judgments, though they acknowledged that bad appointments existed
under the previous regime of appointments too.
Some thought that the best barristers would not apply. A selection
exercise for a recordership in one circuit in 2010 attracted 1,200 applica-
tions for 120 places. Of those applicants, 800 failed the first round of the
competition, and 300 were interviewed. There are large numbers of
applicants who apply repeatedly, and who are required to take a different
test for every application, which proves very costly in terms of time and
money. For this reason, the process is likely to be modified in the near
future. Parallels have been made with the process of appointment to the
Civil Service, where a baseline test can be taken which remains valid for a
few years with a handful of selected candidates then taking a role-play or
further exercises specifically tailored to the position they have applied for.
This would act in place of the qualification test.
References are always sought, either before the paper sift, or after the
qualifying test. Although there is no formal requirement that a referee
should be a judge, a number of potential applicants to a judicial post
indicated in a recent survey their belief that, in practice, one needs a
reference from a High Court judge to be successful.31 The suggestion,
during debates leading to the CRA, of giving the Lord Chief Justice a
power of veto on appointments was not adopted. This prevents judicial

31
Judicial Appointments Commission, ‘Barriers to Application for Judicial Appointment
Research’ (2009), p. 3.

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i. the appointment process and its criteria 113

corporatism, though many contacts exist with the senior judiciary before
appointments are made at senior level.
4.8 The timeline of the appointments process could be improved. The
time elapsing between the offer of appointment and the judge commen-
cing office can be two years, with no certainty as to when the successful
candidate will get a position because (depending on which position is
sought) none might be available yet. In addition, the Commission is
dependent on the Ministry of Justice promptly informing them that
a vacancy has to be filled, and some delays from the Ministry of Justice
have been noted. Time is then needed for the Ministry of Justice, the
Judicial Office and the Judicial Appointments Commission to agree upon
the non-statutory criteria for eligibility to a particular post. This timeline
undoubtedly has an impact on careers which have to be put on hold
pending appointment. The Constitution Committee rightly pointed, in
2012, to the need for greater certainty and a shorter time lapse between
the offer of appointment and the judge commencing office.32 For a long
time, however, there was no tool for forecasting the needs and vacancies
within the judiciary, and HMCTS has taken the credit for having pro-
vided such a tool in 2011. Under the old system of appointments, the
Senior President would have been the one with the necessary knowledge
of personnel and vacancies with the support of the court officials.
4.9 The transfer of judicial selection to an independent Commission
formally ensures a non-executive bias in the selection process. The
prime minister plays a formal role in the process, thus limiting the
danger of any future party politicisation of the system. For the same
reason, the Lord Chancellor’s role is reduced to that of providing a
safeguard against the appointment of unqualified candidates, in the
unlikely event that any should be recommended.33 For all appointments,
the Lord Chancellor then receives a report and a single recommendation
from the independent selection panel involved. He can accept or reject
this, or he can invite a reconsideration.34 The Commission may also
decide that none of the applicants was suitable for appointment and

32
HL Committee on the Constitution Report, 2012, para. 125.
33
K.E. Malleson, The Legal System, 3rd edn (Oxford University Press, 2007), p. 212.
34
CRA, ss. 26(3), 70, 71, 73 and 90. The panel will generally consist of 3 people: a panel
chair who has been appointed following the Nolan Principles on Appointments to Public
Offices, an independent lay member and a judicial member, who provides the necessary
technical expertise and legal knowledge. He or she is generally drawn from the jurisdic-
tion to which the appointment relates.

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114 judicial appointments

decline to make a recommendation, and in such case the Lord Chancellor

can ask the Commission to reconsider that decision.35
The Lord Chancellor has therefore not been removed from the
decision-making process. However, if he rejects the nominee, he can
only do so on the ground that the person is not suitable for the post,
and he must give reasons in writing for doing so.36 This is an important
safeguard against the abuse of ministerial discretion,37 but it is not clear
which reasons will be regarded as ‘legitimate’, and the only fallout from
any unsatisfactory decision would seem to be at a political level, since the
Commission cannot reselect a candidate who has been rejected.
The Lord Chancellor can also require the Commission to reconsider
a selection but only if there is not enough evidence that the person is
suitable for the office concerned or there is evidence that the person
is not the best candidate on merit.38 Reasons must also be given in
writing in this case. Between 2007 and 2010, only a handful of recom-
mendations, out of about 3,000 put forward to the Lord Chancellor, were
not approved. Thus, in 2010, the (then) Lord Chancellor Jack Straw
asked for reconsideration of the panel’s recommendation for the post
of President of the Family Division. This led to the delayed appointment
of Sir Nicholas Wall as head of the Family Division, as the Commission
resubmitted his name. There was speculation by the press that the Lord
Chancellor had sought to block that appointment following critical and
public comments from that candidate about the resources of the family
courts.39 One judge interviewed cited this example as evidence of the
Commission’s willingness to ‘wrestle’ with the executive to support the
independence of the judicial selection process.
Although some judicial consultation remains,40 the revised processes for
selection mark ‘a significant extension of professionalism in judicial appoint-
ments and a greater recognition of a career’.41 This model, under which the
executive makes selection after receiving recommendations from an appoint-
ments commission, applies in Canada, South Africa, and several American
states, though in each there are fine differences, such as whether the

35
CRA, ss. 88(2) and 93.
36 37
CRA, s. 91(1). Malleson, ‘Judicial Appointments in England and Wales’, 46–7.
38
CRA, s. 91(2).
39
But see the former Lord Chancellor, Jack Straw, ‘Judicial Appointments’, Hamlyn
Lecture, Inner Temple (4 December 2012).
40
CRA, ss. 27, 71, 80, 88(3) and 94(3).
41
Bell, Judiciaries within Europe, 313. See also Lord Judge LCJ, ‘Diversity Conference’
(11 March 2009).

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i. the appointment process and its criteria 115

commission recommends one name in particular or a list of approved names

from which the executive may choose one. (By contrast, in South Africa, the
executive is required to appoint those nominated by the commission.)
4.10 The Crime and Courts Bill transfers to the Commission the selec-
tion of deputy High Court judges.42 While the selection of deputy High
Court judges applies to judges who have already been registered on the
list of judges to the High Court,43 sitting as a deputy High Court judge
appears, in practice, to be a required step for appointment to the High
Court bench. This extension of remit is therefore a welcome development
as it will bring transparency and openness to a process of approval which
is largely in the hands of the Heads of Division.
4.11 The Crime and Courts Bill 2012 also transfers the Lord Chancellor’s
decision-making power to the Lord Chief Justice in relation to appoint-
ments below High Court appointments and appointments to tribunals.44
The former Lord Chancellor Kenneth Clarke suggested that his lack of
knowledge of the candidates for these positions had made his role ‘largely
ceremonial and ritualistic’.45 It is hoped that the transfer will, in practical
terms, make the appointments process faster. It is also suggested that the
gap left by the executive should be filled by the presence of lay members
representative of the civil society in appointment panels. They are
expected to convey a fresh viewpoint and challenge the judicial input as
appropriate. Some have doubted the influence of the lay members, and
have suggested that the substantial judicial input, through consultation
and the influence of judicial members of the Commission, creates a risk
of the Commission ‘cloning the existing judiciary in terms of skills and
experience’.46 Undoubtedly judges are in a strong position to assess the
professional ability and potential of those who are considered for
appointment to the bench, and the lack of significant progress towards
increasing diversity within the senior judiciary has been seen by many as

42 43
Crime and Courts Bill 2012. See above, paras. 3.39 and 3.40.
44
Crime and Courts Bill 2012, sch. 12.
45
Evidence to the Lords Committee on the Constitution inquiry on judicial appointments,
p. 15.
46
R. Hazell, ‘Britain’s Constitutional Reforms: Trivial or Transforming?’, Transcript of
Anthony Simpson Memorial Lecture (2009). Yet the European Charter on the Statute
of Judges 1998 (Art. 1.3) requires, in respect of every decision affecting the selection,
recruitment, appointment, career progress or termination of office of a judge, ‘the
intervention of an authority independent of the executive and legislative powers within
which at least one half of those who sit are judges elected by their peers following
methods guaranteeing the widest representation of the judiciary’.

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116 judicial appointments

evidence that this risk of cloning has become reality. In particular,

retaining consultation with existing judges, albeit in a modified and
limited form, maintains the advantage given to candidates already visible
to existing judges, most of whom are barristers.
There is no essential reason, however, why lay members should not
be able to resist the views of judicial members. If sufficiently robust, they
can demand that the judicial members articulate to their own satisfaction
their reasons for preferring a candidate if they are not obvious from
the paperwork, so as to avoid judicial corporatism. The difficulty is rather
that there are no criteria for the qualifications required of the lay
members, though there is a procedure of public appointments by adver-
tisement. The practice relating to the selection of the lay members
constitutes a path for influence on the appointment process and, as such,
requires greater attention. While the secrecy of deliberations makes the
degree of judicial influence in appointment commissions a matter of
speculation, we have come across anecdotal evidence that the insiders’
knowledge – the judicial experience – speaks volume during deliber-
ations, and some have argued that judges had a ‘pivotal role’ in the
appointment process at the UK Supreme Court in particular, where
consultation with the senior judiciary is significant.47 One interviewee
involved in senior judicial appointments noted that the judicial members
had, by definition, a head start on the non-judicial members. Evidence
from other legal systems with a substantial judicial presence in the
appointment commission further suggests that appointments are fre-
quently made on the basis of seniority rather than on strict merit.48 This
is where lay members need to be able to bring individual expertise and
broader perspectives, as representatives of civil society. The notion of
‘merit’ is broad enough that non-judicial members should feel as compe-
tent as judges to assess many of the key features of merit.
4.12 In 2008 the Parliamentary Joint Select Committee expressed its
disappointment with the lack of measurable progress towards increasing
diversity within the judiciary. Similarly, the Constitution Committee
observed in 2012 that it shared the widespread impatience to see early
progress made on improving the numbers of women and BAME (black,
Asian and minority ethnic) judicial appointments. Even so, the

47
A. Paterson and C. Paterson, ‘Guarding the Guardians? Towards an Independent,
Accountable and Diverse Senior Judiciary’ (London: CentreForum, 2012), p. 28.
48
Bell, Judiciaries within Europe.

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i. the appointment process and its criteria 117

Commission raised the number of women High Court judges to seventeen

with five women being appointed between 1 April 2008 and June 2009, the
highest number ever. More women and black and minority ethnic candi-
dates are applying for judicial roles than before the Judicial Appointments
Commission was set up; more women are also being selected under the
Judicial Appointments Commission than before.
As in Canada and the United States, the Commission has made consid-
erable efforts to widen the pool of applicants. ‘Encouragement to apply’ is
permitted, but, as is usual with all types of employment, then followed by
submission to an open and standardised assessment process. While some
interviewees rejected it as a possible return to the ‘tap on the shoulder’,
there was a consensus that some good candidates had been lost with the
new appointment process, and that consideration led others to be broadly
supportive of such encouragement to apply. Some interviewees thought
that it would be acceptable for circuit leaders to issue encouragement, but
not judges in a higher position of authority. With a clear judicial reluctance
to adopt anything that might be seen as the old ‘tap on the shoulder’, the
attention naturally turns to the legal professions. One interviewee suggested
that the heads of chambers had a role to play in encouraging the members
of the chambers to apply; it would seem more difficult to persuade the
heads of law firms to do the same in the light of their strong reluctance to
let their partners develop some part-time judicial experience.49
There is also a broad consensus from our interviewees that some
robust selection procedures have been set to meet the Commission’s
statutory duty to appoint on merit and to ensure that the procedures
are fair to all. Both some of our interviewees and the Law Society
observed that ‘the fact that the complaints against those processes are
in the main coming from white male Oxbridge educated barristers (who
are no longer guaranteed appointment) would suggest that the [Judicial
Appointments Commission] has succeeded’.50

C. Merit
4.13 The Judicial Appointments Commission is required, under the
CRA, to select people of good character solely on the basis of merit.51
‘Merit’ builds on a range of different skills and qualities, in addition to

49
See below, para. 4.23.
50
Written Evidence before Committee on the Constitution, Autumn 2011.
51
CRA, s. 63(2) and (3); Malleson, ‘Rethinking the Merit Principle in Judicial Selection’.

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118 judicial appointments

the intellectual capacity necessary to become a judge. It had traditionally

been defined by reference to success in the courtroom as an advocate.52
Lord Falconer acknowledged in 2011 that merit was still defined in that
way by many in the legal profession and this naturally favours Queen’s
Counsel (QCs).53 Applying its statutory duty to encourage diversity in
the range of applicants, however, the Judicial Appointments Commission
has widened the definition of ‘merit’, which relies upon five qualities and
abilities: intellectual capacity;54 personal qualities;55 an ability to under-
stand and deal with people fairly;56 authority and communication
skills;57 and efficiency.58 It reduced the relevance of ‘advocacy skills’, as
opposed to ‘communication skills’. The Commission’s main concern was
to remove barriers and to ensure that the definition of merit did not
unfairly favour one group over another. The third criterion noted above,
the ‘ability to understand and deal fairly’ was also amended following the
recommendation of the Advisory Panel to the Lord Chancellor on Judi-
cial Diversity in 2010, to the extent that it now requires from candidates
‘an awareness of the diversity of the communities which the courts and
tribunals serve and an understanding of differing needs’.59
The publication of disaggregated selection criteria provides for greater
transparency by allowing candidates to be assessed against a common set
of standards for a particular position.60 But the balancing of the values

52
H. Cecil, The English Judge (London: Stevens and Sons, 1970).
53
HL Committee on the Constitution, ‘Twenty-Fifth Report – Judicial Appointments’,
March 2012, para. 84.
54
This refers to a ‘high level of expertise in your chosen area or profession’, the ‘ability
quickly to absorb and analyse information’, an ‘appropriate knowledge of the law and its
underlying principles, or the ability to acquire this knowledge where necessary’.
55
The personal qualities expected are ‘integrity and independence of mind’, ‘sound judge-
ment’, ‘decisiveness’, ‘objectivity’, the ‘ability and willingness to learn and develop
professionally’, and the ‘ability to work constructively with others’.
56
The ‘ability to understand and deal fairly’ is understood as ‘an awareness of the diversity
of the communities which the courts and tribunals serve and an understanding of
differing needs’, the ‘commitment to justice, independence, public service and fair
treatment’, and the ‘willingness to listen with patience and courtesy’.
57
The ‘authority and communication skills’ refer to an ‘ability to explain the procedure and
any decisions reached clearly and succinctly to all those involved’, the ‘ability to inspire
respect and confidence’, the ‘ability to maintain authority when challenged’.
58
Efficiency requires the ‘ability to work at speed and under pressure’ and the ‘ability to
organise time effectively and produce clear reasoned judgments expeditiously (including
leadership and managerial skills where appropriate)’.
59
Advisory Panel on Judicial Diversity, ‘Report’, recommendation 20.
60
S. Evans and J. Williams, ‘Appointing Australian Judges: A New Model’ (2008) 30(2)
Sydney Law Review 295, 295–7.

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i. the appointment process and its criteria 119

that are implicit in the concept of merit depends on the weight given to
each criterion. For example, is the third criterion, the ‘ability to under-
stand and deal fairly’ (which includes an awareness of the diversity of the
communities served) given the same weight as the fourth one, ‘authority
and communication skills’? The glittering factors for a man and a woman
may not be the same. One interviewee pointed out: ‘for a man, he might
be a Queen’s Counsel having had a wife at home taking care of his
children’. Women practitioners will not have the same experience as
men when they come back from having raised a family and cannot fully
catch up with that. This should be borne in mind when assessing merit in
individual cases.
4.14 The lack of significant changes in the composition of the judiciary
at senior level has led to the perception that serving judges appoint in
their own image. The action suggested by the Advisory Panel on Judicial
Diversity in 2010, endorsed by the Constitution Committee in 2012,
seems to be adequate and necessary to overcome any such tendency: all
selection panels should be gender- and, wherever possible, ethnically
diverse, and members should undertake diversity training.61
Nevertheless, diversity and merit are distinct considerations, and
should remain so in the appointment process. Lord Carswell emphasised:
‘you might have A, B and C: you cannot call them equal, but they are all
very appointable, though they have different qualities, but one fills a need
for a particular skill and will therefore be appointed. A particular skill is
taken into account but this is not called merit.’62 The challenge lies in
enhancing the value of diversity in the appointment process without
undermining the notion of merit. A diverse background shapes the skills,
knowledge and experience of one individual and it may be difficult to
distinguish the added value of a particular skill, knowledge and experi-
ence from the characteristic of diversity. Baroness Hale has persuasively
argued that:
In disputed points you need a variety of perspectives and life experiences
to get the best possible results. You will not get the best possible results if
everybody comes at the same problem from exactly the same point of
view. You need a variety of dimensions of diversity. I am talking not only
about gender and ethnicity but about professional background, areas of

61
Advisory Panel on Judicial Diversity, ‘Report’, recommendations 31, 41 and 43, and
Committee on the Constitution Report 2012, paras. 87–8.
62
Lord Carswell, Oral Evidence, Q 303.

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120 judicial appointments

expertise and every dimension that adds to the richer collective mix and
makes it easier to have genuine debates.63

Equality and diversity, from a regulatory perspective, are primarily about

ensuring processes and setting and enforcing standards that facilitate
fair and open access to the bench. The Commission’s duty to have regard
to diversity applies to the range of persons available for selection, not at
the level of the selection itself. Although the UK Association of Women
Judges noted the Commission’s hesitation to suggest the adoption of
quotas, there does not seem to be any appetite for mandatory quotas,
that is, appointment to the bench according to certain proportions.64
Quota systems, in any event, vary in mechanisms and impact according
to complex and context-specific factors. One should also beware of the
assumption that a greater number of women in the judiciary may
promote different views from the judiciary as it is currently composed.
This is unlikely to be necessarily the case where women connected to
legal, political and economic elites come to power, as demonstrated by
studies on the representation of women in Parliament.
4.15 There have been recommendations that the ‘tipping provision’ or
‘tie-breaker’ contained in section 159 of the Equality Act 2010 applies to
the appointments process. This was endorsed by Lord Neuberger,
then Master of the Rolls, and can be found in the 2012 Crime and Courts
Bill. The application of section 159 would allow the appointment author-
ity to give priority, among candidates of equal merit, to the one who
comes from an underrepresented group.65 ‘Merit’, however, is an open-
ended standard. Unless the components of ‘merit’ are disaggregated into

63
Oral Evidence before the Committee on the Constitution, 2012, Q 220; see also Q 216,
written evidence by Baroness Hale, para. 2; evidence by Sir Thomas Legg, para. 17, and by
Lord Mance, paras. 10–11.
64
See the Oral Evidence from Lord Judge CJ Q 188; Q 252 (Hallett LJ), Q 266 (Association
of Women Solicitors), Q 333 (Baroness Prashar).
65
Under s. 159, between two equally qualified individuals for a recruitment or promotion
exercise, the individual with a protected characteristic may be chosen over the individual
without that characteristic, where those with the protected characteristic are under-
represented in the relevant activity. The 8 protected characteristics listed under the
Equality Act 2010 are age, disability, gender reassignment, pregnancy and maternity,
race, religion or belief, sex and sexual orientation. However, under Equality Act 2010, s.
159(6), the positive action provisions in s. 159 cannot be used to do anything that is
prohibited by or under another enactment. Yet s. 63(2) CRA states that, for judicial
appointments, selection must be solely on merit. Section 159 thus does not currently
apply to judicial appointments, and the adoption of the Crime and Courts Bill would

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i. the appointment process and its criteria 121

objective selection criteria which are applied in a consistent way, the

notion becomes ‘almost wholly subjective, allowing each decision maker
to construct his or her own features which are significant’.66 It also makes
the finding of ‘equal merit’ between candidates a subjective matter and
potentially limits the impact of section 159. It has been suggested that, in
practice, appointments panels fairly rarely found candidates of equal
merit. Baroness Neuberger, Lord Phillips and Lord Judge CJ also doubted
whether two candidates are ever truly equal.67 In that context, section
159 would make little impact. Yet it seems likely, as suggested by some
other senior judges,68 that section 159 could have some use. In particular,
in large selection exercises, it may not be possible to rank every candidate
in strict order of merit and so a number of candidates may be considered
to be of equal merit,69 thus allowing section 159 to come into play.
If there is to be a ‘trickle up’ effect from making more appointments at
the lowest levels, this may prove to be one viable long-term strategy.
Alternatively, on the basis that a number of individuals will be equally
capable and suitably qualified, some would support a ‘merit threshold’:
once a set plateau of skills and capability has been reached, preference
would be given to the candidate from an underrepresented group.70 This,
however, may lead to the perception that the most meritorious judge may
not be appointed due to considerations of diversity. It should be rejected,
as it can only weaken confidence in the quality of the judiciary.
One may wonder whether the achievement of diversity targets should
be regulated. Unlike quotas, targets would not be mandatory: they would
be goals towards which the Judicial Appointments Commission would
aim. For example, as suggested by the UK Association of Women Judges,
there could be a target of at least 30 per cent of the full-time judiciary

clarify that, between two candidates of equal merit, the Judicial Appointments Commis-
sion would be able to prefer one for the purpose of increasing diversity.
66
Evans and Williams, ‘Appointing Australian Judges’, 297.
67
Oral Evidence, Q 224, Q 183, Q 184. The Chairman of the Judicial Appointments
Commission also said that the large numbers of woman and Black, Asian and Ethnic
Minorities’ representatives appointed since 2006 made s. 159 unnecessary: Oral Evidence
from Christopher Stephens, 2011, question 364, p. 386.
68
Oral Evidence Q 377 (Lord Chancellor), Q 98 (Goldring LJ), Q 240, (Hallett LJ), Q 240
(Lord Neuberger MR).
69
Committee on the Constitution, paras. 98–101.
70
Lord Falconer, the Director of JUSTICE, and the Chair of the Black Solicitors Network;
contra, Oral Evidence, Q 71 (District Judge Tim Jenkins), Q 86 (Goldring LJ), Q 240
(Lord Neuberger MR), Q 303 (Lord Woolf), written evidence by the Association of HM
District Judges, and by the Judicial Executive Board.

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122 judicial appointments

being female by 2020, in order to create a ‘critical mass’ of women judges,

encouraging other women to apply.71 Lord Judge CJ has rightly empha-
sised that in truth targets could easily turn into a quota system.72 They
should be opposed for that reason, as potentially undermining the notion
of merit, and the independence of the appointments process.73 If targets
are considered in the near future, they would need to be set with great
care, on the basis of better data than that which is currently available.74
4.16 So we would argue that the notion of merit is not to be watered
down either directly or indirectly by the needs for diversity. Instead fifty-
three recommendations were made by an Advisory Panel to the Lord
Chancellor in 2010, to improve the diversity of the judicial applicants
across various areas.75 They include the following: (i) ensuring that
lawyers from all backgrounds recognise early on in their career that
becoming a judge could be a possibility for them; (ii) more effort by
the legal professions to promote diversity at all levels and to support
applications from talented candidates from all backgrounds; (iii) better
information on the career paths available; (iv) these career paths must
promote opportunities across the courts and tribunals as one judiciary;
(v) providing a variety of means for potential applicants for judicial office
to understand what the role involves and to gain practical experience and
build confidence; (vi) open and transparent selection processes that
promote diversity and recognise potential, not just at the entry points
to the judiciary but also for progression within it to the most senior
levels.76 The House of Lords Constitution Committee, in 2011, urged the
implementation of these recommendations, and the Crime and Courts
Bill 2012 already addresses the issue of mobility and progression through
the judicial ranks.77

D. Legal practising experience

4.17 In 2004 the (now defunct) Department of Constitutional Affairs
consulted on means of increasing diversity among the judiciary in the
UK. They concluded that the qualifications required to serve as a judge

71
Figure suggested in written evidence by UK Association of Women Judges, [16].
72
Oral Evidence Q 188; Advisory Panel on Judicial Diversity, ‘Report’, recommendation 5.
73
See the Joint Committee on the Draft Constitutional Renewal Bill, para. 141.
74
Committee on the Constitution Report 2012, para. 107.
75 76
Advisory Panel on Judicial Diversity, ‘Report’. Ibid., 19.
77
See above, paras. 3.34 and 3.35.

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i. the appointment process and its criteria 123

were a barrier to a broader judiciary and recommended that they be

varied, in particular by shortening the period of legal practice demanded
before seeking office. In response, the Tribunals, Courts and Enforcement
Act 2007 introduced various changes to the eligibility rules for judicial
office.78 The possession and use of rights of audience for a specified period
was discontinued as the basic test, as it led to the perception that advocacy
skills were a prerequisite for appointments.79 The newly introduced test is
based on possession of a relevant qualification and legal experience for a
specific period.80 The number of years for which the qualification has been
held and the experience gained was reduced, and eligibility was extended
to other legal professional groups than barristers or solicitors, such as
those holding a qualification awarded by CILEX or an authorised body
designated for the purposes of the Courts and Legal Services Act 1990.81
Relevant experience in law is broadly construed to include any ‘law-related
activity’, including, for example, teaching or researching law.82
4.18 The statutory qualifications are based on the years of experience in
advocacy, with a greater number of years required according to the status
of the Court.83
Eligibility for appointment as a Lord Justice of Appeal requires the
candidate to either satisfy the judicial-appointment eligibility condition on
a seven-year basis or to be a judge of the High Court.84 Since 1990, the criteria
for appointment as a circuit judge or recorder are either holding the position
of district judge or an equivalent judicial appointment for at least three years,
or having a general right of audience in the Crown Courts or county courts
(i.e., having advocacy experience of at least seven years).85 Direct entry is
common at all levels in the judiciary below that of the Court of Appeal.
Recorder is a fee-paid part-time judicial role held by practising
lawyers. The function of the fee-paid part-time post is both to fill a need

78
Tribunal, Courts and Enforcement Act 2007, ss. 50–52.
79
S.H. Bailey, Smith, Bailey and Gunn on the Modern English Legal System (London: Sweet
& Maxwell, 2007), paras. 4.023 and 4.029.
80
Courts and Legal Services Act 1990, s. 71.
81
Courts and Legal Services Act 1990, ss. 27–28; Tribunals, Courts and Enforcement Act
2007, s. 51. In the case of CILEX or any other authorised body, the qualification in
relation to a particular judicial office is specified in an order from the Lord Chancellor.
82
Tribunals, Courts and Enforcement Act 2007, s. 52(2)–(5).
83
Senior Courts Act 1981, s. 10(3)(a), (b) and (c); Courts and Legal Services Act 1990, s. 71;
County Courts Act 1984, s. 9.
84
Senior Courts Act 1981, s. 10(3) (b).
85
Courts and Legal Services Act 1990, s. 71 and sch. 10.

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124 judicial appointments

and to provide a training ground for potential full-time judges, in so far

as circuit judges need to have held a judicial appointment for at least
three years. However, holding a fee-paid part-time judicial post is diffi-
cult for solicitors who, unlike barristers, are not self-employed, and must
obtain the agreement of their partners to taking unpaid time off to sit as a
judge. The tenure in office of a recorder came under scrutiny following
the decision of the High Court of Justiciary that Scottish temporary
sheriffs, appointed by the Lord Advocate, now a member of the Scottish
government, were insufficiently independent of the executive for compli-
ance with the requirements of Article 6 ECHR.86 As a result, since 2000,
part-time appointments are for no less than five years, and reappoint-
ment will be automatic (where appointments are renewable) unless on
limited and specific grounds. Although security of tenure existed in
practice, the revised arrangements established some formal safeguards
of independence.87
A five-year general qualification88 is required for the position of
district judge or deputy district judge. The latter is a part-time appoint-
ment. A distinctive feature of the English system is its reliance on
members of the legal profession acting as part-time judges – nearly 60
per cent of judicial posts are part time.
4.19 The CRA is unclear on who may define the non-statutory eligibility
criteria. There is a tension between the Lord Chancellor and the Judicial
Appointments Commission who jointly consider what is appropriate. On
the one hand, the Judicial Appointments Commission, keen to encourage
diversity, aims to ensure that the non-statutory criteria are kept to a
minimum, given their potential to narrow the pool of potential candi-
dates. On the other hand, since the Lord Chancellor is responsible for the
administrative functioning of the courts, the Lord Chancellor considers
himself best placed to determine their needs in consultation with the
Lord Chief Justice. It is argued by the Lord Chief Justice that the Judicial
Appointments Commission, like a recruitment agency, must respond to
the needs of the client’s business; and ‘those needs must be judged and

86
Starrs v. Procurator Fiscal, Linlithgow [2000] HRLR 191; Millar v. Procurator Fiscal, Elgin
[2000] UKPC D4; [2002] 1 WLR 1615; Clancy v. Caird (No. 1) 2000 SC 441; [2000] HRLR
557.
87
Bailey, Smith, Bailey and Gunn, 239.
88
That is, a right of audience in relation to any class of proceedings in any part of the
Supreme Court or all proceedings in county courts or magistrates’ courts: Tribunals,
Courts and Enforcement Act 2007.

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ii. a fair reflection of society 125

articulated by the business, not the recruitment agency’.89 This is likely to

be a continuing source of tension.

II. A fair reflection of society

4.20 Here we discuss further aspects of the struggle for a more diverse
judiciary. The duty of the Commission to have regard to the need for a
more diverse judiciary ensures equal opportunities for all and supports
the confidence of the public and the legal profession in the judiciary.
A fair reflection of society matters not in the individual case brought
to court, where what essentially matters is a judge who listens and who
will take the parties’ interest at heart. But a fair reflection of society is
necessary on a cohort basis, to sustain public confidence in the judi-
ciary.90 A diverse judiciary will approach the task of judging from the
varied perspectives of its judges; that judges bring to bear their different
life experiences enriches collective decision making.91 As stated by
L’Heureux-Dubé and McLachlin JJ, ‘The reasonable person does not
expect that judges will function as neutral ciphers; however, the reason-
able person does demand that judges achieve impartiality in their
judging.’92
4.21 Attention has therefore turned to the pool of candidates available
for selection. Judges have traditionally come from the senior Bar which is
itself lacking in diversity. Outreach is taking place so that more judicial
appointments are to be made from amongst other more diverse pools,
such as that of solicitors, who are more diverse at all levels, or that of
employed barristers and candidates from CILEX too. Some of our inter-
viewees also pointed to the government lawyers, prosecution lawyers and
in-house counsel as an obviously diverse yet untapped pool of candidates
for judicial appointments. It is likely that, for as long as judges are not

89
See the Joint Parliamentary Scrutiny Committee on the Draft Constitutional Renewal Bill,
The Draft Constitutional Renewal Bill, Report, vol. 1 (2008), para. 174. The Committee
confirmed that the Lord Chancellor should be given the power to determine non-
statutory eligibility criteria.
90
Art. 2.15 Mt. Scopus; K. Malleson, The New Judiciary (Aldershot: Ashgate Press, 1999),
p. 111.
91
See Dobbs J, ‘Diversity in the Judiciary’, Lecture at Queen Mary University of London (17
October 2007).
92
R v. S. (R.D.) [1997] 3 SCR 484, para. 38 [L’Heureux-Dubé and McLachlin JJ]; M. Minow,
‘Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges
and Jurors’ (1992) 33 William and Mary Law Review 1201.

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126 judicial appointments

regularly appointed from these pools, most interested candidates would

naturally assume that they would not get through the process.93
The lack of diversity of the judiciary is a recurrent issue. Henry Cecil
already criticised the lack of diversity within the judiciary in 1970.94 Abel,
Stevens and Griffiths also raised some powerful criticisms.95 The lack of
diversity is now being grappled with by Parliament, the judiciary and the
Judicial Appointments Commission. But the reasons for the lack of
significant changes in the composition of the judiciary are distinct: they
differ per underrepresented group – the lack of solicitors is not explained
by the same reasons which explain the lack of women on the bench.
Diversity issues must be further nuanced in the light of substantial
changes taking place at the level of the lower judiciary.

A. Queen’s Counsel as judges

4.22 High Court judges are mainly chosen from Queen’s Counsel
(‘Silks’) with years of experience in oral advocacy. From the eighteenth
century onwards, selection as a Queen’s (or King’s) Counsel became a
recognition of professional eminence.96 Queen’s Counsel were retained
to conduct court work on behalf of the Crown, this until 1920 when
permission was not needed before accepting a brief to appear against the
Crown. They are traditionally selected from barristers although it is now
open to employed barristers and solicitors. Selection was made upon
consultation; Gareth Williams QC (as he then was) described it in 1992
as based on ‘the Franz Kafka school of business management’.97 Becom-
ing a QC has been the traditional pathway to the judiciary and the Silk
appointment system was criticised for the same reasons that the judicial
appointment system was. A report of the Office of Fair Trading98 in 2001
pointed out that the (then) existing system, administered by the Lord
Chancellor’s Office and based on secret soundings, was distorting

93
Lord Falconer before the Committee on the Constitution, Oral Evidence Q 157.
94
Cecil, The English Judge.
95
B. Abel-Smith and R. Stevens, Lawyers and the Courts. A Sociological Study of the English
Legal System, 1750–1965 (London: Heinemann Educational Books, 1967).
96
Elizabeth I appointed the first group of Queen’s Counsel, including Francis Bacon, to
assist the Attorney General in giving legal advice to the monarch, W. Holdsworth, History
of English Law,, vol. VI, pp. 472–3.
97
The Times, 27 September 1993, cited by D. Pannick, ‘Why the Silk’s Purse Won’t Survive’
[2001] PL 439.
98
OFT, March 2001, paras. 270–9.

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ii. a fair reflection of society 127

competition among junior and senior barristers and did not apply the
objective standards that would make it a genuine quality accreditation
scheme.99 A debate followed at the Bar; given the traditional connection
between QCs and the judiciary, the future of the rank of QC became part
of the proposals for constitutional reforms made by the Secretary of State
for Constitutional Affairs in 2003, alongside the creation of a Supreme
Court and the establishment of a Judicial Appointments Committee.
A new more transparent process, with selection based on a ‘competency
framework’ by a panel independent from the government, was agreed
between the Law Society and the Bar Council in 2004, and approved by
the Lord Chancellor and Secretary of State for Constitutional Affairs.
Among QCs today 11 per cent are women; among senior partners of
solicitors’ firms, the proportion of women is less than 25 per cent. Those
are the eligible pools from which senior appointments are made.100
While the attrition rate of women is a vexing issue, statistics show a
recent trend towards greater diversity in terms of gender and ethnicity
upon entry at the Bar. In 2010, 53 per cent of those called to the Bar were
women; 43 per cent were individuals from BAME backgrounds.101
In addition, at the Criminal Bar at least, there is little expectation that
practitioners will have an Oxbridge background.

B. Solicitors as judges
4.23 The path to eligibility of solicitors for judicial offices has not been
smooth. In 1938 solicitors became eligible as chairmen of quarter ses-
sions, and in 1949 as stipendiary magistrates. They became indirectly
eligible for appointment as recorders or circuit judges in 1971, as a result
of a compromise.102 The Courts Act 1971 also gave some powers
promptly used by the Lord Chancellor to direct that solicitors may appear

99
OFT, 278; Sir Colin Campbell, Stevens 1993.
100
Christopher Stephens, Oral Evidence, Committee on the Constitution.
101
The General Council of the Bar of England and Wales and the Bar Standard Boards, ‘Bar
Barometer 2012: Trends in the profile of the Bar’ (London: the General Council of
the Bar of England and Wales, November 2012). In 2010–11, however, 49% of calls
to the Bar were women, and 44% were of individuals from BAME backgrounds, ibid.,
pp. 39–41.
102
313 HL Deb., 1652 et seq. (17 December 1970); L. Blom-Cooper, ‘The Judiciary in an Era
of Law Reform’ (1966) 37 Political Quarterly 378; Lord Goodman, 288 HL Deb. 616
(29 January 1968). Cf. B. Abel Smith and R. Stevens, In Search of Justice (London: Allen
Lane, 1968), p. 190.

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128 judicial appointments

and conduct proceedings in the Crown Court.103 A solicitor had to serve as

a recorder for five years before becoming eligible for appointment as a
circuit judge.104 Such a ban on direct appointment to the circuit and the
High Court was removed by Lord Mackay in 1990.105 Solicitor-advocates,
defined by their higher rights of audience, were expressly encouraged to
consider the bench, and Michael Sachs was the first solicitor appointed to
the High Court in 1993. Since then, only three other solicitors have been
appointed to the High Court: Lawrence Collins in 2000, Henry Hodge in
2004 and Gary Hickinbottom in 2008. Lawrence Collins then became Lord
Justice of Appeal in 2007, and a Law Lord in 2009.
Several arguments have been raised about the entry of solicitors to
the bench.106 It was argued in 1970 that the Bar was too small, with
3,000 members, to remain the exclusive source for judicial appoint-
ments, especially in the light of the rapidly increasing number of
judicial appointments in the higher and the lower levels of the judi-
ciary.107 Yet only practising barristers with maturity and experience of
advocacy before the higher courts were seen as qualified to try cases.
The lack of background in litigation was once considered to make
solicitors, all things being equal, less likely to be qualified for higher
judicial appointment, though it has always been admitted that the
appointment of some solicitors could be justified from time to time.
The high quality of the English judiciary has long been perceived as
relying upon choosing judges from among the leading barristers, who
have had large experience in litigation and who have absorbed the Bar’s
traditions of independence and integrity.108 But this is ‘a thin basis for
denying the entire solicitors’ branch of the profession and the public the
advantage of wider choice in selecting judges’.109 Nonetheless, ‘it is fair

103 104
Courts Act 1971, s. 12. Administration of Justice Act 1973, s. 15.
105
Courts and Legal Services Act 1990, s. 17 (solicitor-advocates). Until 1993 the only
solicitors who had reached the High Court were those solicitors transferring to the Bar,
see the Lord Chancellor, 312 HL Deb., 319 (19 November 1970).
106
235 HL Deb. 954–2 (23 November 1961) 288 HL Deb., 612–19 (Goodman), 636–9
(Gardiner), (29 January 1968); 312 HL Deb., 1279 (Fletcher), 1280–281 (Dilhorne),
1295–97 (Goodman), 1304 (Denning), 1318–22 (Hailsham) (19 November 1970); 313
HL Deb. 1362 et seq. (19 December 1970). For an exhaustive examination see JUSTICE,
‘The Judiciary. The Report of a JUSTICE Sub-committee’ (Chairman: Peter Webster QC,
1972), paras. 9–20.
107
The Beeching Commission, Cmnd. 4153 (1969), (1969).
108
Lord Gardiner, ‘Two Lawyers or One?’ (1970) 23 CLP 1, 19; Cecil, The English Judge, 14–15.
109
M. Zander, ‘Book Review’, 35 MLR 104, 105 (1972); Lord Goodman, Hansard, HL, vol.
288, col. 616 (29 January 1968).

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ii. a fair reflection of society 129

to say that the absolute integrity and high quality of the superior judges
have been closely connected with the modern ethos of practice at
the Bar’.110 Concerns about the professional competence of some
solicitor-advocates have also regularly been raised.111 In response,
solicitor-advocates have themselves expressed concern that ‘judicial
appraisal’ may form part of the quality assurance process overseen by
the Legal Services Commission.
Recent encouragements from the Commission and the Lord Chief
Justice to apply have not been effective. In December 2010, the Lord
Chief Justice, Igor Judge, admitted before the House of Lords’ Consti-
tution Committee that the recent increased efforts from the judiciary
had been unsuccessful as solicitors aged thirty-eight to forty-five had
not been enabled to apply for appointment as a recorder or a district
judge.112 The Judicial Appointments Commission’s ten-year analysis of
the appointment of solicitor candidates shows that solicitors are per-
forming better at entry- and mid-level positions under the new
appointments regime than under the previous methods of appoint-
ment.113 But the number of solicitors applying has hardly changed for
most roles over the past ten years, and has even dropped for High Court
positions. In addition to prejudices against solicitors, the geographical
and jurisdictional flexibility of the senior judiciary can be difficult for
solicitors. A highly paid solicitor with aspirations to the High Court or
the Supreme Court (Lord Collins is a former head of litigation at City
firm Herbert Smith) would need to take time out of practice for a part-
time appointment at around the age of 40, when most solicitors are at
their fee-earning peak. A fee-paid judicial office thus entails a signifi-
cant drop in salary. One of the High Court judges who was once a City

110
S.A. de Smith, Constitutional and Administrative Law (Englewood Cliffs, NJ: Prentice
Hall, 1971), 369.
111
QiuYeu (unreported) Southwark Crown Court, see (2009) Law Society Gazette, 21 May
2009, 22 May 2009 and 17 March 2010. There Gledhill J in open court, at the conclusion
of a criminal trial, gave his critical views on the ability of some of the solicitor-advocates
appearing before him; for a similar debate in Scotland following Woodside (Alexander) v.
HM Advocate [2009] HCHAC 19 (HCJ), see R. S. Shiels, ‘Professional Conduct and the
Solicitor Advocate’ (2009) Criminal Law Review, 794.
112
Lord Chief Justice, Unrevised transcript of evidence taken before The Select Committee
on the Constitution, Evidence Session No. 1, Questions 1–32, 15 December 2010. Oral
Evidence before the Committee on the Constitution, Lord Neuberger MR (Q 250) and
Lady Justice Hallett (Q 254). ‘Judicial Selection and Recommendations for Appointment
Statistics’, England and Wales, April 2010 to September 2010, Statistics bulletin.
113
January 2010.

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130 judicial appointments

solicitor noted how he would work weekends and use annual leave to
ensure that sitting did not reduce his billable hours.114
The reluctance of City firms to allow their partners to hold part-time
judicial posts is well known. It has been suggested that an application to the
bench from a solicitor showed disloyalty to the law firm, and becoming a
recorder was once reported as committing ‘career suicide’.115 A part-time
judicial office can seem impossible for those juggling the demands of
practice and family life. The length of time between the offer of appointment
and the judge commencing office, and the lack of certainty as to when the
successful candidate will get a position also exacerbate the difficulties of
solicitors in applying to the bench. At best, for some of the bigger City firms,
a part-time judicial appointment is equivalent to pro bono work – a part of
their corporate social responsibility activities – but even that requires a
significant cultural change within the solicitors’ profession.116
A further development is that a significant part of the business of the
top private law firms is in commercial arbitration between companies
who prefer their services in dispute resolution to the length and expense
which they anticipate if they proceed through the courts. It is an import-
ant matter for discussion, but outside the remit of this book, as to how
the judiciary can benefit from the expertise of these solicitors.
4.24 Legal executives face similar barriers. There were 24,509 Legal Pro-
fessional Associates – effectively paralegals of all sorts – in 2001 and 51,250
Legal Professional Associates in 2009, an increase of 109 per cent. Among
legal executive lawyers, 75 per cent are women and more than 13 per cent
are of black or minority ethnicity. It is reasonable to assume that some of
these associates could undertake low-level work, and changes introduced
by the Tribunals, Courts and Enforcement Act 2007 made Fellows of
CILEX, which trains these legal professionals, eligible to apply for selected
judicial roles, such as that of deputy district judge. Associate prosecutors
are trained by CILEX and many are supervised employees of the Crown
Prosecution Service conducting simple prosecutions, for example road
traffic matters. Nonetheless it remains to be seen how many will succeed
in rising up to (yet alone beyond) the level of district judge.

114
See also Lord Collins, Written evidence before the Committee on the Constitution, paras
7–10; Lady Justice Hallett, Oral Evidence Q 254.
115
Oral Evidence before the Committee on the Constitution, Baroness Pashar (Q 314);
H. Genn.
116
F. Gibb, ‘Lord Judge: Recession could Harm Judicial Diversity’, The Times (12 March
2009); Committee on the Constitution Report 2012, para. 125.

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ii. a fair reflection of society 131

C. Women on the bench

4.25 The role of women in the judiciary is unfortunately rather limited.
The first full-time female judge was Elizabeth Lane who became a
county court judge in 1962 before moving to the High Court in 1965,
much later than in a number of European countries.117 There were two
women at the High Court in 1974 out of seventy-five judges, against
sixteen out of 108 today.118 Lady Hale became the first and so far only
female Lord of Appeal in Ordinary in 2004. Today there are four
women out of thirty-eight judges at the Court of Appeal. Three women
sat on the circuit (as against over 200 men) in 1973, against 101 out
of 680 circuit judges today.119 In comparison, women Justices of the
Peace comprised more than a third of the total number of lay justices
(over 19,000) in 1974; they constituted 51 per cent of the serving
magistrates in 2012.120
In 1973, only 13 per cent of newly admitted solicitors were women and
10 per cent of those called to the Bar.121 Many voices have criticised the
senior judiciary for being insufficiently representative of society,122 with
the danger of losing public confidence in the courts as a result. In a
renewed awareness in the 1990s, the senior judiciary acknowledged the
need to increase the number of women on the bench and the issue came
before Parliament in 1996.123 By 2000, despite the size of the judiciary
in England and Wales increasing tenfold from 300 in 1970 to 3,000 in
2000, the percentage of women appointed to the bench had not grown
substantially.124
Action was taken to give effect to the senior judiciary’s declarations
of good will. Both Lord Chancellors Mackay (1987–97) and Lord

117
Bell, Judiciaries within Europe, 315.
118
Rose Heilbron was the first woman to sit as a recorder in 1956 before appointment to the
High Court in 1974.
119
Two of the three were former county court judges who had become circuit judges under
the Courts Act 1971.
120
822 HL Deb. 467, 168 (5 August 1971); Judicial Statistics, ‘Serving magistrates by
HMCTS region, England and Wales’ (31 March 2012).
121
McGlynn, ‘Status of Women Lawyers’, 95.
122
E.g., M. Berlins and C. Dyer, The Law Machine (London: Penguin, 2000), p. 71.
123
Lord Taylor, ‘The Judiciary in the Nineties’, The Richard Dimbleby Lecture
(30 November 1992); HoC Home Affairs Committee, ‘Report on Judicial Appointment
Procedures’, 1996.
124
L. Barmes and K. Malleson, ‘The Legal Profession as Gatekeeper to the Judiciary: Design
Faults in Measures to Enhance Diversity’ (2011) 74 MLR 245.

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132 judicial appointments

Falconer (2003–07) actively encouraged women to apply for QC and

junior judicial posts. A method of selection was introduced in 2003
which was shown to reduce bias in the selection of certain district
judges.125 The CRA, as noted above, requires the Judicial Appointments
Commission to have regard to diversity at the level of the selection pool.
In spite of these efforts, a 2008 survey showed that the proportion of
women in the senior judiciary (High Court and above) had only margin-
ally progressed since 2003, with representation of women of 6.8 per cent
in 2003 against 9.6 per cent in 2008.126
The loss of younger women from the legal profession has been a
significant factor in the low number of women judges.127 For a long
time barriers to women’s success would exist at each point in their
careers at the Bar, from obtaining a pupillage to getting clerks to assign
work to them.128 Women solicitors also experienced difficulty in their
day-to-day professional activities.129 The difficulties are lesser today
with the entry rate into the Bar having reached equality between men
and women, and clerks being of a different generation and having a
different mindset towards women. The argument of an inevitable time-
lag between the introduction of equal opportunities measures and their
implementation through changes in social attitudes is nonetheless
becoming increasingly less persuasive.130 As a result, the legal profes-
sion has regularly been invited to bring about changes in its compos-
ition at the very top, a matter to which we return when considering the
appointments to the Supreme Court.

125
G. Healy, G. Kirton, M. Ozbilgin, M. Calveley, C. Forson, F. Oikelome and A. Tatli,
Assessment Centres for Judicial Appointments and Diversity (Research Report for the
Department of Constitutional Affairs, 2006); C. Thomas, Judicial Diversity and the
Appointment of Deputy District Judges (London: CJA, 2006).
126
Equality and Human Rights Commission, ‘Sex and Power’ (2008), p. 9.
127
McGlynn, ‘Status of Women Lawyers’.
128
Berlins and Dyer, The Law Machine, 41; H. Kennedy, Eve Was Framed: Women and
British Justice (London: Vintage, 1993, revised edn 2005); R. Hazell, The Bar on Trial
(London: Quartet, 1978).
129
See, for example, the letter of Vera M. Brown (1972) 116 Solicitors’ Journal 81–2, in
which she protests against the identification of lady solicitors as secretaries, both by the
profession and by laymen.
130
Joint Parliamentary Scrutiny Committee on the Draft Constitutional Renewal Bill, ‘The
Draft Constitutional Renewal Bill. Report’ (HC 551-I and HL 166-I, 2008), para. 197;
Barmes and Malleson, ‘The Legal Profession as Gatekeeper to the Judiciary: Design
Faults in Measures to Enhance Diversity’, 270.

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ii. a fair reflection of society 133

D. Legal academics as judges

4.26 Appointment of legal academics as judges is rare.131 It is generally
thought that the legal academic is not qualified for appointment directly
as a trial judge, with control of a jury, if he were to take the usual starting
position of recorder. The traditional and recommended route to the
bench for academics starts with tribunals: most tribunals are essentially
fact-finders132 but in a less formal environment, and forensic experience
can thus be gained there. Recordership can then be acquired, before
applying to the High Court. Conversely it has always been accepted, at
least in principle and taking into account one conception of ‘merit’, that
legal academics could be appointed to the House of Lords or Supreme
Court, because they would deal with ‘pure law’ or principles there, and
indeed their background would equip them particularly well to deal with
some academic points of law and questions of social policy.
However, the barriers between the academic and judicial professions
remain stark and such an appointment is not expected in the near future.
Many of the judges interviewed thought that it would be difficult to
‘parachute’ academics into the Court of Appeal, and some thought that
the tendency of top academics to specialise in particular parts of the law
may be a disadvantage on the bench where there is little possibility of
hearing cases regularly in a discrete area. Academics are permitted to
choose their own areas of specialism but flexibility may be of more value
in the judiciary. The greater mobility under the Crime and Courts Bill
2012,133 however, with wider opportunities to be deployed to the High
Court, would seem to surmount that objection. It supports the concept of
progression through the ranks and increased diversity.

E. CPS and government lawyers

4.27 The eligibility of lawyers from the Government Legal Service and
Crown Prosecution Service (CPS) is a matter of debate; the composition
of these groups is far more diverse than the rest of the legal profession.
Government lawyers are eligible to sit as deputy district judges

131
Recent past and present full-time academics now in full-time judicial office include
Baroness Hale, Lord Justice Buxton, Lord Justice Kay, Lord Justice Beatson, Mr Justice
Cranston, and Lord Justice Elias; B. Hale, ‘Equality and the Judiciary: Why Should We
Want More Women Judges?’ [2001] PL 489.
132
Not all: the Social Security Commission is about pure law.
133
See paras. 3.34 and 3.35.

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134 judicial appointments

(magistrates’ courts), civil recorders and fee-paid tribunal judges,

except in matters which involve their own department, because they
would not be seen as independent – yet these matters are those in
which they are most experienced and skilled. The problem, reinforced
by some interviewees, is most acute in relation to the lawyers from the
CPS: they are in principle eligible for recorder or deputy district judge
posts but the fact that most prosecutions are brought by the CPS limits
the opportunities to sit on criminal cases, and the lack of part-time
judicial experience makes a full-time salaried judicial position less
likely.134
More thought might be given to what constitutes a true conflict of
interest. Doubts have thus been raised that the current sitting limitation
for CPS lawyers could be justified since somebody at the referral Bar who
does nothing but prosecution work can be a recorder in that area and sit
on criminal cases.135
While it remains necessary to avoid conflicts of interest, there
may be an argument in favour of relaxing the requirement to have
acted as a fee-paid judge and for the Judicial Appointments Commis-
sion to find alternative means of testing their abilities. CPS lawyers
could also sit as part-time judges away from the geographic area in
which they work as prosecutors. This is problematic too, however, given
the increasing number of formerly prosecuting agencies now under the
CPS umbrella. Responsibility for the numerous prosecutions brought
for benefit fraud by the Department for Work and Pensions, for
example, has now been transferred to the CPS. While this amalgam-
ation brings greater consistency in public prosecutions, it entails that
more persons are CPS employees, and more prosecutions are brought
by the CPS. This must be read against the House of Lords’ judgment
that even a juror who is an employee of the CPS cannot sit on a case
brought by the CPS as it would infringe the principle nemo iudex in
sua causa.136

F. The tribunals judiciary

4.28 Before the Tribunals, Courts and Enforcement Act 2007 came into
force, members of tribunals would be appointed by the relevant Secretary

134
Committee on the Constitution, Committee on the Constitution, Twenty-Fifth Report.
Judicial Appointments (7 March 2012), paras. 126–32.
135 136
Ibid., para. 130. R v. Abdroikov [2007 1 WLR 2679.

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ii. a fair reflection of society 135

of State. There was no consistent practice between departments, although

a common set of the main rules for appointments was produced by a
team of tribunals’ representatives and lawyers from the Ministry of
Justice following the Leggatt Review. The establishment of the Judicial
Appointments Commission thus introduced significant changes and
consistency in appointments procedures. Interviewees were prompt to
acknowledge that the systemic changes following the Leggatt Review and
the Tribunals, Courts and Enforcement Act 2007 had raised the profile of
tribunals. Some interviewees emphasised the value of appraising part-
timers and the existence of mentors, the greater diversity among tribunal
judges, as well as the fact that it was hard work and that a bad part-timer
would not last long in the post.
The merger of courts and tribunals within HMCTS in 2011 has led to a
greater interplay between them. Judicial moves between courts and
tribunals are simply a matter of work assignment and it is also conceiv-
able that some tribunal members and lower court judges may be trained
together in the near future. The deployment of some tribunal judges to
the High Court under the Crime and Courts Bill, as noted earlier,137
illustrates a possible career progression. The Bill’s impact may be
restricted, however, as many tribunals are still specialist tribunals, and
the expertise gained in a particular social matter may not be sufficient for
advancement to the High Court. It would seem desirable to further
develop progression through tribunals too.
One may also recall the recent case of R (Cart) v. UT,138 where the UK
Supreme Court clarified the circumstances in which the unappealable
decisions of the Upper Tribunal are amenable to judicial review in the
High Court. It held that permission for judicial review should be granted
if the claim raises an important point of principle or some other compel-
ling reason to review the case. This could be seen as evidence that the
immigration tribunals can contribute to the development of the law,
something that would not have been accepted ten to fifteen years ago,
when there was a much greater variety between adjudicators. As one
interviewee observed, however, an alternative explanation, equally valid,
is that the workload in tribunals is such that the legal issues remain
‘floating’ and have to be solved by courts.

137
See above, paras. 3.34 and 3.35.
138
R (Cart) v. UT [2011] UKSC 28; [2012] 1 AC; R (MR (Pakistan)) v. UT (Immigration &
Asylum Chamber) & SSHD [2011] UKSC 28.

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136 judicial appointments

III. Judicial mobility and progression

4.29 Each bench is perceived as requiring different skills. In this context,
promotion ‘up the ranks’ may not be taken for granted, even for post-
holders who are thought to be doing very well in their present post.
Instead, it may be thought, promotion should only naturally work within
the same bench itself (e.g. one may be promoted to be the Presiding
Judge of a certain Division, although some interviewees rejected the idea
that this could be seen as a promotion). Indeed, the fact that each post
must be subject to competition substantially dilutes the expectation that
‘good performers’ will be promoted as a matter of course. We have noted
that the Crime and Courts Bill strengthens the transparency and open-
ness of the process by transferring within the remit of the Judicial
Appointments Commission the selection of deputy High Court judges.139
With the adoption of the Crime and Courts Bill, judicial appointments
are open to competition up to the level of the High Court, Court of
Appeal and again at the UK Supreme Court. At the level of the Court of
Appeal, the candidates are effectively promoted from the High Court.
Some have suggested that appointments to the Court of Appeal could be
open to competition from outside the High Court. Some stark differ-
ences, however, between the two appellate courts explain the High Court
preference. The Supreme Court gives judgment in about sixty cases per
year, a number markedly small in comparison with the caseload of the
Court of Appeal.140 The Supreme Court is widely perceived as dealing
with ‘pure law’ and as such most interviewees did not consider the lack of
judicial experience as a disqualification in itself for appointment. The
Court of Appeal requires some criminal work, and part-time experience
as a High Court judge in this field ensures that the appointee is
immediately operational.
Judicial appraisal has rightly been suggested as a way to enhance career
progression. The Judicial Appointments Commission supports appraisal
as evidence of the candidates’ performance,141 and appraisal is also one of

139
Crime and Courts Bill 2012, Senior Courts Act 1981 s. 9(2CA), as inserted by para. 49,
see above, para. 4.16.
140
Ministry of Justice, ‘Judicial and Court Statistics 2011’; G. Drewry and L. Blom-Cooper,
The House of Lords and the English Court of Appeal’, in Blom-Cooper, Dickson and
Drewry (eds), The Judicial House of Lords 1876–2009, p. 48.
141
Thus the Judicial Appointments Commission, in collaboration with the Association of
Her Majesty’s District Judges, developed a process of using appraisal information in the
reference process for the District Judge Selection Exercise in 2011, which will be adapted

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iii. judicial mobility and progression 137

the suggestions made by the Advisory Panel on Judicial Diversity, in

order to enhance the structure of judicial careers.
Some informal mechanisms for accountability and promotion existed
before the CRA, with informal discussions taking place between judges
within a circuit or at district court level. These discussions would even-
tually shape the views of the Senior Presiding Judge when deciding about
appointments. An appraisal scheme administered and operated by the
judiciary would be desirable. Yet it raises a dual concern of undue
interference with judicial decisions and of abdication of responsibility
when promotions are heavily based on appraisals by peers.142 There is
currently no comprehensive system for appraisal for courts or tribu-
nals.143 The appraisal system is rather ‘patchy’ for tribunals, but appraisal
also applies to deputy district judges: the district judge will sit with a
deputy district judge once a year. Judicial appraisal is a costly exercise: a
judge has to take a day out of sitting to appraise another. Unlike tribu-
nals, the judiciary never had a budget in place for appraisals, and the
recent financial cuts make the development of appraisal unlikely.
Judicial appraisal needs to be finely tuned to be meaningful. There was
a broad consensus among interviewees that appraisal should apply
to part-time judges, such as recorders. Many interviewees thought that
full-time judges who are working with each other need not be appraised.
Horizontal appraisal, between colleagues, within a collegiate court is not
appropriate. One suggestion would be to involve recently retired judges
in appraisals. The factors to be considered during an appraisal also need
to be carefully drafted. The Tribunals’ Protocol for appraisals lists
‘number of appeals’ as one element of the appraisal.144 It can only be
one factor among others since the appeal could be triggered by a genu-
inely difficult issue rather than, for example, excessive sentencing from a
judge. But this should not undercut the potential relevance of the factor;
some judges are systematically appealed against because they do seem to

for the 2013 District Judge (Civil) Exercise, ‘Evidence from the Judicial Appointments
Commission to the Senior Salaries Review Body’ (September 2012), para. 16; K. Malleson,
‘Judicial Training and Performance Appraisal: The Problem of Judicial Independence’
(1997) 60 MLR 655.
142
Bell, Judiciaries within Europe, 24.
143
A pilot recorder scheme of appraisal on the Northern circuit built on an appraisal
scheme developed at District Court level in Wales but, though it went well, it had to
stop due to lack of funding.
144
Judicial Studies Board, ‘Appraisal Standards and Appraiser Competences in Tribunals’,
December 2009.

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138 judicial appointments

indulge in excessive sentencing, and nothing happens in practice as a

result. Indeed, a proper appraisal system may make a particular impact at
Crown Court level. In 2011, 72 per cent of case law showed guilty pleas:
so it is problematic if significant numbers of trial judges are regularly
over-sentencing without any form of appraisal. Sentences take effect
immediately in England and the offender may have served his sentence
by the time that his appeal against it might be heard.
Interviewees noted how the judicial sentencing guidelines from the
Sentencing Council had improved judicial performance, with some
pointing to the need to ensure that the guidelines were followed –
appraisal would be helpful in this regard. Sentencing based on the
guidelines has become a complicated exercise and requests for appeal
from the Attorney General have increased on the basis that judges do not
tick all the boxes required under the sentencing guidelines. Some inter-
viewees also considered the appraisals done by courts’ user groups or, for
example, counsel. Many had in mind a legal magazine survey, giving out
names which were then picked up by the media. The survey of judges was
not systematic, however, and the views of everyone in London and in the
courts outside London would have been required. More to the point, one
needs only one strong bitter view to distort the survey.
While both mentoring and appraisal support career progression by
bringing in principles of conduct on a one-to-one basis, mentoring is
a personal development tool when appraisal can be used for promotion. If
appraisal is taken into account for promotion purposes, however, a judi-
cial appraiser would seem necessary to safeguard judicial independence.
Promotion is now decided by the Judicial Appointments Commission.
There is a need for differentiated methods of selection between the
appointment of a candidate to the position of judge for the first time, at
whatever level of the judicial hierarchy, and the promotion of a judge up
the judicial ladder.145 This would support the development of a fast-track
appointments system, so that those willing to gain entry at a senior level
can be brought in to the judiciary on the basis of their judicial experience
and achievements. A fast-track is desirable subject to maintaining a fair
and open appointment process based on merit.

145
L. Blom-Cooper, ‘The Age of Judicial Responsibility: The Retirement and Resignation of
Appellate Court Judges’, in S. Shetreet and C. Forsyth (eds.), The Culture of Judicial
Independence: Conceptual Foundations and Practical Challenges (Leiden: M. Njihof,
2012).

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iii. judicial mobility and progression 139

4.30 Training can also be raised as one element supporting the profes-
sionalism and career progression of the English judiciary. The first
judicial sentencing seminar took place in the Royal Courts of Justice in
the 1960s; it lasted one day. In 1979, a systematic structure for judicial
training, the Judicial Studies Board, was created, providing a type of
pupillage, with trainees sitting alongside a more experienced judge, and
an induction programme with annual refresher courses.146 In 2010 the
Judicial Studies Board became a Judicial College; the content of judicial
education remains the responsibility of judges themselves, with the aim
of promoting a culture of self-development among judges. The recogni-
tion that all judges need regular training further departs from the long-
established view that the art of judging was seen to be acquired almost
‘by osmosis’ during a judicial career. The focus is on practical skills and
ethical standards, more than on updates on the law. Financial con-
straints, however, limit the impact of training.
4.31 We should also mention the salaried part-time working scheme now
operating both in the courts and tribunals, up to but excluding the High
Court.147 It is not clear yet whether the extra flexibility in working hours
will prove sufficiently attractive to those in private practice, in particular
those with childcare responsibilities. One senior judge interviewed doubted
the impact of this scheme, noting that the fractional posts available to
district judges seemed to have been taken by male judges near retirement.
This could mean that there are not enough female lawyers high enough up
the ranks to be considered for those positions, or that male judges are to be
preferred for whatever reason for those fractional posts. Following criticisms
that opportunities for fractional working should be available at all levels of
the judiciary, the Crime and Courts Bill 2012 provides for part-time
appointments at the High Court and above, with the aim of increasing the
number of those with childcare responsibilities there.148

146
Cf. for other European judiciaries, G. Di Frederico (ed.), Recruitment, Professional
Evaluation and Career of Judges and Prosecutors in Europe (Bologna; IRSIG-CNR,
2005); CEPEJ, ‘European Judicial Systems Edition 2012 (2010 Data): Efficiency and
Quality of Justice’.
147
The first cadre of circuit judges commenced salaried part-time sittings during 2005–06,
with a steady increase of judicial office holders into the scheme since then. The right
to request flexible working is provided in the Employment Rights Act 1996, s. 80F
(as inserted by the Employment Act 2002, s. 47(1) and (2)).
148
The Bill introduces a reference to the full-time equivalent number of judges to the
statutory number of judges in the High Court, Court of Appeal and UK Supreme Court,
Crime and Courts Bill 2012, sch. 12.

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140 judicial appointments

The Judicial Appointments Chairman has argued that salaried part-

time working in the High Court would be transformational,149 and it was
recommended by the Constitution Committee; it certainly supports the
idea of career progression between the lower and senior ranks with a
consistent policy of flexible working. While many judges seem to believe
that part-time working would be difficult to accommodate within the
senior judiciary, given the long trials which can take place, at least one
senior judge interviewed concurred with the Lord Chief Justice that it is
possible to organise sitting patterns for High Court judges who have
caring responsibilities, so that during, for example, half-term school
holidays they can be at home.150 The acceptance of career breaks was
also seen as a further step, not yet achieved either within the judiciary or
the legal professions, towards increasing the number of women within
the judiciary.
The Lord Chief Justice has now expressed his support in the Crime
and Courts Bill for more flexible deployment of tribunal judges and,
subject to business need, for measures to enable more flexible working
patterns in the High Court and above.

IV. The UK Supreme Court

4.32 The United Kingdom has still never had an ethnic minority Law
Lord and has only one Law Lady. One issue, therefore, is whether
consideration of greater diversity at the UK Supreme Court would lead
to the dilution of the ‘merit’ principle, at the heart of appointments to the
highest Court in the land. Another matter of debate is the strengthening
of the democratic accountability through a possible political input in the
appointment process.

A. The appointment process

4.33 Applicants to the UK Supreme Court must have held high judicial
office for at least two years, or must satisfy the judicial-appointment
eligibility condition on a fifteen-year basis, or have been a qualifying

149
Oral Evidence, question 364.
150
For a word of caution on part-time arrangements in senior courts, see Oral Evidence
from Lord Carswell (Q 296), Lord Woolf (Q 297); Lord Mackay (Q 144) and the Oral
Evidence from the Lord Chief Justice (Q 189).

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iv. the uk supreme court 141

practitioner for at least fifteen years.151 The importance of representa-

tions of the different legal systems within the United Kingdom justifies
the requirement that, between them, the Supreme Court Justices ‘will
have knowledge of, and experience in, the law of each part of the United
Kingdom’, thus building upon the convention that two members from
the House of Lords were from Scotland and one from Northern
Ireland.152
The appointment process relies upon an ad hoc Selection Commission
of five members, convened by the Lord Chancellor when a vacancy
arises.153 It is chaired by the President of the Court and includes the
Deputy President of the Supreme Court and three other members drawn
respectively from the Judicial Appointments Commission, the Judicial
Appointments Board for Scotland and the Northern Ireland Judicial
Appointments Commission.154 The potential conflict of interest in rela-
tion to the President and Deputy President of the Court has been widely
criticised, and the fact that the President of the UK Supreme Court chairs
the panel appointing his/her own successor has also been recognised as
inappropriate. Both are due to disappear under the Crime and Courts Bill
2012.155
Supreme Court appointments must be on merit and remain subject,
under the CRA, to some consultation with the senior judges, the Lord
Chancellor, the First Ministers of Scotland and Wales, and the Secretary
of State for Northern Ireland.156 The consultations with senior judges
prior to the shortlisting of candidates create potential conflicts of interest
since they might themselves have applied for those posts.157
The ad hoc Selection Commission must submit a report to the Lord
Chancellor which must state who has been selected and who was con-
sulted.158 The Lord Chancellor is then required to consult with the same
persons as the Commission.159 The first minister in Scotland and the first

151
CRA, s. 25(1) as amended by ss. 50–52 of the Tribunals and Enforcement Act 2007. High
judicial office includes High Court judges of England and Wales, and of Northern
Ireland; Court of Appeal judges of England and Wales, and of Northern Ireland; and
judges of the Court of Session.
152
CRA, s. 27(8). The Committee on the Constitution noted that this is not comparable to
the appointment of an individual from an underrepresented group, Committee on the
Constitution Report 2012, para. 92.
153 154
CRA, sch. 8. CRA, s. 27.
155
CRA, ss. 27 and 27A as amended or inserted by the Crime and Courts Bill 2012, sch. 12,
paras. 4 and 5.
156 157 158
Ibid. Paterson and Paterson, ‘Guarding the Guardians?’, 29. CRA, s. 28.
159
Ibid.

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142 judicial appointments

minister for Wales and the Secretary of State for Northern Ireland are
also to be consulted. If the Lord Chancellor is content with the recom-
mendation made by the Commission, he forwards the person’s name
to the prime minister who, in turn, sends the recommendation to the
Queen. The Lord Chancellor can reject a recommendation of the Com-
mission but only on the grounds that the person ‘is not suitable for the
office concerned’. The Commission is then not permitted to reselect that
candidate.160 The Lord Chancellor can also require the Commission to
reconsider a selection if (a) there is not enough evidence that the person
is suitable for the office concerned, (b) there is evidence that the person is
not the best candidate on merit, or (c) there is not enough evidence that if
the person were appointed the judges of the court would between them
have knowledge of, and experience of practice in, the law of each part
of the United Kingdom. Reasons must be given in writing by the Lord
Chancellor to the Selection Commission for rejecting or requiring recon-
sideration of a selection.161

B. The appointment authorities

4.34 Currently the panel includes two members of the Supreme Court
itself, and three representatives from the three jurisdictions in the United
Kingdom, who do not have to be lay persons. It is suggested that the
Selection Commission itself should be expanded specifically to include
lay persons and preferably with a greater diversity and ethnicity mix.
Experience from other countries tends to show that the more diverse the
panel, the more diverse the appointments.162 The presence of some
senior academic lawyers and/or senior representatives of the legal pro-
fession would make the commitment to seeking diversity demonstrably
visible and more effective. As noted above, Supreme Court decisions
normally resolve higher questions of law, and academics, even if them-
selves removed from the tumult of litigation, can have an expert view on
how convincing some applicants are in their judgments.
Another feature of the English model limits undue political interfer-
ence: the Lord Chancellor currently exercises a power of veto over the
recommendation of the Selection Commission rather than a choice.163
However, under the Crime and Courts Bill 2012, the Lord Chancellor

160 161 162

CRA, s. 30. CRA, s. 30. Bell, Judiciaries within Europe.
163
The German position is relevant as there a veto power can be exercised by the executive,
see J. Bell, Written Evidence before Parliament, 2004 and Judiciaries within Europe.

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iv. the uk supreme court 143

may sit (but not chair) as a member of the Selection Commission for the
appointment of the President of the Supreme Court.164 In such case, he
would lose his power of veto.165 He would, however, retain the right to
ask the appointing commission to reconsider its chosen candidate.166
One may doubt whether it is appropriate for the Lord Chancellor to sit
as a member of the selection commission for the office of the UK Supreme
Court President.167 If, however, this proposal becomes law, the closer
involvement of the Lord Chancellor may be accommodated with greater
safeguards against any improper political influence. One such safeguard
exists in Germany, the first place to have a public list of eligibility.
Whether people are included on this list is something which can be
(and is) challenged in the courts, and the choice of people for appoint-
ment from the list can equally be challenged. Thus, a German judge was
able (successfully) to challenge the nomination of a member of the Green
party to the Bundesgerichtshof on the ground that he was better qualified
(a view which was shared by the judges in the Bundesgerichtshof itself).
The right of applicants or disappointed colleagues to challenge decisions
may be a sufficient safeguard against improper political decisions.168

C. Merit and diversity

4.35 Many politically significant decisions are taken at the level of the
Court of Appeal and UK Supreme Court. Here individuals are needed
with experience in reasoning on points of principle and policy of the

164
See CRA 2005, s. 27(1)(c), as inserted by the Crime and Courts Bill, sch. 12, paras. 4 and 5.
Under sch. 12 Crime and Courts Bill, the details of the selection process for appointments
to the UK Supreme Court will be removed from the CRA 2005. They will instead be set
out in secondary legislation, with a power conferred to the Lord Chancellor to make
regulations about membership and procedures for the selection process, see CRA 2005, s.
27A, as inserted by the Crime and Courts Bill, sch. 12, paras. 4 and 5. Consultation with
the three heads of judiciary in each of the UK’s legal jurisdictions will be required before
making regulations, and the regulations will be subject to affirmative resolution procedure,
see CRA 2005, s. 27A, as inserted by the Crime and Courts Bill, sch. 12, paras. 4 and 5.
165
See CRA 2005, ss. 27 and 27A, as amended or inserted by the Crime and Courts Bill, sch.
12, paras. 4 and 5.
166
CRA 2005, ss. 27 and 27A as amended or inserted by the Crime and Courts Bill, sch. 12,
paras. 4 and 5.
167
Constitution Committee, ‘Second Report Crime and Courts Bill [HL]’ (June 2012),
paras. 15–17.
168
J. Bell, ‘Memorandum’, in Select Committee on Constitutional Reform Bill, ‘First Report.
Written Evidence’, vol. II, HC 125-II (24 June 2004); D.P. Kommers, ‘The German
Judiciary’, In P.H. Russell and D.M. O’Brien (eds), Judicial Independence in the Age of
Democracy (Charlottesville/London: University of Georgia, 2001) p. 131.

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144 judicial appointments

highest importance. More than 50 per cent of litigation brought to the

Supreme Court is public law litigation.169 Should a candidate of equal
merit to another candidate but with great public law experience be
preferred? The answer to this argument is provided by the English
judicial culture. Traditionally, one of the many strengths of the English
judiciary has been that, when promoted to the High Court, judges would
gain a breadth of experience and move from one type of case to the other –
even though some areas, such as intellectual property, are seen as needing
particular expertise. The expectation would be that accession to the Court
of Appeal might lead to promotion to the UK Supreme Court, because it
is a sign of the candidate’s perceived versatility.
This is not to say that time served in the High Court or Court of
Appeal is a necessary stage for justices of the UK Supreme Court. It is
rather that, once we recognise that appointments to the UK Supreme
Court or Court of Appeal could come from outside the Court of Appeal
or the High Court, then the importance of the candidate’s specific
individual expertise to the collective composition of the Court may
become decisive. Guidance from the Lord Chancellor on the notion of
merit may assist the panel in concerns for the collective needs of the
UK Supreme Court.170 Lord Phillips further suggested, though did not
endorse, one amended statutory test for ‘merit’ in Supreme Court
appointments, as follows: ‘The Commission must select that candidate
who will best meet the needs of the court, having regard to the judicial
qualities required of the Supreme Court Justice and to the current
composition of the court.’171 The guidelines for questioning for nomin-
ation to the South African Constitutional Court treat diversity as ‘a
component of competence’; diversity ‘is not an independent requirement
superimposed on the constitutional requirement of competence’.172

169
Lord Phillips, Evidence before the Committee on the Constitution, Autumn 2011.
170
CRA, s. 27(9). Under the Crime and Courts Bill 2012, before issuing any guidance to
Selection Commissions, the Lord Chancellor will consult the senior judge of the UK
Supreme Court. Then guidance will be subject to Parliamentary scrutiny, see CRA 2005,
s. 27B, inserted by the Crime and Courts Bill, sch. 12, para. 6. Further, under the Crime
and Courts Bill 2012, s. 159 of the Equality Act 2010 will apply to UK Supreme Court
Appointments, see Crime and Courts Bill, Pt. 2, sch. 3; HL, Deb., col. 834 (25 Mar 2013).
171
HL Select Committee on the Constitution, ‘Judicial Appointments’, Twenty-Fifth Report
(7 March 2012), para. 91.
172
Judicial Services Commission, ‘Guidelines for questioning candidates for nomination to the
Constitutional Court’, p. 5; F. du Bois, ‘Judicial Selection in Post-Apartheid South Africa’, in
K. Malleson and P. H. Russell (eds.), Appointing Judges in an Age of Judicial Power. Critical
Perspectives from Around the World (University of Toronto Press, 2006), p. 281.

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iv. the uk supreme court 145

In many other European countries, it is taken for granted that a broad

range of experience and expertise in the court sharpens the quality of
decision making, and the appointments at constitutional court level
reflect a mixture of judicial and non-judicial experience.173 It seems right
that having more female and ethnic minority judges would improve the
reasoning, even if not necessarily the outcome, in some decisions.174 This
applies to the UK Supreme Court which hears appeals in panels and to
the Court of Appeal which holds hearings in smaller panels.
To take but one example from many, while her peers speak about
restricting the defence of duress for criminals who knowingly keep the
company of violent people,175 it is Baroness Hale alone who points out that
many such ‘criminals’ could be previously law-abiding partners of violent
men who force them to assist them in their ventures, or to help them cover
up their own crimes. One does not have to be a woman to note this point,
and not all women will agree with all of her views; but there can be little
doubt that her gender enables or even empowers Baroness Hale to share
certain wider insights about the potential implications of Supreme Court
decisions. Baroness Hale commented, having been outvoted 4:1 on another
case, that it could be that the ‘physical differences between men and
women lead them to have different views of what dignity means in this
context. So it is not surprising that women take a different view.’176
Similarly, suitably qualified judges from ethnic minorities might, for
example, have their own views about how far the police should be
allowed in certain designated areas to stop and search anyone for items
which may be connected to terrorism. Such a decision was taken by the
(then) House of Lords despite a recognised concern that such powers
might be used disproportionately against ethnic minorities, in the form
of ‘racial profiling’.177 Notably, this decision was overturned by the
European Court of Human Rights.178

173
C. Thomas, ‘Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review
of Research, Policies, and Practices’ (The Commission for Judicial Appointments, 2005);
Advisory panel on judicial diversity, ‘Report’.
174
R. Hunter, C. McGlynn and E. Rackley, Feminist Judgments: From Theory to Practice
(Oxford: Hart Publishing, 2010); E. Rackley, Women, Judging and the Judiciary. From
Difference to Diversity (London: Routledge-Cavendish, 2012).
175
R v. Hasan [2005] UKHL 22; [2005] 2 AC 467.
176
McDonald Citation, The Times, 15 October 2011; see also R v. J [2005] 1 AC 562 and R
v. G [2008] UKHL 37.
177
R (Gillan) v. Metropolitan Police Commissioner [2006] UKHL 12.
178
Gillan and Quinton v. UK (2010) 50 EHRR 45.

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146 judicial appointments

Lord Sumption’s appointment demonstrates that the weight given to

academic179 and intellectual ability might depend upon the judicial role
that is being sought. In respect of selection for the Supreme Court, this is
particularly significant on account of its relevance to the development of
general principles. Further, on that basis, a legal academic or law com-
missioner relatively unused to litigation and the conduct of trials might
be a potential candidate for the Supreme Court.180 Testing the applicant’s
aptitude would then involve a review of his or her most significant legal
works, perhaps with an eye on whether they typically suggest solutions to
common problems.

D. The role of Parliament

4.36 One often-mooted answer to the problem of diversity is that the
appointments to the Supreme Court should be overseen by a parliamen-
tary committee made up of members from a representative spectrum of
political parties. Some also argue that the lack of input from the legisla-
ture in the appointment process amounts to an unacceptable lack of
democratic accountability.181 Answering to Parliament for the way in
which Supreme Court justices are selected, including their awareness of
the benefits of greater diversity, constitutes a necessary check on the
judiciary. But it does not follow that any individual appointment should
be called into question via pre- or post-appointment hearings. However,
while the UK Supreme Court appointment system enhances the protec-
tion from partisan politics, it falls short of constituting a corporate
process of appointments. It has been described as the ‘least accountable’
system in the common law world because of the lack of elected politicians
in the commission’s membership, and the lack of devices to enhance
transparency.182 It is arguable that some form of parliamentary involve-
ment in the appointment process of Supreme Court justices would
generate a greater political legitimacy of the Supreme Court. This would
appear desirable in a context of expanded review of executive and
legislative action. Also, the public understanding of the appointment
process would be further improved, and the public may indeed become
more interested in learning of the powers of the Supreme Court. That

179
For the sake of clarity, Lord Sumption had not been a legal academic.
180
Lord Clarke, ‘Selecting Judges’, para. 29.
181
Paterson and Paterson, ‘Guarding the Guardians?’; Mt. Scopus, para. 4.2.
182
P. Russell, ‘Conclusion’, in Malleson and Russell (eds.), Appointing Judges, 430–1.

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iv. the uk supreme court 147

would give the media an extra opportunity to educate the public about
issues of legal policy, such as judges’ approaches to the scope of review
under the Human Rights Act 1998, which might be thought to act as a
sort of counterbalance to the feeding of inaccurate information from
some tabloid newspapers.
Confirmation hearings, however, were rejected by the Joint Select
Committee on the Draft Constitutional Renewal Bill in 2008, on the
basis that the balance achieved under the CRA made further reforms of
the appointment process premature.183 Concerns were expressed about
the risk of politicising the judicial appointments process. It has also been
argued that ‘the involvement of Parliament would add little, if any, value
to the process, be a drain on, or subject to, parliamentary time and
resources, and be liable to delay the overall appointments process’.184
Perhaps another reason would be distrust of the media. Tabloid
reporting, which is typically exaggerated in order to excite its readership,
may be thought unlikely to contribute helpfully to ascertaining judicial
merit, and most would think it to be for the better that such newspapers
do not currently involve themselves in campaigns as to who should be
appointed to the top judicial positions. Different views may be found
in countries where the influence of the media on public life is regarded
as healthier.
The House of Lords Select Constitution Committee, in 2012, was
opposed to giving Parliament a greater involvement in the judicial
appointment process, concluding:
We are against any proposal to introduce pre-appointment hearings for
senior members of the judiciary. However limited the questioning, such
hearings could not have any meaningful impact without undermining the
independence of those subsequently appointed or appearing to pre-judge
their future decisions. In the United Kingdom, judges’ legitimacy depends
on their independent status and appointment on merit, not on any
democratic mandate.
We agree that post-appointment hearings of senior judges would serve
no useful purpose. There may be an exception in the case of the Lord
Chief Justice and the President of the Supreme Court who undertake
leadership roles for which they can properly be held to account.

183
Joint Committee on the Draft Constitutional Renewal Bill, ‘The Draft Constitutional
Renewal Bill’, Report, vol. 1 (2008), para. 164.
184
Ministry of Justice, ‘The Governance of Britain: Analysis of Consultations’, Cm 7342-III
(2008), para. 175. The deterrent effect of appointment hearings on potential candidates
was also considered.

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148 judicial appointments

Parliamentarians, acting in that capacity, should not sit on selection

panels for judicial appointments. There is no useful role that parliamen-
tarians could play in Judicial Appointments that could not be played by
lay members on selection panels. It would not be possible to choose one
or two parliamentarians without recourse to political considerations and
in so doing it would be difficult to maintain the appearance of an inde-
pendent judicial appointments process.185

A number of points made in this passage must be developed. First, the

Constitution Committee rejects the suggestion that some parliamentary
Select Committee could hold pre- or post-appointment hearings of the
judicial appointees.186 Critics would emphasise that few interesting ques-
tions can be legitimately asked or that questions would be asked which
should not be asked for fear of attacking judicial independence or
compromising judicial impartiality.187 Nonetheless, supporters of con-
firmation hearings have relied in particular upon the Canadian Supreme
Court appointment process to defend their case. It is argued that ‘beyond
the necessary restrictions, Canadian Supreme Court nominees have
answered informatively on a broad range of topics . . ., from the qualities
that qualify them for the post to the broad relationship between the
judiciary and the other branches of state’.188 The one judge interviewed
supporting confirmation hearings, however, took distance from the Can-
adian system on the ground of its politicisation.
One might consider the American president’s power to select Supreme
Court justices, which is exercised with the ‘advice and consent’ of the
Senate. In the summer of 2010, for four days, Sonia Sotomayor answered
questions from the Senate Judiciary Committee, before her nomination
was subject to a vote in the Senate. The New York Times thus com-
mented: ‘Despite 583 questions from senators amid wall-to-wall news
media coverage, her hearing may prove to be as notable for what the
country did not learn about her as much as for what it did.’189 This would
support the view that her appointment had been secured during the

185
HL Select Committee on the Constitution, n. 91, pp. 61–2.
186
Ministry of Justice, ‘The Governance of Britain: Judicial Appointments’, Consultation
Paper CP 25/07, Cm. 7210 (2007), p. 48; see also HL Select Committee on the Consti-
tutional Reform Bill, Minutes of Evidence given by Robert Hazell (6 April 2004).
187
See the Oral Evidence from Lady Justice Hallett, Lord Irvine and Lord Justice Goldring.
188
Paterson and Paterson, ‘Who’s Guarding the Guardians?’; the distinctive social and
cultural context singles out the Judicial Appointments Commission from South Africa,
where the majority of members of the Appointments Commission are politicians, and
where the notion of merit has been modified to integrate ethnical considerations.
189
Cited by R. Smith, ‘Judging the Judges’ (2009) 159 NLJ 1154.

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iv. the uk supreme court 149

consultation that must have preceded the candidate’s nomination, in a

way which may not be too dissimilar to the consultation process for
appointments to the highest court of the UK.
One key difference between the two processes is that the American
legislature is part of the consultation process. It might then be further
argued that, in the English context, the Westminster system would place
the confirmation hearings in the hands of the executive, as it forms the
dominant part of the legislature. Indeed, even if such a panel were drawn
from a cross-section of political parties, the readiness of recent govern-
ment ministers publicly to attack judgments which they found unwel-
come creates an uneasy background to any political involvement in
individual appointments. It follows that the Crime and Courts Bill
provision for greater involvement of the Lord Chancellor in appoint-
ments to the most senior judiciary in England and Wales is unnecessary
and has the potential to reintroduce political patronage.
The House of Lords Constitution Committee also states that ‘in the
United Kingdom, judges’ legitimacy depends on their independent
status and appointment on merit, not on any democratic mandate’.
Indeed, judicial legitimacy refers to the acceptance of the court by the
parties, the citizens and society at large, and there are several different
sources of constitutional judicial legitimacy. Legitimacy justifies public
trust in the court on the basis of various factors, such as the selection of
judges, their independence and the reasoning supporting the court’s
judgments.190
4.37 Most of the European judicial appointment institutions recognise
that those who have political responsibility are among those best placed
to undertake such scrutiny of candidates for judicial appointments,191
and various states from the Commonwealth have a legislative input
into the process. The variations of legislative involvement reflect a spe-
cific balance between distinct values such as impartiality, separation of
powers, accountability, transparency and the requirement of a fair repre-
sentation of civil and/or political society in the composition of the
judiciary. In brief, differing cultures of judicial independence shape the
selection processes and criteria, and the English model of appointments

190
J.E. Soeharno, ‘From Rechtsstaat to Ruler in the Rule of Law: an Inquiry into the
Increased Role of the Judiciary’, in A. van Hoek et al. (eds.) Multilevel Governance in
Enforcement and Adjudication (Antwerp: Intersentia, 2006), p. 157.
191
Bell, ‘Memorandum’.

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150 judicial appointments

must be assessed in the English constitutional settings, so that each trait

of the appointment process should be seen as one part of a whole.192
Certainly, any openly political bias can be highly corrosive of the merit
principle in judicial appointment. Some of our interviewees were con-
cerned that MPs would allow their own politics and beliefs to influence
their decision, for example if candidates offered different views relating to
euthanasia (one interviewee remarked that in this area the democratic
system was already usurped by having so many Bishops in the House of
Lords). Many agreed that a fair reflection of society is a legitimate goal
which can achieved within the requirements of maintaining the profes-
sional quality and the moral integrity of the judiciary. For this purpose,
however, it was thought that greater clarity on criteria and responsi-
bilities of the lay members, with a greater gender and ethnic mix, should
be set. Interviewees were keen to have a cross-section of talents, strong
and independent lay members who must be able to challenge the judicial
members of the panels beyond asking them for reasons for their views.

V. Judicial appointments to the European Court of Human

Rights and to the Court of Justice
4.38 Judicial selection for international courts and tribunals is tradition-
ally a matter for the state, and the appointment processes accordingly
greatly vary between states. Public trust in these courts depends upon,
among other factors, the selection of judges and their independence.193
But as a matter of general observation on international courts, it is not
always clear in some states whether the most able and independent
judges have been appointed, and in the case of the most able judges,
whether this has been because of, or in spite of, the selection process,
which is not universally well advertised nor free from political influ-
ence.194 Of particular interest, in the context of this book, is the English
appointment system for the Court of Justice of the European Union in
Luxembourg and for the European Court of Human Rights in Stras-
bourg. Both Courts have had a profound impact on domestic law, and

192
S. Shetreet, ‘On Assessing the Role of Courts in Society’ (1980) 10 Manitoba Law Journal
355, 399–402.
193
P. Mahoney, ‘The International Judiciary: Independence and Accountability’ (2008) 7
The Law and Practice of International Courts and Tribunals 313; H. Ruiz-Fabri and J.-M.
Sorel (eds), Indépendence et impartialité des juges internationaux (Paris: Pédone, 2010).
194
R Mackenzie et al (eds), Selecting International Judges: Principles, Process, and Politics
(Oxford University Press, 2010) 2.

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v. appointments to the european courts 151

domestic judges take into consideration and apply their jurisprudence on

a daily basis.195 Judicial selection for both Courts has recently been
subject to reforms, with a much-needed greater emphasis on transpar-
ency and judicial skills as criteria for appointments.
To many, the Court of Justice’s case law fosters integration more
efficiently than the inter-governmental arrangements/the Treaties
themselves.196 The principles of direct effect and primacy of European
Union law197 are the cornerstones of an ever-maturing European con-
stitutional order. Individuals have benefited from the judicial develop-
ment of legal obligations that can be enforced against the member
states, so that this ‘new legal order’ is yet more than an international
legal regime which would create obligations enforceable solely among
the participating states themselves.198 The Court of Justice recruits one
judge for every member state, who serves one renewable term of six
years. Candidates are first selected at a national level. Their selection is
then discussed by the Council of Ministers, who would be expected to
appoint them unanimously, ‘by common accord’. Until the Lisbon
Treaty, the Court had no formal say in the selection process. The
subject of judicial selection was perceived as an ‘unfinished, and
almost unstarted, business’:199 candidates seemed to be endorsed by
the Council without discussion and national procedures could be seen
as lacking transparency or guarantees of independence from executive
influences.200

195
See, e.g., the comment from the Immigration & Asylum Chamber President that his
Chamber ‘has had to consider how the decision of the CJEU in Case 34/09 Ruiz
Zambrano (8 March 2011) applied to cases where a non citizen parent faces removal
either with or from a UK citizen child’, the Senior President of Tribunals’ Report for
2012, pp. 18–19.
196
The analysis of judicial appointments to the Court of Justice of the European Union
relies in part upon excerpts from S. Turenne, ‘AG’s Opinions or Separate Opinions?
Judicial Engagement at the CJEU’ (2011–2012) 14 CYELS 723.
197
European Communities Act 1972; Case 26/62 Van Gend en Loos v. Nederlandse Admin-
istratie der Belastingen [1963] ECR 1 and Case 6/64 Costa v. ENEL [1964] ECR 585;
Thoburn v. Sunderland City Council [2003] QB 151.
198
The European legal order is short of a federal state but is more than an international
organisation of independent sovereigns, A.-M. Burley and W. Mattli, ‘Europe before the
Court: A Political Theory of Legal Integration’ (1993) 47 International Organization 41.
199
Lord Mance, ‘The Common Law and Europe: Differences of Style Or Substance and Do
They Matter?’, Presidential Address to the Holdsworth Club of the University of
Birmingham, 26 November 2006, p. 10.
200
Lord Mance, ‘The Composition of the European Court of Justice’, talk given to the UK
Association for European Law, 19 October 2011, p. 8.

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152 judicial appointments

Under Article 255 of the Treaty on the Functioning of the European

Union (TFEU), however, an advisory panel was created, appointed by the
Council. It comprises seven national and European judges and lawyers,
chosen from among former members of the Court of Justice and the
General Court, members of national supreme courts and lawyers of
recognised competence, one of whom is proposed by the European
Parliament. The panel gives an opinion on the candidates’ suitability to
perform the respective duties of Judge and Advocate General of the
Court of Justice.201 The introduction of a screening panel with a domin-
ant judicial presence is a breakthrough towards the emancipation from a
purely political appointment process, at least at the level of the Council.
Though it does not have a power of veto, the panel’s practice to enquire
about the national selection process is a welcome scrutiny and encour-
agement of independent judicial selection procedures at state level. This
can only develop greater independence and transparency of the appoint-
ment process, and the promotion of merit,202 a key component of any
court’s persuasive authority.
The advertising for the post of UK judge, in the last round of selection
in 2011, appeared on the Judicial Appointments Commission’s website.
But the competition is overseen by the Foreign and Commonwealth
Office, on merit and in accordance with the Equality Act 2010. The latest
appointee to the Court of Justice was recommended to the government
following a selection and interview process, with the interview panel
comprising lay, judicial and legal members.
Under Article 252 TFEU, appointees to the Court must be ‘persons
whose independence is beyond doubt and who possess the qualifications
for selection to the highest judicial offices in their respective countries or
who are jurisprudents of recognised competence’. The potential needs for
particular expertise in a field are not specified in the judicial recruitment
process, yet it seems to be commonly accepted that the Court would
benefit from more judges with experience in criminal cases and, interest-
ingly, the appointed judge, Christopher Vajda QC, is an expert in
competition law and European law and has also sat as a recorder within
the Crown Court for the past eight years – which fits in with the current
needs of the Court of Justice.

201
See the panel operating rules, the Council Decisions of 25 February 2010 (2010/125/EU)
and (2010/124/EU).
202
J. Limbach et al., Judicial Independence: Law and Practice of Appointments to the
European Court of Human Rights (London, Interights, 2003).

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v. appointments to the european courts 153

In practice, the chosen judges and Advocates General support the

process of European integration.203But the lack of data on the processes
of the Court of Justice – where there is no separate judgment – makes it
difficult to assess the variations in reasoning between judges within the
Court and any possible correlation with the judicial selection process. In
international courts, legal cultures (starting with whether judges have
been practitioners or academic scholars before being appointed), policy
preferences and career incentives appear to be the three grounds behind
variations in judicial reasoning.204 Some note a trend among member
states towards appointing professional judges and general judges from
constitutional or public law courts,205 though the Court’s Annual Report
for 2010 shows a professorial bias among Advocates General, with far
more diverse backgrounds for judges.
The short tenure of six years might lead to judges being concerned about
their reappointment, and the advisory panel cannot prevent an inappropri-
ate or politically motivated non-renewal of the mandate of a judge, but the
single-voice judgment style adopted by the Court at least ensures that
governments do not know the opinions of their national judge.206
4.39 By comparison with the Court of Justice of the European Union, the
European Court of Human Rights interprets and applies the European
Convention on Human Rights (ECHR). When domestic courts deal with
a case under the Human Rights Act 1998 (HRA), they are required to
take into consideration any relevant Strasbourg case law.207 The UK
Supreme Court has recently clarified that:
where . . . there is a clear and constant line of decisions whose effect is not
inconsistent with some fundamental substantive or procedural aspect of
our law, and whose reasoning does not appear to overlook or misunder-
stand some argument or point of principle, we consider that it would be
wrong for this Court not to follow that line.208

203
F. Bruinsma‚ ‘A Socio-Legal Analysis of the Legitimacy of Highest Courts’, in N. Huls,
M. Adams and J. Bomhoff (eds), The Legitimacy of Highest Courts’ Ruling. Judicial
Deliberations and Beyond (The Hague: T.M.C. Asser Press, 2009) 61.
204
E. Voeten, ‘The Politics of International Judicial Appointments. Evidence from the
Court of Human Rights’ (2007) 61 International Organization, 669.
205
D. Edward, evidence to the House of Lords, The Treaty of Lisbon: an Impact Assessment,
10th Report of Session 2007–2008; HL Paper 62-II, vol. II Evidence, Q132.
206 207
Turenne, ‘AG’s Opinions or Separate Opinions?’. HRA, s. 2(1).
208
See Manchester City Council v. Pinnock [2010] UKSC 45, para. 48; R (Ullah) v. Special
Adjudicator [2004] UKHL 36, para. 20 [Lord Bingham]; R v. Horncastle [2009] UKSC
14; Al-Khawaja v. UK (2009) 49 EHRR 1; Al-Khawaja v. UK [2011] ECHR 2127.

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154 judicial appointments

In addition, the European Court of Human Rights’ judgments bind

the UK as a matter of international law.209 In the context of acrimoni-
ous tensions following the European Court’s judgment on prisoners’
voting rights, the UK concerns have focused on the qualification and
experience of judges, judicial independence and transparency of
selection.210
Judges appointed now have a single non-renewable nine-year
term.211 Under Article 21(1) ECHR, ‘The judges shall be of high moral
character and must either possess the qualifications required for
appointment to high judicial office or be jurisconsults of recognised
competence’. In practice, member states submit a list of three candi-
dates to the Parliamentary Assembly of the Council of Europe. In 2012,
the shortlist for the UK judge was compiled by a five-person panel,
comprising two senior judges, including a Scottish judge, a representa-
tive of the Judicial Appointments Commission of Northern Ireland,
one legal adviser from the Ministry of Justice and one legal adviser
from the Foreign and Commonwealth Office. The shortlist was con-
sidered by the Advisory Committee established by the Committee of
Ministers of the Council of Europe, which meets to assess whether the
national shortlists name candidates who meet the criteria for appoint-
ments set out by the Council of Ministers.212 Interviews were con-
ducted by a sub-committee on the election of judges to the Court from
the Parliamentary Assembly of the Council of Europe. They made
some confidential recommendations available to all members of the
Assembly before they voted to elect one of the three UK candidates.
The names and CVs of the shortlisted candidates were also published
on the website of the Council of Europe. The national shortlist of
three names must generally include at least one member of the
under-represented sex (defined as the sex which makes up less than
40 per cent of the Court).213 The member states are also ‘invited

209
Art. 46 ECHR.
210
Hirst v. UK (No. 2), Application No. 74025/01; see Report published in May 2011, Dr.
Başak Çalı, Anne Koch and Nicola Bruch.
211
Protocol No. 14 to the ECHR.
212
See the panel operating rules, Resolution CM/Res (2010) 26 of 10th November 2010.
213
Council of Europe Parliamentary Assembly, Resolutions 1366 (2004), Recommendation
1649 (2004) and Resolutions 1426 (2005) and 1627 (2008); Advisory Opinion on certain
legal questions concerning the lists of candidates submitted with a view to the election of
judges to the European Court of Human Rights, 12 February 2008.

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v. appointments to the european courts 155

to ensure that the selection bodies/panels (and those advising on

selection) are themselves as gender-balanced as possible’.214
However the English selection process is an ad hoc one, and in the
aforementioned context of heavy criticism of the European Court, ‘a group
of MPs from the three main political parties’ met the appointments
candidates for ‘confidential discussions’, in the words of one of the MPs,
after they were shortlisted, with the aim of ‘improving democratic account-
ability’.215 One can express concern at such informality, not to mention the
lack of discussion in Parliament itself about these confidential discussions.
We do not know what was passed on from this meeting to the UK
members of the Council of Europe Parliamentary Assembly. This casual
and self-invested approach to selection to a high judicial office does not
enhance the independence of the appointment process, nor does it do any
good to democratic accountability. It is all the more regrettable that the
final outcome saw the defeat of the candidate with the most high-profile
human rights agenda among those shortlisted. The absence of reference to
this intervention by MPs in a letter previously sent by the Ministry of
Justice to the Joint Committee on Human Rights detailing the appoint-
ment process also shows that the Ministry of Justice was bypassed in this
process. It shows the need for a formalisation of the appointment process
so that it falls squarely under the remit of an independent body – such as
the Judicial Appointments Commission, so that only they send on any
documents or views to the Council of Europe Parliamentary Assembly.
4.40 In both cases, while the ad hoc procedures in place in England have
always ensured open competition in practice, their ad hoc nature leaves
room for a politicised process in the nomination of candidates, as
illustrated by the ad hoc ‘confidential discussions’ with the candidates
for the European Court of Human Rights. Transparency and independ-
ence may be strengthened, and the adoption of an advisory panel for
appointments to both courts is a step in that direction; it also paves the
way for the authority of states in the selection process to diminish.216
This is not to exclude any political input in the appointment process on
the basis of the sensitive nature of the decisions taken by both courts, but
to require transparency in the way that any political influence is wielded.

214
Council of Europe Parliamentary Assembly, Recommendation 1646 (2009), ‘Nomin-
ation of candidates and election of judges to the European Court of Human Rights’,
para. 5.
215 216
The Guardian, 22 May 2012. Mackenzie et al., Selecting International Judges, 8–9.

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156 judicial appointments

VI. Judicial remuneration

4.41 English judges are among the highest paid public officials.217 The
differentiation in the remuneration of particular posts is based on a job
weight assessment. The current salary structure is divided into ten salary
groups (with uniformity within those groups), according to the level of
the court and the significant managerial, advisory and administrative
responsibilities exercised within the court.218 Although an independent
review body, the Senior Salaries Review Body,219 reviews judicial salaries
and makes recommendations, the government annually decides the
judicial pay structure and the level of remuneration. A prominent
member of the Judicial Sub-Committee thus recalled: ‘The Lord Chan-
cellor would plead poverty; the Judges need’; the Review Body’s role
seems to be ‘to square the circle’.220
Underlying the whole question of judicial remuneration, however, is
that of the independence and integrity of the judiciary and the conse-
quent need to secure the independence of judges from not only political
but also financial pressure and entanglements. Judicial independence
thus requires that judicial remuneration should be guaranteed by
law.221 Judges are paid out of the Consolidated Fund which means that

217
As of 1 April 2012, the annual salary of the Lord Chief Justice was fixed at £239,845, the
Master of the Rolls and the President of the UK Supreme Court at £214,165; the Justices
of the UK Supreme Court, the Chancellor of the High Court, the Deputy President of
the Supreme Court, the Lord Justice Clerk, the President of the Family Division, the
President of the Queen’s Bench Division and the Justices of the UK Supreme Court at
£206,857; the Senior President of Tribunals at £203,643; the Lord Justices of Appeal at
£196,704; the High Court judges at £172,753; circuit judges and some Upper Tribunal
judges at £128,296; see the full list in Review Body on Senior Salaries, ‘Thirty-Fourth
Report on Senior Salaries 2012’, Report No. 79, Cm 8297.
218
The criteria put forward for the determination of judicial remuneration were once as
varied as they were disputed, see 525 HC Deb., 1059 (23 March 1954); 716 HC Deb., 639
(14 July 1965); 800 HC Deb., 1566 (30 April 1970); 808 HC Deb., 1487 (16 December
1970); 313 HL Deb., 1339 (15 December 1970).
219
C. 15 Administration of Justice Act 1973. The first Review Body, the Top Salaries Review
Body, was established in 1971 and became known as the Review Body for Senior Salaries
in 1993, see R. Stevens, The Independence of the Judiciary. The View from the Lord
Chancellor’s Office (Oxford: Clarendon Press, 1993), p. 134.
220
M. Beloff, ‘Paying Judges: Who, Whom, Why, How Much?’(2006) 18 Denning Law
Journal 1, 24.
221
International Covenant on Civil and Political Rights, Art. 14, General Comment No. 32,
para. 19; Principle I.2b.ii, Recommendation (94) 12 of the Committee of Ministers of the
Council of Europe; the Consultative Council of European Judges of the Council of
Europe, Opinion No. 1, para. 62.

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vi. judicial remuneration 157

their salaries are immune from challenge by backbenchers and cannot be

reduced other than by statute itself.222 They may be increased by admin-
istrative action. Safeguards must be in place if they are to be decreased.
Moreover, the financial reward should be commensurable with the dig-
nity of their profession and burden of responsibilities.223 Individuals
of suitable character, ability, experience and motivation will only be
attracted to the judicial office if the total reward for judicial posts decided
by government shows that the judiciary is valued.224 Judicial office no
doubt has its attractions, but they alone may not, without adequate
remuneration, ensure the high standard of the judiciary. While it is
doubtful if very large salaries are necessary to secure integrity,225 judges
should be free from financial anxieties. The legal system cannot function
properly in the absence of judges with the necessary levels of skill,
knowledge and motivation, and it must anticipate the challenges of
attracting the best practitioners who will normally be taking a pay cut
upon entry to the bench. Similar safeguards must be set in relation to
pensions, which are a critical part of a judge’s remuneration package.

A. The role of the Review Body on Senior Salaries

4.42 The government annually decides the judicial pay structure and the
level of remuneration upon guidance from an independent review body, the
Review Body on Senior Salaries, which examines whether the pay structure
and level of remuneration are well suited to the needs of the judiciary. The
Review Body has remit over all full-time and part-time salaried judicial
office holders in the courts and tribunals226 of the United Kingdom. The fee-
paid judiciary members are not part of its standing remit although many
fees are set by reference to the salary for the corresponding full-time post.227

222
Senior Courts Act 1981, s. 12 provides that judges’ salaries shall be set by the Lord
Chancellor in conjunction with the Minister for the Civil Service. Section 12(3) specifies
that ‘Any salary payable under this section may be increased, but not reduced, by a
determination . . . under this section.’
223
Principles I.2b.ii and III.1.b, Recommendation (94) 12 of the Committee of Ministers of
the Council of Europe.
224
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 1.28.
225
J.R. Spencer, Jackson’s Machinery of Justice, 8th edn (Cambridge University Press, 1989),
p. 274.
226
Review Body on Senior Salaries, ‘Review of Tribunals’ Judiciary Remuneration 2008’,
Report No. 66.
227
Coroners remain outside the Review Body on Senior Salaries’ remit. Despite being
judicial office holders, they are not considered to be members of the courts’ judiciary.

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158 judicial appointments

4.43 Although judges ought not to set how much they should be paid,
they ought to have an input into the determination of their remuner-
ation. Some competing considerations shape various models for decision
making on judicial remuneration. Thus, the legislature, as in Australia or
Belgium,228 could decide the budget. A legislative process can be cum-
bersome though. Alternatively, the Court Service could be responsible for
its own budget, including judicial remuneration, within the limits of the
sum allocated to it by the legislature. This was rejected in the course of
the discussions leading to the Constitutional Reform Act 2005.229 The
executive could also decide on judicial remuneration without a third-
party intervention as in Sweden; but the executive is a frequent client of
the courts, and the independence of the judicial process requires that at
least the executive should not alone set the judicial salaries. A further
possibility would be to adjust salaries by reference to a particular index,
as in some Australian states, or by reference to the average wage, as in
Israel, though this may not provide sufficient leverage in increasing or
decreasing salaries in some appropriate circumstances.230
In this context, the institution of the Review Body appears as a good
compromise, by acting as the interface between the government and the
judiciary. As one interviewee said, ‘it works for those who are not
unionised’. An independent review body is also the solution adopted in
New Zealand or South Africa among other jurisdictions.231 As stated by
the Canadian Supreme Court in Provincial Judges Reference, independent
judicial compensation commissions, the functional equivalent to the
English Review Body, are required in order ‘to avoid the possibility of,
or the appearance of, political interference through economic manipula-
tion’.232 The existence of a review body avoids negotiations between

They are appointed by individual local authorities and paid in a different way. The post
of Chief Coroner created in 2012, falls however under the Review Body’s remit since
only High Court or circuit judges are eligible for this post, see Review Body on Senior
Salaries, ‘Thirty-Fourth Report’, 4.26; Coroners and Justice Act 2009.
228
S. Shetreet and J. Deschenes (eds.), Judicial Independence: The Contemporary Debate
(Leiden: M. Nijhoff, 1985), p. 672.
229
N. Browne-Wilkinson, ‘The Independence of the Judiciary in the 1980s’ [1988] PL, 44.
230
Beloff, ‘Paying Judges’.
231
Remuneration Authority Act 1977 (NZ); Judges’ Remuneration and Conditions of
Employment Act No. 42 2001 (South Africa).
232
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island;
Reference re Independence and Impartiality of Judges of the Provincial Court of Prince
Edwards Island; R v. Campbell; R v. Ekmecic; R v. Wickman; Manitoba Provincial Judges
Assn. v. Manitoba (Minister of Justice) [1997] 3 SCR 3 (hereafter Provincial Judges

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vi. judicial remuneration 159

judges and the executive, which may create a perception of undue influ-
ence in the course of bargaining for an agreement.233 In practice, in
Canada as in England, the judiciary makes representations to the Review
Body since judges are not unionised and no collective bargaining
takes place.
The advice of the Review Body is not binding upon the executive.234
The Review Body’s assessments have generally led them to suggest
increases in judicial salaries – including a 40 per cent rise in 1990, which
was rejected by the government as unaffordable. In recent years the
government has felt it necessary to reject similar recommendations and
has sometimes staged the increases proposed.235 Thus, in 2009, for
the fourth year running, the pay increase suggested by the Review
Body (approximately 2.6 per cent) was not implemented in full.236 In
2010–12, against a background of a long recession followed by severe
pressure on public finances, the Review Body did not suggest any
increase.237 As a result, in 2012, the value of the take-home pay of circuit
judges, for example, fell by 15.9 per cent.238
Not only is the judiciary highly dependent on the Review Body’s
assessments, but there is also no parliamentary debate on judicial
salaries.239 Despite some heated debates over the years, the relatively
low public profile of the judges tends to put them at a disadvantage in
fighting the government’s decisions not to accept the advice of the

Reference), para. 133. The Court grounded its solution on the unwritten constitutional
principle of judicial independence and the guarantee of an independent and impartial
tribunal under s. 11(d) Charter of Rights. The majority dismissed their previous judg-
ment in Valente v. The Queen [1985] 2 SCR 673 as obiter; see also Beauregard v. Canada
[1986] 2 SCR 56, para. 77; Re Public Sector Pay Reduction Act (1996) 20 DLR 449.
233
Provincial Judges Reference, para. 188.
234
Judicial salaries in point of law are determined by the Lord Chancellor with the
agreement of the Treasury, CRA, s. 34(2).
235
Staging in 2002 caused ‘unanimous disapproval and even resentment’, SSRB, Cm 5718,
para. 4.5. There have been two staged pay rises since 2006.
236
Yet the SSRB noted, in its 2011 Report, that the opportunities for progression within the
judiciary are significantly fewer than for the other public sector groups, and that the
judiciary does not benefit from the performance-related pay which exists in the other
public sector ‘senior salary’ groups.
237
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, ch. 4.
238
Applying a similar formula to other judges shows that the take-home pay for district
judges fell by 16.5%; for High Court judges by 17%; and for Court of Appeal judges by
18.5%, Review Body on Senior Salaries, ‘Thirty-Fourth Report’, Appendix C, 76; Lord
Chief Justice’s Report 2010–2012, para. 18.
239
Because judges are paid out of the Consolidated Fund, Senior Courts Act 1981, s. 12.

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160 judicial appointments

Review Body on Senior Salaries. By comparison, the Canadian Supreme

Court held in Provincial Judges Reference that, if the government departs
from the recommendations made by the relevant Canadian commission,
it must be prepared to give reasons for its decisions, if necessary through
judicial review.240 In the context of rising litigation on judicial remuner-
ation, the Canadian Supreme Court limited the scope of that judgment
by holding, in Bodner,241 that the government’s failure to justify its
decision by a certain standard of rationality would generally lead to the
matter being returned to the government for consideration, and also to
the adoption of a lower standard of rationality than the standard usually
applied for the application of Charter rights.242 The Court accepts as
justifications reasons relating to the public interest, broadly understood.
It primarily aims at screening out purely political considerations or
discriminatory reasons.243
Yet the near constant litigation on judicial remuneration since the
Canadian Provincial Judges Reference and the Bodner judgments244
shows that the institution of a review body in itself is not sufficient to
establish a dispute-resolution mechanism between the judiciary and the
executive on matters of judicial pay. The explanation may lie in the key
distinction that the principle of an independent compensation commis-
sion was unilaterally imposed by the Canadian courts themselves, not by
the legislature.

240
The Court, however, left questions of institutional design of the commission to the
government that would establish it, Provincial Judges Reference, paras. 133–5, 147 and
167. Proposals for changes in judicial remuneration must be put forward to the com-
mission, see Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick
(Minister of Finance) [2002] 1 SCR 405, paras. 42–9.
241
Provincial Court Judges Association of New Brunswick v. New Brunswick (Minister of
Justice); Ontario Judges Association et al v. Ontario (Management Board); Bodner v.
Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec
(Attorney General) [2005] 2 SCR 286 (hereafter Bodner).
242
The court ‘should avoid issuing specific orders to make the recommendations binding
unless the governing statutory scheme gives them that option’, Bodner, para. 44. The
standard of rationality is not the standard applying under s. 1 of the Charter but simply a
requirement that there is a legitimate reason why the government has chosen to depart
from the recommendation of the commission, Bodner, paras. 25–6. The ‘totality of the
process’ must also have been respected so that the purpose of preserving judicial
independence and depoliticising the setting of judicial remuneration has been achieved,
Bodner, paras. 31 and 83. In Bodner, the Court upheld the decisions of three out of the
four provinces whose judicial remuneration had been challenged.
243
Reference re Secession of Quebec [1998] 2 SCR 217.
244
A. Dodek and L. Sossin (eds.), Judicial Independence in Context (Toronto: Irwin Law,
2010), pp. 25–93.

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vi. judicial remuneration 161

B. Increasing and decreasing judicial salaries

4.44 Since 1832, when a High Court judge’s salary was reduced from
£5,500 to £5,000, judicial salaries have not been decreased without the
consent of the judiciary,245 although Gladstone unsuccessfully attempted
further reduction in the 1870s,246 and a further battle was needed to
ensure that cuts were not included in the National Economy Act 1931.247
But until 1965, salaries of the High Court judges could be increased too
only by statute, and judges proved less successful in campaigning for
statutory increases than they had been in campaigning against proposed
decreases. In 1951, Lord Goddard complained in the House of Lords, in
the course of the debates on the increase in the salaries of county court
judges, that ‘one cannot pick up a newspaper nowadays without discover-
ing that someone has received a rise. Everybody gets a rise except the
judges.’248 In the course of the debates on the increase of judicial salaries
in 1965, it was alleged that judges exerted pressure on the Lord Chancel-
lor to take the necessary steps for increasing judicial salaries, and that the
Lord Chancellor, in turn, exerted pressure on the government to pass the
proposed increases unchanged.249
Under the Judges’ Remuneration Act 1965, the more expedient pro-
cedure of delegated legislation was introduced for this purpose by Order
in Council, subject to an affirmative resolution in each House of Parlia-
ment. A similar procedure had already been introduced for the increase
of the salary of county court judges in 1957.250 Parliament thus began to
delegate its legislative authority to increase judicial remuneration to the
executive in 1965. Since 1973 increases in the salary of the High Court
judges may be determined by the Lord Chancellor with the consent of the
Minister for the Civil Service251 without the need for an Order in

245
2 & 3 Will. IV, c.116, s.1 (1832); The Judges’ Remuneration Act 1954, 2 & 3 Eliz. II, c.27
(£8,000) provided for the first salary increase since 1832 for High Court judges.
246
B. Abel-Smith and R. Stevens, Lawyers and the Courts (London: Heineman, 1967),
p. 127.
247
W. Holdsworth, ‘Constitutional Position of the Judges’ (1932) 48 LQR 25; Heuston,
The Lives, 513–19.
248
211 Law Times 104 (1951).
249
716 HC Deb., 1987, 2012, 2098, 2099 (22 July 1965); 808 HC Deb., 1510 (16 December 1970).
250
See the Judicial Offices (Salaries) Act 1952 for the increase in judicial remuneration to
county court judges and the Judicial Offices (Salaries and Pensions) Act 1957. County
Courts Act 1984, s. 6(1) (amended by Courts and Legal Services Act 1990, s. 125(3),
sch. 18, para. 42).
251
The functions of the Minister for the Civil Service in relation to salaries were transferred
to the Treasury in 1973, Administration of Justice Act 1973.

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162 judicial appointments

Council.252 This has in effect applied to High Court judges the procedure
for increasing the salaries of the circuit judges.253 The Administration of
Justice Act 1973 also recognised the role of the Top Salaries Review
Board (now the Review Body on Senior Salaries) in making (non-
binding) recommendations to the Lord Chancellor.
But salaries of the higher judiciary can still only be decreased by
statute.254 Unlike removal of a judge by address, which requires a
resolution of both Houses of Parliament, reduction of judicial salaries
by any amount may be done by the House of Commons alone invoking
the money bill procedure under the Parliament Act 1911. The decrease of
salaries by statute for the higher and lower judiciary appears unsatis-
factory and indeed, the principle that judges’ pay should not be dimin-
ished while they hold office is reflected in many constitutions and laws of
other jurisdictions, many of them being common law-based jurisdictions,
such as the United States, India, Australia, Canada, Ghana, Ireland, New
Zealand and Singapore.255 Other non-common law jurisdictions such as
Japan or Brazil also adopted that principle.256
Nonetheless an economic crisis may justify a legislative cut of the
salaries of all state officials, including judges.257 In such a situation, the
Venice Commission considers that the reduction of judicial salaries need
not be regarded as a breach of the principle of the independence of
judges.258 According to the Commission, it may rather be seen as a token
of solidarity and social justice, demanding of judges a proportional

252
Administration of Justice Act 1973, s. 9; Senior Courts Act 1981, s. 12; for UK Supreme
Court Justices, see CRA, s. 34.
253
Courts Act 1971, s. 18(2).
254
Senior Courts Act 1981, s. 12(3); ss. 9(1) and (3) Administration of Justice Act 1973, s. 9
(1) and (3) (s. 9(3) as amended); CRA., s. 34
255
Art. 111.1, US Constitution and United States v. Will (1980) 449 US 200, 218–19; Art.
125, the Constitution of India (1949); Commonwealth of Australia Constitution Act
1900, s. 72(ii); for Canada, see the British North America Act 1807, s 100 and
W.R. Lederman, ‘The Independence of the Judiciary’, 1956 Canadian Bar Review
XXXIV 1139, 1163; Art. 35.5, Irish Constitution, see McMenamin v. Ireland (1994) in
Law Reports Monthly, vol. 2, 377 (Geoghan J). For New Zealand, Constitution Act 1986
Part IV, s. 24; The Constitution of the Republic of Singapore 1996, s. 98(8).
256
Art. 95, III, The Constitution of the Federation of the Republic of Brazil 1988.
257
Provincial Judges Reference, para. 184.
258
The Venice Commission (The European Commission for Democracy through Law),
‘Report on the Independence of the Judicial System. Part 1: Judges’ (Council of Europe,
CDL AD (2010)004), para. 46. Cf. Israel, where a reduction in judicial salaries may be
made only if it does not solely apply to the public sector salaries, see S. Shetreet, Justice in
Israel: A Study of the Israeli Judiciary (Leiden: M. Nijhoff, 1994), pp. 160–1.

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vi. judicial remuneration 163

responsibility for eliminating the consequences of the economic and

financial crisis of their country, by putting on them a burden equal to
that for other public officials. Nonetheless, the general principle high-
lighted above, that remuneration must be commensurate with the dignity
of a judge’s profession and his or her burden of responsibility, continues
to apply, and the Venice Commission must be approved in stating that:
If the reduction does not comply with the requirement of the adequacy of
remuneration, the essence of the guarantee of the stability of conditions of
judge’s remuneration is infringed to a degree that the basic aim, pursued
by that guarantee, i.e. a proper, qualified and impartial administration of
justice is threatened, even leading to a danger of corruption.259

This translates into various desirable safeguards. The reduction of the

judicial remuneration should, first, not be aimed specifically at judges; it
must be part of a reduction in pay across the public sector which applies
to the senior public officers whose salary is compared with the judicial
salary. Moreover, the judicial remuneration cannot be reduced in a
greater proportion than that of the other senior public officers whose
salary is comparable, on pain of violating the principle of equality
established as a general principle of law.260 Finally, the cuts should be
limited in time.
Nevertheless, the prohibition of a reduction of judicial salary has been
abandoned in Sweden, Belgium, the Netherlands and, very recently,
Ireland. The amendment of the Irish Constitution,261 approved by refer-
endum in 2011, shows that there is no such thing as a constitutional bar to
the reduction of salaries, as it put an end to the principle that the reduction
of judicial remuneration was prohibited during the currency of office.262
This was done in the context of the long-running economic crisis which
started in 2008 and led to a reduction of public sector pay as well as setting
a levy on pension contributions made by the public sector.263 The

259
Venice Commission, Opinion No. 598/2010 CDL-AD(2010) 038, para. 20.
260
Consultative Council of European Judges, ‘Situation report on the judiciary and judges
in the different member states’, CCJE (2011) 6, 18 January 2012, para. 17.
261
The Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Bill 2011
(No. 44 of 2011).
262
See the new Art. 35.5.3, Irish Constitution; McMenamin v. Ireland [1994] 21 LRM 368,
377 [Geoghan J]; O’Byrne v. Minister of Finance [1959] IR 1, 38, where the Supreme
Court held that a requirement that a judge pays income tax on the same basis as other
citizens could not be said to be an attack on judicial independence.
263
The Financial Emergency Measures in the Public Interest (No. 2) Act 2009 (a reduction
in public sector pay).

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164 judicial appointments

referendum was prompted by the dispute between the judiciary and the
Irish government about the application of the pay cut and the levy to the
judiciary. The Irish Attorney General had advised the government that
the Irish constitution prevented the application of those measures to
the judiciary. In response, the government encouraged the judges to
voluntarily contribute to their pensions under a scheme specially set up
in 2010 (125 out of 147 judges did so). One interviewee alluded to the fact
that the Irish government did say that it would publish the names of
those who volunteered and those who did not. Either way, a judicial
memorandum from July 2011 called for an independent adjudication on
what the judicial reductions should be, with an express reference to the
Canadian decision of Provincial Judges Reference, which, as noted above,
held that judicial independence requires an independent review body to
make recommendations on the appropriate level of judicial remuner-
ation.264 Following some selected leaks in the press the judiciary decided
to put the document in its entirety on its website. The document was
eventually withdrawn at the request of the government, and the referen-
dum announced. The Irish new constitution provision, however, fails to
contain sufficient safeguards to ensure that the reduction of judicial
salaries remains exceptional. While it does require the reduction to be
proportionate to the reduction applying to a ‘comparator class’ from the
public sector, the new provision does not define the comparator class;
nor does it define the public interest behind the reduction.

C. An adequate judicial remuneration

4.45 Judges must receive sufficient remuneration to secure true eco-
nomic independence.265 According to the Venice Commission, the level
of remuneration should be determined in the light of the social condi-
tions in the country and compared to the level of remuneration of higher
civil servants.266 The remuneration should also be based on a general
standard and rely on objective and transparent criteria. This is the case in
England and Wales, where the Review Body is, under its terms of
reference, to have regard to the funds available to departments as set
out in the government’s departmental expenditure limits.267 While

264
See para 4.38.
265
Art. 13, Universal Charter of the Judge; European Charter on the Statute of Judges, para. 8.
266
Venice Commission, ‘Report on the Independence of the Judicial System’, 46.
267
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 3.

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vi. judicial remuneration 165

affordability may be taken into account, it ought not to bind the Review
Body, however, which is to have equal regard to the need to recruit, retain
and motivate suitably able and qualified people to exercise their different
responsibilities.268 This may explain why one interviewee described the
Review Body’s decisions between 2010 and 2012 not to suggest any general
increase in remuneration as ‘a pusillanimous stance’. In addition, increases
in judicial salaries are set within the rate permitted by the general prices
and incomes policy as laid down by the proper bodies, this in light of the
rise in the cost of living and the state of the economy.269
Importantly, the Review Body has regard to many other top salaries in
the public sector and it has regard to a broad comparability between the
judiciary and two other main public sector groups, the senior civil service
and the senior officers in the armed forces. Although a direct link
between the salaries of the higher judiciary and those of top civil servants
has been denied by some,270 it cannot be denied that the level of remu-
neration of comparable positions in government service is a relevant
factor. Practitioners may be attracted away from judicial office if the
differential in salary is too great to be balanced by the advantages of
judicial office other than financial remuneration.271 Salaries should be
increased at a rate equivalent at any rate to that paid elsewhere in the
public sector and, in practice, some of the increases in judicial salaries
have been advocated on that ground.
Comparisons with other public sector groups, however, are limited by
the judiciary’s constitutional position. Judges must not only be independ-
ent, but must be seen to be independent. Although having high salaries
in order to avert suspicions of judicial corruption is a moot point in
England, where the culture of judicial independence is strong, the link
between unacceptably low pay and corruption remains significant in
other jurisdictions.272 Instead, the concern about judicial remuneration

268
Ibid.
269
Ibid., 1.7–1.22; The Consultative Council of European Judges of the Council of Europe,
Opinion No. 1, para. 62.
270
800 HC Deb., 1567 (30 April 1970); 808 HC Deb., 257 (8 December 1970) 1507
(16 December 1970).
271
In 1970 Sir Henry Fisher resigned from the High Court after only two years on the bench
to take up a business appointment; financial considerations apparently played an
important role in his decision, see (1970) 114 Solicitors’ Journal 593.
272
J.C. Wallace, ‘Resolving Judicial Corruption’, in C. Das and K. Chandra (eds.),
Judges and Judicial Accountability (Delhi: Universal Law Publishing Company, 2003),
pp. 86–101.

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166 judicial appointments

in England and Wales is one of quality of recruitment and retention.

The English tradition of judicial independence depends, in the words of
Lord Bingham, ‘on the willingness of the most successful practitioners at
the height of their careers to accept appointment to the judicial
Bench’.273 Our interviewees raised the prospect of seeing the high status
and prestige enjoyed by the judiciary diminishing, leading in due course
to appointments from less-well-qualified candidates. The remuneration
of judges has to correspond to the dignity of the profession,274 and
judicial remuneration reflects the prestige which society accords judges.
Yet, while a relatively low judicial remuneration may affect quality
of justice and is therefore undesirable, it need not threaten judicial
independence.
The Review Body acknowledges that if pay is too low, then sooner or
later the remit groups will start to suffer from inadequate numbers,
quality or performance, and possibly all three.275 Thus its role must be
to set an ‘acceptable minimum level’ of salary.276 It is suggested that at
least judicial salaries should be assessed not only in formal but also in real
terms. Freezing salaries at times of high rates of inflation may indirectly
interfere with independence, though there is no suggestion that the
government has sought to influence the judges either collectively or
individually in this way. Moreover, while holding office, judges may
not, by convention, take up any other engagement for further remuner-
ation and they may not return to practise at the Bar upon leaving the
bench.277 The government should not abuse its position, in effect, as a
quasi-monopoly employer. Public sector pay for comparable groups
including the judiciary should not be held down for political reasons,
such as ‘setting an example’, or because there is no problem with reten-
tion since judges would find it hard to switch careers.278
Some interviewees mentioned their dilemma in taking a salary cut
upon entry from the Bar and the financial sacrifice involved for those
at the top of their field, especially in commercial practice, is well

273
Bingham, ‘Judicial Independence’, 66. Cf. the testimonies of Stephen Breyer and Samuel
Alito, Associate Justices, Supreme Court of the United States, before the House Com-
mittee on the Judiciary, Subcommittee on the Courts, the Internet and Intellectual
Property, Oversight Hearing on ‘Federal Judicial Compensation’, 19 April 2007 and
the Supreme Court’s 2007 Year-end Report on the Federal Judiciary (2008).
274
Venice Commission, ‘Report on the Independence of the Judicial System’, 46.
275
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 1.28.
276 277
Provincial Judges Reference, paras. 193–6. See above, para. 4.37.
278
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 1. 29.

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vi. judicial remuneration 167

documented.279 Interviews reinforced that point, though the financial

cut was also generally accepted as part of the public service aspect of
their appointment. Judicial salaries have long been below what the most
senior and successful practitioners, both barristers and solicitors, expect
to earn.280 However, the differential between judicial salaries and prac-
tice has greatly increased over the last twenty years, with an estimate in
2008 that practitioners at the top end of commercial practice regularly
earned more than £500,000 per year as compared with the High Court
salary.281 Moreover, people in general are having children at an
older age and there is a higher rate of divorce and remarriage, with
significant financial commitments continuing longer and to an older
age than perhaps was the case thirty years ago. A drop in income upon
appointment to the High Court may thus become more difficult to
contemplate.282
Yet it is difficult to assess the claim that the judicial salary may have
deterred good practitioners from applying to the High Court since High
Court judges are appointed through advertisement and open competition
rather than by invitation. The Review Body mentions some genuine
recruitment difficulties in 2012 in respect of a small number of posts in
the ‘senior judiciary’.283 By comparison, some recent evidence suggests
that although solicitors appointed as judges typically have come from
among the higher earners among solicitors with sixteen to thirty-five
years of post-qualification experience, most of the solicitors among the
group of solicitors with between sixteen and thirty-five years
of experience would have received a pay rise if appointed to the judi-
ciary.284 Taking the value of the pension into account, some judicial
posts, in the lowest salary band, typically district judges, will continue
to be attractive.285 The Review Body acknowledged, however, that the

279
H. Genn, ‘The Attractiveness of Senior Judicial Appointment to Highly Qualified
Practitioners’, Report to the Judicial Executive Board of England and Wales (December
2008), pp. 11, 18–19.
280
Joshua Rozenberg wrote in 1994 that ‘The real problem is not that judges earn too little
but that lawyers earn too much’, The Search for Justice (London: Hodder and Stoughton,
1995), p. 92.
281
Genn, ‘The Attractiveness of Senior Judicial Appointment’, 18–19. The High Court
salary was £165,900 against £172,753 in 2012.
282
Ibid.
283
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 1.27; Report of the Review Body
of Senior Salaries in 2002, Cm 5389-11, para. 4.26.
284
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 1.26.
285
Ibid., 4.6 and Appendix G.

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168 judicial appointments

quality of recruits may fall, rather than the numbers, as the best people
perceive the relative decline in reward and choose to make their careers
elsewhere.286
Judicial remuneration, furthermore, may not be the only factor that
militates against application to or acceptance of judicial appointment.
‘A distaste for going out on circuit, increasing control by the civil service,
a sense that in terms and prestige “fings ain’t what they used to be”, and
constraints on lifestyle’ are some further factors.287 Solitude and the
requirement to sit outside one’s specialist field, especially in criminal
courts, are additional deterring factors.288 Conversely, a judicial appoint-
ment still has its attractions unrelated to salary or which can be said to
mitigate the drop in income, such as the opportunity to make the decision,
which includes the possibility of contributing to the development of
the law and policy and in some cases, the opportunity to ‘do good’ or to
‘do justice’; a different kind of intellectual challenge or interest, including
the opportunity to hear a variety of cases, to hear high-quality cases and to
pursue particular areas of law; less or a different kind of stress as compared
with practice, for example the relentlessness of advocacy; the status and
prestige or professional acknowledgement of one’s quality as a lawyer;
public service ethic, in the sense that, having been successful at the Bar, it
would be appropriate to ‘give something back’ to society.289
The Review Body on Senior Salaries conducts major reviews of the
judicial pay structure every four to five years. Those major reviews are
essential as, relying on independent job evaluation exercises, they
acknowledge the changes in job weight at different levels over time.
The salary structure takes into account, for example that, at circuit level,
some judges are responsible for the allocation of criminal, civil or family
judicial work, in addition to dealing with procedural matters and giving
general advice and guidance to the other judges.
4.46 The Review Body also suggested in 1997 that performance-related
pay ‘would involve systems of management and appraisal whose

286 287
Ibid., 1.26. Beloff, ‘Paying Judges’, 35.
288
Genn, ‘The Attractiveness of Senior Judicial Appointment’, 12.
289
D. Pannick, Judges (Oxford University Press, 1987), p. 20. Michael Beloff QC cites Sir
Peter Bristow, writing in a memoir (Judge for Yourself (London: Kimber, 1986), p. 25:
‘You would fairly be said to be relieved of financial worry with your bottom placed firmly
on the consolidated fund. To those who all their working lives had to pay their taxes in
arrears, PAYE [Pay As You Earn tax code system] came as an enormous blessing’, Beloff,
‘Paying Judges’, 26; Genn, ‘The Attractiveness of Senior Judicial Appointment’, 9–10.

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vi. judicial remuneration 169

authority and efficiency would be controversial and which could be seen

to challenge the principle of judicial independence’.290 However judicial
appraisal is now openly debated and not seen as incompatible with
judicial independence in principle,291 and judicial management is no
more anathema to the judiciary.292 In 2012 the Review Body simply
acknowledged that, to a limited extent, in the judiciary, the main reward
for performance may be through promotion rather than differential
pay.293 Or, as Michal Beloff QC emphasised, ‘all judges at the same level
are equal; some are clearly more equal than others; but that inequality
should be reflected in their promotion, not their pay’.294 The Review
Body further recognised ‘the arguments that performance-related pay
would be both wrong in principle and impractical for the judiciary’.295
The Universal Charter of the Judge provides a stronger view that the
remuneration must not depend on the results of the judge’s work.296
While the cost or practicality of judicial appraisal have not yet been
sorted, the judges’ managerial responsibilities are clearly defined and, in
2010, the Review Body consulted the Lord Chief Justice over additional
remuneration for some of those with additional responsibilities, includ-
ing the management or supervision of others of the same group. The
Lord Chief Justice considered that it would be inherently unfair for some
of those judges to be paid and others not to be paid for those roles.297
While these additional duties are seen as a ‘huge imposition’ by the
‘managerial’ judges themselves, they also often involve these judges
taking time out of court and thus other judges are required to take on
a greater share of the normal judicial business.298 If managerial duties
give rise to some additional remuneration, the greater workload that falls
upon others as a result of taking time out of court may also lead to some
additional remuneration. There is also a strong view, reflected in our
interviews too, that uniform pay rates help to maintain collegiality.299
Thus, the Court of Appeal judges rejected in 2002 a system of payment
for additional responsibility, as they felt that it would create a climate of

290 291
SSRB, Cm 3451 1997, para. 22. See above, para. 4.29.
292
See above, para. 3.40.
293
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 1.33.
294
Beloff, ‘Paying Judges’, 29.
295
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 1.33.
296
Art. 13 of the Universal Charter of the Judge.
297
Lord Chief Justice, ‘Letter to the Senior Salaries Review Body’, 19 October 2010.
298
Ibid.
299
See also the SSRB 2011 Report on Senior Salaries, Report no. 77, Com. 8026.

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170 judicial appointments

competition to the detriment of the collegiate atmosphere.300 Selection of

judges for many additional duties is a matter of judicial deployment, not
one of promotion. An additional remuneration for managerial judges
would require a far more formal selection procedure which would be
likely to slow down the current system. The impact on collegiality and
efficiency of justice would be substantial. In a broader picture, however,
any additional remuneration for managerial judges in the form of a
performance bonus, combined with other recent measures such as
greater flexibility in deployment across jurisdictions and pressure
towards judicial appraisal, would be construed as yet another illustration
of a greater career structure.

D. Judicial pensions
4.47 There is no privilege or taxable benefit as such in addition to salary
and pension. Full-time and part-time judges can only claim travel and
subsistence expenses incurred in the course of their judicial duties. The
time when judges sitting in the Crown Court were accommodated in the
Judges’ lodging at public expense and were provided with cooks and
butlers free of charge has long gone. Magistrates benefit from similar
arrangements to judges for travel and subsistence expenses to which they
would not otherwise be entitled.301 An allowance may be available to
compensate for loss of earnings which would otherwise have been
received. The amount that may be claimed for financial loss allowance
is subject to an upper limit to the extent that many people who act as
magistrates do so at their own financial loss.
Full-time judges and salaried part-time judges are entitled to pensions
on retirement.302 The judge’s pension is his benefit, with its value to an
average member of the judiciary amounting to about 35 per cent of
salary.303 It is a significant part of a judge’s remuneration package. The
position which applied broadly to all judges, until January 2012, was that
they each had a non-contributory pension for themselves and a scheme
to which they had to contribute for their dependants’ benefits.304 Most

300 301
Lord Chief Justice, ‘Letter’. Justices of the Peace Act 1997, s. 10.
302
Depending on whether the individual judge was appointed before or after 1 April 1995, a
judicial pension is payable under either the 1981 Judicial Pensions Act or the Judicial
Pensions and Retirement Act 1993; for the UK Supreme Court, see CRA, s. 37.
303
Judicial Pensions Scheme Resource Accounts 2006–07 HC 73; Review Body on Senior
Salaries, ‘Thirty-Fourth Report’, 4.12.
304
The Pensions (Increase) Act 1971.

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vi. judicial remuneration 171

appointees to the bench will have been earning much more than a judge
receives by way of salary, and the assurance of substantial entitlements on
retirement reduces the impact of the financial cut taken upon entry to the
bench. Changes or freezes in judicial salaries have, of course, a knock-on
effect on pensions (as has economic crisis upon interest rates).
The European Charter on the Statute for Judges states that the level of
the retirement pension must be as close as possible to the level of their
final salary as a judge305 and in England and Wales, the amount of the
pension is linked to salary and depends upon the period of service.
A maximum pension of one-half of the final salary of a judge is payable
after twenty years as a judge.306 In broad terms, members of the judiciary
pay a contribution of between 1.8 and 2.4 per cent of salary to accrue a
final salary pension for their dependants’ benefit at the rate of 1/40th for
each year of service up to twenty years. This follows a long-running tax
dispute between the judiciary and the government,307 the outcome of
which was to maintain (though not to improve) the value of the judicial
remuneration package. Judges made representations to the Lord Chan-
cellor when the government’s Finance Act 2004 introduced changes in
the tax treatment of pensions,308 which were bound to have an adverse
impact on the judicial pension benefits when they came into effect in
2006. Evidence provided in 2004 to the Senior Salaries Body revealed the
risk, outlined by the Lord Chief Justice and the Permanent Secretary to
the Department of Constitutional Affairs, that ‘a significant number of
judges’ might resign before the Finance Act 2004 came into force in order
to avoid the new tax regime.309 Following protests from the judiciary,
with a continuing threat of resignation from senior judges,310 the Lord
Chancellor secured a different arrangement, whereby the value of judicial
remuneration packages would be maintained under the Judicial Pensions

305
Art. 6.4 of the European Charter on the Statute of Judges. A retirement pension should
also be guaranteed.
306
Judicial Pensions and Retirement Act 1993, s. 3 raised the period of service for a full
pension from 15 to 20 years. The retirement age was also prospectively lowered to 70.
307
The pensions tax regime came into force on 6 April 2006. The judicial pension scheme
now allows judges to keep their money in a non-tax-exempt private scheme, but judicial
pensions no longer attract the preferential tax treatment afforded to tax-approved
schemes, i.e., a tax-free lump sum benefit payable on retirement or following the death
of a judge and tax relief on contributions.
308
It introduced a £1.5m cap on the amount of tax-free money allowed in a pension fund.
309
Twenty-seventh report on Senior Salaries, Report no. 59, Cm 6451 (February 2005),
para. 4.11.
310
F. Gibbs, ‘Judges Threaten to Resign over Pension Losses’, The Times, 6 October 2005.

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172 judicial appointments

Scheme.311 There is now a new non-pensionable lump sum payment on a

judge’s retirement and a reduction in the pension contribution rates
payable by judges for their dependants’ benefit.
It is to be noted that the pension cut was raised at a time when Home
Secretaries – David Blunkett and Charles Clarke – had clashed with the
judiciary over individual judgments and the anti-terror legislation pro-
posals. In the course of the dispute, the Lord Chief Justice pointed out
that, since the judges’ pensions were statutory, judges were ‘excluded
from opportunities available to other professionals to take action to
protect themselves against the new legislation’312 and that the new
legislation breached the legitimate expectation that they had entertained
in accepting judicial appointment. We have noted this in relation to
judicial salaries already: the judiciary is at a disadvantage in challenging
the government’s departure from the Review Body’s recommendations.
The convention that judges cannot return to practice further limits the
room for judicial manoeuvre.
Pensions were again a matter of debate in Parliament in February 2011
when the government argued that judges, like any other public service
pension scheme members, should begin to contribute towards their own
pensions. There is no express prohibition on alteration or reduction in
the terms of the pension. Nonetheless, in the context of a freeze in
judicial pay, as argued by Lord Falconer and Lord Woolf, the introduc-
tion of contributions from the judge to his or her personal pension leads
to a total reward reduction without any commensurate increase in the
benefits obtained. Lords Mackay, Falconer and Woolf raised the principle
that a serving judge shall not have his terms of service adversely affected
without his consent during his term of service as part of the rule of law
and an internationally recognised principle.313 The assumption that the
judicial contribution to pensions would have no impact on recruitment
and retention of judges was also questioned.
But none of their Lordships’ points is reflected in the Pensions Act
2011. The Act makes provision for judges to make contributions to their
pensions, as elsewhere in the public sector.314 One interviewee empha-
sised how anything they might say might turn against them: ‘The press

311
Judicial Pensions Scheme, ‘Resource Accounts 2005–06’, HC 1463 (20 July 2006), p. 4.
312
Gibbs, ‘Judges Threaten to Resign over Pension Losses’.
313
HL Deb., 623–8 and 634 (15 February 2011); Art. 13 of the Universal Charter of the
Judge; the European Charter on the Statute of Judges, para. 8.
314
Pensions Act 2011, s. 34.

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vi. judicial remuneration 173

hates us. What could we say about pensions when people lose their jobs?’
Another interviewee mentioned some ‘considerable growls of opinion
which suggest that we should go for judicial review, and as far as we can
on this. And the tone of the private emails I receive about this . . . Quite a
number of judges have threatened to resign now.’315 The Irish referen-
dum on the constitutional bar to the reduction of salaries was referred to
by a number of interviewees, with one of them commenting with
humour, on the voters’ 75 per cent approval of the reduction of salaries,
that ‘The judges were very pleased that they got 25 per cent of the voters
to support them, given their image.’
In addition, under the new section 9A of the Judicial Pensions and
Retirement Act 1993 (introduced by the Pensions Act 2011), the appro-
priate minister may, by regulations made with the concurrence of the
Treasury, make provision for and in connection with requiring contribu-
tions to be made towards the cost of judicial pensions. In other words,
the level of judicial contributions is not fixed and it is open to the
executive to increase the level of contributions of existing judges cur-
rently in office. In a context where governmental criticisms of the courts
have been rife, this new power given to the executive without any further
details cannot be welcome. As suggested by Lord Falconer, it is for future
governments ‘a classic tool with which to interfere with judicial inde-
pendence’.316 It might be possible to say that a decision to exercise that
power was taken in response to a set of decisions unfavourable to the
government.317 It also blurs the specificity of the judiciary, now assimi-
lated to the public sector at large by the government, as it justifies the
legislative change on the ground that the current judicial pension scheme
was ‘a bit of an anomaly among public sector pensions’.318
4.48 Fee-paid part-time judges have no entitlement to a judicial pension
on retirement pro rata to the pension of full-time circuit judges. The

315
This was also reported in The Times in January 2012, stating that ‘the action group was
started by High Court masters but has snowballed to include judges at all but the most
senior levels, including High Court cost judges, tribunal and employment judges, district
and circuit judges’.
316 317
HL Deb., 627–8 (15 February 2011). HL Deb., 628 (15 February 2011).
318
HL Deb., 331 (14 July 2011). In addition, under the Pensions Act 2011, the government’s
use of a different market indicator (the consumer prices index instead of the retail prices
index) to uprate public sector pensions from April 2011 is also likely to reduce the value
of judicial pensions; the Review Body estimated that the judicial pension is likely to be
worth almost 25% less after 20 years of uprating by the consumer prices index, Review
Body on Senior Salaries, ‘Thirty-Fourth Report’, 12.

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174 judicial appointments

long-running claim to the contrary by a retired recorder Dermod O’Brien

pitched the judiciary against the government on pensions obligations.
O’Brien claimed that under European law, as a ‘worker’, he should be
entitled to a pension, and his arguments were favourably received by the
Court of Justice of the European Union. In 2012, in a preliminary ruling
following a reference from the UK Supreme Court,319 the Court of Justice
of the European Union held that the European Framework Agreement
on part-time work320 precluded, for the purpose of access to the retire-
ment pension scheme, national law from establishing a distinction
between full-time judges and part-time judges remunerated on a daily
fee-paid basis, unless such a difference in treatment was justified.321 The
Court of Justice commented that the Ministry of Justice could not solely
differentiate between a fee-paid part-time judge and a full-time judge on
the basis that a recorder is paid on a daily basis and retains the oppor-
tunity to practise as a barrister. It emphasised that budgetary consider-
ations alone cannot justify the unequal treatment.322 It also considered as
a ‘crucial factor’ that part-time and full-time judges performed essentially
the same activity.323
In accordance with the principles laid down by the Court of Justice, the
Supreme Court held in 2013 that O’Brien was a part-time worker, and
that the Ministry of Justice had not justified the difference of treatment
between a fee-paid part-time judge and a full-time or salaried judge for
the purpose of access to the retirement pension scheme.324
Before the Court of Justice, judicial independence had also been raised
to justify the removal of judges from the scope of the European
Framework Agreement on part-time work. That argument was roundly –
and rightly, in our view – rejected by the Court of Justice of the European
Union, following Advocate General Kokott’s Opinion. She held that
independence in terms of the essence of an activity was not in itself an

319
O’Brien v. Ministry of Justice [2010] UKSC 34.
320
Directive 97/81 and the Part-time Workers Regulations.
321
C-393/10 Dermod Patrick O’Brien v. Ministry of Justice, 1 March 2012.
322
Joined Cases C-4/02 and C-5/02 Schönheit and Becker [2003] ECR I-12575, para. 85, and
Case C-486/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols [2010] ECR I-3527,
para. 46.
323
C-393/10 Dermod Patrick O’Brien v. Ministry of Justice, para. 62.
324
The Supreme Court rejected, inter alia, the budgetary considerations raised by the
Ministry of Justice: ‘Sound management of the public finances may be a legitimate
aim, but that is very different from deliberately discriminating against part-time workers
in order to save money’, O’Brien v. Ministry of Justice [2013] UKSC 6, para. 67.

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vi. judicial remuneration 175

appropriate criterion for excluding a professional category from the

scope of the European Framework Agreement on workers. She also
distinguished between independence in judicial activities and the external
conditions of a judge’s activity, which were at issue in the case of
O’Brien.325 In that respect, the House of Lords’ decision in Percy v. Board
of National Mission of the Church of Scotland applies.326 Here the House
of Lords held that judges are nevertheless subject to some organisation of
their work, even though this can be managed by the judges themselves
with a greater degree of flexibility. Judges are not self-employed persons.
Advocate General Kokott doubted that the rights granted by the Frame-
work Agreement in general, and an entitlement to a retirement pension
in particular, could jeopardise the essence of the independence of a judge;
‘on the contrary, an entitlement to a retirement pension strengthens the
economic independence of judges, and thus ultimately also the essence of
their independence’.327
4.49 In a written ministerial statement in July 2012, the Lord Chancellor
recognised that the judicial pension scheme is ‘a critical element of the
remuneration offered to the judiciary’, continuing: ‘Nevertheless we must
ensure that the pensions provided are fair, sustainable and affordable.’328
Discussions with the judiciary are continuing on reform proposals that
‘will ensure that the pension provision for judges compares fairly with
that offered to others in the public service’.329 There is much to be said
for the informal representations made by the judiciary over judicial
remuneration. The Review Body plays a constitutional role as an inter-
face between the judiciary and government by setting some objective
criteria for job assessment and comparability with the public and private
sector. The Canadian Supreme Court rightly emphasised the virtues of
independence, objectivity and effectiveness of the Canadian equivalent to
the Review Body on Senior Salaries. It has a standing structure – it is not

325
Opinion of Advocate General Kokott in Case C-393/10 Dermod Patrick O’Brien v.
Ministry of Justice, delivered on 17 November 2011, paras. 47–51.
326
Percy v. Board of National Mission of the Church of Scotland [2005] UKHL 73, para. 45
[Lady Hale].
327
Opinion of Advocate General Kokott in Case C-393/10 Dermod Patrick O’Brien v.
Ministry of Justice, delivered on 17 November 2011, para. 50.
328
Lord Chancellor, ‘Written ministerial statement, Reform of Judicial Pensions’, 17 July 2012.
329
See the Lord Chancellor’s ‘Written ministerial statement, Reform of Judicial Pensions’, 5
February 2013: the new pension scheme, with increased contributions, will apply to all
serving judiciary other than those who are within 10 years of pension age at 1 April 2012
(around 75% of judges were within 10 years of retirement age at 1 April 2012).

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176 judicial appointments

an ad hoc body – but its authority must be doubted in the light of the
government departing from its recommendations for four years in a row.
We noted that, under the Pensions Act 2011, it is open to the executive
to increase the level of contributions of existing judges currently in office.
If the judicial terms of appointments are changed after judges have taken
an appointment, they will not be able to regain the former high earnings
that they had before they became a judge. While some may have a limited
sympathy for high earners, the judges are entitled to be treated fairly and
to have confidence that, once they have taken an appointment, the rules
of the game will not change adversely towards them.330 Even more
important, the discretionary power given to the executive is a tool that
could interfere with judicial independence. Ultimately however, judges
are paid large enough salaries to render them free from the risk of judicial
corruption, and the culture of judicial independence is evidently strong.
Yet, while judicial remuneration remains high, the cumulative effect of
the freeze in salary and a substantial change in the judicial pension at a
time of high inflation, in addition to the increased judicial workload, is
likely to cause judicial retention and recruitment problems in a mid-term
perspective, to the detriment of quality of justice in a durable way.331 The
Review Body recently expressed the concern ‘that the morale and motiv-
ation of the judiciary is being adversely affected by the deterioration, both
relative and absolute, in their terms and conditions’.332

Conclusions
4.50 The appointments system must be placed in the context of the
English machinery of justice. Before 1971 solicitors had no general right
of audience and there were 2,500 barristers. The legal profession was
small and getting references through what is known today as ‘secret
soundings’ was the accepted norm. That system became unsustainable
as the judiciary grew in size, as the Bar grew in numbers and as solicitors
became solicitor-advocates. Most of our interviewees strongly defended
the Judicial Appointments Commission, which has removed political
patronage from the appointment system and brought in the value of
transparency necessary to the culture of judicial independence. It has also

330
HL Deb., 624 (15 February 2011).
331
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 4.16; Lord Chief Justice’s Report
2010–2012, 1.6.
332
Review Body on Senior Salaries, ‘Thirty-Fourth Report’, 4.16.

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conclusions 177

enhanced the value of professionalism, with greater complexity in the

criteria used to assess ‘merit’ and substantial lay involvement. Our
interviewees agreed that the executive plays a legitimate role in the
process of appointment, especially at senior level, but the majority
rejected a greater involvement of the Lord Chancellor in the appointment
process as proposed by the Crime and Courts Bill 2012. The concern for
a non-partisan process – as well as a concern for costs of any confirm-
ation hearings in Parliament – prevailed.
In addition, while the lack of flexibility of speed in appointments
was regretted by many interviewees, the lack of administrative efficiency
of the Department for Constitutional Affairs (the predecessor to the
Ministry of Justice) was also recalled by many. The overall view was that
the standard of appointments made by the Judicial Appointments Com-
mission was not greatly dissimilar to those that would have been made
before the establishment of the Judicial Appointments Commission, with
most appointments, certainly at the level of the senior judiciary, con-
sidered as very good by our interviewees. The House of Lords Consti-
tution Committee has recently supported the existing appointments
model and recommended some limited changes to the process, including
the increase in size of the UK Supreme Court selection commissions,
with greater lay representation. It would seem wise to retain the consti-
tutional balance established under the CRA, so that the Lord Chancellor
retains his current limited veto power, as ‘the guardian of the process
with a long-stop responsibility’.333
Challenges remain for the Judicial Appointments Commission. Many
interviewees thought that some of the best practitioners were not apply-
ing under the new regime of appointments, a point taken on board by the
Judicial Appointments Commission. The Commission has not yet been
conspicuously successful in enhancing the diversity of the judiciary, and
there seems to be some pessimism as to whether it will succeed. This
reflects the wider difficulties in the legal profession that too few women
and ethnic minority lawyers hold senior positions, and there is the
additional problem that working in the High Court may not be attractive
for a mother with children of school age. The itineraries for circuit judges
may be reconsidered so as to take account of these caring responsibil-
ities.334 Another deterrent is the desirability of fee-paid part-time judicial
experience, which constitutes in practice the first step towards obtaining

333
Lord Falconer, Evidence before the Committee on the Constitution, Autumn 2011.
334
UK Association of Women Judges, Written Evidence, para. 11.

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178 judicial appointments

a salaried full-time position, but can be difficult for many applicants with
family commitments. Part-time fee-paid judicial work tends to entail
working from time to time as required, rather than working to a set
number of reduced hours.335 Outstanding academics could also be
invited to join the judiciary, and not necessarily at the junior end in
tribunals.
We noted the shift from a focus on individual appointments to the
concept of a judicial career recommended in 2010 by an advisory panel to
the Lord Chancellor, with the aim of achieving greater diversity within
the judiciary.336 However the stage for entry into a judicial career seems
unclear. We do not propose a move towards a system where judges are
appointed after graduating from university and trained for the bench,
and indeed some countries which use such a system (such as France)
have been looking at the English model and perceiving benefits from
judges having had lengthy legal experience as practitioners. A clearer
sense of progression and mobility within the judicial ranks, however,
as can be found in most other professions, can help suitable candidates
already on the benches to apply and be recognised – albeit this is a long-
term goal which may involve appraisals or other measures of a judge’s
acumen.
A forthcoming challenge for the Judicial Appointments Commission is
to oversee appointments to the European Court of Justice and the
shortlisting process for the English judge at the European Court of
Human Rights. It has nowhere been explained why the international
status of these courts should require political input or input of any other
kind as the Judicial Appointments Commission is already able to pro-
vide. Perhaps as the Judicial Appointments Commission, still a very new
body, gains in authority over time, it will have sole responsibility for
appointing English judges to the European courts, with limited input
from the executive.

335
HL Committee on the Constitution Report 2012, para. 113.
336
Advisory Panel on Diversity, ‘Report’.

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5

Standards of conduct on the bench

Introduction
5.1 The principle of impartiality underlies the judicial oath to do justice
‘without . . . affection or ill-will’. Lord Bingham explained:
A judge must free himself of prejudice and partiality and so conduct
himself, in court and out of it, as to give no ground for doubting his ability
and willingness to decide cases before him solely on their legal and factual
merits as they appear to him in the exercise of an objective, independent,
and impartial judgment.1

It would be possible to devote pages to similar statements of principle

and to some extent English lawyers can be forgiven for doing so. Judicial
impartiality is said to be ‘the fundamental principle of justice’2 both at
common law and under Article 6 of the European Convention on
Human Rights (ECHR): ‘justice should not only be done, but should
manifestly and undoubtedly be seen to be done’.3
It is well known that a judge must be impartial in two senses; he must
neither be actually biased towards a party in the case, nor must he appear
to be biased to the (hypothetical) fair-minded observer. Should either be
the case, then he must disqualify himself. Devlin LJ observed that ‘Bias is
or may be an unconscious thing and a man may honestly say that he was
not actually biased and did not allow his interest to affect his mind,
although, nevertheless, he may have allowed it unconsciously to do so’.4

1
T. Bingham, ‘The Judge as Lawmaker’, in The Judge (Oxford University Press, 1981), p. 3,
also in The Business of Judging (Oxford University Press, 2000). W. Lucy, ‘The Possibility
of Impartiality’ (2005) OJLS 25, 3.
2
AWG Group v. Morrison Ltd [2006] EWCA Civ 6, para. 6 [Mummery LJ].
3
R v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 [Lord Hewart]; Brown v. Stott
[2001] 2 WLR 817 [Lord Steyn]; Amjad and others v. Steadman-Byrne [2007] EWCA Civ
625, para. 16 [Sedley LJ].
4
R v. Barnsley Licensing Justices, ex parte Barnsley and District Licensed Victuallers’
Association [1960] 2 QB 167, 187 [Devlin LJ].

179

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180 standards of conduct on the bench

To the extent that the fair-minded person would guess that this might
happen, the judge must recuse himself. Even in cases where some cause
for apparent bias is present but the threshold is not met, a judge would be
wise to recuse himself in any event, although there may be practical
considerations and the possibility of waiver by the parties affected to take
into account. This affords a flexibility in practice which may achieve
more than if the rules for disqualification were to be enshrined in statute,
as occurs in the United States.5 In England, the two categories of actual
and apparent bias are developed by case law, accompanied only by a
number of statutory prohibitions against certain types of adjudications.6
Besides looking to the common law for guidance, the Guide to Judicial
Conduct provides that judges should strive to maintain and enhance the
confidence of the public, the legal profession and litigants, in the impar-
tiality of the judge and of the judiciary; and it offers some ‘signposts’ for
guidance, noting the overlap with the common law rules on bias.7 It is
accepted, for example, that any significant financial interest from a judge,
or a member of the judge’s family, to the knowledge of the judge, in the
outcome of the case will disqualify the judge.8 There is also consensus to
say that a judge, or a barrister or solicitor when he sits ad hoc as a
member of a tribunal, should not sit on a case to which a near friend,
close relative or client is a party. Beyond this, a real appearance of bias
can apply to the judge knowing someone involved in the case as a friend,
foe or family member, or generally when the judge can be found to have
an association or social interest in a matter indirectly connected with an
issue raised before the court. The standards of impartiality, which shape
the threshold for a successful allegation of bias, are thus high, higher as

5
J. Frank, ‘Disqualification of Judges’ (1974) 56 Yale Law Journal 605; Laird v. Tatum
(1972) 93 S. Ct. 7.
6
H.W. Wade and C.F. Forsyth, Administrative Law, 10th edn (Oxford University Press,
2009), ch. 13; Justices Jurisdiction Act 1742; Public Health Act 1875, s. 258; R v. Lee ex
parte Shaw (1882) 9 QBD 394; R v. Henley [1892] 1 QB 504; R v. Pwlheli Justices ex parte
Soane [1948] 2 All ER 815; Licensing Act 1964, ss. 21–22 but see R (Chief Constable of
Lancashire) v. Crown Court at Preston [2001] EWHC 928 (Admin) [2002] 1 WLR 1332
regarding compliance with Art. 6(1) ECHR; Factories Act 1961, s. 164(7).
7
M v. Islington LBC [2002] 1 FLR 95. The guidance applies to fee-paid as well as full-time
and part-time judges. Guide to Judicial Conduct, 3.1 and s. 7.
8
Guide to Judicial Conduct, 3.8. ‘Judge’s family’ is defined under the Bangalore Principles
as ‘. . . a judge’s spouse, son, daughter, son-in-law, daughter-in-law, and any other close
relative or person who is a companion or employee of the judge and who lives in the
judge’s household’ and ‘Judge’s spouse’ includes: ‘a domestic partner of the judge or any
other person of either sex in a close personal relationship with the judge”, cited by the
Guide to Judicial Conduct, 5.2.

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introduction 181

time goes by, set by the indispensable requirement of public confidence

in the administration of justice.9
Interviewees noted that appeals on the basis of apparent bias have
recently sharply increased. This does not seem to us to imply a rise in
unsatisfactory practices governing judicial disqualification, for the Court
of Appeal would rather err on the side of caution, considering in one
case, for example, that, even where the allegation of apparent bias cannot
be sustained, the judge should have recused himself for the avoidance of
doubt.10 In some such cases though, the trial judge may have been right
to be resolute in insisting on hearing a case: it is also a valid principle that
no party may choose its tribunal whether by insisting on a particular
judge or by objecting to one without sufficient cause.11 Inevitably, in
borderline cases this must be balanced against the principle that judges
should show sensitivity to parties who may still nurse an understandable
and genuine (if exaggerated) unease about the judge’s impartiality.
Two core distinctions can be made at this early stage. First, claims of
bias must be distinguished from issues relating to the independence of
the court from the parties. The European Court of Human Rights noted
the close relationship between the concepts of independence and impar-
tiality in Findlay v. UK:
The Court recalls that in order to establish whether a tribunal can be
considered as ‘independent’, regard must be had inter alias to the manner
of appointment of its members and their term of office, the existence of
guarantees against outside pressures and the question whether the body
presents an appearance of independence.
As to the question of ‘impartiality’, there are two aspects of this require-
ment. First, the tribunal must be subjectively free from personal prejudice
or bias. Secondly, it must also be impartial from an objective viewpoint, that
is, it must offer sufficient guarantees to exclude any legitimate doubt in
this respect. The concepts of independence and objective impartiality are
closely linked.12

9
Lawal v. Northern Spirit Ltd [2003] UKHL 35, para. 22 [Lord Steyn].
10
Drury v. BBC and another [2007] All ER (D) 205. The difference between suggestions of
bias and of lack of independence has been recognised in the context of prison disciplinary
hearings, where the High Court was more concerned to exercise review in the case of
apparent bias, since lack of institutional independence on the part of the prison governor
was regarded as an unavoidable evil of a system which required quick resolution of minor
incidents, R (King) v. SSJ [2010] EWCA Crim 2522.
11
S. Sedley, ‘When Should a Judge Not Be a Judge?’ (2011) 33 LRB 1, pp. 9–12.
12
Findlay v. UK (1997) 24 EHRR 221, para. 73; Porter v. Magill [2001] UKHL 67; [2002] 2
AC 357, para. 88.

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182 standards of conduct on the bench

The judicial oath supports a distinction between independence and bias.

Independence is undermined by fear or favour.13 Independence refers to
the institutional separation of power of the judicial branch from the
legislature and executive branches, and to the structural independence
of the judge from the party to the dispute. The detailed consideration of
the structures of the decision-making bodies involved determines insti-
tutional independence; where independence is lacking, then it does not
matter which judge sits on the tribunal. By contrast, bias depends on the
individual judge himself and his earlier dealings with the parties, other
statements made that relate to the case and his own personal interests,
which may be furthered by a particular outcome, as considered later in
this chapter.14
Suggestions of bias should also be distinguished from non iudex in sua
causa (No one should be judge in his or her own cause).15 This doctrine
relates to judges who are institutionally connected to one of the parties.
Thus, the House of Lords in R v. Abdroikof decided that a member of the
Crown Prosecution Service (CPS) may not sit as a juror in a case brought
by the CPS, though he might sit in a case brought by an independent
agency.16 This comes as no surprise on account of iudex: it is not a case
where independence is lacking because there are no conceivable adverse
consequences for the juror whatever the outcome, and it may be quite
clear that there is no bias if he knows none of the parties, including any of
the prosecutors involved.
5.2 The first part of this chapter is thus concerned with the common
law test for bias and the process that leads to recusal. In the second part
of the chapter, we illustrate the disciplinary role of the Court of Appeal
on broader fair trial principles rather than because (as is the case in the
first part of this chapter) the judge should have recused himself at the
outset of the trial. The judicial manner of conducting a trial or

13
Sedley, ‘When Should a Judge Not Be a Judge?’.
14
R (Alconbury Developments Ltd) v. Secretary of State for the Environment [2003] 2 AC
295; Tsfayo v. UK (2004) 39 EHRR SE22; R(A) v. Croydon LBC [2009] 1 WLR 2557;
De-Winter Heald v. Brent LBC [2010] 1 WLR 990; cf. R (L) v. Secretary of State for Justice
[2009] EWCA Civ 2416, where the test in Porter v. Magill [2001] UKHL 67 was applied
by Laws LJ in dismissing the application, though the question was one of independence,
Laws LJ referring to the lack of ‘current or past hierarchical or institutional connection
with any individual potentially implicated in the circumstances of the claimant’s
attempted suicide’, para. 47.
15
See Dr Bonham’s Case; Earl of Derby’s Case (1613) 77 ER 1390.
16
R v. Abdroikov [2007] 1 WLR 2679.

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introduction 183

adjudicating a dispute may have consequences when the outcome is

taken to appeal. In this regard, the Court of Appeal plays an important
role in maintaining high standards of judicial behaviour in court.17 The
Court of Appeal has been active in criticising judges for hostile question-
ing of a client giving evidence, or for constant interruption of counsel’s
cross-examination of a witness. The party offended or prejudiced, and
the public at large, might otherwise be tempted to attribute misconduct
of a particular judge to the judiciary as a whole. The disapproval and
criticism of the appellate court eliminates such danger and restores the
scales of justice to their proper balance.
However, beyond the outcome of a case itself, the formal handling of
complaints about the personal conduct of judges is dealt with under a
new regulatory framework introduced in the Constitutional Reform Act
2005 (CRA).18 The Lord Chief Justice and the Lord Chancellor drew up
the Judicial Discipline (Prescribed Procedures) Regulations 2006 under
which the Office of Judicial Complaints was created, as had been antici-
pated in the Concordat. The option of making a complaint to the Office
for Judicial Complaints is an additional remedy to launching an appeal;
but the two remedies are fundamentally different. Only by appealing can
a litigant hold out any hope of reversing a decision by the judge or of
affecting the outcome of the case. Equally, only by making a complaint
via the Office for Judicial Complaints might he see official acknowledge-
ment of the misconduct of an identified judge accompanied by a
sanction. Sanctioning a judge is not formally the purpose of the appeal
process,19 although, where the Court of Appeal does record criticism
(usually20 politely expressed) of the trial judge, the judgment will be sent

17
Goold v. Evans & Co [1951] 2 TLR 1189, p. 1191 [Denning LJ]; Brassington v. Brassington
[1962] P 276, 282; Hobbs v. Tinling [1929] 2 KB 1, 48.
18
Under s. 115 CRA, ‘the Lord Chief Justice may, with the agreement of the Lord
Chancellor, make regulations providing for the procedures that are to be followed in
(a) the investigation and determination of allegations by any person of misconduct by
judicial office holders; (b) reviews and investigations (including the making of applica-
tions or references) under ss. 110–112 [CRA 2005].
19
Lord Widgery LCJ suggested that reprehensible behaviour of a High Court judge should
not normally be mentioned in judgments but referred to him or to a Presiding Judge of
circuit, F. Lawton, ‘Judging the Judges’, The Times, 14 July 1998.
20
L.J. Blom-Cooper and G. Drewry, Final Appeal: A Study of the House of Lords in its
Judicial Capacity (Oxford: Clarendon Press, 1972), pp. 86–7. This not always the case.
Ex-Technology and Construction Court judge Mr Justice Seymour’s judgment in Co-op v.
ICL was found ‘unfair’ and his views lacking in any ‘commercial sense whatsoever’,
Co-operative Group (CWS) Ltd v. International Computers Ltd [2003] EWCA Civ
1955, para. 39 and conclusions; in another case, although the decision was upheld, the

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184 standards of conduct on the bench

to the judge concerned,21 and where there is any reason for concern
about the conduct of the judge it is sent to the Presiding Judges in his or
her area.22
There is some overlap between these categories. Bad behaviour in
court, such as falling asleep or displaying impatience with one party or
showing that the outcome has been decided before the end of the trial,
can both trigger an appeal and also an application to the Office of Judicial
Complaints (either by one of the parties or by the Presiding Judges of the
court). The Guide to Judicial Conduct reflects this overlap by referring to
principles of judicial ethics and to common law jurisprudence, and our
analysis thus starts with a clarification of the Guide’s status.

I. A written code of conduct

5.3 Judicial standards of conduct foster a culture of judicial independence
by providing an idealised account of the conduct expected from judges in
their relationships with the public, with the legal system and with the legal
profession. Notwithstanding their importance for the judiciary itself, the
traditional English attitude towards judicial standards of conduct was ‘that
the less definition attempted, the better; that if you pick judges who know
how to behave, then all will be well as if you do not, no amount of analysis of
ethical problems will help’.23 Judges were guided by conventions, traditions,
practices and understandings which have been established over the years.
Such attitudes prevailed until this new millennium. Much has changed in a
short period of time. Judicial standards of conduct are now expressly
construed as a defining component of public trust in the judiciary, and we

judge’s adverse findings as to a company’s intentions and honesty were said to be ‘entirely
wrong’, ‘unjustified and [they] should not have been made’, Vogon International Ltd v.
Serious Fraud Office [2004] EWCA Civ 104, paras 29 and 31. Judge Seymour was
redeployed in 2005 to hear non-Technology and Construction Court cases; Lord
Hoffman strongly criticised one of Eady J’s judgments, Jameel v. Wall Street Journal
Europe SPRL (No. 3) [2007] 1 AC 359, paras. 57–8, shortly afterwards counterbalanced by
the tribute paid by the Court of Appeal to the judgment of Eady J and his handling of the
case in McKennitt v. Ash [2006] EWCA Civ 1714, paras. 81 and 88. See also M. Friedland,
A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian
Judicial Council, 1995), p. 157.
21
See, e.g., Gardiner Fire Ltd v. Jones [1998] All ER (D) 474.
22
A successful appeal to a higher court does not of itself provide a basis for criticism of a
trial judge, though see Judicial Communications Office Statement, Statement 120606/06,
11/06/2006.
23
J. Thomas, Judicial Ethics in Australia, 3rd edn (Chatswood NSW: LexisNexis Butter-
worths, 2009), p. v; S. Sedley, ‘Judicial Ethics in England’ [2003] 29 Legal Ethics 6.

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i. a written code of conduct 185

need to consider the standards to which members of the judiciary may be

held. Thus Lord Bingham commented that ‘the practice of appointing
judges from a small pool of candidates, sharing a common professional
background, and known personally or by professional repute to those
making and advising on appointments, has enabled much [on legal ethics]
to be taken for granted’.24 Since full-time judges are difficult to remove prior
to the statutory age, one might add that if standards cannot be defined, then
one could not but place the strongest emphasis on appointment, and yet
every appointment system must have its limitations.
Until 2002 the written canons of judicial conduct were the Magna Carta
1215 (‘To none will we sell, to none deny or delay right or justice’) and the
judicial oath (‘I will do right by all manner of people, after the law and
usages of this realm, without fear or favour, affection or ill will’). In 2002
came a third canon, the Guide to Judicial Conduct (revised in 2011). It was
essentially drafted in response to international and national texts, which
have emphasised the need to set some appropriate standards of judicial
conduct, so that the impartiality and the independence of judges can be
demonstrably seen.25 It provides a useful reminder that the traditional
understanding of judicial independence as the insulation from the execu-
tive, or judicial self-governance, is not an end in itself. It rather serves the
most favourable conditions under which the judge may decide in an
impartial way, sine spe ac metu (without fear or hope).26 In 2009 the UK
Supreme Court adopted its own, rather similar, Guide to Judicial Conduct.
But the Guide can also provide an answer to the growth in numbers of
judges at the lower levels and the resulting greater complexity of the
judiciary. Indeed, most disciplinary proceedings so far have concerned
magistrates. Thus the Guide, even though it says nothing surprising to
lawyers, nonetheless has an important advisory role to play.
As mentioned in our Chapter 1, the Guide to Judicial Conduct broadly
follows the six principles asserted in the Bangalore Principles of Judicial
Conduct: judicial independence, impartiality, integrity, propriety (and

24
T. Bingham, The Business of Judging. Selected Essays and Speeches (Oxford University
Press, 2000), p. 69.
25
See Art. 6(1) ECHR and the First Principle of the Bangalore Principles of Judicial
Conduct; Guide to Judicial Conduct, para. 1.2; cf. Murray Gleeson CJ, ‘Foreword’, in
The Council of Chief Justices of Australia, Guide to Judicial Conduct, 2nd edn
(Melbourne: Australasian Institute of Judicial Administration Inc., 2007).
26
G. di Frederico, ‘Independence and Accountability of the Judiciary in Italy. The Experi-
ence of a Former Transitional Country in a Comparative Perspective’, in A. Sajo and R.
Bentch (eds), Judicial Integrity (Leiden: Brill, 2004), p. 15.

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186 standards of conduct on the bench

the appearance of propriety), equality of treatment to all before the

courts, competence and diligence. As the Bangalore principles do, the
Guide introduces guidance on personal relationships and perceived bias
as well as on activities outside the courts, in relation to the media for
example, or after retirement. The Guide ranges over questions of morality
and detailed prescriptions of proper professional behaviour, including
matters of etiquette.
It is arguable that most of the guidance contained in the Guide is
declaratory of existing conventions or standards of judicial conduct
which must be followed. The duty to follow such guidance derives from
the oath taken upon judicial appointment, which requires the judge to
follow ‘the law and usages of the realm’.27 It is not, however, a contractual
duty, for judges are not considered to be ‘persons in Her Majesty’s
Service’, but are rather statutory officers.28

II. Judicial impartiality: procedure, disclosure and waiver

5.4 We now examine the mechanics of dealing with the possibility of
bias. In this area, the judge needs to be seen to be proactive from the start;
he should not be waiting for the parties to raise the issue. If a judge
realises, before the hearing, that a case in his list is one in which he
should not sit for any (sufficient) reason, as discussed below, he must
recuse himself. Ordinarily he would arrange for another judge to take the
case, which would be done informally by the judge’s clerk. There is no
need to consult the parties in clear-cut cases where recusal is required,
because the matter is not formally dependent upon the parties’ objec-
tions. Indeed it would be wrong to do so, since he would effectively be
asking one of the parties to waive their right to a fair trial (such a waiver
would be ineffective anyway: mere disclosure of a cause of bias does not
avoid an objection to a judge who, in the light of the matter disclosed,
clearly ought not to hear the case).29
Disqualification for apparent bias is not a discretionary matter for the
judge. Thus, tempting though it may be in such cases for the parties to
reason that, since they trust the only judge available, they might disregard

27
Guide to Judicial Conduct, 2.2–2.3; Guide to Judicial Conduct (UK Supreme Court), para.
2.2; Guide to Judicial Conduct (Australia), 1.1.
28
On that basis judges argued that they should not be subject to salary cuts under the
National Economy Act 1931; their resistance prevailed and the cuts did not apply to
them, see paras. 4.41, 4.44, 7.31.
29
Helow v. Secretary of State for the Home Department [2008] 1 WLR 2416, 58.

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ii. recusal, disclosure and waiver 187

a factor which gives rise to apparent bias, that temptation must be

resisted, even in the event of possible inconvenience, such as finding
another suitable judge: ‘Efficiency and convenience are not the deter-
minative legal values: the paramount concern of the legal system is to
administer justice, which must be, and must be seen by the litigants and
fair-minded members of the public to be, fair and impartial. Anything
less is not worth having.’30 Where Article 6(1) ECHR applies, it is
unlikely that the rule against bias gives way to necessity.31
At the other end of the scale, if the judge is aware of a factor which, on
proper examination, could not possibly found a case of real or apparent
bias, then he should continue the case and need not even disclose the
factor to the parties. The general practice on disclosure is further
reflected in Laurence v. Thomas:
Judges should be circumspect about declaring the existence of a relation-
ship where there is no real possibility of it being regarded by a fair-
minded and informed observer as raising a possibility of bias. If such a
relationship is disclosed, it unnecessarily raises an implication that it
could affect the judgment and approach of the judge. If this is not the
position no purpose is served by mentioning the relationship.32

If the judge is put on notice that he should not sit due to a potential
conflict of interest, he should make inquiry of the full facts and make
disclosure in light of them – assuming that he does not consider the facts
sufficient to require disqualification.33 As we will see below, many cases
of apparent bias can be argued either way on the known facts and it
is vital that all borderline cases are the subject of argument. Thus the
passage from Laurence v. Thomas continues:
On the other hand, if the situation is one where a fair-minded and
informed person might regard the judge as biased, it is important that
disclosure should be made. If the position is borderline, disclosure should
be made because then the judge can consider, having heard the submis-
sions of the parties, whether or not he should withdraw. In other situ-
ations disclosure can unnecessarily undermine the litigant’s confidence in
the judge.34

30
AWG Group v. Morrison Ltd [2006] EWCA Civ 6, para. 29 [Mummery LJ].
31
Kingsley v. UK (2002) 35 EHRR 177; at common law, Dimes v. Proprietors of Grand
Junction Canal (1852) 3 HLCas 759; Great Charte v. Kennington (1730) 2 Str. 1173.
32
Laurence v. Thomas [2003] QB 528, para. 64.
33
Locabail (UK) v. Bayfield Properties Ltd [2000] QB 451, para. 26 B–D; Guide to Judicial
Conduct, 3.12.
34
Laurence v. Thomas [2003] QB 528, para. 64.

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188 standards of conduct on the bench

In addition, the very fact of disclosure can be a ‘badge of impartiality’,

showing that the judge has ‘nothing to hide and [was] fully conscious of
the factors which might be apprehended to influence . . . her judgment’.35
In practical terms, an appeal in a borderline case on the basis that the
judge should have recused himself seems more likely to succeed if the
judge had not thought the factor even to merit disclosure. The Guide to
Judicial Conduct summarises the practice:
Disclosure should of course be made to all parties and, save when the
issue has been resolved by correspondence before the hearing, discussion
between the judge and the parties as to what procedure to follow should
normally be in open court, unless the case itself is to be heard in
chambers. The consent of the parties is a relevant and important factor
but the judge should avoid putting them in a position in which it might
appear that their consent is sought to cure a ground of disqualification.
Even where the parties consent to the judge sitting, if the judge, on
balance, considers that recusal is the proper course, the judge should so
act. Conversely, there are likely to be cases in which the judge has thought
it appropriate to bring the circumstances to the attention of the parties
but, having considered any submissions, is entitled to and may rightly
decide to proceed notwithstanding the lack of consent.

Practical difficulties arise where the arguable conflict of interest becomes

apparent at short notice upon the opening of the case. Although the
judge may not consider the facts sufficient to require recusal, disclosure
should still be made so that the judge can consider, having heard
the submissions of the parties, whether he should withdraw.36 It is
generally the case that the parties will agree that the trial must continue.
But it should be possible for the judge to recuse himself at this point and
for the case to be transferred to another judge. When a matter comes to
light later in the course of the hearing, it is sufficient for the judge to
disclose only what he then knows. There is no obligation on him to make
inquiry, but if further inquiry is made and some relevant facts are
discovered then he would be obliged to disclose them.37
In AWG Group Ltd v. Morrison,38 on the eve of a eve of six-month trial
with 250 trial bundles, the trial judge realised that one of the witnesses had
been known to him for thirty years as a long-standing family acquaintance.

35
Davidson v. Scottish Ministers (No. 2) [2005] 1 SC (HL) 7, 19 [Lord Bingham], 54 [Lord
Hope].
36
Taylor v. Lawrence [2003] QB 528, 61–5.
37
Locabail (UK) v. Bayfield Properties Ltd [2000] QB 451, 26 B–D.
38
AWG Group v. Morrison Ltd [2006] EWCA Civ 6.

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ii. recusal, disclosure and waiver 189

The defendants sought to have the judge stand down. The judge accepted a
suggestion from the claimants that they would call other witnesses instead
of that one. This was because there was a grave concern to see that a long
and complex trial was not postponed. There was not any suggestion of
actual bias or personal interest. In spite of this, the Court of Appeal held
that the judge should have recused himself as he had known one of the
parties’ potential witnesses socially for some thirty years, and the with-
drawal of that particular witness would not in practice remove his friend’s
interest in the case from the events. Where the judge’s impartiality is
questioned, the appearance is just as important as the reality of the
matter.39 Mummery LJ emphasised that concerns about inconvenience,
costs and delay were irrelevant to the crucial question of the real possibility
of bias and automatic disqualification at trial of the judge.40
The judicial oath also creates a presumption of impartiality and
justifies, at least in part, a high threshold for displacing the presumption
of impartiality.41 If the judge considers that there is no bias (real or
apparent), he may however take into account the practicalities of finding
another judge, who is available and equally able to deal with the matters
under trial. He might also consider whether one of the parties has some
other motive for seeking his recusal. Note the remarks of Gleeson CJ,
McHugh, Gummow and Hayne JJ in Ebner:
In a case of real doubt, it will often be prudent for a judge to decide not to
sit in order to avoid the inconvenience that could result if an appellate
court were to take a different view on the matter of disqualification.
However, if the mere making of an insubstantial objection were sufficient
to lead a judge to decline to hear or decide a case, the system would soon
reach a stage where, for practical purposes, individual parties could influ-
ence the composition of the Bench. That would be intolerable.42

Similarly the Guide to Judicial Conduct provides:

A judge is entitled to keep in mind his general duty to try the cases in his
or her list and the listing burden and delay which may be occasioned by
a recusal. Moreover, it must be recognised that the urgency of the

39
R v. Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2001] 1 AC 119,
139 [Lord Nolan].
40
AWG Group v. Morrison Ltd [2006] EWCA Civ 6, 29 [Mummery LJ].
41
Guide to Judicial Conduct, 7.2; R v. S (RD) [1997] 3 SCR 484, para. 117; In
re Medicaments and Related Classes of Goods (No. 2) [2000] EWCA Civ 350, 700,
para. 83.
42
Ebner v. Official Trustee (2000) 205 CLR 337, para. 20.

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190 standards of conduct on the bench

situation may be such that a hearing is required in the interests of justice

notwithstanding the existence of arguable grounds in favour of
disqualification.43

There is no specific procedure for attacking the qualification of the judge

if he chooses to try the case himself, except going to the Court of Appeal
after he delivers his judgment. In that case, bias would only be raised as a
ground for appeal. However, following the Pinochet (No. 2) decision,44
Lord Irvine (then Lord Chancellor) suggested that future decisions on
potential bias in the House of Lords (now Supreme Court) should be
collectively taken, with the panel of judges addressing the issue of bias
before the hearing, and the Law Lord in the chair making the final
decision.45
While this would seem appropriate before the Supreme Court, and was
indeed received favourably by some senior judges, we need to consider
whether this would also be desirable before the lower or appellate courts.
It may seem strange that the judge himself should be making such
decisions, however on balance we suggest that the regulation of recusal
processes would seem to be satisfactorily overseen by trial judges them-
selves, though if they have the ready opportunity to consult other judges,
then so much the better. Moreover, a judge is likely to be cautious in
continuing the trial in a case of doubt; it is in the nature of a trial judge to
fear being corrected on appeal. However, plausible allegations of actual
bias, which are comparatively rare, should be dealt with by another judge.
5.5 There are limited possibilities of waiver. It is not possible to waive the
right to a different tribunal if it is the case that the present tribunal is
affected by either real or apparent bias. The issue of waiver only arises in
cases where the judge has concluded that there is an arguable case of bias,
though he is minded to think it insufficient to require recusal. Counsel of
the party potentially affected may then waive his right to argue the point.
The person who is said to have waived must have acted ‘freely and in full
knowledge of the facts’,46 and the full relevant facts must be confined to
the essential facts allowing the litigant to understand the nature of the

43
Guide to Judicial Conduct, 3–14.
44
R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2)
[2001] 1 AC 119.
45
K. Malleson, ‘Judicial Bias and Disqualification after Pinochet (No 2)’ (2000) 63 MLR 119.
46
R v. Bow Street Metropolitan Stipendiary Megistrate, ex parte Pinochet Ugarte (No. 2)
[2001] 1 AC 119, 137 [Lord Browne-Wilkinson]; J. Goudkamp, ‘Judicial Bias and the
Doctrine of Waiver’ (2007) 26 CJQ 310, 327.

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ii. recusal, disclosure and waiver 191

case.47 A waiver must also be made clearly and unequivocally.48 Lord

Bingham of Cornhill observed:
In most litigious situations the expression ‘waiver’ is used to describe
voluntary, informed and unequivocal election by a party not to claim a
right or raise an objection which it is open to that party to claim or raise.
In the context of entitlement to a fair hearing by an independent and
impartial tribunal, such is in my opinion the meaning to be given to the
expression.49

In Jones v. DAS Legal Expenses Insurance Co Ltd, the Court of Appeal

provided some guidance on the relevant protocol at the start of the
hearing:
The options open to the parties should be explained in detail. Those
options are, of course, to consent to the judge hearing the matter, the
consequence being that the parties will thereafter be likely to be held to
have lost their right to object. The other option is to apply to the judge
to recuse himself. The parties should be told it is their right to object, that
the court will not take it amiss if the right is exercised and that the judge
will decide having heard the submissions. They should be told what will
happen next. If the court decides the case can proceed, it will proceed.
If on the other hand the judge decides he will have to stand down, the
parties should be told in advance of the likely dates on which the matter
may be re-listed.50

There must also be a fair opportunity for the parties to reach an unpres-
surised decision.51 In addition, the waiver of a Convention right must
‘not run counter to any important public interest’52 and must be accom-
panied by ‘minimum guarantees commensurate to its importance’, such
as the services of a lawyer.53 Although there may be only a few minutes at
the start of a hearing for the parties to consider their options, the judge
must ensure that the party is not rushed into agreeing to the case
continuing. This is particularly important in the case of a litigant in

47
Jones v. DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, para. 36.
48
Locabail (UK) v. Bayfield Properties Ltd [2000] QB 451, para. 15; R v. Secretary of State for
the Home Department ex parte Fayed [2001] Imm AR 134, para. 120.
49
Millar v. Dickson [2002] 1 WLR 1615, para. 31.
50
Jones v. DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, para. 35.
51
Smith v. Kvaerner Cementation Foundations Ltd (Bar Council intervening) [2006] EWCA
Civ 242, para. 29; Millar v. Dickson [2001] UKPC D4, para. 31; D v. Ireland ECtHR No.
11489/85, (1986) 51 DR 117.
52
McGonnell v. UK (2000) 30 EHRR 289, para. 44.
53
Pfeifer and Plankl v. Austria, ECtHR, A 227 (1992) 14 EHRR 692, para. 37.

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192 standards of conduct on the bench

person, and the Court of Appeal provided some guidance on the matter
in Jones v. DAS Legal Expenses Insurance Co Ltd:
The parties should always be told that time will be afforded to reflect
before electing. That should be made clear even where both parties are
represented. If there is a litigant in person the better practice may be to
rise for five minutes. The litigant in person can be directed to the Citizens
Advice Bureau if that service is available and if he wishes to avail of it. If
the litigant feels he needs more help, he can be directed to the chief clerk
and/or the listing officer. Since this is a problem created by the court, the
court has to do its best to assist in resolving it.54

The point that a waiver (or tacit acceptance) must be unpressurised has
been taken at Strasbourg too. In McGonnell v. UK,55 where the Royal
Court of Guernsey had authoritatively ruled that the executive role
exercised by the Deputy Bailiff of Guernsey did not affect his independ-
ence, the Court held that it was not unreasonable for the applicant not to
have raised the matter of bias at the national level, and so he could not be
said to have failed to exhaust his domestic remedies.
The time between the disclosure and an immediate waiver and a
subsequent objection to the waiver is relevant. In Jones v. DAS Legal
Expenses Insurance Co Ltd, the chair informed the claimant – a litigant
in person – that her husband was a barrister and was occasionally
instructed by the respondents; the claimant waived objection. The claim-
ant later wished to raise objection. The Court of Appeal was left ‘with a
nagging doubt’ that the claimant had been ‘hustled into’ his decision to
waive objection. However, he had had ten weeks to mull over the
disclosure since the trial had unexpectedly to be adjourned before
starting again, and ‘any handicap he may have suffered by having been
so suddenly confronted with making a decision on the first morning had
evaporated’.56 He had, ten weeks after the initial disclosure, waived his
right to objection.
Once appropriate disclosure has been made, and a party raises no
objection to the judge hearing or continuing to hear a case, that party
‘cannot thereafter complain of the matter disclosed as giving rise to a real
danger of bias. It would be unjust to the other party and undermine both
the reality and appearance of justice to allow him to do so.’57

54
Jones v. DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, 35 (i)–(vi).
55
McGonnell v. UK (2000) 30 EHRR 289, para. 55.
56
Jones v. DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, para. 38.
57
Locabail (UK) v. Bayfield Properties Ltd [2000] QB 451, para. 26.

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iii. actual and apparent bias 193

Nevertheless, intervening at the time of what seems to be a manifestation

of bias may not be an easy task for counsel who must choose between not
raising the matter and thereby losing a possible ground for appeal, or
raising the matter and adding to the costs and loss of time by aborting
proceedings and having the case transferred to another judge. Needless to
say, the general public confidence in the judges’ impartiality may tilt the
balance one way or the other. Counsel may also wish to stay on good
terms with the judge before whom he may appear in many future cases,
and if he wishes to argue the point, counsel’s further obligation is to
present full information including additional costs incurred by the trial
adjournment, and information as to when the trial could take place
before another judge.58
Appeal on the question of bias remains possible, where the point was
contested and lost at trial, or where the (full) evidence of it arose so late
that there was little alternative but to complete the trial, or where a
supposed waiver was made under undue pressure.

III. Actual and apparent bias

5.6 Actual bias, sometimes labelled predetermination in the judicial
context, automatically disqualifies the judge, however cases of actual bias
are rarely alleged; the proof of actual bias is difficult. One example of
actual bias can be seen in R v. Bingham Justices ex p. Jowitt,59 where the
divisional court of the Queen’s Bench quashed the conviction of the
defendant in a speeding case. In announcing his conviction, the justices’
chairman said that, where there was a conflict of evidence between a
constable and a member of the public, ‘my principle in such cases has
always been to believe the evidence of the police officer’. But rarely would
a judge or other tribunal express such opinions. A more likely scenario is
that, at an early stage of a case, a judge will admit or reveal certain
preconceptions about how he views the main issues, and the question is
then whether those preconceptions will truly prevent him from changing
his mind should the evidence of arguments of counsel warrant it. Such
cases are often argued on the basis of apparent bias,60 though in so far as

58
Smith v. Kvaerner Cementation Foundations Ltd (Bar Council intervening) [2006] EWCA
Civ 242, paras. 37–8.
59
R v. Bingham Justices ex parte Jowitt (1974) QBD; for a recent allegation, see Red River
UK Ltd v. Sheikh [2009] EWHC 3257 (Ch).
60
Southwark LBC v. Jiminez [2003] EWCA Civ 502, para. 25.

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194 standards of conduct on the bench

they relate to comments actually made by the judge at the start of the
case, treating such cases as ones of arguable actual bias would ideally
attract the safeguard already suggested, that the matter of the judge’s bias
be automatically referred to another judge.
In spite of being treated together in some cases, the difference between
apparent bias and actual bias (sometimes labelled ‘predetermination’ in
this context) has been recognised.61 Beatson J (as he was then) distin-
guishes them in these terms:
Predetermination is the surrender by a decision-maker of its judgment
by having a closed mind and failing to apply it to the task. In a case of
apparent bias, the decision maker may have in fact applied its mind
quite properly to the matter but a reasonable observer would consider
that there was a real danger of bias on its part. Bias is concerned with
appearances whereas predetermination is concerned with what has in
fact happened.62

Nevertheless, there are times in any trial and in any pretrial review where
a judge is entitled to express a preliminary view.63 There is nothing
wrong in a judge indicating the way he may be thinking on a particular
point, provided that this is a provisional view only and that it does not
appear that this is a concluded view.64 Thus, in El-Farargy v. El-Farargy,
which concerned a matrimonial property dispute, the Court of Appeal
held that, in the light of the husband’s appalling forensic behaviour, ‘no
observer sitting at the back of his court could have been surprised that he
had formed a “prima facie” view nor even that it was “a near conviction”’.
The Court continued: ‘A fair-minded observer would know, however,
that judges are trained to have an open mind and that judges frequently
do change their minds during the course of any hearing.’65 Good practice
therefore requires leaving the parties in no doubt that preliminary views,

61
R v. Secretary of State ex parte Kirkstall Valley [1996] 3 All ER 304, 319 [Sedley J]; R.
(Persimmon Homes) v. Vale of Glamorgan Council [2010] EWHC 535 (Admin), para.
116; for cases treating the concepts together, see R (Georgiou) v. Enfield LBC [2004]
EWHC 779 (Admin), para. 31 [Richards J]. National Assembly of Wales v. Condron
[2006] EWCA Civ 1573 [Richards LJ]; R (Lewis) v. Redcar and Cleveland BC Longmore
[2009] EWHC 954; T. Endicott, Administrative Law (Oxford University Press, 2009),
p. 177.
62
R (Persimmon Homes) v. Vale of Glamorgan Council [2010] EWHC 535 (Admin), para.
116 [Beatson J].
63
El-Farargy v. El-Farargy [2007] EWCA Civ 1149.
64
Southwark LBC v. Jiminez [2003] EWCA Civ 502, para. 38 [Peter Gibson LJ].
65
El-Farargy v. El-Farargy [2007] EWCA Civ 1149, paras. 26–7.

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iii. actual and apparent bias 195

particularly if they are expressed trenchantly,66 are only provisional and

the judge remains open to persuasion.
The Court of Appeal nonetheless allowed the appeal on the second
ground of apparent bias, finding certain comments of the judge
unacceptable. Ward LJ stated:
There is a world of difference between saying: ‘If he chose to depart never
to be seen again’ and gratuitously adding ‘if he chose to depart on his
flying carpet never to be seen again’. Likewise it would have been unex-
ceptional to say that the Sheikh would be present ‘to see that no stone is
unturned’, without glibly adding ‘every grain of sand is sifted’. The judge
could well make the point that he did not know what lines of communi-
cation were available to Saudi Arabia or wherever the Sheikh may be yet
once again there was no need for the uncalled-for addition of ‘at this
I think relatively fast-free time of the year’. Without the additional words,
the judge was making fair points but the incidental injections of sarcasm
were quite unwarranted.
The third example is the worst. Mr Cayford quite clearly did not
understand why the judge had interrupted his submission that the
Sheikh’s case was not entirely clear by commenting that the affidavit
was ‘a bit gelatinous’. He did not understand the interruption because
he would not have appreciated that, as Mr Randall correctly submits, the
judge was setting himself up to deliver the punch line to his joke, ‘a bit like
Turkish Delight’.67

In Brassington v. Brassington, the Court of Appeal observed:

There are moments when a court may well feel that an indication of the
court’s point of view may be valuable and helpful to the parties. But such
an intervention is always fraught with dangers. To a judge’s mind it is
axiomatic that any view which he may hold before the conclusion of the
case is merely provisional, and that if any evidence or argument subse-
quently appears which makes his present view of the case untenable he
will abandon that view. But litigants often do not appreciate this. They
may mistake a provisional view for a concluded prejudgment.68

More recently, in Amjad v. Steadman-Byrne,69 the issue was whether

there were only two persons in a car at the time of a car accident. But at
trial, during a lunch break, the district judge saw counsel in chambers
and expressed the view that he could not see how the defendant could

66
Southwark LBC v. Jiminez [2003] EWCA Civ 502, para. 39.
67
El-Farargy v. El-Farargy [2007] EWCA 1149, paras. 28–9.
68
(1962) pp. 276, 282 (Trial judge: Mr Commissioner Gallop, QC).
69
Amjad v. Steadman-Byrne [2007] EWCA Civ 625.

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196 standards of conduct on the bench

win; he then observed that it was ‘flavour of the month’ for insurers to
prosecute claimants with ‘Asian sounding names’.70 The district judge
also observed that D worked for the police and that such persons always
think they are right. The Court of Appeal had little difficulty in quashing
the verdict.
In Ezsias v. North Glamorgan NHS Trust,71 appeal was made against a
finding of bias from an employment tribunal chairman, sitting alone
during a pre-hearing review. During the pre-hearing review, on Ezsias’
prospects for success, the chairman said, inter alia: ‘I am of the opinion
that the claim not merely has “little prospect of success” but that it has no
reasonable prospect of success’ and ‘I would go further and say that
I have no doubt that it is bound to fail’. In the document drafted as the
outcome of that meeting, the lack of ‘reasonable prospect of success’ from
Ezsias was again asserted by the chairman. The Court of Appeal held the
document ‘on its face plainly and unequivocally suffused with a con-
cluded view as to Mr Ezsias’s prospects of success’.72 Although it was
submitted that, at a second hearing, the chairman had explained that the
first document only expressed an interim opinion, both Elias J and the
Court of Appeal found that the way the chairman expressed herself in
the first document made the position irretrievable. The chairman’s sub-
sequent explanation was enough to acquit her of actual predetermination
but it could not displace the perception of a closed mind which any fair-
minded and informed observer would have formed.
Here the trenchant views expressed by the chairman during the pre-
hearing review were not expressly stated at the time as preliminary views
and, even if her earlier ruling had been described as provisional at the
time, the forceful way in which the chairman’s conclusion was expressed
would still have led the fair-minded and well-informed observer to the
conclusion that there was very little prospect of the chairman shifting
from her original view. It is suggested that the same result should have
been reached if the case had been presented as one of actual bias.
Similarly, during an adjournment of the inquest concerning the sinking
of The Marchioness, the coroner was reported as describing some of the
relatives of the deceased as ‘unhinged’ and ‘mentally unwell’, which
indicated a real possibility of unconscious bias. A new coroner was
ordered to resume the decision-making process.73

70 71
Ibid., para. 4. Ezsias v. North Glamorgan NHS Trust [2007] EWCA Civ 330.
72
Ibid., para. 18.
73
R v. Inner West London Coroner ex parte Dallaglio [1994] 4 All ER 139.

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iii. actual and apparent bias 197

5.7 Since the nineteenth century, a real likelihood of bias would lead to
quashing of a judicial determination74 and the courts often invalidated
judicial decisions on the ground of the reasonable suspicions of the party
aggrieved, without having made any finding that a real likelihood existed.
The common law test was adjusted in In re Medicaments and Related
Classes of Goods (No. 2),75 where a member of a tribunal had applied for
employment with one of the principal expert witnesses in a case before
her. The emphasis was no longer on the perspective of the party
aggrieved, but that of the fair-minded observer. The Court of Appeal
held that a fair-minded observer would consider that she was likely to
favour the evidence given by them and to consider them a more reliable
source of expert opinions if it was a firm that she wished to be employed
by. Lord Phillips gave judgment for the court:
The court must first ascertain all the circumstances which have a bearing
on the suggestion that the judge was biased. It must then ask whether
those circumstances would lead a fair-minded and informed observer to
conclude that there was a real possibility, or a real danger, the two being
the same, that the tribunal was biased.76

This effectively confirmed Lord Goff’s earlier attempt to reformulate the

test in R. v. Gough, as
having ascertained the relevant circumstances, the court should ask itself
whether, having regard to those circumstances, there was a real danger of
bias on the part of the relevant member of the tribunal in question, in the
sense that he might unfairly regard (or have unfairly regarded) with
favour, or disfavour, the case of a party to the issue under consideration
by him.77

In Porter v. Magill,78 a ‘modest adjustment’ to the test enunciated in R v.

Gough was endorsed, such that the question, as laid by Lord Hope, is now
‘whether the fair-minded and informed observer, having considered the
facts, would conclude that there was a real possibility that the [decision
maker] was biased’.79 As one judge suggested in the course of our
interview, this could be translated as ‘if this objection was raised in

74
Metropolitan Properties Co (FGC) Ltd v. Lannon [1969] 1 QB 577.
75
In re Medicaments and Related Classes of Goods (No. 2) [2001] EWCA Civ 350.
76
In re Medicaments and Related Classes of Goods (No. 2) [2000] EWCA Civ 350, 85.
77 78
R v. Gough [1993] AC 646, 670. Porter v. Magill [2001] UKHL 67.
79
Ibid., para. 103; Kataria v. Essex Strategic Health Authority [2004] EWHC 641, para. 46
(Admin) [Stanley Burton J]; Lawal v. Northern Spirit [2003] UKHL 35; Gillies v. Secretary
of State for Work and Pensions [2006] UKHL 2.

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198 standards of conduct on the bench

Parliament, what would Parliament’s answer be?’. As ever, any doubt in

the matter should be resolved in favour of disqualification.80
Lord Steyn later acknowledged that the ‘public perception of the
possibility of unconscious bias is the key’81 and the English test of bias
in Porter v. Magill is now regarded as having converged with the test
adopted in Canada, Australia and New Zealand and Scotland.82 It is also
in line with the objective requirement for impartiality contained in
Article 6 ECHR.83 The Strasbourg Court ascertains whether the judge
or tribunal offered guarantees sufficient to exclude any legitimate doubt
in respect of his impartiality: ‘It must be determined whether, quite apart
from the judge’s personal conduct, there are ascertainable facts which
may raise doubts as to his impartiality. In this respect even appearances
may be of a certain importance.’84
5.8 The fair-minded observer is expected to adopt a balanced approach as
‘a reasonable member of the public [who] is neither complacent nor
unduly sensitive or suspicious’.85 He is ‘neither naïve or complacent nor
unduly suspicious or cynical’.86 In Helow v. Secretary of State for the Home
Department,87 Lord Hope fleshed out the idealised fair-minded observer as:
The sort of person who always reserves judgment on every point until she
has seen and fully understood both sides of the argument . . . The ‘real
possibility’ test ensures that there is this measure of detachment . . . Then
there is the attribute that the observer is ‘informed’. It makes the point
that, before she takes a balanced approach to any information she is given,
she will take the trouble to inform herself on all matters that are relevant.
She is the sort of person who takes the trouble to read the text of an article
as well as the headlines. She is able to put whatever she has read or seen

80
Locabail (UK) Ltd v. Bayfield Properties Ltd and another [2000] QB 451, para. 10.
81
Lawal v. Northern Spirit [2003] UKHL 35, para. 14.
82 83
Merrabux v. Attorney General of Belize [2005] 2 AC 513, para. 22. Para. 14 A–B.
84
Hauschildt v. Denmark (1990) 12 EHRR 266, paras 46 and 48; De Cubber v. Belgium
(1984) Series A no. 86, 13–14, 24; Findlay v. UK (1997) 24 EHRR 221, para. 73; Pullar v.
UK (1996) 22 EHRR 391. The subjective test applied by the European Court of Human
Rights is directed to the identification of actual bias, on the basis of the judge’s personal
conviction in a given case, see R. v. Abdroikov [2007] 1 WLR 2679, para. 16 [Lord
Bingham]. The tribunal must be subjectively free from personal prejudice or bias.
85
R v. Abdroikov [2007] 1 WLR 2679, para. 15 [Lord Bingham]; Johnson v. Johnson (2000)
201 CLR 488, 53 [Kirby J], cited in Lawal v. Northern Spirit [2003] UKHL 35, para. 14
[Lord Steyn] and in Gillies v. Secretary of State for Work and Pensions [2006] 1 WLR 781,
paras. 17 [Lord Hope] and 39 [Lady Hale].
86
Bolkiah v. State of Brunei Darrussalem [2007] UKPC 62, para. 16 [Lord Bingham].
87
Helow v. Secretary of State for the Home Department [2008] 1 WLR 2416.

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iii. actual and apparent bias 199

into its overall social, political or geographical context. She is fair-minded,

so she will appreciate that the context forms an important part of the
material which she must consider before passing judgment.88

In questioning the judge’s impartiality to the eyes of that notional

observer, it is reasonable to expect the observer to be aware of the law
and the functions of those who play a part in its administration.89 He
does not come to the matter as a stranger or complete outsider and to
have a reasonable working grasp of how things are usually done,90 for
example, a specific decision-making process. In adopting the perspective
of a fair-minded observer, the Court will take account of an explanation
given by the tribunal and assume that the hypothetical observer is also
aware of that explanation.91
It is important not to suppose that the fair-minded observer is so well
informed about judicial procedures and the likely financial, social and
private lives of judges that his conclusions on the matter of apparent bias
will be exactly the same as those held by the judiciary itself. In spite of
this, the forensic manoeuvring92 that goes with the notion of a fair-
minded observer means that the notional observer sometimes appears
as rather omniscient.93 Indeed, in considering all the evidence,94 the
court also includes those circumstances apparent to the court upon
investigation,95 in addition to the circumstances or material facts which
were available – even if not actually known – to the complainant or
hypothetical observer at the original hearing. In Virdi v. Law Society, the
Court of Appeal rejected the claim of the appellant solicitor against a

88 89
Ibid., paras. 1–3. Lawal v. Northern Spirit [2003] UKHL 35, paras. 21–2.
90
Bolkiah v. State of Brunei Darussalem [2007] UKPC 62, 16.
91
In re Medicaments and Related Classes of Goods (No. 2) [2000] EWCA Civ 350, para. 67.
92
G. Hammond, Judicial Recusal: Principles, Process and Problems (Oxford: Hart Publish-
ing, 2009), p. 52.
93
Meerabux v. Attorney General of Belize [2005] UKPC 12; [2005] 2 AC 513; M. Elliott,
‘The Appearance of Bias, the Fair-Minded and Informed Observer, and the “Ordinary
Person in Queen’s Square Market”’ (2012) CLJ 247; A. Olowofoyeku, ‘Bias and the
Informed Observer: A Call for a Return to Gough’ (2009) 68(2) CLJ 388.
94
R v. Gough [1993] AC 646, 670 [Lord Goff]; R v. Inner West London Coroner ex parte
Dallaglio [1994] 4 All ER 139, 151 [Brown LJ]; Porter v. Magill [2001] UKHL 67, 103
[Lord Hope]; Flaherty v. National Greyhound Club Ltd [2005] EWCA Civ 1117, para. 27
[Scott Baker LJ]; Gillies v. Secretary of State for Work and Pensions [2006] UKHL 2, 17
[Lord Hope], and R (Persimmon Homes) v. Vale of Glamorgan Council [2010] EWHC
535 (Admin), paras. 53, 116 [Beatson J].
95
In re Medicaments and Related Classes of Goods (No. 2) [2000] EWCA Civ 350, para. 83;
R v. Gough [1993] AC 646, 670; R v. Abdroikov [2007] 1 WLR 2679, para. 69 [Lord
Carswell], but see Re P (a barrister) [2005] 1 WLR 3019.

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200 standards of conduct on the bench

finding by the Solicitors Disciplinary Tribunal of serious professional

misconduct.96 The tribunal clerk had retired with the tribunal members
when they considered their decision, and he also assisted in drafting the
findings. After the hearing, the appellant found out from the tribunal’s
website that the clerk was an employee of the Law Society seconded to
the tribunal and argued that this gave rise to apparent bias and breached
Article 6 ECHR. The Court of Appeal held that there was no apparent
bias on the facts of the case: the Solicitors Disciplinary Tribunal used a
building not used by the Society, the Society had no control over the
routine management of the Solicitors Disciplinary Tribunal, none of the
clerks had ever served the Society in any other capacity and they had no
routine contact with the Society other than as a nominal employer.
While a fair-minded observer might have become convinced of the
impartiality of the tribunal if he or she had undertaken such painstaking
research before the hearing, it is nonetheless desirable that courts and
tribunals anticipate and try to avoid arrangements which might give
appearances of bias to ordinary laymen. Interviewed judges told us that
litigants in person are the ones who tend to question the judge’s impartial-
ity and to seek review of it. Such cases pose difficulties if there is no trusted
legal expert on hand to advise the litigant that a relationship that may come
as a complete surprise to him is in fact quite normal in the legal world.
When finding the facts relevant for the ‘fair-minded observer’ test, a
court on appeal may take into account a statement from the judge as to
what he or she knew at the time (such as: did he actually know that a
witness before him had the power to dismiss one of his children from
his job?). But the court is not bound to accept any such statement, and in
any event ‘no attention will be paid to any statement by the judge as to
the impact of any knowledge on his or her mind’.97 Presumably no
attention should be paid to the fact that the judge had thought it
unnecessary to recuse himself (as one would expect when any other type
of judicial decision is being appealed). In relation to tribunals where
more than one adjudicator is sitting, and complaint is being directed at
one of them, it would be inappropriate for the other members of a
tribunal to hear evidence in relation to another member.98

96
Virdi v. Law Society [2010] EWCA 100.
97
Locabail (UK) Ltd v. Bayfield Properties Ltd and another [2000] QB 451, para. 19 [Lord
Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C]; Baker v. Quantum Clothing
Group and others [2009] EWCA Civ 499 (CA).
98
Hamilton v. GMB Northern Region [2007] IRLR 391, para. 25.

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iii. actual and apparent bias 201

5.9 The likelihood of bias is also liable to depend on what the main issues
in the trial may be. This was evident in the joined cases of R v. Abdroikov,
R v. Green, R v. Williamson,99 where the House of Lords had to decide
whether the presence of a serving police officer established a reasonable
apprehension of bias. It was held that the mere presence on a jury of a
police officer would not necessarily create such a possibility of bias as to
deny the defendant a fair trial, and noted that Parliament had decided
that they were in principle eligible.100 The House emphasised that it
depended on the circumstances of the case, the issues to be decided,
the background of the juror in question, and the closeness of any
connection which he or she might have to the case to be tried.101 In
one of the joined cases, the majority of the House (Lord Rodger and Lord
Carswell dissenting) noted a crucial dispute on the evidence between the
defendant and the police sergeant and considered that the instinct,
however unconscious, of a police officer on the jury to prefer the evidence
of a brother officer would be judged by the fair-minded and informed
observer to be a real and possible source of unfairness, beyond the reach
of standard judicial warnings and directions.102 Here the profession of
the juror and the issue at trial were thought to be uncomfortably close.
For the general run of cases, the view of Lord Carswell, that the number
and diversity of people in a criminal jury constitutes a safeguard against
such prejudice or bias on the part of any one juror exercising sufficient
influence to determine the outcome of the trial, is likely to hold sway.103
Similarly, in R (Pounder) v. HM Coroner for North and South Districts
of Durham and Darlington,104 the claimant sought judicial review of the
refusal of the coroner to recuse himself from a second inquest into the
death in custody of his son. The coroner had presided over the first
inquest and had declined to rule on a key question of whether the
physical restraint used on the deceased was lawful. That decision had
been quashed on judicial review and the case remitted to him on the basis

99
R v. Abdroikov [2007] 1 WLR 2679.
100
Albeit that this was not the case in other jurisdictions such as Scotland, Northern
Ireland, Australia, New Zealand, Canada, Hong Kong, Gibraltar and a number of states
in the United States. Some other US states have adopted a procedure to question jurors
on their occupation and allegiances.
101
Flaherty v. National Greyhound Racing Club [2005] EWCA Civ 1117, 27 [Scott
Baker LJ].
102 103
R v. Abdroikov [2007] 1 WLR 2679, para. 26 [Lord Bingham]. Ibid., para. 67.
104
R (Pounder) v. HM Coroner for North and South Districts of Durham and Darlington
[2010] EWHC 328 (Admin).

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202 standards of conduct on the bench

that the matter was of such importance that it had to be considered. The
claimant argued that the coroner’s decided views tainted the second
inquest with apparent bias. Burnett J granted the application in these
terms:
The integrity of the Coroner is not in doubt for a moment. The issue is
one of perception and risk viewed from the outside . . . Prudence naturally
leans on the side of being safe rather than sorry. In the light of my
conclusions that the Coroner has expressed his decided views on caus-
ation of the restraint and the honesty of the Serco witnesses [. . .]
I consider that he must recuse himself from the further investigation of
Adam Rickwood’s death.105

The Court is not suggesting that coroners should routinely recuse them-
selves after they are asked to rehear a case on which they have already
erred. Normally they would be expected to put their pride behind them
and to consider the remaining matters afresh as instructed. In this case,
though, the coroner had already shown such scepticism towards the line
of argument that had been put before him that a fair-minded person
would not expect him to have a suitably open mind on the next occasion.
It may have been relevant that in coroner’s courts in particular, the
proceedings are inquisitorial and the coroner retains power to determine
the scope of the issues: there may be more concern about remitting cases
to coroners than there would be when the High Court remits criminal
matters to the same magistrates to reconsider.
5.10 As can be seen, every application must be decided on the facts and
circumstances of the individual case. Any reason leading to a ‘real ground
for doubting the ability of the judge to ignore extraneous considerations,
prejudices and predilections and bring an objective judgment to bear on
the issues before him’106 gives rise to a real danger of bias. There are
some further general principles, however. Under Locabail, no real danger
of bias arises in itself from factors such as religion, ethnic or national
origin, gender, age, class or sexual orientation of the judge, and, at least in
the ordinary course of events, his or her social or educational background
or previous political associations. The Court continued:
Nor, at any rate ordinarily, could an objection be soundly based on the
judge’s social or educational or service or employment background or
history, nor that of any member of the judge’s family; or previous political

105
Ibid., para. 32; Red River UK Ltd v. Sheikh [2009] EWHC 3257 (Ch).
106
Locabail (UK) Ltd v. Bayfield Properties Ltd and another [2000] QB 451, para. 26.

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iv. typical categories of bias complaint 203

associations; or membership of social or sporting or charitable bodies; or

Masonic associations; or previous judicial decisions; or extra-curricular
utterances (whether in text books, lectures, speeches, articles, interviews,
reports or responses to consultation papers); or previous receipt of
instructions to act for or against any party, solicitor or advocate engaged
in a case before him; or membership of the same Inn of Court, Circuit,
local Law Society or chambers.107

We have thought it necessary to add our own emphasis to the word

‘ordinarily’ and we will examine typical factual scenarios below.

IV. Typical categories of bias complaint

5.11 Bearing in mind that apparent bias is a fact-sensitive question, and
recalling that all plausible concerns should be the subject of adversarial
argument, we may profit from looking further at the broad categories of
complaints which have featured in the case law thus far, some of which
are also anticipated in the Guide to Judicial Conduct.

A. Pecuniary interest
5.12 Under the Guide to Judicial Conduct, the existence of a significant
financial interest in the outcome of the case on the part of the judge or, to
the knowledge of a judge, on the part of a member of the judge’s family
will plainly disqualify him from hearing the case.108 It is not material that
the judge could not reasonably be suspected of having been influenced by
his pecuniary interest, perhaps by reference to his great wealth. The
possible appearance of bias still prevents the judge from adjudicating in
that case. In Dimes v. Grand Junction Canal Co,109 the House of Lords,
after consulting the judges, set aside a decision of the Lord Chancellor
granting relief to the Grand Junction Canal Company in which he was a
substantial shareholder. The Lord Chancellor had not disclosed the
interest to the defendant. Lord Campbell CJ said:
No one can suppose that Lord Cottenham could be, in the remotest
degree, influenced by the interest that he had in the concern, but it is of
the last importance that the maxim that no man is to be a judge in his
own cause should be held sacred. And that it is not to be confined to a
cause in which he is a party but applies to a cause in which he has an

107 108
Ibid., para. 25. Guide to Judicial Conduct, 3.8.
109
Dimes v. The Proprietors of the Grand Junction Canal (1852) 3 HL Cas 759.

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204 standards of conduct on the bench

interest . . . This will be a lesson to all inferior tribunals to take care not
only that in their decrees, they are not influenced by their personal
interest but to avoid the appearance of labouring under such an
influence.110

Only a ‘significant financial interest’, that is, one which is not too remote
or speculative, will suffice to trigger automatic disqualification.111 The
Guide to Judicial Conduct states that:
Such an interest may arise without the judge having an interest in the case
to be tried if the case is to decide a point of law which may affect the judge
in his personal capacity. In taking the decision whether to hear the case,
the judge should have regard, in relation to the point of law, to the nature
and extent of his or her interest, and the effect of the decision on others
with whom he or she has a relationship, actual or foreseeable.

Many judges in the Chancery Division hold shares in large companies.

They may also have another personal association with a corporation,
such as being a board member. The Court of Appeal rejected, in Locabail,
the strict view that a judge should disqualify himself no matter how small
and trivial the pecuniary interest or shareholding in the outcome of the
proceedings may be.112 The question is whether the outcome of the case
can realistically affect the judge’s interest. The judge’s pecuniary interest
may be so small as to be incapable of influencing his decision one way or
the other but any doubt should be resolved in favour of disqualifica-
tion.113 Whether the shareholding would be regarded as minor depends
on the number of shares when compared with the total capital of the
amount involved in the litigation; whether the company is a public or
private company; and to what extent the issue under adjudication would
have any effect on his interest. Automatic disqualification would thus

110
Ibid., 793; cf. Clenae Pty. Ltd. and others v. Australia and New Zealand Banking Group
Ltd [1999] VSCA 35.
111
R v. Bristol Betting and Gaming Licensing Committee, ex parte O’Callaghan [2000] QB
451, a companion case to Locabail (UK) Ltd v. Bayfield Properties Ltd and another [2000]
QB 451; Guide to Judicial Conduct, 3.8.
112
See also R v. Rand (1866) LR 1 QB 230, 232 [Blackburn J]; R v. Camborne Justices, ex
parte Pearce [1955] 1 QB 41, 47 [Slade J].
113
Locabail (UK) v. Bayfield Properties Ltd [2000] QB 451, para. 10; Sigurdsson v. Iceland
[2003] ECHR IV, where a financial link between one of the parties to litigation and the
judge’s husband disqualified the judge as not being impartial; Industries South Africa
(Pty) Ltd v. Metal and Allied Workers’ Union [1992] 3 SA 673, 694; Auckland Casino Ltd
v. Casino Control Authority [1995] 1 NZLR 142 (CA), see Hammond, Judicial Recusal,
22–5.

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iv. typical categories of bias complaint 205

apply to the judge with substantial shares in a company to the extent that
an outcome favourable to the company might increase the value of the
shares and, accordingly, the dividend paid to the judge. Similar consider-
ations would apply if a judge held shares as a trustee or if he was
otherwise associated with a corporation.
Traditionally, judges who, on their list of cases, recognise the name of a
company in which they hold shares anticipate an objection and transfer
the case to another judge. Stephen Sedley notes that ‘it has not been
unknown for a judge, typically in the Chancery Division, to mention to
the parties that he or she holds shares in one of them and to have the
objection summarily waived, as often as not with a polite expression of
hope that “your Lordship’s shares will prosper whatever the out-
come”’.114 Such cases should be regarded as those in which the judge’s
interest would not necessarily seem significant to the fair-minded obser-
ver, such that a party may properly waive opportunities to take the point
further.
In principle, indirect financial interests might suffice to disqualify a
judge, but one imagines that in such cases the potential extent of the
interest might need to be more than merely ‘significant’. In Locabail,
apparent bias had been raised against the deputy High Court judge who
was a member of a firm of solicitors. The judge’s firm was acting in other
litigation against the claimant’s husband. It was argued that if the firm
succeeded in the other litigation against the husband, the firm’s clients
would recover more money from the claimant’s husband if the claimant
had lost her claim than if she had succeeded. This would increase the
firm’s goodwill and reputation and hence its profits, in which the judge
would share. The Court of Appeal found a ‘tenuous connection between
the firm’s success in an individual case on the one hand and the firm’s
goodwill and the level of profits on the other hand’. In the absence of a
direct pecuniary interest, the only test applicable was the one set in R v.
Gough, asking whether in the circumstances of the case, there was a real
likelihood, in the sense of a real possibility, of bias on the part of the
deputy judge.115
As to the judge’s position as a taxpayer, the Guide to Judicial Conduct
directs us to section 14 of the Senior Courts Act 1981,116 under which a
judge of the senior courts or of the Crown Court ‘shall not be incapable
of acting as such in any proceedings by reason of being, as one of a class

114
Sedley, ‘When Should a Judge not Be a Judge?’.
115 116
R v. Gough [1993] AC 646, 668 [Lord Goff]. Guide to Judicial Conduct, 3.9.

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206 standards of conduct on the bench

of ratepayers, taxpayers or persons of any other description, liable in common

with others to pay, or contribute to, or benefit from, any rate or tax which may
be increased, reduced or in any way affected by those proceedings’.

B. Personal relationships
5.13 Lord Denning’s proposition in Metropolitan Properties Co (FGC) v.
Lannon remains:
No man can be an advocate for or against a party in one proceeding, and
at the same time sit as a judge of that party in another proceeding.
Everyone would agree that a judge, or a barrister or solicitor (when he
sits ad hoc as a member of a tribunal) should not sit on a case to which a
near relative or a close friend is a party. So also a barrister or solicitor
should not act in a case to which one of his clients is a party. Nor in a case
where he is already acting against one of the parties. Inevitably people
would think he would be biased.117

A fortiori a breach of impartiality may arise where the judge has acted as
a lawyer for the applicant’s opponent in other proceedings.118 With
express reference to Locabail, the Guide to Judicial Conduct reflects the
current practice:
7.2.1 A judge should not sit on a case in which the judge has a close family
relationship with a party or the spouse or domestic partner of a party.
7.2.2 Personal friendship with, or personal animosity towards, a party is
also a compelling reason for disqualification. Friendship may be distin-
guished from acquaintanceship which may or may not be a sufficient
reason for disqualification, depending on the nature and extent of such
acquaintanceship.
7.2.3 A current or recent business association with a party will usually
mean that a judge should not sit on a case. A business association would
not normally include that of insurer and insured, banker and customer or
council taxpayer and council. Judges should also disqualify themselves
from a case in which their solicitor, accountant, doctor, dentist or other
professional adviser is a party in the case.
7.2.4 Friendship or past professional association with counsel or solici-
tor acting for a party is not generally to be regarded as a sufficient reason
for disqualification.
7.2.5 The fact that a relative of the judge is a partner in, or employee of,
a firm of solicitors engaged in a case before the judge does not necessarily

117
Metropolitan Properties Co (FGC) v. Lannon [1969] 1 QB 577, 600.
118
Wettstein v. Switzerland [2000] ECHR 695, 47; Walston v. Norway Application no.
37272/97 ECtHR 11 December 2001.

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iv. typical categories of bias complaint 207

require disqualification. It is a matter of considering all the circumstances,

including the extent of the involvement in the case of the person in
question.
7.2.6 Past professional association with a party as a client need not of
itself be a reason for disqualification but the judge must assess whether the
particular circumstances could create an appearance of bias.
7.2.7 Where a witness (including an expert witness) is personally well
known to the judge all the circumstances should be considered including
whether the credibility of the witness is in issue, the nature of the issue to
be decided and the closeness of the friendship.
7.2.8 A judge should not sit on a case in which a member of the judge’s
family (as defined in the Bangalore principles) appears as advocate.

5.14 As can be seen, a judge should not sit on a case in which a member
of the judge’s family (as defined in the Bangalore principles) appears as
advocate.119 The judge’s family, under the Bangalore principles, com-
prises a judge’s spouse, son, daughter, son-in-law, daughter-in-law, and
any other close relative or person who is a companion or employee of the
judge and who lives in the judge’s household. The ‘judge’s spouse’ refers
to a domestic partner of the judge or any other person of either sex in a
close personal relationship with the judge.120 The Code of Conduct of the
Bar of England and Wales endorses this practice: a barrister must not
accept any instructions if to do so would cause him to be professionally
embarrassed, and for this purpose a barrister will be professionally
embarrassed if the matter is one in which ‘whether by reason of any
connection with the client or with the Court or a member of it or
otherwise it will be difficult for him to maintain professional independ-
ence or the administration of justice might be or appear to be preju-
diced’.121 This confirms the end of a once well-established practice under
which there was no objection to a barrister practising in a court where his
father is one of several judges on the ground that it would be impossible
to know beforehand which judge would try the case.122
5.15 In the English context, personal knowledge of counsel does not
disqualify per se. Appearance of bias does not simply arise from the fact
that the recorder and the counsel are in the same chambers. This
understanding is reflected in the statement, in the Guide to Judicial

119 120
Guide to Judicial Conduct, 7.2.8. Ibid., 5.2.
121
Art. 603(b), Code of Conduct of the Bar of England and Wales, 8th edn in force since
October 2004.
122
W.W. Boulton, Conduct and Etiquette at the Bar, 5th edn (London: Butterworths, 1971),
pp. 37–8.

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208 standards of conduct on the bench

Conduct, that friendship or past professional association with counsel or

solicitor acting for a party is not generally to be regarded as a sufficient
reason for disqualification.123 Judges, whether full time or part time,
frequently have present or past close professional connections with those
who appear before them and it has long been recognised that this, of
itself, creates no risk of bias nor, to those with experience of our system,
any appearance of bias.124 The informed observer must be expected to be
aware of the legal culture and traditions of this jurisdiction, in particular
of solicitors and barristers being acquainted with the judge:
Those legal traditions and that culture have played an important role in
ensuring high standards of integrity on the part of both the judiciary and
the profession which happily still exist in this jurisdiction. Our experience
over centuries is that this integrity is enhanced, not damaged, by the close
relations that exist between the judiciary and the legal profession . . .
It is also accepted that barristers from the same chambers may appear
before judges who were former members of their chambers or on opposite
sides of the same case. This close relationship has not prejudiced but
enhanced the administration of justice. The advantages in terms of
improved professional standards which can flow from these practices
have been recognised in other jurisdictions.
The informed observer will therefore be aware that in the ordinary way
contacts between the judiciary and the profession should not be regarded
as giving rise to a possibility of bias. On the contrary, they promote an
atmosphere which is totally inimical to the existence of bias. What is true
of social relationships is equally true of normal professional relationships
between a judge and the lawyers he may instruct in a private capacity.125

This said, changes in the way that some chambers fund their expenses
mean that members of some chambers share expenses on the basis of
contributing a percentage of earnings. This, combined with the fact that
counsel can now act under a conditional fee agreement, means that, in
some cases at least, there may be grounds for arguing that a recorder
should not sit in a case in which one or more of the advocates are
members of his chambers.126 For instance, where the counsel in question
was acting under a conditional fee agreement, a ruling that reduced the
earnings of counsel appearing before him could result in an increase of

123
Guide to Judicial Conduct, 7.2.4.
124
See, e.g., Nye Saunders & Partners v. Alan E Bristow (1987) 37 BLR 92; Laker Airways Inc
v. FLS Aerospace Ltd [2000] 1 WLR 113; Taylor v. Lawrence [2003] QB 528; Birmingham
City Council v. Yardley [2005] EWCA Civ 1756.
125
Taylor v. Lawrence [2003] QB 528, para. 61.
126
Bar Council CFA Panel, ‘Conditional Fee Agreements Guidance’, February 2006.

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iv. typical categories of bias complaint 209

the contribution to expenses made by the recorder. Examples would be a

strike-out application or an application for permission to appeal.127
In some cases, the potential influence of counsel may be a concern, not
so much because it undermines the independence of the court, but rather
because the lay person who finds himself on the tribunal may be thought
likely to hold the arguments of counsel in too high regard. In Lawal v.
Northern Spirit Ltd,128 a Queen’s Counsel, sitting part-time in the
Employment Appeal Tribunal, subsequently appeared as counsel before
an Employment Appeal Tribunal lay member with whom he had previ-
ously sat. A differently constituted Employment Appeal Tribunal (Lind-
sey J) had decided that there was no real possibility of bias. The majority
of the Court of Appeal dismissed the appeal but the House of Lords,
while also dismissing the appeal on the facts (Lindsay J’s panel was not
known to the advocate), made a point of principle supporting the
appellant’s claim: a part-time judge cannot appear before a panel con-
sisting of any lay member with whom he has previously sat. The terms of
appointment of a part-time Chairman of an Employment Appeal Tribu-
nal bar such a person appearing as an advocate in a region to which he is
assigned in his judicial capacity precisely to avoid allegations of bias.129
Similarly, the degree of reliance placed by lay members on the recorder’s
view of the law requires that a recorder should not be allowed to address
jurors whom in the past he has sat with, and has directed on matters of
law as a part-time judge.130 We also note that jurors should make it
known to the trial judge if they recognise counsel from social or profes-
sional situations.
5.16 Social links are dealt with on a case-by-case approach.131 Under the
Guide to Judicial Conduct, ‘past professional association with a party as a
client need not of itself be a reason for disqualification but the judge must
assess whether the particular circumstances could create an appearance
of bias’.132 Present professional relationships are more difficult. Lord
Evershed MR once disqualified himself from sitting in an appeal because
he knew the appellant, who was his anaesthetist. Lord Evershed com-
mented: ‘I have slid into unconsciousness under his care.’133 The Guide
to Judicial Conduct indeed recommends that judges should disqualify

127
Smith v. Kvaerner Cementation Foundations Ltd (Bar Council intervening) [2006]
EWCA Civ 242, paras. 12 and 17.
128 129
Lawal v. Northern Spirit Ltd [2003] UKHL 35. Ibid., para. 18.
130 131
Ibid., para. 15. E v. Merchant Taylors School [2009] EWCA Civ 1050.
132 133
Guide to Judicial Conduct, 7.2.6. The Times, 13 March 1958.

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210 standards of conduct on the bench

themselves from a case in which their solicitor, accountant, doctor,

dentist or other professional adviser is a party in the case.134 More
generally, the Guide suggests that a current or recent business association
with a party will usually mean that a judge should not sit on a case.135
This, however, only applies to relationships with the parties themselves
and not by extension to relationships solely with their representatives.
In Lawrence v. UK,136 the European Court of Human Rights dismissed as
ill founded the allegation of bias from a deputy judge who had used a
particular firm of solicitors for the purposes of drafting his will, when
that firm was also involved in proceedings before him. The European
Court confirmed the judgment of the Court of Appeal, that the use by a
judge of a particular firm of solicitors for the purposes of drafting his will
should not of itself give rise to any expectation, or even any suspicion,
that the judge would be untrue to his judicial oath and favour another
client of those solicitors in proceedings before him. Among other facts,
the deputy judge did not know, when he presided over the first day of the
trial, that the applicant’s opponents were represented by that same firm
of solicitors and that, when the trial recommenced in November 1999, he
had obtained the express confirmation of both parties to the litigation
that there was no objection to him continuing to hear the case. Nor could
the judge be said to have a significant pecuniary interest in his dealings
with the firm.
The opposite of friendship, namely animosity, may be different.
Personal animosity towards a party is a compelling reason for
disqualification,137 and even animosity between the judge and a firm of
solicitors or his partners may give rise to a real danger of bias as far as the
client himself is concerned.138 In Howell v. Lees Millais,139 a judge had
been in negotiations with a firm of solicitors with whom the first appli-
cant was a partner. The judge’s negotiations with the firm broke down
and with some bad feeling from the judge, who expressed his

134
Guide to Judicial Conduct, 7.2.3.
135
Ibid., 7.2.3. A business association would not normally include that of insurer and
insured, banker and customer or council taxpayer and council.
136
Lawrence v. UK, Application No. 74660/01 ECtHR 24 January 2002, 8–10.
137
Guide to Judicial Conduct, 3.2.2.
138
Howell v. Lees Millais [2007] EWCA Civ 720, 8 [Sir Anthony Clarke MR]; Locabail (UK)
Ltd v. Bayfield Properties Ltd and another [2000] QB 451, 25; in relation to coroners, see
R v. Inner West London Coroner ex parte Dallaglio [1994] 4 All ER 139; R (Butler) v. HM
Coroner for the Black Country District [2010] EWHC 43 (Admin).
139
Howell v. Lees Millais [2007] EWCA Civ 720.

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iv. typical categories of bias complaint 211

‘considerable disappointment’ and complained that some of the firm’s

emails had been ‘condescending’ or ‘insulting’. Although the judge was
not having any contact with the partner making the first application, the
applicants sought the judge’s recusal a short time after when he was
about to hear that application. The judge refused to withdraw from the
case at the end of an acrimonious hearing. The Court of Appeal found
that the judge generally was ‘intemperate’ in his dealings with the
applicant’s counsel and his behaviour ‘was wholly inappropriate’ as he
indulged in ‘extraordinary’ exchanges in court. A fair-minded informed
observer would conclude that there was a real possibility that the judge
was biased against the firm and its partners.140
This led to the first complaint to the Office of Judicial Complaints
against a High Court judge and resulted in a public reprimand from the
Lord Chief Justice and Lord Chancellor for misconduct. The Lord Chief
Justice tersely stated that ‘a firm line [had] now been drawn under this
matter’, and that the judge had his full confidence. It may be best to
regard the Court of Appeal decision in Howell as based on bias, but to
regard the subsequent disciplinary action as based upon the intemperate
nature of the comments which manifested that bias. The tone of judicial
comments and exchanges in court can in itself constitute misconduct.
It also seems that this was a matter of actual and not only apparent
impropriety, manifested in intemperate behaviour on the bench.

C. Preliminary views
5.17 Following the Guide to Judicial Conduct, the judge who has shown
partisanship on topics relevant to issues in the case, or is known to have
strong convictions on the matter expressed extra-judicially, by reason of
public statements or other expression of opinion on such topics, may
have to recuse himself, whether or not the matter is raised by the
parties. We are considering mainly situations where he or she has made
statements on other occasions (including other cases) which would tend
to cause the reasonable-minded observer to conclude that he or she
would not be able to approach the present case with an open mind. We
are thus not considering those cases where the judge has already
expressed a forceful view on a point of law or disputed fact which has

140
Ibid.

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212 standards of conduct on the bench

arisen earlier in the same proceedings; these were examined earlier as

an instance of alleged actual bias.
However, apparent bias may still be arguable where the judge has dealt
adversely with the defendant before, even if he has been scrupulous not to
say or do anything which suggests actual bias in the present case. In
Hauschildt v. Denmark,141 the City Court judge who presided over the
trial and the High Court judges who took part in deciding the case on
appeal had already dealt with the case at an earlier stage of the proceed-
ings. They had given various decisions with regard to the applicant at the
pretrial stage, including decisions concerning detention on remand. That
in itself was not found sufficient by the European Court to justify fears of
impartiality, but the Court still concluded apparent bias as the pretrial
decisions statutorily required the conviction from the judges that there
was ‘a very high degree of clarity’ as to the question of guilt.142 As a result,
there was little difference between the issues settled by the judges in the
pretrial and trial proceedings, and the statutory requirement created a
legitimate doubt as to the judges’ impartiality.143
In England, however, a judge would not decide a bail application
primarily on the basis of evidence which shows nothing more than that
the defendant is likely to have committed the offence currently charged.
Perhaps a more regular difficulty in England might arise in the case of
repeat offenders in the magistrates’ courts, who, after a while, may have
appeared at some point before all the available justices in the area. There
does not seem to be case law on this subject, perhaps because the priority
of the defendant may simply be to avoid the harshest magistrates rather
than to seek trial from an unknown magistrate. Since December 2004 it
has been easier for the prosecution to admit his previous offences as
evidence in any event, and so there is little to gain from seeking trial from
a magistrate outside the jurisdiction.
5.18 The requirement for neutrality does not require judges to discount
the very life experiences that may so well qualify them to preside over
disputes.144 As noted by the Canadian Judicial Council:

141 142
Hauschildt v. Denmark (1990) 12 EHRR 266. Ibid., para. 52.
143
Ibid., paras. 46 and 52; Fey v. Austria (1993) 16 EHRR 387; De Cubber v. Belgium (1984)
Series A no. 86, pp. 13–14, 24.
144
R v. S (R.D.) [1997] 3 SCR 484, para. 119 [Cory J]; but see Swain-Mason and others v. Mills
& Reeve [2011] EWCA Civ 14, paras. 21 and 119: although allegations of bias against the
judge had not been made out, given the ‘strong views’ expressed by the judge on the
prospects of one part of the claim, and the ‘strong views unfavourable to the defendants’

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iv. typical categories of bias complaint 213

Rather, the wisdom required of a judge is to recognize, consciously allow

for, and perhaps to question, all the baggage of past attitudes and sympa-
thies that fellow citizens are free to carry, untested, to the grave. True
impartiality does not require that the judge have no sympathies or
opinions; it requires that the judge nevertheless be free to entertain and
act upon different points of view with an open mind.145

As with personal relationships, it may be relevant to consider exactly

what the real issues in the case might be. If a judge has dealt with a matter
while at the Bar, he would have to disqualify himself. Thus, in one case,
a judge disqualified himself from interpreting a will which he had drafted
while at the Bar, for no fair-minded observer would think it easy for the
judge to easily assume that he might have made an error earlier in his
career and to look at the matter entirely afresh. In R v. S.,146 a judge
ordered the discharge of a jury in a fraud trial because of allegations of
jury tampering, and he decided to continue the trial as a judge alone. Yet
the judge had been involved in nine trials which were directly concerned
with a fraud in which the appellant in the tenth trial was alleged to have
been a central figure. The judge was ‘aware of a vast body of information
affecting their client of which the defence would have been ignorant’, and
‘some of his observations about the appellant himself in the course of
his sentencing remarks were specific to and critical of the appellant’.147
Taking these points together and in context, the appeal was allowed by
the Court of Appeal on the ground that, even though actual bias could
not be shown, an informed objective bystander might legitimately con-
clude that bias was a realistic possibility. To the extent that this may only
have become apparent in the judge’s sentencing remarks, this case
illustrates that sometimes an effective appeal procedure is necessary as
a final safeguard against apparent bias.
The further removed the cause of bias may be from the issue in
question, the harder the test is to apply, and one does not expect judges
to be challenged on the basis of their past clients (not least because
barristers abide by the cab-rank rule and do not turn down cases
which they are competent to handle). In The Gypsy Council and others v.

on another aspect of the case, and since the appeal succeeded on other grounds, the Court
of Appeal ruled that ‘when the trial starts again, it should be heard by a different judge’.
145
The Canadian Judicial Council, Commentaries on Judicial Conduct (Cowansville,
Quebec: Yvon Blais, 1991), p. 12, cited in R v. S (R.D.) [1997] 3 SCR 484, paras. 35
and 119.
146 147
R v. S. [2010] 1 WLR 2511. Ibid., para. 43.

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214 standards of conduct on the bench

UK,148 the domestic judge (David Pannick QC) had appeared as counsel
for the government in numerous previous domestic cases where the
government argued that public authorities had not infringed the rights
of gypsies. The Court found that no legitimate doubt on the judge’s
impartiality could be raised simply on that basis, when Mr Pannick’s
practice covered a wide range of litigation.
The Guide to Judicial Conduct further states that the risk of disqualifi-
cation, whether of the judge’s own volition or following an application,
‘will seldom, if ever, arise from what a judge has said in other cases’.149
This refers to past criticism of the conduct of a party or his lawyers by a
judge in a case or to a past decision adverse to a party.150 It may happen,
however, that the courts find that there is no ground for disqualification
but they take into account the availability of another judge to hear the
case and conclude that, for the avoidance of doubt or any possible later
objection, the judge should recuse himself.151 Yet it is important that
judicial officers discharge their duty to sit and do not, by acceding too
readily to suggestions of appearance of bias, encourage parties to believe
that by seeking the disqualification of a judge, they will have their case
tried by someone thought to be likely to decide the case in their favour.152
Thus, mere criticism by a party of a judge’s conduct towards that party
in previous proceedings does not per se constitute a ground for disquali-
fication. In one case, one litigant in person argued that the judiciary was
likely to favour arguments advanced by professional representatives
over the lay person; and he criticised the one judge who had previously
refused him permission to appeal in related proceedings.153 His request
to stay proceedings on that basis was rejected by the Court of Appeal.
The Court emphasised the need to resist the regular temptation for a
judge to disqualify himself simply because it would be more comfortable
to do so, as this would in effect give a party the choice of their judge
by criticising, justifiably or not, the one they did not wish to hear
their case.154

148
The Gypsy Council and others v. UK, Application No. 66336/01, ECtHR 14 May 2002.
149
Guide to Judicial Conduct, 3.10.
150 151
Drury v. BBC and another [2007] All ER (D) 205. Ibid.
152
Ansar v. Lloyds TSB Bank Plc [2006] EWCA Civ 1462; cf. Re JRL ex parte CJL [1986] 161
CLR 342, 352 [Mason J], cited in Locabail (UK) Ltd v. Bayfield Properties Ltd and
another [2000] QB 451, para. 22.
153
Dobbs v. Triodos Bank NV [2005] EWCA Civ 468, para. 7; Rothermere v. Times
Newspapers Ltd [1973] 1 All ER 1013, 1017.
154
Dobbs v. Triodos Bank NV [2005] EWCA Civ 468, para. 7.

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iv. typical categories of bias complaint 215

We may also note an earlier case, however, which concerned a libel

suit by the Daily Mail against The Times for an article written by Bernard
Levin, in which he attacked the Daily Mail for shutting down the Daily
Sketch. The Times successfully asked for a trial by jury, inter alia, on the
grounds that Mr Levin had been critical of the judiciary in the past and had
expressed antipathy towards certain judges in a way that might cause a
judge to feel resentment against him. Lord Denning MR rejected the
suggestion that ‘the judges, or any one of them, would be prejudiced
against him’, although ‘no judge whom he criticised would dream of sitting
on the case’.155 Lord Denning considered, however, that ‘if a newspaper
has criticised in its columns the great and the powerful on a matter of large
public interest – and is then charged with libel – then its guilt or innocence
should be tried with a jury, if the newspaper asks for it’.156
There may be a working distinction between a judge’s past caseload as
an advocate or as a judge, and his expressed views outside his representa-
tion of clients or disposal of cases. In Timmins v. Gormley, a recorder had
published extensively on personal injury topics in almost all the publica-
tions devoted to that subject, and it was submitted that there was a real
danger that he was subject to unconscious but settled prejudice against
insurers, and that his findings supported allegation of bias. The Court of
Appeal found that the case turned on the statements made in those
articles. Noting that there was nothing improper in the recorder being
engaged in writing activities, the Court stated:
It is the tone of the recorder’s opinions and the trenchancy with which
they were expressed which is challenged here. Anyone writing in an area
in which he sits judicially has to exercise considerable care not to express
himself in terms which indicate that he has preconceived views which are
so firmly held that it may not be possible for him to try a case with an
open mind.157

The Court allowed the appeal and ordered a retrial on the basis that they
had to take
a broad common sense approach, whether a person holding the pro-
nounced pro-claimant anti-insurer views expressed by the recorder in
the articles might not unconsciously have leant in favour of the claimant
and against the defendant in resolving the factual issues between them.

155 156
Rothermere v. Times Newspapers Ltd [1973] 1 All ER 1013. Ibid., G.
157
Timmins v. Gormley [2000] 1 All ER 65, para. 85; Newcastle City Council v. Lindsay
[2004] NSWCA 198.

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216 standards of conduct on the bench

Not without misgiving, we conclude that there was on the facts here a real
danger of such a result’.158

To similar effect, we note that one judge recused himself from presiding
in a foxhunting case because he had previously condemned the activity as
‘barbaric and cruel’ and voted for a ban on it when he was an MP, before
he was elected to the High Court in 2007.159 He recused himself
following the formal objections from lawyers who had raised the appear-
ance of bias. This is perhaps a good example of a borderline case where
recusal is wise in practice whether or not it is strictly necessary.
5.19 Apparent bias in this context can only be found on the basis of
expressed views. There is no room for ‘attributing’ views to judges by
virtue of their gender or race. If a judge is of the same or different racial
group of the parties to the case, it would not require disqualification. It
is too obvious to be mentioned, had it not given rise to difficulties
some years ago. In 1969 the chairman of a magistrates’ bench excluded
a coloured woman magistrate from considering an application for bail of
three white men charged with threatening behaviour in a racial riot. The
Lord Chancellor advised that the chairman should not have asked the
coloured magistrate to disqualify herself.160 The same is true of juries;
so there is no right (say) for a black defendant to have any number of
black jurors at his trial, even if alleged racism is a live issue in the trial.161
In fact the apparent ability of all-white juries in England to deliver
fair decisions in such cases seems to be supported by recent empirical
evidence.162

D. Membership of pressure groups

5.20 We now turn to cases where bias may be apparent from a judge’s
membership of a group, even if he has not made public statements about
its causes. As seen with Pinochet (No. 2), a judge may have to disqualify
himself by reason of his association with a body that institutes or defends
the suit; for here, Lord Hoffmann was on the board of Amnesty

158
Timmins v. Gormley [2000] 1 All ER 65, para. 85.
159
The Times, 29 July 2008. A Member of Parliament is not per se disqualified from being a
judge, Pabla Kay v. Finland (2004) 42 EHRR 688.
160
The Times 3 September 1969; G. Borrie, ‘Judicial Conflicts of Interest in Britain’ (1970)
18 AJCL 697, 708.
161
R v. Ford [1989] QB 868.
162
C. Thomas, ‘Are Juries Fair?’ (London: Ministry of Justice Research Series 1/10, 2010).

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iv. typical categories of bias complaint 217

International.163 A judge should disqualify himself if he is the chairman

or a member of the board of a charitable organisation, or member of the
governing body of a school which is a party to a case. Lord Evershed MR
once disqualified himself from hearing an appeal on the ground that he
was an ex officio member of the Church Commissioners for England,
who were parties to the action.164 By comparison, mere membership
of, or subscription to, a voluntary association does not require disqua-
lification. As such, mere membership does not connote any form of
approval or endorsement of that which was said or done by the associ-
ation’s officers. Disclosure, subject to counsel’s objection and argument,
is likely to be sufficient. Where proceedings are brought by, for example,
a Bar association as in Meerabux v. Attorney General of Belize,165 mere
membership of the association by the judge, as opposed to active involve-
ment in its affairs or in the institution of the proceedings, does not
trigger automatic disqualification.166 This was clearly stated in 1889 in
Leeson v. General Council of Medical Education and Registration, where
mere membership of the Medical Defence Union was held not to be
sufficient to disqualify.167 In Allinson v. General Council of Medical
Education and Registration, mere ex officio membership of the committee
of the Medical Defence Union was also held to be insufficient to trigger
disqualification.168
It seems generally to be the case that ‘mere’ members of a group need
to have been shown to have been demonstrably active in promoting
the causes of the group (as they may relate to the case) if bias is to be
regarded as apparent. In Salaman v. UK,169 the European Court of
Human Rights considered that membership of a judge in the Free-
masons in the United Kingdom did not per se raise doubts as to his
impartiality where a witness or party in a case is also a Freemason. In
March 1998, however, a parliamentary Select Committee inquiry led by
Chris Mullin concluded that, although there had not been any evidence
of impropriety or malpractice as a result of a judge being a Freemason,
there was a public perception that there might be such impropriety or

163
Malleson, ‘Judicial Bias’.
164
M. Hood Philips, Constitutional and Administrative Law, 5th edn (London: Sweet &
Maxwell, 1973), p. 521.
165
Meerabux v. Attorney General of Belize [2005] 2 AC 513.
166
Ibid., para. 24 [Lord Hope].
167
Leeson v. General Council of Medical Education and Registration (1889) 43 Ch D 366.
168
Allinson v. General Council of Medical Education and Registration (1894) 1 QB 750.
169
Salaman v. UK Application No. 43505/98 ECtHR 15 June 2000.

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218 standards of conduct on the bench

malpractice.170 In response, Lord Irvine LC required that, from March

1998, judges disclose their Masonic membership. Anyone being
appointed for the first time to any judicial office, including coroners,
was asked whether they belonged to the Freemasons and, if not, that
they notified the Lord Chancellor in the event that they subsequently
joined them. The rule was rescinded in November 2009 on the basis that,
following Jack Straw LC, it would be disproportionate to continue with
such practice when there had not been any evidence of impropriety or
malpractice as a result of a judge being a Freemason. This change of
attitude followed the successful challenge of similar Italian rules before
the European Court of Human Rights, which found that the obligation
to declare membership of a non-secret society breached the applicants’
right to free association and was discriminatory.171
In Helow,172 the House of Lords considered a challenge to the impar-
tiality of a Lord in Ordinary on the basis of her membership of the
International Association of Jewish Lawyers and Jurists. The appellant
was a sympathiser with the Palestine Liberation Organization who
claimed that she was ‘at risk’ from several sources, including Israeli
agents. Her claim for asylum had been rejected by an immigration
adjudicator. She was refused leave to appeal by the Immigration Appeal
Tribunal and sought review of that refusal. The Court of Session judge,
Lady Cosgrove, who dismissed her petition for review, was a founding
member of the International Association of Jewish Lawyers and Jurists,
whose magazine included articles hostile to the Palestine Liberation
Organization.
It was argued that her membership of such an association ‘gave the
appearance of being the kind of supporter of Israel who could not be
expected to take an impartial view of a petition for review concerning a
claim for asylum based on the petitioners’ support for the Palestinian
Liberation Organisation’.173 The appellant relied upon the principle in
Pinochet (No. 2) extending automatic disqualification to cases where the
judge’s decision would lead to the promotion of a cause in which he or
she was involved together with one of the parties. It was argued that the

170
Report of the House of Commons Select Committee on Freemasonry in the Police and
the Judiciary (the ‘Mullin Inquiry’).
171
Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (No. 2) (2007) Application No.
26740/02 ECtHR 31 May 2007.
172
Helow v. Secretary of State for the Home Department [2008] 1 WLR 2416.
173
Ibid., para. 13 [Lord Rodger].

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iv. typical categories of bias complaint 219

judge had not disassociated herself from the views expressed in the
various articles published in the Association’s journal, which she received
and must have read. Her reaction to the articles was unknown, and that
in itself justified the suspicion of bias.
The House of Lords dismissed the argument: there was no appearance
of bias simply by reason of such membership. Contrary to Pinochet
(No. 2), in Helow the Association was not a party to or in any way
concerned with the asylum proceedings concerning the appellant.174
There was thus no reason for the judge to recuse herself. Nothing
suggested that the judge had ever expressed support for the more extreme
anti-Palestinian views that that Association had expressed on occasions,
and a fair-minded observer would think that her membership did not
imply any form of approval or endorsement of that which was said or
done by the organisation’s officer.
As Lord Hope remarked, had Lady Cosgrove in Helow
dropped even the slightest hint on any occasion, however, informal, that
she was in sympathy with what was published, the result might well have
been quite different . . . That case offers some reassurance to judges who
like to be well informed and are observed reading the Sun or some other
such tabloid which has taken sides on an issue which comes before them
judicially. They can read what they like, so long as they do not say or do
anything to associate themselves with what has been written.175

Notwithstanding his or her extracurricular interests, any professional

judge is expected, by training and experience, to practise and display
impartiality.
A similar reasoning can be found in the New Zealand Court of
Appeal’s judgment in Collier v. Attorney General.176 In that case the
appellant had given the appellate judges a questionnaire directed at
any conflict of interest, prior discussion of the case with others, or
membership of the ‘Religion of Islam, Judaism, Church of Scientology,
Theosophical Society, Church of Latter Day Saints, Illuminati, Orange
Lodge, Druids, Skulls and Bones, Ku Klux Klan, or any society or
organisation or group which requires oaths to be taken which would
conflict with the judicial oath’. The Court of Appeal held: ‘To invoke
membership of any association listed in [these] questions as a sufficient

174
Ibid., para. 40 [Lord Mance].
175
Lord Hope, ‘What Happens When a Judge Speaks Out?’, Holdsworth Club Presidential
Address (19 February 2010), p. 8
176
Collier v. Attorney General [2002] NZAR 257 (CA); see Hammond, Judicial Recusal, 51.

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220 standards of conduct on the bench

basis for disqualifying a Judge from sitting would also be inconsistent

with the unlawful discrimination provisions of the Human Rights Act
1993 and the New Zealand Bill of Rights Act 1990.’177

V. The disciplinary role of the Court of Appeal

5.21 Improper conduct of the trial judge adds ‘great weight to the
substance of the appeal’,178 and together with other grounds of appeal
may result in the reversal of judgment in a civil or criminal case.179
In civil cases the court has a general power to order retrial in cases
where one party has not had a fair trial due to judicial misconduct.
In criminal appeals, however, until 1968, the Court of Appeal seemed
reluctant to accept arguments that the misconduct of the judge should
affect the conviction, save in extreme cases.180 The Court of Appeal’s
scrutiny of judicial misconduct was also limited for a long time by
its reliance for evidence upon the transcript of the trial only,181 when
these were not easily available,182 though, as a matter of principle,
it did not exclude the admission of such evidence by witnesses.183
Since 1968, any conviction should be quashed if the judge’s conduct
has rendered the conviction ‘unsafe’ and this word allows the appeal
court to consider the fairness and propriety of the trial as well as its
factual accuracy.
In Randall v. R, Lord Bingham emphasised the ‘absolute’ right of a
criminal defendant to a fair trial:
There will come a point when the departure from good practice is so
gross, or so persistent, or so prejudicial, or so irremediable that an
appellate court will have no choice but to condemn a trial as unfair and

177 178
Ibid., para. 24. Brassington v. Brassington [1962] P 276, 281.
179
Yuill v. Yuill [1945] P 15; Hobbs v. Tinling [1929] 2 KB 1; Jones v. National Coal Board
[1957] 2 QB 55.
180
R v. Hircock [1970] 1 QB 67, where the sentence was reduced; R v. McKenna [1960] 1
QB 411. This case shows that, when the misconduct of a judge was serious or had
attracted adverse publicity or invoked parliamentary action, the Court of Appeal was
already likely to overcome these inhibitions and put the principles higher than the
particular case; but see JUSTICE, ‘Report’, 48–9.
181
R v. Hircock [1970] 1 QB 67, 70, 72–3.
182
In the 1970s, transcripts of the court proceedings would be written by shorthand writers,
but the transcript was not required by law before the county courts; the appeal would
then depend on the judge’s notes.
183
Criminal Appeals Act 1968, s. 23(1)(c); R v. Langham [1972] Crim LR 457.

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v. the disciplinary role of the appeal court 221

quash a conviction as unsafe, however strong the grounds for believing

the defendant to be guilty.184

To similar effect, in the words of Lord Goddard, ‘It may, and not
infrequently does, happen that something is done in the course of a trial
which is not strictly in accordance with the recognised procedures. If that
is so the court must consider whether or not it is an irregularity which
goes to the root of the case.’185
The Criminal Division of the Court of Appeal is still regarded as being
prepared to tolerate minor procedural irregularities, or, in the words of
Professor Spencer, ‘to hold its judicial nose and uphold the conviction, if
it is convinced that the defendant is really guilty, and would still have
been convicted even if the procedural irregularity not taken place’.186
Even falling asleep during the trial does not necessarily make any ensuing
conviction unsafe.187 Yet the disciplinary power of the Court still has a
restraining and preventive effect on the judges. Many, if not most High
Court judges or circuit judges look for promotion; frequent reversal or
reprimand without reversal moves a judge away from the list of candi-
dates for promotion. There may be some doubt whether reversals due to
error of judgment in substantive law alone have this effect, for reversal
of judgments in these cases may be the result of a mere difference in
interpretation between the trial court and the appellate court. However,
there can be little doubt that reversal or censure of a judge on the ground
of his improper conduct in the trial adversely affects his chances of
promotion.188
Even where the appeal court declines to quash a conviction on
account of the judge’s misconduct, it may nevertheless think it appro-
priate to reduce the sentence that he passed, thereby censuring in some
substantial sense the judicial misconduct. Thus, if the judge has made
several derogatory comments about the defendant, or about his trial
tactics, during the case, then the defendant may feel that he has been
sentenced more harshly than he would normally have been, and while

184
Randall v. R. [2002] 2 Crim App R 267, 284.
185
R v. Furlong and others (1950) 34 Cr App R 79, 84–5.
186
J.R. Spencer, ‘Quashing Convictions, and Squashing the Court of Appeal’ (2006) 170
JPN 790–3.
187
R v. Betson [2004] EWCA Crim 254 CA (Crim Div), para. 47 [Rose LJ]. In that case,
falling asleep did not prevent the judge from summing up to the jury the significant
features of the evidence or speeches in a comprehensive and balanced summing up.
188
Cecil, The English Judge, 73–4.

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222 standards of conduct on the bench

not all harsh sentences are reduced on appeal (sentencing remains a

matter of structured discretion) reductions may occur when the Court
of Appeal is uneasy about misconduct which may seem linked to a
relatively harsh sentence. Conversely, in the cases where the judge’s
misconduct is thought wholly to have undermined the perception of the
fairness of the trial, the Court of Appeal may quash the conviction but
also order a retrial, and will tend to do so where the evidence against the
accused was plainly very strong.189
Although it ordinarily acts upon complaints of counsel raised on
appeal, the Court of Appeal sometimes criticises the conduct of the
judges on its own initiative. In a case relating to The Da Vinci Code
book where a mysterious code is being sought, Mr Justice Peter Smith
(a known follower of the book) produced a seventy-page ruling in which
he had deliberately buried his own coded message. In upholding the
judgment, Lloyd LJ observed that ‘the judgment is not easy to read or to
understand. It might have been preferable for him to have allowed
himself more time for the preparation, checking and revision of the
judgment.’190
We broadly categorise below the occasions on which the appeal court
may make pointed criticisms of trial judges.

A. Excessive intervention
5.22 While excessive judicial intervention in the examination of wit-
nesses does not always amount to apparent bias, it is often contended
that it may vitiate the conduct of the trial. Intervention to clarify a
genuine ambiguity is acceptable and may even be best practice, if the
judge anticipates that the jury might be confused by the ambiguity which
neither party to the case seems to be about to resolve. But questions
which suggest incredulity as to what is being said by a witness are
different. Here, the judge must leave it to one of the parties to undermine
the evidence, resisting the temptation to ‘step into the arena’191 to do the
job himself, as he is likely to have done in the past as a barrister. This

189
In 1988, the power of the Court of Appeal to order a new trial widened from ‘fresh
evidence’ to ‘where it appears to the court that the interests of justice so require’,
Criminal Justice Act 1988, s. 43(2).
190
Baigent and another v. The Random House Group Ltd [2007] EWCA Civ 247, para. 3.
191
R v. Hamilton (unreported) [1969] Crim LR 486; R v. Hulusi & Purvis (1973) 58 Cr App
R 378; R v. Matthews (1984) 78 Cr App R(S) 23; R v. Sharp (1998) 94 Cr App R 144.

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v. the disciplinary role of the appeal court 223

principle was emphasised in Almeida v. Opportunity Equity Partners

Ltd, where the trial judge engaged in extensive questioning of the
evidence, expressing at times a high degree of scepticism and disbelief
during the witness’s evidence.192 The Privy Council held that the
judge’s conduct was not such as to render the trial unfair, differing
from the Court of Appeal on the basis that their Lordships considered
that the judge’s interventions were motivated ‘not by partiality, but
by the wish to understand the evidence (which was often obscure
and inconsequential) and to push on the trial process’.193 This case
thus confirms the continuing authority of the observations of Denning
LJ in 1957:
[The Judge] must keep his vision unclouded . . . Let the advocates one
after the other put the weights into the scales – the ‘nicely calculated less
or more’ – but the judge at the end decides which way the balance tilts, be
it ever so slightly. The judge’s part in all this . . . is to hearken to the
evidence, only himself asking questions of witnesses when it is necessary
to clear up any point that has been overlooked or left obscure to see that
the advocates behave themselves seemly and keep to the rules laid down
by law to exclude irrelevancies and discourage repetition; to make sure by
wise intervention that he follows the points that the advocates are making
and can assess their worth; and at the end to make up his mind where the
truth lies. If he goes beyond this, he drops the mantle of a judge and
assumes the robe of an advocate; and the change does not become him
well . . . Such are our standards.194

Many authorities address the situation where the judge does not seek
to clarify ambiguities but contributes his own views as to the truth of
the evidence being heard. Thus, in R v. Perren, allowing the appeal,
Toulson LJ (as he was then) reaffirmed that it is for the prosecution to
cross-examine, not for the judge, and continued:
The appellant’s story may have been highly improbable, but he was
entitled to explain it to the jury without being subjected to sniper fire
in the course of doing so. The potential for injustice is that if the jury, at
the very time when they are listening to the witness giving his narrative
account of events, do so to the accompaniment of questions from the
Bench indicating to anybody with common sense that the judge does not

192
Almeida v. Opportunity Equity Partners Ltd [2006] UKPC 44, para. 898.
193
Porter v. Magill [2001] UKHL 67, 103.
194
Jones v. National Coal Board [1957] 2 QB 55, 64. This was a civil appeal, but these
remarks apply to criminal proceedings too, though the jury, rather than the judge, would
then be fact-finding.

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224 standards of conduct on the bench

believe a word of it, this may affect the mind of the jury as they listen
to the account.195

Humphrey J put the matter in this way in R v. Canny:

A prisoner is entitled to make his defence to the jury, and it is for the jury
and not for the Judge to decide on its weight. The Judge has no power to
stop a defence and say: ‘This is an absurd defence and I will not let you
put it before the jury’. When we find that the learned Judge. . . has really
prevented the jury from trying the prisoner fairly and squarely on the
evidence by repeating over and over again: ‘This is an absurd defence,
there is no foundation for this allegation against his wife, and the truth
is, as you will find in a minute, that the prisoner did assault his wife’,
that is not a trial at all according to our methods and understanding. It is
a mistrial.196

While the Criminal Procedure Rules 2005 set a general duty for judges to
manage a trial actively and to avoid delays,197 the Court of Appeal has,
inter alia, continued to recognise limited powers to judges to question
witnesses while parties submit evidence.198 Trial judges are still criticised
if ‘they are excessive and take on the substance of cross-examination,
[and] may have the potential to poison the minds of the jury against the
defendant’.199 In such cases, the convictions can be quashed and/or the
judicial intervention sanctioned.200 The prejudicial effect of the judge’s
intervention is decided by reference to the frequency and character of
his interventions.201 The safety of the conviction can be affected when,
‘far from the judge having umpired the contest, rather he has acted
effectively as a second prosecutor’,202 even when it appears that the jury
would inevitably have reached the same conclusion without the judge’s
inappropriate interventions. For example, in 2008, the Court of Appeal
quashed the defendants’ convictions on the ground that the judge made
excessive and prejudicial interventions during the course of the

195
R v. Perren [2009] EWCA Cr App 348, paras. 35–6.
196
R v. Canny [1945] 30 Cr App R 143, 146.
197
Rule 3 Criminal Procedure Rules 2005; R v. L [2007] EWCA Crim 764, paras. 27–9.
198
R v. Sharp [1994] QB 261.
199
R v. Harirbafan [2008] EWCA Crim 1967, para. 3 [LJ Toulson].
200
Yuill v. Yuill [1945] P 15, 20 [Wallington J]; R v. Gilson (1944) 29 Cr App R 174; R v. Perks
[1973] Crim LR 388 (of the 700 questions asked in examination in chief, 147 came from
the judge); R v. Cain (1936) 25 Cr App R 204 (where the trial judge himself conducted the
cross-examination); R v. Clewer (1953) 37 Cr App R 37 (587 interventions).
201
R v. Perks [1973] Crim LR 388; R v. Cameron [2001] EWCA Crim 562.
202
Michel v. The Queen [2009] UKPC 41, para. 31.

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v. the disciplinary role of the appeal court 225

evidence.203 The judge’s comments and the manner of his questioning

gave the clear impression to the jury that he doubted the case for Mr
Copsey, and the repeated questions of the judge were ‘in the nature of
cross-examination’.204
Senior judges remain alarmed at the number of such appeals which
still come before the courts. Confronting the defendant ‘on the spot’
undermines the perception of the judge’s partiality, and it may be that
some newly appointed judges, with experience only in cross-examination,
need to bear in mind their new powers in summing up the case at the end.
Trial judges may be reminded that glaring holes in the defendant’s account
may be highlighted in the summing up of the case at the end of the trial,
instead of being put to the defendant in a way which suggests disbelief.
This is appropriate provided that the judge makes it clear that it is for the
jury to consider what, if any, weight should be put on the purported
weaknesses of the defendant’s account.

B. Defective directions
5.23 The appellate court repeatedly considers the balance of judicial
summings up to juries and the permissible limits of judicial com-
ments.205 It gives guidance on proper directions to the jury. In addition,
sample directions on particular issues are promulgated by the Judicial
College (formerly known as the Judicial Studies Board). In R v. Bent-
ley,206 the Court of Appeal found the conviction of Bentley unsafe and
allowed the appeal. Bentley had been convicted of the murder of a
policeman and sentenced to death in 1952. Following the dismissal of
his appeal, he was executed in 1953. His niece appealed on his behalf
against his conviction by way of a reference by the Criminal Cases
Review Commission.207 Lord Bingham, on behalf of the Court, allowed
the appeal on all grounds, listing the defective directions given by the trial
judge (Goddard LCJ): that the trial judge had given no direction on the
standard of proof, that his direction on the burden of proof had been
unclear and misleading, that he had made prejudicial and unfair

203
R v. Copsey [2008] EWCA Crim 2043.
204
Ibid., para. 23; Frampton [1917] 12 Cr App R 202, 203; R v. Marr [1990] 90 Cr App
R 154; Mears v. R [1993] 1 WLR 818, 922.
205
Cohen and Bateman [1909] 2 Cr App R 197, 208 [Channell J] cited by Lord Bingham in
R v. Bentley [2001] 1 Cr App R 307, para. 60.
206 207
R v. Bentley [2001] 1 Cr App R 307, para. 68. Criminal Appeal Act 1995, s. 9.

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226 standards of conduct on the bench

comments suggesting that the police officers’ bravery throughout the

incident rendered the police witnesses more reliable than the defendant’s
and that an acquittal of the accused would undermine the reputations of
the officers, that he had failed to present the case of Bentley adequately to
the jury, and that he had failed to direct the jury adequately on con-
structive malice and joint enterprise.
In considering the balance of judicial summings up to juries and the
permissible limits of judicial comments, Lord Bingham stated:
It is with genuine diffidence that the members of this Court direct
criticism towards a trial judge widely recognised as one of the outstanding
criminal judges of this century. But we cannot escape the duty of decision.
In our judgment, the summing-up in this case was such as to deny the
appellant that fair trial which is the birthright of every British citizen.208

We might include within this category of defective directions other types of

inappropriate remarks put to the jury. In R v. McKenna,209 Mr Justice
Stable threatened a jury that if they failed to reach a verdict in ten minutes,
they would be locked up for the night. The jury retired and returned a
verdict in six minutes. On appeal the convictions were quashed, notwith-
standing that there was overwhelming evidence against the defendants. In
the course of the judgment, the Court of Criminal Appeal said:
It is a cardinal principle of our criminal law that in considering their
verdict, concerning, as it does, the liberty of the subject, a jury shall
deliberate in complete freedom, uninfluenced by any promise, unintimi-
dated by any threat . . . They still stand between the Crown and the
subject, and they are still one of the main defences of personal liberty.
To say to such a tribunal in the course of its deliberations that it must
reach a conclusion within ten minutes or else undergo hours of personal
inconvenience and discomfort, is a disservice to the cause of justice.210

The Court noted that ‘the judge was understandably irritated by the
inconvenient slowness of the jury in reaching a verdict in what he
thought was a plain straightforward case’. This, however, was no excuse:
Juries do at times take much longer than a judge may think necessary to
arrive at a verdict . . . and the proper exercise of the judicial office requires
that irritation on these occasions must be suppressed or, at any rate, kept
severely in check. To experience it is understandable; to express it in the
form of such a threat to the jury as was uttered here is insupportable.

208 209
R v. Bentley [2001] 1 Cr App R 307, para. 68. R v. McKenna [1960] 1 QB 411.
210
Ibid., 422.

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v. the disciplinary role of the appeal court 227

As the Court subscribed to the view that the evidence against all three
defendants was cogent, it was with regret that they quashed the convic-
tions. But they felt bound to do so, for ‘plain though many juries may
have thought this case, the principle at stake is more important than
the case itself’.211
The fundamental principle of common law that a jury should be entitled
and allowed to consider its verdict or verdicts without undue pressure was
relied upon in the more recent decision of R v. Mitchell,212 in which the
Court of Appeal overturned the conviction of a General Court-Martial on
the basis that the Board, sitting in Germany, having been deliberating long
hours all week, reached its verdict at about 8 pm on a Saturday of a Bank
Holiday weekend. At least four members of the Board had booked flights
to return home to the UK to spend time with their family that weekend.
Counsel for the accused raised concerns about the sitting hours and
requested an adjournment, but this was refused. The Court of Appeal
ruled that in this case neither the Board nor the Judge Advocate had
directly exerted pressure. However, the omission to adjourn the proceed-
ings created ‘unacceptable seeds of pressure’ by continuing to sit.
Judge LJ (as he then was), who gave the judgment of the court,
outlined that undue pressure may arise simply from the circumstances
in which the jury continued to sit, absent any judicial threats or orders.
He referred to what Sir Patrick Russell, giving the judgment of the Privy
Council in De Four, described as ‘the seeds of pressure’. He said this:
The seeds of pressure may arise without direct judicial intervention at all . . .
In short, unacceptable pressure may arise from the very circumstances in
which the jury is continuing to sit, leading to areas of concern exemplified,
but not restricted to those noted in the judgment . . . The issue therefore is
not whether the Board’s verdict was produced too late in the day, or after
too long a day, but whether, reasonable examination of the events of the
day, in their overall context including the length of the sitting, leads to the
conclusion that unacceptable pressures were or may have been created.213

C. Excessive delay in delivering judgment

5.24 Delays in the administration of justice are a common feature of
most legal systems. Various factors, such as lengthy pretrial proceedings,
or the prolonged preparation of criminal prosecutions, the heavy

211 212 213

Ibid., 423. R v. Mitchell [2004] EWCA Crim 1665. Ibid.

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228 standards of conduct on the bench

workload of judges, and the justified absence of witnesses and other parties
because of illness or otherwise, often make these delays unavoidable.
Nevertheless, situations may occur where the delay is the fault of the judge
hearing the case. Judgments are usually delivered ex tempore but they can
be reserved. Lengthy delays between the last day of hearing and the deliv-
ery of judgment are not tolerated as delay in producing a judgment would
be capable of depriving an individual of his right to the protection of the
law.214 Excessive delay in delivery of a judgment may require ‘a very
careful perusal of the judge’s findings of fact and of his reasons for his
conclusions in order to ensure that the delay has not caused injustice to the
losing party’.215 Thus, in a most recent such case,216 while Lady Justice
Arden apologised to the parties for the ‘lamentable and unacceptable’ delay
in the court below, she said the function of the court in hearing the appeal
was not ‘to impose sanctions or investigate the reasons why the delay
occurred’, but to consider whether any of those findings of fact should be
set aside and a retrial ordered.217 In that case, the long delay in producing
the judgment was not a good ground for allowing the appeal.
Judicial delays seemed to attain prominent attention in the late 1990s.
In 1998, the Court of Appeal was asked to set aside a judgment where
there had been a delay between a twenty-seven-day trial and judgment of
some twenty months, time during which some of the judge’s notes had
been lost. The defendant’s counsel had written to the judge, and told the
Court of Appeal that he had considered taking out life insurance on the
judge to cover lost legal costs if he died before giving his ruling. Material
factual errors in the judgment were demonstrated and Peter Gibson LJ,
for the Court, said:
As the judge himself was the first to recognise, a delay of this magnitude
was completely inexcusable. The plaintiff, who was not a young man, was
claiming that Mr Wilson’s fraudulent conduct had been causative of his
financial ruin. Mr Wilson for his part was a professional man charged
with serious professional misconduct amounting to fraud. Both parties
were entitled to expect to receive judgment before Christmas 1994 at the
very latest. The fact that they were obliged to wait another year and a
quarter, even allowing for the judge’s illness, is wholly unacceptable.218

214
See above, para. 3.47; Boodhoo v. AG of Trinidad and Tobago [2004] UKPC 17, paras. 12
and 14.
215
Cobham v. Frett [2001] 1 WLR 1775; Rolled Steel v. British Steel [1985] 2 WLR 908,
para. 960.
216 217
Bond v. Dunster Properties Ltd [2011] EWCA Civ 455. Ibid., para. 7.
218
Goose v. Wilson Sandford [1998] EWCA Civ 245, para. 109.

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v. the disciplinary role of the appeal court 229

The delay had weakened the trial judge’s advantage of hearing and seeing
the witnesses, such that a retrial had to be ordered. Within hours of the
judgment, the judge resigned.219 In response to Peter Gibson LJ’s con-
cerns about compensation, the then Lord Chancellor, Lord Irvine, ruled
in 2000 that the parties in that case should also be compensated for their
legal costs.220
Just a few months later, the Court of Appeal considered a twenty-two
months’ delay between trial and judgment.221 The appeal was nonethe-
less dismissed, as only a minor error in the judgment was identified on
appeal. The defendant had contended that, given that delay, the judge
had had insufficient recollection of the impression made by the various
witnesses and of the closing submissions of defence counsel. Because of
the defendant’s allegations, the court wrote to the judge seeking his
comments, and the judge fully accepted that the delay in delivering the
judgment was not acceptable. He referred, however, to the particularly
heavy burdens placed on him at the time by his judicial duties. Lord
Woolf MR, handing in judgment, noted that the judge, who had been
responsible for establishing the Mercantile Court in Manchester, had to
some extent been ‘the victim of his own success’ ‘in that he attracted to
that court more work than he could properly handle himself. He did not
draw attention to his difficulties but instead tried to take on burdens
which proved to be excessive as a consequence delays occurred, such as
in that case, which could not be excused’.222
But Lord Woolf also emphasised that:
The fact that these delays have occurred in more than one case is not a
matter which has been ignored by those who are responsible for supervis-
ing the administration of justice . . . [T]he public should be assured that
there have now been put in place mechanisms which will mean that if a
judgment is delayed for an inappropriate time, those who have the
responsibility of supervising these matters in the judiciary will be
informed of this fact so that they can take steps to prevent the future
occurrence of delays of the sort of which we have heard in this case.

219
A highly unpopular judge, Mr Justice Harman was three times voted the profession’s
least favourite judge in a poll conducted by Legal Business. ‘One young advocate was told
that Chancery judges preferred a bright ‘good morning, My Lord’ to the more formal
‘May it please your Lordship’. Apparently, Mr Justice Harman responded to this infor-
mality with ‘shock, disgust and rage’, and the barrister narrowly escaped contempt
proceedings, The Telegraph, 15 May 2003.
220
The Independent, 22 May 2000.
221 222
Gardiner Fire Ltd v. Jones [1998] All ER (D) 474. Ibid., para. 113.

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230 standards of conduct on the bench

His Lordship indicated that, in the normal event, it was intended that
judgments of the Court of Appeal should be delivered within six weeks of
the end of the hearing of the appeal.
In addition, Lord Woolf’s words express a strong judicial policy
aiming at maintaining high standards in the administration of justice.
The problem of tardy judges was placed under the responsibility of
the Lord Chancellor – and since 2005, transferred from him to the Lord
Chief Justice, and the Presiding Judges of the court circuit. The ‘mechan-
isms’ referred to in his judgment included, in 2000, a meeting between
the then Lord Chancellor, Lord Irvine, and senior judges, ‘in order to
identify the worst offenders’.223 As part of ‘good housekeeping’,224
routine deadline reminders for delivering judgments are now issued to
all district, circuit and High Court judges by the Senior Presiding Judges
of the circuits. All judges sitting on family disputes should deliver
judgment within one month, and judges sitting on civil cases within
two months, and they must inform the Senior Presiding and Liaison
Judges about any delay, and explain the reasons for it.225 Judgments
which have been outstanding for more than three months are monitored
by senior judges.226 In a recent case, however, these mechanisms did not
assist the parties in the case, and, as suggested by Lady Justice Arden, the
Master of the Rolls, as the head of civil justice, proposed to investigate
‘whether more robust and effective procedures are needed in some
quarters to minimise the risk of such a problem arising in the future’.227
Akin to delay is the rare case of the judge who simply cannot decide
the case at all. In 2008 the Law Lords refused to allow the same judge to
withdraw from a case he had found too difficult to decide.228 He then
decided to recuse himself from the case, even though the parties did not
request him to do so. Lady Hale said: ‘If the judge is not fitted to try this
case, it might be said that he is not fit to try any case in which the same
problem could arise, and that would be absurd.’

223
The Independent, 22 May 2000.
224
F. Gibb, ‘Avoiding Complaints – Keeping Judges Up to the Mark’, The Times, 10
February 2009.
225
Ibid.
226
Judicial Communications Office, quoted by Frances Gibbs, citing Isobel Plumstead: ‘There is
some concern that with the increasing pressure of work on judges – resulting from the
growing complexity of cases – some may be slipping behind with the delivery of their rulings.
It can sometimes be difficult to arrange listing to allow time to prepare and give judgment.’
227
Bond v. Dunster Properties Ltd [2011] EWCA Civ 455, para. 118.
228
In re B (Children) (FC) [2008] UKHL 35.

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v. the disciplinary role of the appeal court 231

D. Rudeness
5.25 Rudeness may also affect the safety of a conviction if it is thought
that it could materially have affected the quality of the defendant’s
evidence. Thus, when a judge reprimanded the defendant for speaking
to a member of the public, it was alleged that the judge’s behaviour had
left the defendant too upset to give credible evidence to the jury moments
later. The Court of Appeal observed: ‘the judge was rude (“Shut your
mouth and listen”), he was harsh (“How dare you speak to a member of
the public”), and he was sarcastic (“You are really sorry? Yes, you will be
really sorry”)’.229 It overturned the conviction relating to that count,
since it could not exclude the possibility that the defendant may have
given evidence more credibly had the judge dealt with the matter in a
different way.
In the earlier case of R v. Hircock,230 the Court of Appeal declined to
interfere when, during the address to the jury of defence counsel in a
criminal trial, the judge made gestures of impatience, sighed, and several
times said ‘Oh, God’, ‘and then laid his head across his arms and made
groaning noises’. Although it disapproved of the conduct, the Court of
Appeal held that it did not constitute sufficient ground for quashing
the conviction, as the judge’s conduct disparaged only the defendant’s
counsel, not his case. It distinguished between criticism by the judge of
counsel for the defendant and criticism of the defendant himself.231 Such
distinction has been abandoned since the improper behaviour of the
judge towards counsel is likely to have the same effect as that towards
the defendant himself. The Court may, however, look carefully at the
nature of the rudeness. A rude interruption of defence counsel on the
basis that he is wasting time with irrelevant questions to prosecution
witnesses may not justify quashing a conviction232 if indeed the questions
had been irrelevant. By contrast, rude interruptions while defence coun-
sel is examining the defendant in chief may be regarded as more serious,
again because there is no real distinction here between rudeness to
defence counsel and to the defendant himself.
Perhaps the most difficult cases are those where the judge’s manner
will have distracted the jury, but not so obviously to the prejudice of the

229
R v. Tedjame-Mortty [2011] EWCA Crim 950.
230
R v. Hircock [1970] 1 QB 67, see above, para. 5.21.
231
See C.P. Harvey, The Advocate’s Devil (London: Stevens & Sons, 1958), pp. 50–1.
232
R v. Ptohopoulos [1968] Crim LR 52.

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232 standards of conduct on the bench

defendant. In one case,233 the Court of Appeal disapproved of the judge

cutting counsel short in respect of his argument, without any notice that
counsel was constrained in time, in circumstances where he had not had
an opportunity of setting out the arguments in writing. The judge had
also disallowed counsel for the defendant from making an objection on
legal grounds to a question put to a witness by prosecution counsel in the
absence of the witness, and exchanges became so heated that defence
counsel was temporarily ejected from the court. However, prosecution
counsel defused the situation by withdrawing the question. The Court
concluded that both counsel and the judge were seriously at fault and did
not accept that the jury would have been affected or the defendant’s
confidence in his counsel undermined. Ultimately, although ‘the percep-
tion of impatience created by the judge was one that should not have
been created’,234 and although he did not conduct the trial in a manner
in which it would be expected a judge would conduct a trial, the Court
concluded that overall there was no breach of the appellants’ right to
a fair trial.
In understanding this case, we should recall that counsel too must
be courteous. In 2005 the Court of Appeal in R v. Lashley issued a
reminder that:
The remedy for an incorrect ruling is provided in this Court. It does not
take the form of trying to re-embark on the argument in an endeavour to
persuade the judge to a judicial rethink of a ruling that he has already
given, at any rate unless and until the circumstances have changed.235

A judge’s efforts to curb defendants’ counsel had to be put in that

context. Judge LJ (as he was then) spoke for the Court: ‘We expect judges
to be robust, and we are not troubled when counsel are oversensitive to
criticism. We also recognise that from time to time judges will become
impatient, sometimes unjustifiably so, without undermining the safety of
the conviction.’236 However, the convictions were quashed for lack of
neutrality, since the judge’s impatience had been extreme and extended
to general derogatory comments about the competence of counsel, which
would have damaged the defendant’s confidence in the administration of
justice; ‘the perception of any reasonable observer present at the trial
would have been similarly damaged’.237

233
R v. Aboulkadir and others [2009] EWCA Crim 956 (20 May 2009).
234 235
Ibid., para. 44. R v. Lashley [2005] EWCA Crim 2016, para. 21.
236 237
Ibid., para. 48. Ibid.

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v. the disciplinary role of the appeal court 233

The Appeal Court judgment was sent to the Presiding Judges of the
relevant circuit, since Presiding Judges would, at the time, refer conduct
complaints to the Lord Chancellor or the Lord Chief Justice in cases
where the judge’s conduct is seriously impugned. The judge, however,
was not formally disciplined.

E. Improper pressure on defendants to plead guilty

5.26 Improper pressure by the judge on defendants to plead guilty and
improper remarks indicating that a defendant was sentenced more
severely because he had pleaded not guilty have respectively resulted in
the quashing of convictions and in the reduction of sentences. In R v.
Barnes,238 the defendant was convicted of robbery. In what the Court
called ‘an outburst’, the judge, in the absence of the jury, commented
adversely on the waste of time caused by hopeless defences and invited
counsel for the defence to reconsider the position. Counsel then offered
to withdraw from the case, and disclosed the advice he had given
the defendant. The judge refused the services of another counsel on the
ground that the other would be bound to give the same advice and he
refused to adjourn the case to the next day to enable the defendant to
prepare his own defence. The defendant withstood the extreme pressure
to plead guilty, and maintained his plea of not guilty.
Nevertheless, the Court of Appeal held that ‘it was clear that in the
circumstances counsel would be gravely handicapped in conducting the
defence, especially before a judge who had expressed his strong view as
to the appellant’s guilt, and as to the waste of time involved in fighting
the case’. It being almost impossible for counsel to conduct the defence
properly, the Court ruled that the conviction must be quashed: ‘Just as
interruptions by a trial judge making it impossible for defending counsel
to do justice to the defence, will result in a conviction being quashed,
so also conduct producing the same impossibility must have the
same effect.’239
The Court also indicated that if, as a result of the pressure put upon
him by the judge, the defendant had changed his plea, the Court could
not have allowed his conviction to stand. If a defendant changed his plea
to guilty after counsel had advised him to so plead under circumstances
which suggested that this was the view of the judge, the result must be the

238 239
R v. Barnes (1970) 55 Cr App R 100. Ibid., 107.

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234 standards of conduct on the bench

same. So held the Court of Appeal in R v. Turner, where Parker CJ laid

down rules to be followed by judges and counsel in plea bargaining.240
As a general rule, deviation from these rules in the plea-bargaining
process would result in the conviction being quashed. Before the verdict
is returned, it is forbidden for a judge to indicate that a plea of not guilty
would result in a more severe sentence. Even after the verdict he must not
aggravate the sentence as though to give the impression that the defend-
ant has been punished for contesting the case.241
The practice in R v. Turner need no longer be followed;242 it is now
possible for the defendant to seek before the trial a ‘without prejudice’
indication as to the likely maximum sentence he would receive if he were
at that stage to plead guilty. However the procedure comes with safe-
guards that recognise the above points.243 Thus, a judge must only give
his indication in response to a request from the defendant and he must
not indicate what the maximum sentence might be if the case were to be
unsuccessfully contested. In practice, a judge might alert defence counsel
to the possibility of such an advance indication, but not in such a way
that presumes guilt of the defendant. It may be done clearly as a matter of
routine, for example, rather than as a comment on the merits of the
instant case; or it may be appropriate, for example, if it is apparent to the
judge that the defendant’s main concern is to avoid imprisonment, and
he has already decided that he would not so sentence him if an immedi-
ate plea were offered.

F. Manifesting prejudice
5.27 A judge is not justified in the directing of a jury, or using in the
course of summing up such language as leads them to think, that they
must judge the facts in the way which he indicates:
If a judge finds it necessary to intervene in the course of the examination-
in-chief with questions which may seem to the jury to suggest that the
evidence of the witness, although given on oath, is not to be believed, it is
also necessary that the judge should remind the jury that the question of

240
R v. Turner [1970] 2 QB 321, 326–7.
241
R v. Behman [1967] Crim LR 597.
242
R v. Goodyear (Karl) [2005] EWCA Crim 888 decides that a judge may indicate to a
defendant the likely maximum sentence that would be imposed if he were to plead guilty
immediately (or at least very soon, upon the receipt of legal advice) upon a supposed
agreed set of facts.
243
Ibid., 53–70.

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v. the disciplinary role of the appeal court 235

believing or not believing any particular witness is, like all other matters of
fact in a criminal trial, a question for them and not for him.244

As with excessive intervention in the examination of witnesses, often the

appellate court must reiterate these standards.
In R v. Warr, the Court of Appeal quashed the conviction and criticised
in the strongest terms a trial judge who, in directing the jury, said:
You know perfectly well that witnesses for the defence do not always tell
the truth. Sometimes the defendant lies in the hope of getting off . . . I do
not think you were in court a little earlier this week, or last week, when a
man was charged with the same sort of offence as this . . . The jury heard
the evidence and did not believe a word of it and they convicted.245

It may be that trial judges have some positive duties to avoid a risk that juries
will be unconsciously prejudiced against defendants. In one case,246 the trial
judge had mistakenly allowed the dock security contractors’ application
for a prisoner to be handcuffed despite a lack of information and a false
assumption that there was a risk of escape from open court. The offender
submitted that the jury seeing him in handcuffs prejudiced his right to a fair
trial, and that this was sufficient to render his conviction unsafe. The Court
of Appeal held that if the information was not forthcoming the judge ought
to have asked for it. Nevertheless, the appeal was dismissed: the conviction
was not unsafe as it was obvious from the evidence that the defendant was a
several-times convicted drug dealer who dealt in class A drugs and the judge
gave an impeccable summing up to the jury.247

G. Private communications
5.28 In principle, all communications about the case should be conducted
in public. Thorpe LJ, for the Court of Appeal, once expressed his ‘misgiv-
ings as to the wisdom of the judge telephoning both leading counsel on
the eve to express his profound disquiet and irritation at the way the
parties were treating the court’.248 A better practice, according to the
Court, would be for the judge to send the same email to each party
voicing his concerns so that there is a record of the exchange. However,

244
R v. Gilson (1944) 29 Cr App R 174, 181 [Wrottesley J].
245
R v. Warr [1969] Crim LR 331, The Times, 18 March 1969.
246
R v. Horden [2009] EWCA Crim 388.
247
R v. Horden [2009] Crim LR 8, 588–90.
248
Constantinou v. Wilmot Josife [2010] EWCA Civ 747, para. 17.

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236 standards of conduct on the bench

noting the polarised positions of the parties at the start of the hearing, and
following ‘a profounder investigation’, the Court found that the judge’s
allocation of costs did not exceed his ambit of discretion and did not
interfere with his decision. In general, prompt disclosure of private
communications with counsel at some stage before the trial is concluded
may suffice to cure such irregularity provided that it does not go to the
root of the case.249

H. Criticism and disregard of decisions of the higher courts

5.29 Higher courts in England frown upon any attempt by the lower
courts to question or criticise their decisions or, even worse, to disregard
them. In 1931 Mr Justice McCardie, in passing sentence on one Edward
Griffith, said: ‘Your record illustrates . . . the unfortunate effect of
unnecessary reductions of sentences of the Court of Criminal Appeal.
I think that a wrong policy has been adopted in the past with respect to
men who are obviously intending to commit crimes from time to time in
order to obtain a livelihood.’ On appeal, Lord Hewart CJ strongly
criticised McCardie J for his remarks, and Avory J described them as ‘a
wholesale condemnation of the proceedings of the court’.250
In another case, the Court of Appeal criticised the judge for his
‘rebellious’ observations. ‘With the greatest respect to Lawson J,’ said
Davies LJ, ‘I think that those observations were out of place. It is unusual,
and I am bound to say, undesirable, in my opinion, for a judge sitting at
first instance – indeed, in that case in chambers – to express the opinion,
though accepting that he is bound by it, that a decision, and a fairly
recent decision of this court, was wrong.’251
The Court of Appeal itself has been criticised by the House of Lords
for ‘rebellious’ observations. Lord Hailsham LC once rebuked the Court
of Appeal for having held that Rookes v. Barnard was wrongly decided by
the House of Lords, was not binding on the Court of Appeal and was
‘unworkable’, and accordingly judges of first instance should ignore it.
Lord Hailsham said:
I am driven to the conclusion that when the Court of Appeal described
Rookes v. Barnard as decided ‘per incuriam’ or ‘unworkable’ they really
only meant that they did not agree with it. But, in my view, even if this were

249
Constantinou v. Wilmot Josife [2010] EWCA Civ 747.
250
G. Pollock, Mr Justice McCardie: A Biography (London: John Lane, 1934) pp. 162–6.
251
Lane v. Wills [1972] 1 WLR 326, 332.

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v. the disciplinary role of the appeal court 237

not so, it is not open to the Court of Appeal to give a gratuitous advice to
judges of first instance to ignore decisions of the House of Lords in this way.
The course taken would have put judges of first instance in an embarrassing
position, driving them to take sides in an unedifying dispute between the
Court of Appeal or three members of it and the House of Lords.252

The then Lord Chancellor further added that

much worse than this, litigants would not have known where they stood.
None could have reached finality short of the House of Lords, and in the
meantime the task of advising them either as to their rights or as to the
probable cost of obtaining or defending them, would have been literally
quite impossible.

The Lord Chancellor observed, expressing the hope that ‘it will never be
necessary to say so again’, that ‘in the hierarchical system of courts which
exists in this country, it is necessary for each lower tier, including the
Court of Appeal, to accept loyally the decisions of the higher tiers’.253
Arguably the situation is not so clear cut, a view which was well
expressed by Alec Samuels:
Is it seriously suggested that a judge cannot with reasons say that a
decision is in his opinion wrong? Is the judge to become a mere negative
technician? Everyone knows of instances where as a result of informal
judicial criticism higher courts have changed their minds, decisions have
been overruled and amending legislation has been passed. The law would
be immeasurably poorer if those great masters of the common law such as
Lord Atkin, Scrutton LJ and Lord Denning, and many others, had not
spoken out and set everybody thinking. Judicial criticism has enabled us
to see the unsoundness of Lord Devlin’s categorisation in Rookes v.
Barnard despite the decision of the House of Lords in Cassell v. Broome.
Lawson J is a most able and highly respected judge and it will be a
thousand pities if, while loyally applying the law as he finds it, he – and
his judicial brethren – feels in any way inhibited from expressing a
strongly held opinion on the merits.254

It seems that the more likely situation is that judges may freely express
doubts about a ruling which binds them, though preferably obliquely.
Common phrases which indicate such doubt might include an appar-
ently unnecessary reminder that a decision is binding upon them, or a
comment that the issue might be revisited by a higher court in the future.
What is more important is that the lower courts make it clear that they

252
Cassell and Co Ltd v. Broome (No. 1) [1972] 2 WLR 645, 653.
253 254
Ibid. A. Samuels, ‘Gagging the Judges’ (1972) 122 New Law Journal 337.

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238 standards of conduct on the bench

accept that precedents are nonetheless to be followed if they cannot

be distinguished, and that unhelpful cases cannot be conveniently
overlooked.
We previously noted, however, that domestic courts deciding a
case under the Human Rights Act 1998 are required to take into consid-
eration any relevant Strasbourg case law,255 and the UK Supreme Court
clarified that
where . . . there is a clear and constant line of decisions whose effect is not
inconsistent with some fundamental substantive or procedural aspect of
our law, and whose reasoning does not appear to overlook or misunder-
stand some argument or point of principle, we consider that it would be
wrong for this Court not to follow that line.256

Can the Court of Appeal follow a ruling from the European Court
of Human Rights or is it bound to follow the decision of the House of
Lords/UK Supreme Court? ‘In legal matters, some degree of certainty is
at least as valuable a part of justice as perfection’;257 Lord Bingham
thought that

that degree of certainty is best achieved by adhering, even in the Conven-

tion context, to our rules of precedent. It will of course be the duty of
judges to review Convention arguments addressed to them, and if they
consider a binding precedent to be, or possibly to be inconsistent with,
Strasbourg authority, they may express their views and give leave to
appeal, as the Court of Appeal did here. Leapfrog appeals may be appro-
priate. In this way, in my opinion, they discharge their duty under the
1998 Act. But they should follow the binding precedent, as again the
Court of Appeal did here.258

Lord Bingham insisted upon constructive collaboration between the

Strasbourg court and the national courts of member states:

The Strasbourg court authoritatively expounds the interpretation of the

rights embodied in the Convention and its protocols, as it must if the
Convention is to be uniformly understood by all member states. But in its

255
HRA, s. 2(1). See above, para. 2.14.
256
Manchester City Council v. Pinnock [2010] UKSC 45, para. 48; R (Ullah) v. Special
Adjudicator [2004] UKHL 36, para. 20 [Lord Bingham]; R v. Horncastle [2009] UKSC
14; Al-Khawaja v. UK (2009) 49 EHRR 1; Al-Khawaja v. UK [2011] ECHR 2127.
257
Cassell and Co Ltd v. Broome (No. 1) [1972] 2 WLR 645, 717 [Lord Hailsham].
258
Kay v. Lambeth LBC [2006] UKHL 10, para. 43 [Lord Bingham]; R (Purdy) v. Director of
Public Prosecutions [2009] EWCA Civ 92.

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v. the disciplinary role of the appeal court 239

decisions on particular cases the Strasbourg court accords a margin of

appreciation, often generous, to the decisions of national authorities and
attaches much importance to the peculiar facts of the case. Thus it is for
national authorities, including national courts particularly, to decide in
the first instance how the principles expounded in Strasbourg should be
applied in the special context of national legislation, law, practice and
social and other conditions. It is by the decisions of national courts that
the domestic standard must be initially set, and to those decisions the
ordinary rules of precedent should apply.259

In these circumstances, only exceptionally would the Court of Appeal

depart from a precedent set by the House of Lords.260 The Adminis-
trative Court recently adhered to the need for the protection of legal
certainty by the doctrine of precedent in R (GC) v. Commissioner of the
Police of the Metropolis, where the Administrative Court felt bound to
follow the House of Lords’ decision that the police retention of biometric
samples for an indefinite period save in exceptional circumstances was
not incompatible with Article 8 ECHR.261 By contrast, a subsequent
ruling of the European Court had found that such retention was incon-
sistent with Article 8 ECHR.262 However, the Administrative Court
followed the alternative course of action suggested by Lord Bingham,
gave permission to appeal and ordered a leapfrog appeal to the Supreme
Court to determine the matter.

I. The sleeping judge

5.30 Judicial office holders ‘are expected, as Sir Robert Megarry once put
it, to be as wise as they are paid to look’.263 Yet ‘judicial sleepiness’264 was
for long ignored, notoriously when a prominent judge started to develop
dementia, repeatedly falling asleep on the bench and being, to some

259
Para. 44. Lord Irvine, ‘A British Interpretation of Convention Rights’ [2012] PL 237.
260
E.g., in cases where the effect of the Human Rights Act had undermined the policy
considerations that had largely dictated the House of Lords’ decision, para. 45.
261
R (GC) v. Commissioner of the Police of the Metropolis [2010] EWHC 2225 (Admin),
paras. 30–5 [Lord Justice Moses]; R (S) v. Chief Constable of South Yorkshire [2004]
UKHL 39.
262
S v. UK (2009) 48 EHRR 50.
263
Cited by Michael Kirby, ‘Judicial Stress’, Annual Conference of the Local Courts of New
South Wales, 2 June 1995.
264
There seems to have always been one sleeping judge on the Bench. Judge Dodderidge
(1555–1628) became known as the ‘sleeping judge’ as he shut his eyes for concentrating
his attention; see William Hogarth’s painting The Bench (1758).

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240 standards of conduct on the bench

observers, ‘visibly and distressingly half-senile’;265 in consequence of

which his fellow judges wrote his judgments until he retired nine months
later. As a circuit court judge said in 2006, ‘It would be foolish to pretend
we don’t ever feel sleepy. Some judges even take smelling salts into court
with them.’266 He went on: ‘It sounds nonsensical, but cases involving
incidents of violence are the worst because there are often a large number
of witnesses, each giving pretty much exactly the same evidence. It can be
very, very soporific.’
The Court of Appeal now accepts that, when a judge sleeps or appears
to be asleep, justice is not seen to be done and public confidence in the
courts is damaged.267 Thus a rape trial in Gloucester Crown Court in
December 2001 had to be abandoned and a retrial ordered, when the
judge fell asleep twice during the defendant’s counsel’s closing speech.
The judge himself ordered the retrial, telling the jury: ‘I am not aware
that I did [fall asleep]. I think I was well aware of what he was saying to
you. But if in fact I gave the impression of not listening to what he said,
it would be unfair to the defendant to allow the case to go on.’268 He was
reprimanded by the Lord Chancellor in July 2002.
A disciplinary decision from 2010 from the Lord Chancellor and Lord
Chief Justice shows that sleepiness which has affected a trial once can
justify the immediate removal of a magistrate. The magistrate who was
‘nodding off’ during the first day of an assault trial at Lancaster’s youth
court in March 2010 was removed after an inquiry found that his
behaviour ‘risked bringing the magistracy into disrepute’.269 This may
seem to be a harsh decision as there was no evidence that it had
happened before or would happen again. If anything, these cases empha-
sise the need for a thorough health check upon appointment, where any
medical cause for sleepiness could be checked and treated, or acted upon
as a ground for incapacity for duty. At the moment, there is a suggestion
of inconsistency in how such cases are handled. The late judge Michael

265
J.R. Spencer, Jackson’s Machinery of Justice, 8th edn (Cambridge University Press, 1989)
372.
266
Judge Michael Findlay Baker QC, quoted in The Observer, 11 June 2006.
267
This was not always the case, see R v. Langham [1972] Crim LR 457, per Lord Widgery
CJ: ‘It was easy to rely on the hallowed phrase “justice must be seen to be done” in order
to raise complaint over a very wide field. But, in order that justice was not seen to be
done, it was necessary to point to some factor on which the doing of justice depended
and then to show that that factor was not visible to those present in court.’
268
The Guardian, 16 December 2003.
269
Statement from the Office for Judicial Complaints, OJC 24/10, 20 September 2010.

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conclusions 241

Coombe fell asleep during a robbery trial in 2002 but his career survived –
despite the fact that three of the defendants convicted in the trial had
their sentences reduced on appeal. Similarly, Judge Gabriel Hutton hung
on to his job even though he fell asleep twice during a rape trial in 2001.

Conclusions
5.31 The test for bias is now clearly set at common law and, as in
Australia and other countries, the Guide to Judicial Conduct more expli-
citly outlines typical circumstances which might trigger fears or claims of
bias. The course of action to be taken by a judge in responding to an
application for recusal, however, is not always obvious. One suggestion
might be to develop the use of Practice Directions, beyond the existing
Practice Direction before the Employment Tribunal.270 The strength of
a Practice Direction cannot be underestimated: in Southwark LBC v.
Jiminez, the Court of Appeal agreed with the plaintiff that the Employ-
ment Appeal Tribunal had made a material error in not complying with
the Employment Appeal Tribunal Practice Direction about the conduct
of the tribunal hearing.271 Ward LJ, in El-Farargy, took the unusual step
of including a postscript to his judgment, expressing his concern at the
procedure for recusal applications:272
The procedure for doing so is, however, concerning. It is invidious for a
judge to sit in judgment on his own conduct in a case like this but in many
cases there will be no option but that the trial judge deal with it himself or
herself. If circumstances permit it, I would urge that first an informal
approach be made to the judge, for example by letter, making the com-
plaint and inviting recusal. Whilst judges must heed the exhortation in
Locabail not to yield to a [sic]tenuous or frivolous objections, one can with
honour totally deny the complaint but still pass the case to a colleague. If a
judge does not feel able to do so, then it may be preferable, if it is possible
to arrange it, to have another judge take the decision, hard though it is to
sit in judgment of one’s colleague, for where the appearance of justice is at
stake, it is better that justice be done independently by another rather than
require the judge to sit in judgment of his own behaviour.

270
Facey v. Midas Retail Ltd [2000] IRLR 812; Stansbury v. Datapulse Plc UKEAT 966 98
0905, [2001] ICR 287, para. 39 H-C.
271
Southwark LBC v. Jiminez [2003] EWCA Civ 502; Ansar v. Lloyds TSB Bank Plc [2006]
EWCA Civ 1462; D. Feldman (ed.), English Public Law (Oxford University Press, 2004),
paras. 20, 33, 36.
272
El-Farargy v. El-Farargy [2007] EWCA Civ 1149, para. 32.

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242 standards of conduct on the bench

Since it is unlikely that the practice of a judge sitting in judgment on his

own conduct will disappear, a Practice Direction might outline the points
to take into consideration, some of which may vary from court to court,
depending, for example, on the availability of other judges in each court.
Most importantly, any doubt that the judge may have on impartiality
should lead to withdrawal from the case. The willingness of the parties
for the judge to hear the case must also be considered, though we have
seen that their consent must appear to have been given without any
pressure of any kind, time or otherwise, and that it must be clarified that
they are content for him to hear the case rather than have to suffer an
adjournment.
In the second section of this chapter, we showed how proactive the
Court of Appeal was in promoting high standards of behaviour and
quality of justice. The collection of examples of judicial misbehaviour
in court should not undermine the reality that the standards of conduct
in the exercise of the judicial office have traditionally been high and
continue to be so. There is always a danger, however, that the misconduct
of one isolated judge is taken to reflect the standards of behaviour of the
judiciary as a whole. This in itself justifies a strong disciplinary role for
the Court of Appeal in addition to the formal handling of complaints
about the conduct of judges under the new regulatory framework intro-
duced in the CRA, which brings us to our next chapter.

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6

Standards of conduct in extra-judicial activities

Introduction
6.1 How much of an ordinary citizen should or can a judge be? It is only
appropriate that judicial officers ‘live, breathe, think and partake of
opinions’ in the real world, that they ‘continue to draw knowledge and
to gain insights from extrajudicial activities that would enhance their
capacity to perform the judicial function’.1 Yet public confidence will
only be maintained if judicial office holders maintain the highest stand-
ards of probity in their professional, public and private lives.2 In this
chapter, we explore the ramifications of a changing role for the judiciary.
As judges get involved on their own initiative in their local communities,
some have argued that there is scope for them to do more, and that it is
important that some take responsibility for projecting positive images of
the judiciary.3 Yet whether and to what degree a judge should pursue
certain extra-judicial activities depends on an elaborate set of consider-
ations. No extra-judicial activity should be so onerous or time consuming
that it interferes with the judge’s performance of his duties. It is almost
axiomatic that full-time judges should not engage in political contro-
versy. Upon appointment they are expected to give up all activities with a
political flavour, such as holding office as a Member of Parliament. One
may question the exemption of fee-paid and part-time judges from the
ban on full-time judges on political activity of any kind or on any tie with
political parties. Certain extra-judicial activities such as chairing public
inquiries also tend to politicise the role of judges and detract from their
impartial and independent status.4 Exposure on internet social networks

1
R.B. McKay, ‘The Judiciary and Non-Judicial Activities’ (1970) 35 Law and Contemporary
Problems 9, 12.
2
Baroness Prashar, Middle Temple Guest Lecture (6 November 2006), p. 10.
3
H. Genn, evidence before the HL Committee on the Constitution, 2007.
4
H.P. Lee, Judiciaries in Comparative Perspective (New York: Cambridge University Press,
2011).

243

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244 standards of conduct in extra-judicial activities

or blogs may also blur the distinction between the private and public
spheres for judges. Post-retirement limitations will also be examined.

I. The ban on political activities

6.2 It seems to be universally agreed that full-time judicial offices are
incompatible with membership of the House of Commons.5 Likewise
upon appointment, full-time judges are expected to give up active
participation in politics and avoid any political controversy. The Guide
to Judicial Conduct provides that ‘a judge must forego any kind of
political activity and on appointment sever all ties with political parties’.6
There is more compromise in the case of part-time and fee-paid judges
upon which the administration of criminal justice relies so heavily (as of
April 2011 there were 1,221 recorders). They have been exempted from
the statutory ban on full-time judges on political activity of any kind or
on any tie with political parties. The Guide to Judicial Conduct reiterates
the expectation that fee-paid judges nonetheless have ‘the same general
obligation [as full-time and part-time judges] to maintain the status and
dignity of the office of judge’, and that they will ‘refrain from any activity,
political or otherwise, which could conflict with their judicial office or be
seen to compromise their impartiality’.7
One contemporary controversy has been the reported telephone calls
from Ms Booth, days before the vital House of Commons vote for
military action against Iraq, to a number of MPs to solicit their support
for the government’s plans to invade Iraq. A retired civil servant claimed
Ms Booth’s political activities were incompatible with her role as a
recorder. The Lord Chancellor, Lord Irvine, ruled in 2003 that she had
been acting as the prime minister’s wife and as a well-known supporter
and prominent member of the Labour Party, not in her capacity as
a judge. According to Lord Irvine, ‘in common with other part-time
judicial post-holders, recorders only hold office while actually sitting
judicially. This being the case, recorders are not subject to the same
restrictions on political activity as full-time judges.’8 It may be that

5
House of Commons (Disqualification) Act 1975, sch. 1.
6
Guide to Judicial Conduct, 3.3.
7
This also applies to the European Parliament, the Scottish Parliament, the Welsh Assem-
bly and the Northern Ireland Assembly.
8
The Independent, 2 May 2003.

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i. the ban on political activities 245

subsequent wording of the Guide to Judicial Conduct should be inter-

preted as a rejection of that view.
Though the number of recorders in Parliament is small, it is arguable
that their dual legislative and judicial capacity may give rise to a percep-
tion of bias. The traditional view is that the risk is especially great if a
Member of Parliament sits as a recorder in his own constituency. Lord
Hailsham LC thus explained:
In their own constituencies MPs and their agents are peculiarly sensitive
to their popularity or otherwise. They are peculiarly vulnerable to political
pressures in difficult decisions. There is always the danger that they may
use the prestige of the Bench, which is great, for political advantage. On
the whole it is better that they should not sit locally, and they will not in
fact be appointed to sit locally. Even if none of those dangers actually
existed or never actually affected decisions, I am sure that in difficult cases
disappointed litigants would think that they had done so and it is better to
apply the Caesar’s wife criterion in such cases.9

This is no longer the position in law (former provisions to that effect

were repealed in 1971) but there is something akin to a convention for an
MP not to sit as a recorder in his own constituency. Similarly, the
recorder who is also a local councillor should not sit as a recorder in
the area covered by the council.10 One may question whether merely
discouraging a recorder from representing the place where he sits in his
judicial function adequately ensures that in the exercise of these func-
tions he will be removed from party politics. Situations may still arise in
which justice would not be seen to be done, and a reasonable bystander
may simply expect a formal separation from the political sphere. Thus, if
a recorder, who is also an MP for the party in office were to try a case
involving anti-government demonstrations, the public may feel that
justice cannot be seen to be done. This explains why at least recorders
with prominent political associations are generally expected to withdraw
from any case in which their party affiliations or political views are of any
relevance.11 When making a decision as to recusal, the recorder must
consider ‘whether the nature and extent of the political activity would

9
Lord Hailsham, ‘Presidential Address’ (1971) 27 The Magistrate 185, 186; Hansard, HL,
vol. 331, cols. 405–407 (8 June 1972).
10
Ministry of Justice, ‘Policy, Procedure, Terms and Conditions of Service of Recorders’,
October 2007, para. 32.
11
Lord Hailsham said in this context that he would like to retain ‘the marriage between the
practising profession and the public career of politics’, Hansard, HL, vol. 321, col. 1311
(19 November 1970).

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246 standards of conduct in extra-judicial activities

create a perception of unfairness in the particular case’.12 Recorders must

be alert to the risk of a perceived lack of impartiality arising from public
pronouncements.13
It is respectfully suggested that it is today more appropriate to bar any
part-time judge from membership of Parliament, on the basis of the formal
recognition of separation of powers in the Constitutional Reform Act 2005
(CRA). This suggestion is gaining support in relation to lay magistrates at
least. Despite the absence of a statutory prohibition on a magistrate stand-
ing for election as a Police and Crime Commissioner (PCC), the Senior
Presiding Judge recently issued guidance holding that it was not permis-
sible for magistrates to stand for such elections, inviting them to resign
immediately upon announcement of their intention to do so. No judge can
hold office as a PCC by virtue of his disqualification under the House of
Commons Disqualification Act 1975.14 The prohibition from standing for
election as a PCC draws upon the recognition, in the CRA, that lay
magistrates are judicial officeholders and therefore subject to similar
constraints to judges.15 Police and Crime Commissioners are required
by statute to set local police priorities and simply campaigning for election
might raise doubts about a candidate’s judicial impartiality.16
6.3 The membership of judges in the House of Lords has been more
contentious over the years. Until recently the Lord Chancellor presided
over the legislative sittings of the House of Lords and was the spokesman
for the government in the Upper House as well as being a member of the
Cabinet, albeit that he was perceived for a long time as the least partisan
of Cabinet ministers in relation to conduct of judicial business. Former
Lord Chancellors took part in debates upon political questions. The Law
Lords were also in a special situation as professional judges also sitting in
the Upper House, though it was clearly understood by convention that
the Law Lords would not become involved in politically contentious
issues.17 Similarly appeals could be heard when the House had been

12 13
Guide to Judicial Conduct, 3.15–3.17. Timmins v. Gormley [2000] QB 451.
14 15
Police Reform and Social Responsibility Act 2011, s. 66. CRA, s. 109(4), sch. 14.
16
Several serving magistrates were selected as PCC candidates for the election in November
2012, before the guidance was issued in July 2012. The guidance was modified in that
context and allowed them to campaign provided that a magistrate would undertake ‘not
to sit from the time of his/her selection as a candidate, and to resign if elected, he/she may
resume sitting if not elected’. It was also necessary for those magistrates seeking election
to conduct themselves ‘in such a fashion as not to compromise their ability to return to
their Bench as an independent and impartial member of the judiciary’.
17
White Paper on House of Lords Reform, 19, s. 7.

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i. the ban on political activities 247

prorogued or Parliament dissolved. Even retired Law Lords, who remain

members of the House after their retirement from the bench, adhered to
this established tradition of non-political activity in the chamber.
Further, judges who happened to be peers or were created peers during
their period of judicial office were, until recently, members of the House
of Lords. They were the Lord Chief Justice, the Lords of Appeal in
Ordinary and, if peers, the Master of the Rolls and the President of the
Family Division. They had the same rights as other life peers, such as the
right to sit, speak and vote in the House of Lords in a legislative capacity.
As we know, far-reaching reforms were introduced by the CRA; the
justices of the Supreme Court hold the title ‘Lord’ but are not members
of the House of Lords, and the same is true of other senior judicial
figures. Fee-paid and part-time judges are still not formally disqualified
from membership of Parliament. The Lord Chancellor is the same person
as the Minister of Justice, and he is an elected politician who sits in the
House of Commons. He need have no formal legal qualifications and
cannot sit as a judge.
6.4 The situation under the CRA is thus one of classic formal separation
of powers. Inevitably the former convention of non-political activity only
established itself slowly, and in the process difficulties had been encoun-
tered. In the 1920s, the tradition was not strong enough to prevent a few
Law Lords from taking part in debates on the Irish Free State Bill and some
other political matters.18 The most outspoken of all was Lord Carson, who
bitterly attacked the plan for the establishment of a Free Irish State, both in
debates in the House and upon a political platform in the country. That
the tradition of political neutrality had not, at that time, been firmly
established, we can also see from the debate following Lord Birkenhead’s
public censure of Carson. In that debate Carson and others attempted to
establish that Law Lords, unlike other judges, could participate in political
debates and even give political speeches in public meetings. Lord Finlay,
Birkenhead’s predecessor on the Woolsack, defended Carson, suggesting
that there was no rule excluding the Law Lords from taking part in
political controversy.19 The vast majority of Lords condemned Carson
for his political speech, supporting Lord Birkenhead’s stand.

18
Hansard, HL, vol. 49, col. 903 (27 March 1922), 931, 954 (29 March 1922); Lord
Birkenhead, Points of View, vol. II (London: Hodder and Stoughton, 1922), 147–51,
183–9.
19
Hansard, HL, vol. 49, col. 954 (29 March 1922).

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248 standards of conduct in extra-judicial activities

Nonetheless, it would be wrong to be too critical of the former regime

as it operated in the late twentieth century, as to do so would be to
overlook some of its practical benefits. Increasingly, the Law Lords
largely confined themselves to acting as technical advisers on legal points
arising out of proposed legislation, and their contribution to the work of
the legislature in the form of consultations off the floor was greater than
their contribution by way of speeches on the floor of the House.20 It was
generally recognised that the retired Law Lords in particular might
play the role of the ‘resident legal expert’ and they made a significant
contribution to the cross-bench element in the House of Lords in the
examination of legislation with a highly technical or legal content.21 They
would take part ‘in debates on the administration of justice, penal policy
and civil liberties, where law and politics intersect’22 and from time to
time opposed legislation and other measures which they believed consti-
tuted an executive encroachment upon the independence of the judges or
the rule of law.
However, it seems that the convention that Law Lords would not
become involved in politically contentious issues was less and less
observed towards the end of the twentieth century and this was prob-
lematic where sitting Law Lords were involved. In 1968, Lord Avonside, a
Scottish judge, accepted an invitation from the leader of the Conservative
Party, which was then in opposition, to join a party policy committee
to consider Conservative Party proposals for a Scottish assembly. This
invoked a heated public controversy and the judge had to resign from the
committee under public pressure. The Times defended Lord Avonside’s
membership of the committee, suggesting that there was no real differ-
ence between membership of a policy committee that was to consider
constitutional matters and commissions of inquiry which also had polit-
ical implications.23 Yet there is still a difference between a governmental
committee, with no partisan political flavour, though with a touch of
controversy or political overtones, and a committee instituted by a
political party to advise on party policy. Membership of a committee of
a political party, whatever the subject matter considered by that commit-
tee, would result in the identification of the judge, in the eyes of the
public, as a supporter of that party and an opponent of other parties. This
would no doubt undermine public confidence in him and stain the whole

20
G. Drewry and J. Morgan, ‘Law Lords as Legislators’ (1969) 22 Parliamentary Affairs 226.
21 22
Ibid., 235, 238. White Paper, cited by Lord Lester.
23
The Times, 30 July and 8 August 1968.

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ii. public inquiries 249

judiciary with the taint of party politics. Moreover, The Times made the
assumption that asking judges to act as chairmen of commissions to
inquire into controversial matters is an acceptable practice. That assump-
tion is open to question, as discussed in our next section.
Stevens has documented the role of the Law Lords well.24 Let us
mention Lord Ackner and some other Law Lords, who spoke in 1994
against the introduction by prerogative power of a new scheme to
compensate the victims of violent crime.25 By speaking against the
scheme, they disqualified themselves from being members of the Appel-
late Committee which subsequently decided that the Home Secretary
had acted unlawfully. In 1997 a Law Lord supported the Opposition on
the proposal by the same Home Secretary to empower the police to use
electronic surveillance without a warrant. We will never know what
might have happened if a high number of sitting Law Lords had criticised
a proposed law in the legislative chamber and were then called upon to
decide its compatibility with the Human Rights Act (HRA) years later in
the judicial chamber.
6.5 Before the CRA, if the executive failed to take a step necessary for the
interests of the judges, the judges would make representation through the
Lord Chancellor; since the passing of the CRA, the Lord Chief Justice
speaks on their behalf, pressing for an appropriate remedy. This point
was demonstrated by the examination, in previous chapters,26 of the
action taken by the judges to frustrate attempts to reduce their salaries
and to ensure that their salaries be increased in accordance with the
changing conditions.

II. Public inquiries

6.6 Judges have strongly opposed legislative and other measures which
they believed were likely to involve the judiciary in politics or contro-
versy. Until 1868 complaints against corrupt practices in elections
were heard by Select Committees of Parliament. When it was proposed
that judges should hear election petitions, the judiciary unanimously

24
R. Stevens, The English Judges: Their Role in the Changing Constitution, rev. edn (Oxford:
Hart, 2005); Law and Politics. The House of Lords as a Judicial Body 1800–1976 (London:
Weidenfeld and Nicolson, 1979); L. Blom-Cooper, B. Dickson and G. Drewry (eds), The
Judicial House of Lords 1876–2009 (Oxford University Press, 2009).
25
Hansard, HL, vol. 552, cols. 1071–24 (2 March 1994).
26
See above, paras. 4.38, 4.43 and 7.31.

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250 standards of conduct in extra-judicial activities

opposed the measure. The Lord Chief Justice, Sir Alexander Cockburn,
wrote to the Lord Chancellor:
I have consulted the judges and I am charged by them, one and all, to
convey to you their strong and unanimous feeling of insuperable repug-
nance to having these new and objectionable duties thrust upon them. We
are unanimously of opinion that the inevitable consequences of putting
judges to try election petitions will be to lower and degrade the judicial
office, and to destroy or at all events materially impair the confidence of
the public in the thoroughgoing impartiality and inflexible integrity of the
judges, when in course of their ordinary duties, political matters come
incidentally before them . . . We are at a loss to see how Parliament can in
justice and propriety impose upon us labours wholly beyond the sphere of
our constitutional duties.27

The objections of the judges had no effect and the legislation was passed.
For all the concerns, only recently has an election court been called upon
to decide that an MP should forfeit his seat on the statutory ground of
making false statements about the personal character and conduct of an
opponent during an election campaign.28 The decision to do so was
upheld on the facts, and the authority to do so explained precisely on
the grounds that the court did not have to decide the plausibility or falsity
of political statements (with due reference made to the arguments put
forward to the judges in the nineteenth century), but only factual state-
ments about a person’s character, an exercise not dissimilar to their role
in determining defamation cases.29 Generally, courts otherwise prefer not
to interfere with the decisions of election officers, for example to allow a
candidate to present himself as a ‘Literal Democrat’ thus inviting confu-
sion with the ‘Liberal Democrat’ candidate.30
Not only judges but also governments have sometimes opposed meas-
ures which might involve judges in politics. In the 1960s it was proposed
to establish a Press Amalgamations Court consisting of a High Court
judge as president and two lay judges, to scrutinise purchases and
mergers of newspapers. Commenting on this proposal, Lord Hailsham,
for the government, said that such a court was liable to involve the
judiciary in politics. He pointed out that the primary function of the
judges must, of course, be to retain the respect of the public for their

27
E.S. Turner, May It Please Your Lordship (London: M. Joseph, 1971), pp. 200–01.
28
Representation of the People Act 1983.
29
R (Woolas) v. Speaker of the House of Commons [2010] EWHC 3169 (Admin).
30
Sanders v. Chichester (1994) SJ 225.

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ii. public inquiries 251

independence – which involves not merely their actual independence of

mind, but also the public’s belief that they are seen to be independent in
every respect.31 Later, Lord Hailsham, as Lord Chancellor, strongly
opposed a proposal to refer certain legal aspects of the British obligations
on arms supply to South Africa to the Privy Council under section 4 of
the Judicial Committee Act 1833. Noting that ‘he could not be a party to
such a constitutional monstrosity’, Lord Hailsham said:
Judges must be kept, so far as possible, out of political controversy.
Obviously in the course of his ordinary judicial duties a judge, be he high
or lowly, must occasionally, and will occasionally, find himself in what
I might describe as the eye of the storm. He may be compelled by virtue of
his office to decide a case which cannot fail to give widespread offence
whichever way he decides in one way or another . . . But it is altogether
another thing [to assign judges] to arbitrate in a highly charged matter
between the rival views of two highly political Parties.32

He expressed an equally strong view on inquiries by judges. At the Lord

Mayor’s annual dinner for the judiciary in July 1973 he said that the
demand for public inquiries conducted by judges ‘inevitably interferes
with the process of law’ and that it was impossible to safeguard the
independence of the judiciary where judges are thus exposed to ordeal
by public criticism, which is often the natural result of these inquiries.
Such inquiries should therefore be used as a last resort.33
6.7 It is difficult to reconcile this once fashionable reasoning with the
frequent appointment of judges to chair committees and commissions to
investigate highly controversial affairs and to conduct public inquiries.34
The tradition of appointing distinguished members of the higher judi-
ciary as chairmen of political inquiries relies upon the fact-finding skills
of judges. It is also credit to their reputation, in the public eyes, of
impartiality and fairness. Yet we may only express reluctance on the
use of judges to chair public inquiries.35 It is, in practice, difficult to
dissociate the figure of the appointed judge in the exercise of his judicial

31
Hansard, HL, vol. 250, col. 939 (29 May 1963).
32
Hansard, HL, vol. 317, cols. 771–2 (21 April 1971).
33
The Times, 18 July 1973; Hansard, HC, vol. 716, cols. 644 (14 July 1965).
34
Until the Tribunals of Inquiry (Evidence) Act in 1921 public inquiries were conducted by
Select Committees of Parliament, see G. Lindell, Tribunals of Inquiry and Royal Commis-
sions, Law and Policy Paper 22 (The Federation Press, 2002); see today Inquiries Act
2005, s. 10; J. Beer, Public Inquiries (Oxford University Press, 2011); Stevens, The English
Judge, pp. 83–5.
35
J. Beatson, ‘Should Judges Conduct Public Inquiries?’ (2005) 121 LQR 221.

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252 standards of conduct in extra-judicial activities

functions from the figure of the judge acting as a fact finder for the
purpose of a public inquiry. In the former case, he is subject to the
judicial oath in determining someone’s liability at law. In the latter case,
he is applying his judicial skills to fact finding for the purpose of a public
inquiry, outside his judicial capacity. He does not have to follow the same
laws of evidence or procedures that a court or tribunal would observe,36
in spite of the inquisitorial format adopted, for example, in Lord Scar-
man’s Red Lion Square Inquiry in 1974. A wide range of procedures have
been adopted over the years to conduct inquiries,37 although in practice,
the inquiries of the 1970s and 1980s have broadly followed the six
cardinal principles recommended in 1966 by the Royal Commission on
Tribunals of Inquiry, chaired by Sir Cyril (later Lord) Salmon:
1. Before any person becomes involved in an inquiry, the tribunal must
be satisfied that there are circumstances which affect them and which
the tribunal proposes to investigate.
2. Before any person who is involved in an inquiry is called as a witness,
they should be informed of any allegations made against them and the
substance of the evidence in support of them.
3. They should be given an adequate opportunity to prepare their case
and of being assisted by legal advisers and their legal expenses should
normally be met out of public funds.
4. They should have the opportunity of being examined by their own
solicitor or counsel and of stating their case in public at the inquiry.
5. Any material witnesses they wish to call at the inquiry should, if
reasonably practicable, be heard.
6. They should have the opportunity of testing by cross-examination
conducted by their own solicitor or counsel any evidence which may
affect them.38
This emphasis on the judicial character of the investigation has not
prevented concern over the procedures adopted in some inquiries, in
addition to criticisms of the outcomes, time and costs taken by inquiries.

36
O’Callaghan v. Mahon [2006] IR 32, 74 [Mr Justice Hardiman]; Canada (Commission of
Inquiry on the Blood System) [1997] 3 SCR 440; S. Sedley, ‘Public Inquiries: a Cure or a
Disease?’ (1989) 52 MLR 469, 470.
37
The inquiry into the Profumo affair proceeded without any legal representation or
publicity until the report was published, see ‘The Security Service and Mr Profumo’,
Cmnd 2152.
38
Public Administration Select Committee, ‘Government by Inquiry’, First Report of
Session 2004–05, vol. I, HC 51-I, Annex 3, (27 January 005).

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ii. public inquiries 253

In terms of length and cost, it is apposite to start with the Saville

Inquiry into the events of Bloody Sunday, when thirteen civilians were
killed by British soldiers. The first such report, by Lord Widgery CJ,
became commonly regarded as a ‘whitewash’39 and a serious problem in
bringing peace to Northern Ireland. Over a painstaking eleven years,
costing some £200 million, Lord Saville reheard the evidence, and did
indeed reverse most of Lord Widgery’s findings, deciding that all the
deceased civilians had been unjustifiably shot. The length and cost of the
inquiry naturally stimulated much public debate.
For controversial outcomes and procedures, one may point to the Scott
Inquiry in the 1990s, where the High Court judge Richard Scott held that
the government had been blameless in allowing the sale of arms to Iraq
and in apparently trying to conceal evidence of this when the sellers were
prosecuted.40 The inquiry was conducted under prerogative power, and, in
a departure from the Salmon principles, the lawyers representing inter-
ested parties or witnesses were not directly involved, though they could
be privately consulted. The Hutton report, in 2004, found that the death of
Dr David Kelly, a scientific adviser to the government who cast doubt on
the case for the invasion of Iraq, was a suicide for which the BBC rather
than various members of the government was to blame.41 The latter
inquiry has been commended for the openness with which all the docu-
ments and questioning of witnesses were made available to the media and,
in the process, for broadly following the Salmon six cardinal principles;
but, in the view of many, this contributed all the more to the surprise when
Lord Hutton expressed his own conclusions.
Happier examples, in terms of speed and outcomes, are perhaps Lord
Scarman’s report into the cause of rioting in London in 1981, which
prompted various later reforms such as restrictions on the powers of the
police to stop and search youths,42 and Lord Taylor’s report on ways
to improve safety in football stadiums, which was prompted by the
Hillsborough disaster in 1989.43

39
The Times, 20 April 1972.
40
Sir Richard Scott, ‘Report of the Inquiry into the Export of Defence Equipment and Dual-
Use Goods to Iraq and Related Prosecutions’ (1996), 5 vols. In terms of outcome, the
findings led to the codification of the convention of ministerial accountability.
41
Lord Hutton, ‘Report of the Inquiry into the Circumstances Surrounding the Death of Dr
David Kelly C.M.G.’ (2004).
42
Lord Scarman, The Brixton Disorders, 10–12 April 1981. The Scarman Report: Report of
an Inquiry (London: Penguin, 1982).
43
Taylor LJ, ‘The Hillsborough Stadium Disaster’, Com 962 (1990).

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254 standards of conduct in extra-judicial activities

In principle, there seems to be little objection to appointing judges to

conduct inquiries which are essentially judicial in character and are
expected to investigate particular incidents, isolate the causes, identify
those responsible, and suggest methods of preventing recurrence.44 Most
importantly, they normally do not involve political controversy. The
Scarman and Taylor reports seem to fall into this category. However,
objections have in the past been raised against the use of judges for
controversial investigations which might include the conduct of govern-
ment ministers. In 1964 Lord Gardiner deplored the practice of appoint-
ing judges ‘to report on the morals of ministers’ and this might be
thought to be borne out by the reception of the Hutton and Scott reports.
Lord Widgery once suggested that we should ‘draw the line where the
issue was political in nature’. But that line between politics and fact is not
easy to draw. Was the Profumo affair an issue political in nature, or was
it essentially of a judicial character? Almost any matter, even if it were
highly political, could be said to require listening to evidence and
forming a conclusion. In the course of an interview with a journalist of
The Times in August 1972, Lord Widgery said that the Londonderry
inquiry was judicial in character and that judges should be prepared to
take on such tasks, but as we have seen, it still proved to be both a judicial
and political disaster.
We are accustomed to judicial decisions being the last word – for
better or worse – and being acted on as though correct unless or until
judicially overruled. The authority of the judiciary may be compromised
if a member is asked to commission a report the contents of which are
not duly respected by either the government or the public in the way that
an ordinary decision in a court of law might be. In other words, not only
does the government appoint a judge to chair an inquiry into a contro-
versial affair, but when the judge reports on the matter, the government
rejects his findings and conclusions if it suits them to do so, thereby, after
the event, involving the judge himself in a bitter controversy. Thus,
Mr Justice (later Lord) Devlin’s response on the Nyasaland disturbances in
1959 was met with a hostile reception from the government. Comment-
ing on this, Lord Gardiner said: ‘I should have thought that if a judge is to
be employed for that sort of purpose it ought to be on the footing that all
the political parties agree beforehand . . . that his findings of fact will be
accepted; otherwise it inevitably means drawing Her Majesty’s judges

44
G. Zellick, ‘Comment’ [1972] PL 1, 2.

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ii. public inquiries 255

into matters of Party politics.’45 Perhaps it was the intrinsic unlikeli-

hood of returning any kind of report that would gain the usual degree
of respect from all sides of the community – because of its politically
sensitive nature – that should have prompted something other than a
judicial inquiry in the case of the Scott and Hutton Reports. This may
be a better test than simply asking whether the inquiry is of a fact-
finding nature.
We thus come back to the question raised, of the judicial character of
the inquiry. Under the Inquiries Act 2005, the terms of reference are set
by ministerial powers. Yet the blur between the judge acting in discharge
of his judicial function and the judge acting as a public servant assisting
the public administration appears in Lord Saville’s letter of 26 January
2005 to the Department for Constitutional Affairs (as it then was), as he
was consulted on the Inquiries Bill. He thought that ‘To allow a minister
to impose restrictions on the conduct of an inquiry is to my mind to
interfere unjustifiably with the ability of a judge conducting the inquiry
to act impartially and independently of Government, as his judicial oath
requires him to do.’46 While, in order to preserve the impartiality and
fairness of the inquiry, a judge acting as a public inquiry chairman should
be entitled to decide on matters of procedure, it is suggested, however,
that the ministerial powers to set the terms of reference of the inquiry do
not per se threaten judicial independence. Sir Brian Kerr (as he then was)
noted that the ministerial power to bring an inquiry to an end under the
Prison Act (Northern Ireland) 1953 may affect the usefulness of the
inquiry ‘in that it halts the investigation on which the inquiry is
embarked, but it does not alter the autonomy of the inquiry while it is
taking place’.47
It has often been pointed out that there are other individuals besides
judges whose reputation for fairness, impartiality and public standing is
such that they could properly undertake those assignments.48 It may be
better to approach such persons for inquiries which are necessary but
the possible conclusions of which are so likely to be so politically
sensitive that they will undermine the perception of the independence
of the judiciary. Thus, it was not a judge but Lord Beeching who chaired
the highly successful Royal Commission on Assizes and Quarter

45 46
Hansard, HL, vol. 258, col. 835 (9 June 1964). Beer, Public Inquiries, 1.67.
47
Re Wright [2007] NICA 24, para. 29. The inquiry was carried out under the Prisons Act
(Northern Ireland) 1953 rather than the Inquiries Act 2005.
48
(1971) 121 NLJ 119.

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256 standards of conduct in extra-judicial activities

Sessions; while Royal commissions were deemed too slow in the Salmon
Report for the requirements of a public inquiry, one may point to an
entirely well respected and satisfactory inquiry into the conduct of
David Blunkett on the allegation that (as Home Secretary) he played
a role in fast-tracking a visa application for his ex-lover’s nanny.
The inquiry was held not by a judge but by a senior civil servant, Sir
Alan Budd.49
6.8 Where judges are called upon to make suggestions for law reform in
the future, as they can be with inquiries, the line between law and politics
is also blurred. The recent Leveson Inquiry has been tasked with making
recommendations regarding regulation of the media, and the govern-
ment may hide behind judicial recommendations as to the effect of legal
reform.50 On the one hand, regulation of the press involves a greater
degree of legal argument (especially following the HRA) than political
argument (all sides want a ‘free but responsible’ media). On the other
hand, one recalls the earlier complaints of the misuse of judges which
once prompted the Solicitors’ Journal to write:
The politicians are overdrawing on the capital of the judges’ high reputa-
tion for competence and impartiality in reaching conclusions by the
judicial process of reasoning, Each time a judge is misused by being put
up as face-saver behind whose report a government can hide in carrying
out a policy which they shirked adopting directly, a little of the long
esteem in which judges are held is lost and some of their authority
undermined.51

There are other potential objections to judges conducting extra-judicial

inquiries. Such non-judicial assignments remove from their ordinary
duties judges who cannot be spared by the overburdened courts. The
extraordinary length of the Saville Report effectively meant that the
House of Lords was deprived permanently of an outstanding judge who
would otherwise have served as one of the twelve members of the highest
court in the land, and Lord Justice Leveson’s services have recently been
sorely missed in the Court of Appeal.
Despite the significant criticisms that can be raised on behalf of judicial
independence, the traditional endorsement of judges to chair public

49
A. Budd, ‘An Inquiry into an Application for Indefinite Leave to Remain’, HC 175 (21
December 2004).
50
Leveson LJ, ‘An Inquiry into the Culture, Practices and Ethics of the Press. Report’, HC
780-I (2012).
51
(1972) 116 Solicitors’ Journal 149.

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iii. community activities 257

inquiries is as strong as ever.52 The matter was not considered in the

negotiations leading up to the Concordat. Under the Inquiries Act 2005,
when a minister proposes to appoint as a chairman of an inquiry ‘a
particular person who is a judge’ he must first consult the head of the
relevant judiciary. By comparison, in Israel, the Chief Justice makes the
appointment of any public inquiry.
Our view is that judicial inquiries should only be commissioned where
the following factors are satisfied: (1) where the government has a direct
interest, the Lord Chief Justice should have to add their own approval; (2)
in the words of Lord Woolf, ‘where the inquiry is of a highly politically
sensitive nature, the Lord Chief Justice should be entitled to say not only
who, but whether a judge should conduct the inquiry at all’;53 (3) (again
in the view of the Lord Chief Justice) the court in which the selected
judge sits will be able to continue its regular business during the antici-
pated period of his or her absence. It should also be clarified that the
appointed judge is not acting in his or her judicial capacity, under the
judicial oath, but rather in aid of public administration in an extra-
judicial function, and that this does not prevent the judge from having
discretion on the procedure adopted for the public inquiry.

III. Community activities

6.9 Almost any community activity, even though perfectly acceptable,
may become a matter of public or political controversy. In considering
whether any element of politics or controversy is present in the activity,
the normal, ordinary state of things should be examined. The fact that
there is a possibility of such elements arising under special circumstances
is not sufficient to exclude a judge from such activities. A judge, however,
should not remain any longer than necessary on a body that is likely to be
involved in recurring public controversy.54 Moreover, political involve-
ment apart, a judge may be associated with educational, charitable and
religious organisations and trusts, office in governing bodies of univer-
sities and similar institutions which are normally free of controversy.

52
Ministry of Justice, ‘Memorandum to the Justice Select Committee: Post-Legislative
Assessment of the Inquiries Act 2005’, Cm 7943 (October 2010).
53
Lord Woolf, Written Evidence to the Select Committee on Constitutional Reform Bill,
‘Supplementary Memorandum’ (7 June 2004).
54
C. Thomas, ‘Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of
Research, Policies, and Practices’ (The Commission for Judicial Appointments, 2005), 37.

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258 standards of conduct in extra-judicial activities

If, however, the relevant organisation happens to fall into a financial or

other crisis and becomes a focus of public discussion, it would seem
unsound to say that a man who has been associated with and rendered
valuable service to an organisation for many years should be excluded
from participating in public discussion of that organisation simply because
he is a judge. But if he were to speak out in defence of his organisation,
he may be accused of using his judicial position in some way.
Apart from the nature of the activities in question, the degree of
association and involvement in an extra-legal community activity is to
be considered. In some organisations a judge may be an active member
and serve on their executive committee or as chairman. Another import-
ant consideration is time. A judge cannot participate in community
activities if the time and energy required for those activities will interfere
with his official functions. But a judge is always looked upon as a judge,
even when he acts as an individual. Consequently, whatever he does, he is
inevitably using the prestige of his office. This puts upon him a duty to
avoid substantial involvement in activities which, in the public interest,
do not deserve the support of the prestige of judicial office. Further, high-
profile figures are not often appointed to the bench, and, for example, the
decision in 2001 by Cherie Booth, a part-time judge since 1996, to
become president of a children’s charity, Barnardos, was seen by some
as a sign that she might not consider or expect a full-time appointment to
the bench.
With these observations in mind, we focus below on involvement in
associations, non-profit organisations and appeals for funds.

A. Associations
6.10 The general rule is that a judge may be a chairman of a sports
association provided there is no element of business, profit or commer-
cialisation in that association. Also, if the sport concerned is objection-
able to a significant segment of the public on moral or other grounds, a
judge will be expected to refrain from participation in such sports. Under
this general rule a judge may be chairman of tennis, cricket or amateur
rugby associations but is excluded from professional football (soccer),
horse races, dog races, hare courses and the like. Professional football
carries elements of profit and business. The various animal races have
long since not been acceptable as they are viewed by a significant segment
of the public as immoral because they present undue temptations to
people to gamble and they may be cruel to animals. A judge should also

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iii. community activities 259

avoid associating himself with an organisation that is likely to be a party

or a friend to a party in a number of cases before him. Thus, a Family
Division judge should not chair a family service unit, and a circuit judge
should not be active in a local consumer group. We also noted earlier
that membership of the Freemasons does not per se raise doubts as to
a judge’s impartiality where a witness or party in a case is also a
Freemason,55 and there is no obligation upon a judicial office holder to
declare membership of a non-secret society.56

B. Non-profit organisations
6.11 Many associations with non-profit organisations are unproblem-
atic. For example, judges often serve as trustees of art institutes. Many are
actively associated with charitable organisations of any kind: for helping
the poor, the old, the sick and the handicapped, or for the protection of
animals. Judges are also involved in organisations which render public
service such as societies for after-prison care, orphans, hospitals, medical
research funds, marriage guidance and family service units. The late Lord
Bingham was, for example, Chair of UK Reprieve, a charity providing
legal support to prisoners as well as an active president of the British
Institute for International and Comparative Law. But the judge’s role
should not involve active business management.57 The Guide to Judicial
Conduct distinguishes between active involvement in educational, char-
itable and religious organisations and holding high office in governing
bodies of universities and similar institutions.58 On holding such offices,
the Guide emphasises that the management and funding structures of
such organisations are ‘complex, and are often the subject of public
debate and political controversy’. There is thus a necessity ‘to limit and
regulate the nature and extent of personal involvement in contentious
situations’, and this would seem to highlight a new restriction in extra-
judicial activities.
The restriction is well motivated. Consider Judge Callman, who
became a circuit judge in 1973 and, as a governor of Birkbeck College,
also became the Chair of the Investments Committee in 1995. This
involved dealing with the evaporation of £6.5 million of assets invested

55
See above, para. 5.50; Salaman v. UK Application No. 43505/98 ECtHR 15 June 2000.
56
Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (No. 2) (2007) Application No.
26740/02 ECtHR 31 May 2007.
57 58
Guide to Judicial Conduct, 8.4. Ibid., 8.4.3.

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260 standards of conduct in extra-judicial activities

by Birkbeck in Barings Brothers Bank following the news that, due to the
speculation of Nick Leeson, that bank would be forced to cease trading.
He was thanked by Birkbeck College in the following terms for his role in
the inquiries and negotiations that eventually led to the reinstatement of
the College investments a fortnight following the news of the speculation:
‘So we were more than ever glad thereafter for Judge Callman’s keen
analytical mind and talent for cross-examination, which made him just
the right person to put eager investment managers on the spot.’ Arguably
there could be a concern too about the tradition of distinguished judges
being appointed as university Visitors, charged with ensuring that the
university’s own body of law – its charter, statutes, ordinances and
regulations – was properly applied by the officers of the institution.
The matter is less likely to cause problems in future, however.59

C. Appeals for funds

6.12 Under the Guide to Judicial Conduct:
Care should be taken in considering whether, and if so to what extent, a
judge’s name and title should be associated with an appeal for funds, even
for a charitable organisation. It could amount to an inappropriate use of
judicial prestige in support of the organisation and may also be seen as
creating a sense of obligation to donors.60

It remains permissible for judges to solicit for contributions to charities,

and they may also contribute to such funds, provided that their names
are not used in soliciting for other contributions. Equally, it is arguable
that a judge can be involved in de minimis fund-raising activities, so long
as, when fund-raising, the judge is careful to avoid using the prestige of
his office. But judges should not associate themselves with a charity
unless the charity is free from business influence and political contro-
versy. Thus, in 2001 the Judges’ Council wrote to judges advising them
that it would be inappropriate for them to take part in ‘quasi-political’
events such as the Liberty and Livelihood March. Equally, judges will not
associate themselves with an institution working for a controversial cause
or one that renders services that are objectionable to a significant

59
The establishment of a nationwide complaints system for students, run by the Office of
the Independent Adjudicator for Higher Education (which became fully operational from
1 January 2005), coupled with the availability of alternative ways for members of staff to
pursue grievances, means that most universities will have no future Visitors.
60
Guide to Judicial Conduct, 8.4.2.

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iv. commercial activities 261

segment of the public. Thus, a charity that runs an abortion clinic for a
minimal fee, though providing a legal and valuable social service, may
not be the proper sphere of activity for a judge.
Judges may allow their names, as patrons, to be mentioned in calls for
contributions, donations and bequests to charitable institutions. But they
should ensure that their judicial title will be omitted. In the 1970s, some
judges signed circulars addressed to individuals or companies calling for
contributions, but this form of solicitation should be used cautiously as
judges could be asked to sign circulars addressed to companies which can
be repeat actors in litigation. Direct personal solicitation is only accept-
able when done in legal circles for contributions to professional benevo-
lent societies.
The overall position is more liberal than that in the United States,
where American judges are prohibited from ‘personally participating in
the solicitation of funds or other fund-raising activities’, but the different
appointment mechanisms in particular (judicial elections) would argu-
ably justify such prohibition.61

IV. Commercial activities

6.13 Holders of full-time judicial office are advised on appointment that
they should discontinue any professional or business links with their
former chambers or firm. All holders of judicial office, whether full- or
part-time office, are advised to refrain from participating in any activity
which might conflict with their judicial office. Holders of full-time judi-
cial office are prohibited, under section 75 of the Courts and Legal
Services Act 1990, from practising as barristers or solicitors and from
being indirectly concerned in any such practice.
Severe restraints are also rightly placed upon the permissible scope
of a judge’s involvement with commercial enterprises. There is a long-
standing rule that no full-time judge should hold a commercial director-
ship, and advice on this is provided upon appointment.62 It applies to a
directorship in any organisation whose primary purpose is profit related,
whether the directorship is in a public or a private company, and whether

61
Canon 4 C (3)(b), 1990 American Bar Association Model Code of Judicial Conduct. That
restriction applies to charitable organisations, including those devoted to the improve-
ment of the law, the legal system and the administration of justice.
62
Guide to Judicial Conduct, 8.3.1. All full-time judges are provided on appointment with
documentation which includes guidance on outside activities.

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262 standards of conduct in extra-judicial activities

or not it is remunerated. Any person holding such a directorship is

therefore expected to resign from it on appointment to judicial office.
There is normally no objection to a judge holding shares in either a
private or a public limited company63 and no objection either to taking
part in the management of a family estate.
However, all holders of judicial office must also have regard to the case
law governing conflicts of interest, which will apply in any individual
case in which the possibility arises of a conflict between the judge’s private
interests and those of any person or party involved in the case. By
exception, it is accepted that a judge may take part in the management
of family assets, including land or family businesses, and the estates of
deceased close family members, whether as executor or trustee. Thus, in
Regina v. Bristol Betting and Gaming Licensing Committee, ex parte
O’Callagham, a joined case to Locabail, the Court dismissed the challenge
made on the ground of judicial bias arising from the fact that the judge
was a director of a company that owned rented properties and the tenants
of the company included the other party involved in the case.64 The judge
was a non-executive director of what was a family property investment
company, and the rent payable by the other party as tenant of the judge’s
company represented around 4 per cent of the total rent currently receiv-
able by the company. A judge may also hold a directorship in a private
company for this purpose or in a company formed for the management of
flats of which he is a tenant.65 The traditional reservations on outside
activities remain: the management of family assets should not be complex,
time consuming or contentious.

V. Social life
6.14 In 2011 the BBC broadcasted a documentary in which Lord Hope
was seen taking public transport. The Supreme Court Justices were keen
to show that they were ordinary citizens. It is typical of a dual concern of
judges: one is that they are no longer seen as out of touch with the
community, because that is simply not the reality, and the other one is
that they should more actively seek opportunities to engage with the
community. Today there is no doubt that judges take public transport
and have no objection based on the dignity of their function in doing so.

63
A commercial partnership, such as a solicitors’ partnership, would normally be treated
similarly.
64 65
Para. 5.12. Guide to Judicial Conduct, 8.3.2.

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v. social life 263

The use of public transport is an often-quoted example of judges being

ordinary citizens, with Lady Justice Hallett again citing this example in
November 2011: ‘I sometimes almost despair about how judges get
portrayed in the media. They don’t want to get rid of the stereotype of
judges because they like it. Judges travel on public transport, their homes
are burgled, their children are hurt, they suffer from terrible diseases and
tragedy, and the idea that they live in an ivory tower is so outdated.
It really is completely unfair.’66
Another stereotype draws upon the judges’ lodgings.67 High Court
judges are based in London but hear the most serious criminal cases
outside London; the provision of special lodging is required on the
ground that this enables the judges to have the privacy which is essential
to their work.68 The network of lodgings, often listed houses with exten-
sive grounds, has now been reduced for financial reasons and HMCTS
has considered the use of serviced apartments or hotels as an alternative.
The isolation of the judges on circuit has been criticised,69 though it is
now mostly the requirement of being on circuit which can be criticised,
as it disrupts family life for substantial parts of the year.
6.15 The Guide to Judicial Conduct tries to draw a fine line between
over-prescribing what a judge can do outside the court and advising
him to avoid pitfalls which may be relatively easy to fall into given that
his professional past is likely to be as a self-employed barrister (unlike
some continental systems where a judicial career is entered at a very
young age). For example, attending parties hosted by legal practitioners is
less likely to be appropriate if the practitioner or a member of the
practitioner’s firm is currently appearing before the judge, has appeared
in the recent past, or is likely to appear in the near future; or if the judge’s
attendance will advance the practitioner’s private interests.70 Some of the
Guide to Judicial Conduct’s guidelines can be broken down into the
following categories.
First, it is understood that appointment to judicial office brings with it
limitations on the private and public conduct of a judge,71 and the
standards in private life are necessarily high. Judges go to public houses
(pubs) provided they are decent and not near the court. There is no

66
Hallett LJ, London Evening Standard, 7 November 2011.
67
S. Sedley, ‘Diary’, LRB, vol. 21 no. 22 (11 November 1999), p. 37.
68
Hansard, HC, vol. 809, col. 279 (14 January 1971).
69
JUSTICE, ‘A Report’, para. 56, p. 37; Hansard, HC, vol. 800, col. 1582 (30 April 1970).
70 71
Guide to Judicial Conduct, 5.1 (3), (8) and (9). Ibid., 4.1.

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264 standards of conduct in extra-judicial activities

objection to a judge going to a respectable pub in his neighbourhood in

London or near his country home and having a beer with a friend.
However, a judge is not expected to be seen in pubs frequently. In the
town where a Crown Court or a county court is situated judges are not
expected to go to pubs or other places of that kind. Similarly, we should
be surprised to learn that any judge visits strip-tease shows, brothels or
casinos or entertainments of that sort. Indeed, under the Guide to Judicial
Conduct, judges
must avoid situations which might expose them to charges of hypocrisy
by reason of things done in their private life. Behaviour which might be
regarded as merely unfortunate if engaged in by someone who is not a
judge might be seen as unacceptable if engaged in by a person who is a
judge and who, by reason of that office, has to pass judgment on the
behaviour of others.72

By contrast, it is desirable that, workload permitting, judges should

immerse themselves in other cultural aspects of life, which would enable
them to establish better contact with the world outside the courts.
Second, and as noted earlier, personal involvement in criminal pro-
ceedings gives rise to disciplinary proceedings. Conviction for an offence
involving moral turpitude requires immediate suspension. The main
difficulty lies in convictions of judges for traffic offences. Because Justices
of the Peace try traffic offences, it is a recognised practice that a Justice of
the Peace who is convicted of careless or dangerous driving or driving
with too much alcohol in his blood resigns from the bench. The position
with judges is less clear. In 1969 a senior judge pleaded guilty to driving a
car when he had consumed alcohol in excess of the prescribed limit (at a
time when this was less seriously viewed than it is today) and was fined.73
To defend his staying on the bench, it could be said that he did not deal
with criminal cases, and, therefore, the conviction for an offence of
driving with too much alcohol in his blood did not affect him in his
judicial functions. Though he was noticed staggering on his way to his
parked car and once went to the wrong side of the road, no collision
occurred nor was any damage caused.74 He was an eminent judge and, on
balance, the public interest would be adversely affected if he resigned.
However, to maintain the high standards of the judiciary, it is equally
arguable that he should have resigned. In Parliament, in the course of the
debates on the Courts Bill, an MP referred to ‘one distinguished judge

72 73 74
Ibid. The Times, 1 July 1969. Ibid.

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v. social life 265

[who] was actually convicted of a criminal offence – only a road traffic

offence, but a serious case of its kind – but did not resign. That would
have been unimaginable a few years ago.’ While opinion was deeply
divided, the majority view was that on balance it was a wise decision to
let this senior judge stay on the bench. In 1975 he was promoted to the
House of Lords.
As a third category, one may question the involvement of judicial
office holders in online social networks. Users of Facebook, Twitter or
other online social networks rely upon them generally to stay in touch
with other people with whom they have something in common. But
membership of a social network creates some risks to the dignity and
integrity of the office and judges must exercise caution in their use of
social networks. The Guide to Judicial Conduct clarifies that the use
of social networking is a matter of personal choice, a stance also emerging
in other jurisdictions, such as the United States through the states’ Judicial
Ethics Committees. The Guide promptly warns, however, against the risks
associated with social networks online, such as providing information
about a judge’s personal life and home address. Someone dissatisfied with
the judge’s decisions might undertake ‘jigsaw’ research and piece together
information from various independent sources: ‘Posting some informa-
tion could put your personal safety at risk. For example your address,
details of holiday plans and information about your family could be used
for criminal purposes. Photographs could enable home addresses or car
numbers to be identified.’75
The risks associated with social networks go beyond the personal
security of judges. As with any public extra-judicial activity of a judge,
in order to sustain public confidence, the judge must be careful to avoid
saying anything which may give any impression of bias or prejudice
concerning any issue, party or lawyer appearing before him or her in
court. In case of doubt, it is advisable to err on the side of caution. This
remains the guiding principle in finding an answer to, for example,
whether it is acceptable to add a lawyer or persons who regularly appear
before the judge in court (e.g., social workers), as a ‘friend’ on a social
network, such as Facebook, Linkedin, MySpace or Twitter. That is not to
say that judges should not have friends among lawyers, of course, but the
question is whether adding a lawyer as a Facebook-defined friend
conveys a stronger impression to the outside world (other than ordinary

75
Para. 8.12.1.

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266 standards of conduct in extra-judicial activities

socialising) that the lawyer is in a position to influence the judge. Is there

any difference between a judge socialising in person and a judge socialis-
ing through a social network?76 The argument to the effect that there
might be, is that the public nature of the information on a judge’s friends
or connections might give the impression of a bond that goes beyond
mere acquaintance and the online connection, alone or in combination
with other facts, might been seen as requiring disclosure to the parties in
some cases.77 Further, if the social network is a closed one, limited to the
judge’s relatives and a few close colleagues, and it is used for exchanging
personal information, it is likely that the lawyer might be seen as having a
special influence on the judge. In the case of a legal association with a
Facebook page, the question is whether the association uses the page to
talk about the association’s aims or about non-legal matters.
Another question is what information and exchanges might be made
available on those networking sites. Here, the general rules on judicial
expression outside the courtroom apply: no comment on pending cases
or controversial issues – that implies avoiding responding to inquiries
from users who might want the judge to discuss their cases or provide
some legal advice. Ex parte communications are no more permissible on
social networks than they are outside social networks. Furthermore,
social network pages can be open to others’ comments. The judge might
be seen as endorsing any comment posted on his page, or lending the
prestige of the judicial office to anyone who might post comments or
materials there. To prevent this, the judge has to carefully and frequently
vet his network page, ensuring that personal information, photographs
and comments maintain his impartiality and the dignity of the judicial
office. In addition, the other members of his social network may not
guard privacy as securely as the judge, and the judge should be aware of
the risk that the judge’s comments, photographs, etc., might be made
public without the judge’s permission.
Greater clarity was provided through guidance from the Senior Pre-
siding Judge and the Senior President of Tribunals sent to all judicial
office holders in August 2012 warning against blogging by judicial office
holders with one main requirement that, although blogging by members

76
For a helpful discussion, see New York Advisory Committee on Judicial Ethics, ‘Advisory
opinion 08-176’ (29 January 2009).
77
Ethics Committee of the Kentucky Judiciary, ‘Ethics opinion JE-119’ (10 January 2010);
C. Gray, ‘The Too Friendly Judge? Social Networks and the Bench’ (2010) 93 Judicature
236.

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vi. professional life after retirement 267

of the judiciary is not prohibited, officer holders who blog (or who post
comments on other people’s blogs) must not identify themselves as
members of the judiciary. Thus, the ‘Magistrates’ Blog’ now reads that
it is written by a ‘group of people interested in magistrates’ courts and
their work’.

VI. Professional life after retirement

6.16 Since 1993 the policy has been that judicial office holders should
not sit beyond the age of seventy.78 Provided that this is desirable in the
public interest (a business case must be made), the Lord Chief Justice can,
however, with the concurrence of the Lord Chancellor, extend beyond
retirement date circuit judge appointments, or appoint retired circuit
judges as deputy circuit judges.79 It is currently the policy that recorders
cease to serve at the end of the financial year in which they reach the age
of sixty-five. Any final decision with regard to potential extensions is
usually made before the judicial office holders in question have reached
their retirement date.
One may challenge the retirement age for judges of seventy. If a person
qualified at the Bar or to be a solicitor at age forty, which is possible, he or
she would need twenty years of court work as a barrister before thinking
of becoming a judge. These people would then start at the bottom of the
court circuits at age sixty and work their way up. By age seventy they may
be highly regarded judges at circuit or High Court level but be unable to
continue up the ladder. Even for the barrister or solicitor who started
young, there is no reason why, if they love their job and are good at it,
they should be taken off duty at a set age.80
6.17 Judges do not go back to the Bar.81 There is no specific ruling to this
effect with regard to High Court judges, but it is known that in the 1950s,
two judges, one of whom later became a Law Lord, asked to return to the

78
Judicial Pensions and Retirement Act 1993, s. 26 and sch. 5; Courts Act 2003, ss. 12(2)
and 13(1); the Memorandum on conditions of appointment and terms of service will also
clarify the matter. This is subject to transitional provisions under which a judge already
serving on the implementation of the Act (31 March 1995) retains his pre-existing
retirement age.
79
Courts Act 1971, s. 24; Judicial Pensions and Retirement Act 1993, ss. 26(5) and (6).
80
On retirement policy, note Seldon v. Clarkson Wright and Jakes [2012] UKSC 16.
81
See, e.g., Hansard, HL, vol. 312, col. 1288 (Lord Dilhorne), 1303 (Lord Denning) (19
November 1970); Lord Hailsham, Hansard, HL, vol. 313, cols. 733–4 (3 December 1970).

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268 standards of conduct in extra-judicial activities

Bar and were refused.82 There is a formal ruling of the Bar Council to the
effect that in principle a county court judge cannot return to practise at
the Bar in any capacity.83 However, the rules are not inflexible. In one
exceptional case a stipendiary magistrate was allowed to return to the Bar.
An Irish judge who has been a judge in Ireland and retired may practise in
England.84 There is no clearly established tradition against a solicitor judge
returning to practise upon resignation. The argument against a judge
returning to practise at the Bar upon retirement is that it would give him
an unfair advantage over other members of the Bar. It seems, however, that
this practice rests not so much upon reason and arguments as upon a long-
established tradition which has never been questioned. It would not be
surprising if some retiring judges were soon to try to return to the Bar and
to challenge the basis for any ban which the Bar Council might wish to
enforce, especially if the retired judge wishes to write opinions rather than
to appear in court. The established practice cannot be definitely stated in
relation to solicitors, very few of them being on the bench still.
Before August 1970 the question of whether a judge could leave the
bench and go into business was probably regarded as merely an academic
question. At that time it seemed clear that judges were not expected to
end their life in the City. In August 1970 Justice Fisher, at the age of fifty-
two, resigned from the bench after only two-and-a-half years in office.
Upon resignation, he became a director of a merchant bank in the City of
London. Fisher’s resignation raised two questions: (a) is there a tradition
against untimely resignation from the bench? (b) are judges barred from
accepting business appointments upon resignation or retirement from
the bench? These questions, though not treated separately, received
conflicting answers. To the Solicitors’ Journal, Fisher’s resignation ‘came
as a shock’. It warned that if the bench becomes part of the territory for
the head hunters’ safari, then the judges’ reputation for absolute imparti-
ality and integrity, which is as valuable as the impartiality and integrity
themselves, would suffer.85 It might be added that it would be especially
unwelcome if they were to work for companies that they have favoured in
their past decisions, notwithstanding that the same has occurred with
several retired Cabinet ministers.

82
Sir Winston Churchill referred to this in introducing the Bill increasing judicial salaries,
Hansard, HC, vol. 525, col. 1063 (23 March 1951).
83
W.W. Boulton, Conduct and Etiquette at the Bar, 5th edn (London: Butterworths, 1971),
p. 34.
84 85
Ibid. (1970) 114 Solicitors’ Journal 593.

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vi. professional life after retirement 269

On the other hand, it was argued86 that on being appointed to the

bench, a man must inevitably step into what is, for him, comparatively
unknown territory. Only when he ascends the bench does a man become
aware of the full impact of the step he has taken. If, after some time on
the bench, he becomes disenchanted with the judicial life and judicial
work, surely it is better for the administration of justice, as well as for the
judge concerned, that he leave the bench. The New Law Journal saw
some advantage to the public in judges going into business:
The city represents a powerful force in our national life and if its sense of
values is sometimes highly questionable, it is on that account all to the
good if it occasionally receives an infusion of the qualities of a discipline
very different from and in some ways superior to its own.87

Judges who have been appointed after Fisher’s resignation were told by
the Lord Chancellor when he interviewed them before appointment that,
on accepting the judicial appointment, they should treat the career as a
permanent one and that ‘they should approach the Bench with the
enthusiasm of a bridegroom approaching marriage or of a priest
approaching priesthood’.88 It is difficult to decide whether Fisher serves
as a precedent for a future judge who wishes to follow a similar course, or
whether it has reaffirmed, by the adverse reaction it attracted, the trad-
ition against untimely resignation and against judges going into business.
There does not seem to be any consensus among judges except to say that
the appointment is accepted upon the understanding that it is ‘a one-way
track’. This would seem to lend support to the view that Fisher helped
strengthen the tradition against untimely resignations from the bench
and against judges leaving the bench for business. One may also read in
that light the decision by Sir Hugh Laddie to resign from the High Court
in 1985 because he was ‘bored’ and felt ‘isolated’ at the bench. He joined
a firm of solicitors (he was a barrister by training) and would not appear
in court.
6.18 In general, entering politics after retirement from the bench is
regarded as less objectionable than going into business, for it might be
viewed as public service. Indeed, it is not clear whether there has been
any tradition excluding judges from entering politics after leaving the
bench. It is true that, except for Lord Reading, judges have not gone in to

86 87
(1970) 120 NLJ 746; (1970) 67 Law Society Gazette, 588. (1970) 120 NLJ 747.
88
Erskine, citing Lord Hailsham, in ‘The Selection of Judges in England: A Standard for
Comparison’ (1953) 39 American Bar Association Journal 279, 280.

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270 standards of conduct in extra-judicial activities

politics upon resignation from the bench. Lord Reading left the office of
the Lord Chief Justice to become the Viceroy of India. As one of his
biographers reported, ‘on the whole the appointment was received well
by the Press and also in the Temple’.89 Later, Lord Reading served as
Foreign Secretary in the Cabinet of Ramsay MacDonald’s National
Government. This appointment did not attract any criticism on the
ground that a former judge should not engage in politics. Lord Hewart
was invited by Lloyd George to return to politics and ‘revitalise the
Liberal Party’ but Hewart gave up the idea for personal reasons. No
mention, however, was made of any tradition against judges going into
politics upon retirement.90
Beyond the question of entering politics upon retirement, the Guide to
Judicial Conduct expresses the view that ‘even in retirement a former
judge may still be regarded by the general public as a representative and
any activity that might tarnish the reputation of the judiciary should be
avoided’.91 In particular, the constitutional conventions on judicial com-
ments, detailed in Chapter 8, apply to retired judges.92

Conclusions
6.19 We have expressed some concern over the continuing tradition of
English judges acting as chairmen of public inquiries whenever asked to
do so. The Lord Chief Justice should have an effective veto on the matter
and should exercise it where the subject matter is politically sensitive.
Further the Lord Chief Justice should consider whether the court in
which the selected judge sits will be able to continue its regular business
during the anticipated period of his absence. We noted also that some
non-members of the judiciary have had notable successes in chairing
public inquiries.
The Guide to Judicial Conduct otherwise offers effective advice in
extracurricular activities, including requirements that judges avoid
involvement in businesses and that even positions of responsibility
(especially involving management and finance) with other bodies should

89
H.M. Hyde, Lord Reading: The Life of Rufus Isaacs, the First Marquess of Reading
(London: Heinemann, 1967), p. 327.
90
R. Jackson, The Chief: the Biography of Gordon Hewart, Lord Chief Justice of England
1922–1940 (London: George G. Harrap, 1959).
91
Guide to Judicial Conduct, para. 9.2; Judicial Executive Board, ‘Guidance to Judges on
Appearances before Select Committees’, November 2012, para. 19.
92
See below, paras. 8.5–8.17.

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conclusions 271

be avoided due to their complexity and the possible perception that the
judge’s position is being used in some improper way. The latter concern
may apply to some fund-raising activities too. The theme persists in
relation to judges who retire; there seems to be less objection to their
being politically active than to their being commercially active. The
reasons for any restrictions post retirement seem to be in need of much
forceful argument.
The major contemporary problem is perhaps the use of social net-
working sites. The apparently innocuous act of adding another lawyer
(most naturally, one from the same chambers) as a ‘friend’ on a social
networking site might arguably convey a stronger impression to the
outside world (than ordinary socialising) that the lawyer is in a position
to influence the judge. At the same time, there may be a wish for judges
to be active in this sphere to dispel the ivory tower image which they still
have in some circles. There is no obvious solution to the dilemma.

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7

Immunity, discipline and removal of judges

Introduction
7.1 We saw in Chapters 5 and 6 how standards of judicial conduct are
now expressly construed as a defining component of public trust in the
judiciary. In this chapter we focus upon the process of regulation of
judicial conduct. While tenure of judicial office is a fundamental element
of judicial independence, disciplinary procedures apply to judges who
misbehave in one way or another, albeit that few judges have had charges
brought against them. The power to remove and discipline judges dir-
ectly affects individual judges as well as the judiciary as a whole, thus the
grounds and mechanisms for the discipline and removal of judges are of
vital importance to the independence of the judiciary. They must be
subject to proper safeguards, and their analysis forms the major part of
this chapter. Little has been written in recent times about removal and
discipline of English judges,1 no doubt because of the proud record of
English judges with regard to their professional behaviour. The separ-
ation of powers enshrined in the Constitutional Reform Act 2005 (CRA)
invites a renewed scrutiny, however, of the role played by the executive
and the legislature in the exercise of the powers of discipline and removal
of judges. Until the CRA, the power to discipline was in the hands of the
Lord Chancellor, also the head of the judiciary. Following the transfer
of the latter responsibility to the Lord Chief Justice in 2005, the power
to discipline judges is now shared between the Lord Chief Justice
and the Lord Chancellor, placing safeguards upon its use. In addition
to disciplinary actions, the procedures of impeachment and address of
removal, which can lead to the vacation of senior judicial office, are also
considered.
The disciplinary regime must be distinguished from the criminal and
civil liability regime that applies to judges in the discharge of their

1
D. Pannick, Judges (Oxford University Press, 1987).

272

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introduction 273

judicial duties. Judicial immunity relieves judges from the fear of being
sued for speaking and acting openly in the course of judicial proceed-
ings.2 Judges in the exercise of their judicial function have exemption
from all civil liability for anything done or said by them in their judicial
capacity. As noted in our introductory chapter, the exclusion of civil
liability for judicial acts is granted as a matter of public policy, ‘not so
much for [the judges’] own sake as for the sake of the public, and for
the advancement of justice, that being free from actions, they may be
free in thought and independent in judgment, as all who administer
justice ought to be’.3 The rule of judicial immunity also provides finality
in litigation: it puts an end to judicial controversies.4 The case cannot
effectively be reopened by suggesting that, if the judge had been less
careless, then the claimant would have won. Such claim would only be
pursued through the appeal process.
Judicial immunity from liability does not give a judge any privilege to
make mistakes or to do wrong,5 but the remedy for a judicial wrong
committed in the course of judicial proceedings does not generally lie in
an action for damages. Rather, the appeal system is expected to address a
judicial wrong in the exercise of the judicial function, as discussed in our
Chapter 5. Appeal is the ordinary way to hold judges accountable to
society and to the legal profession, by allowing for wrong, unfair or
biased decisions to be overturned.
It has also been said that, without immunity from civil liability for
judicial acts, no one would want to be appointed to the bench for fear of
‘wasting and harassing persecution’.6 This argument has some particular
force as, at common law, the Crown was not vicariously liable for the
torts of its servants and, while it waived its immunity from liability
generally in 1947, it maintained it in respect of judges. The Crown or

2
Dawkins v. Lord Rokeby (1875) LR 7 HL, 744, 753; Darker v. Chief Constable of the West
Midlands [2001] 1 AC 435, 445H–446B [Lord Hope]; Arthur J S Hall v. Simons [2002] 1
AC 615, 740 G–H [Lord Hobhouse], 679B–C [Lord Steyn], 697B–698H [Lord Hoffmann].
3
Garnett v. Ferrand (1827) 6 B & C 611, 625 [Lord Tenterden CJ], adopted by the Court of
Appeal in Sirros v. Moore [1975] QB 118, 132 [Lord Denning MR]; Arthur JS Hall & Co v.
Simons [2002] 1 AC 615.
4
Floyd v. Barker (1607) 77 ER 1305.
5
Munster v. Lamb (1883) 11 QBD 588, 607 [Fry LJ]. The general principles of liability apply
when a judge commits a wrong outside his judicial capacity.
6
Floyd v. Barker (1607) 77 ER 1305, 1306; Taafe v. Downes (1813) 13 ER 15, 20; Fray v.
Blackburn (1863) 122 ER; Anderson v. Gorrie [1895] 1 QB 668; Groenvelt v. Burwell (1700)
91 ER 1202, 343, 344 [Holt CJ]; Haggart’s Trustees v. Lord President (1824) 2 Shaws Rep.
125; Tughan v. Craig [1918] 2 IR 245.

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274 immunity, discipline and removal of judges

the state7 assumes primary liability, however, in relation to violation of

European Union law and certain provisions of the Human Rights Act
1998 (HRA). Under European Union law, the principle of state liability
for breach of European Union law applies to judicial wrongs committed
in the exercise of judicial duties. Primary state liability also applies for
judicial acts in relation to infringement of the rules laid down in Article 5
of the European Convention on Human Rights (ECHR) (relating to
deprivation of liberty) and Article 6 ECHR relating to the guarantees of
a fair hearing in procedendo. Once the judicial immunity is defeated,
general principles apply and the judge is personally liable for the tort
committed.
We first discuss judicial immunity and disciplinary proceedings, before
considering the mechanisms for removal for the senior courts, available
at present and in the past. These include impeachment, scire facias,
criminal information or criminal prosecution and the address for
removal. We focus on the parliamentary power of removal from office.
The actual operation of the address to Parliament in the nineteenth
century and at the beginning of the twenty-first century shows that
Parliament gradually elaborated the sufficient grounds for removal – a
high degree of misconduct only – and the constitutional process of
disposing of the complaints against judicial conduct. This power remains
a necessary mechanism of judicial accountability.

I. Judicial immunity
7.2 The justifications for and scope of judicial immunity at common law
and under statutory law must be examined. The status of the judges also
affects the level of protection: a senior judge,8 such as a judge of the High
Court, is protected even though the judge has exceeded his jurisdiction

7
Though references to the Crown can be to the monarch, that term is used here in the
broad sense of the apparatus of central government, with the judicature being a unit of
that apparatus, see W. Holdsworth, ‘Constitutional Position of the Judges’ (1932) 48 LQR
25 26–8. With this understanding in mind, the Crown has legal personality and the acts of
judges constitute an exercise of the judicial power of the state which can justify the finding
of primary liability in the case of judicial wrongs, see Lord Diplock in Chokolingo v. A.-G.
of Trinidad and Tobago [1981] 1 WLR 106, 107.
8
A ‘senior judge’ means any of the following, under CRA, s. 109 (5): Master of the Rolls,
President of the Queen’s Bench Division; President of the Family Division; Chancellor of
the High Court; Senior President of Tribunals; Lord Justice of Appeal; puisne judge of the
High Court.

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i. judicial immunity 275

provided that the judge has acted judicially and in good faith. Lack of
jurisdiction and bad faith – the judge knowingly acted outside of
jurisdiction – is required for the immunity of superior courts to be
waived. Contrary to the position adopted in the United States, the
absence of jurisdiction is not enough for the immunity to be waived.
By comparison, a judge from a lower court, such as circuit and district
courts, who exceeds the court’s jurisdiction, is not protected unless
the exercise of jurisdiction was caused by an error of fact in circum-
stances where the court had no knowledge of or means of knowing the
relevant facts. Bad faith is not required for the immunity of inferior
courts to be lost.9

A. The scope of judicial immunity

7.3 Judicial immunity is ‘absolute’ in the sense that an action against a
judge cannot proceed and must be struck out at its outset.10 Thus judges
do not owe a contractual duty or a tortious duty of care to litigants in
their courts.11 The rule has wide application to claims of all sorts12 but
judicial immunity only arises in respect of judicial proceedings. Whether
a body may be considered as ‘judicial’ for the purpose of granting
absolute immunity to those involved in its proceedings is a matter of
determining the body’s similarity or equivalence in function and proced-
ures to those of a court of law.13 The court will have regard to whether
the tribunal is recognised by law, whether the nature of the question is
akin to that of a civil or criminal question in the courts, whether the
body’s procedures are akin to those in civil or criminal courts, and
whether the outcome of its procedures leads to a binding determination
of the civil rights of a party.14 The weight given to the various compon-
ents of similarity is a matter of fact and degree, an exercise in balancing

9
Re McC (A Minor) [1985] AC 528.
10
Bottomley v. Brougham [1908] 1 KB 584, 587 [Channel J]; Marrinan v. Vibart [1963] 1
QB 528; Roy v. Prior [1971] AC 470; Heath v. Metropolitan Police Commissioner [2004]
EWCA 943, 17.
11
Sirros v. Moore; Arenson v. Arenson [1977] AC 405, 431–2 [Lord Kilbrandon].
12
Munster v. Lamb (1883) 11 QBD 588, 607–8 [Fry LJ]; Marrinan v. Vibart [1963] 1 QB
502, 535 [Sellers LJ] and 538–9 [Diplock LJ].
13
Royal Aquarium and Summer and Winter Garden Society Ltd v. Parkinson [1892] 1 QB
431, 442 [Lord Esher]; Quinland v. Governor of Swaleside Prison [2002] EWCA Civ 174.
14
Trapp v. Mackie [1979] 1 WLR 377; O’Connor v. Waldron [1935] AC 76, 81 [Lord Atkin];
Heath v. Metropolitan Police Commissioner [2004] EWCA Civ 943, 21–2 [Auld LJ].

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276 immunity, discipline and removal of judges

competing public policies against one another.15 Thus, absolute immun-

ity is enjoyed not only by judges but also by ‘quasi-judicial officers’ or
officials performing ‘quasi-judicial’ functions, such as arbitrators,16
jurors,17 prosecuting attorneys,18 a Police Disciplinary Board,19 prison
Visitors,20 coroners,21 military tribunals22 and the participants in a
disciplinary tribunal.23 Justices of the Peace (and their clerks) enjoy
immunity for acts or omissions committed within their jurisdiction in
execution of their offices,24 and for acts outside their jurisdiction unless it
is proved that they acted in bad faith.25
Judicial immunity extends to defamatory words spoken by judges and
other judicial officers.26 In this respect, inferior courts enjoy the same
immunity as superior courts.27 The immunity extends to judicial acts under-
taken by officers of the courts but not to administrative acts by Her Majesty’s
Courts and Tribunals Service (HMCTS). The extension of the absolute
immunity rule must be necessary for the administration of justice and any
decision in that respect must have regard to the cases in which immunity has
been held necessary in the past, so as to form part of a coherent principle.28
7.4 As noted above,29 at common law the degree of judicial immunity
varies with the status of the judge. The variation between a ‘superior’
(now ‘senior’) and ‘inferior’ court, has been justified by the jurisdiction of

15
Trapp v. Mackie [1979] 1 WLR 377; Heath v. Metropolitan Police Commissioner [2004]
EWCA 943, para. 22 [Auld LJ]; Minister of National Revenue v. Coopers and Lybrand
[1979] 1 SCR 495, 504 [Dickson J]; cf. the common Australian test, (a) whether the
function is one of a kind normally performed by a judge and (b) whether there is an
expectation that the function will be performed by a judge in his or her capacity as a
judge, Yeldham v. Rajski (1989) 18 NSWLR 48, 61.
16
Sutcliffe v. Thackrah [1974] AC 727; Arenson v. Casson [1975] 3 WLR 815; Stevenson v.
Watson [1879] 4 CPD 148; R v. Mirza [2004] 1 AC 1118, para. 6 [Lord Steyn].
17
Stowball v. Ansell 90 ER 377; (1689) Comb. 116; Floyd v. Barker (1607) 77 ER 1305;
Sutton v. Johnstone (1786) 99 ER 1215.
18
Hester v. McDonald [1961] SC 370.
19
Heath v. Metropolitan Police Commissioner; Bretherton v. Kaye & Winneke [1971] VR 111.
20
O’Reilly v. Mackman [1982] 3 WLR 604.
21
Garnett v. Ferrand (1827) 6 B & C 611, 625; P. Matthews, ‘Costs Against Coroners: an
Issue of Principle’ [1995] PL 526.
22 23
Dawkins v. Lord Rokeby [1873] LR 8 QB 255. Addis v. Crocker [1961] 1 QB 11.
24 25
Courts Act 2003, s. 31. Courts Act 2003, s. 33.
26
R v. Skinner (1772) 98 ER 529, 530 [Lord Mansfield].
27
Thomson v. Sheriff Kenneth Ross and others [2000] Scot CS 202.
28
Taylor v. Director of the Serious Fraud Office [1991] 2 AC 177, 21D–E [Lord Hoffmann];
Mann v. O’Neill (1997) 71 ALJR 903, 907 [Brennan CJ, Dawson, Toohey and Gaudron JJ].
29
Para. 7.2.

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i. judicial immunity 277

these courts: a superior court’s jurisdiction is not limited by either

person, place or subject matter; as a result, it can make a conclusive
determination of whether a matter came within its jurisdiction or did
not.30 The distinction is unconvincing, however, and it was rejected as
such by the Court of Appeal in Sirros v. Moore,31 where an action for
damages was brought against a circuit judge. In the words of Lord
Denning MR:
Every judge of the courts of this land – from the highest to the lowest –
should be protected to the same degree, and liable to the same degree. If
the reason underlying this immunity is to ensure ‘that they may be free in
thought and independent in judgment’, it applies to every judge, whatever
his rank . . . Each should be able to do his work in complete independence
and free from fear. He should not have to turn the pages of his books with
trembling fingers, asking himself: ‘If I do this, shall I be liable in damages?’
So long as he does his work in the honest belief that it is within his
jurisdiction, then he is not liable to an action.32

Nevertheless, Lord Bridge suggested that the distinction between senior

and inferior courts in respect of judicial immunity was ‘so deeply rooted
in our law that it certainly cannot be eradicated by the Court of Appeal
and probably not by your Lordships’ House’ since ‘so fundamental a
change would . . . require appropriate legislation’.33 The Supreme Court
of Canada has expressed a similar view.34 By contrast, the New Zealand
Court of Appeal has treated Sirros v. Moore as stating the common law of
New Zealand.35 While it may be desirable that judges at all levels should
be granted the same protection from civil liability, the difference in
liability between courts still survives and should be addressed by the
legislature.36
Further, the extent of protection enjoyed by judges at all levels is
disputed.37 At common law, the holder of a judicial office in a lower
court who acts in bad faith, doing what he knows he has no power to do,

30
Sirros v. Moore [1975] QB 118, 138; Re McC (A minor) [1985] AC 528, 541 [Lord Bridge].
31 32
Sirros v. Moore [1975] QB 118. Ibid., 136.
33
Re McC (A Minor) [1985] AC 528, 550; Maharaj v. A.-G. of Trinidad and Tobago (No. 2)
[1979] AC 385 (PC), 409 [Lord Hailsham].
34
Morier v. Rivard [1985] 2 SCR 716.
35
Nakhla v. McCarthy [1978] 1 NZLR 291; Moll v. Butler (1985) 4 NSWLR 231; Rajski v.
Powell (1987) 11 NSWLR 522.
36
Re Mc (A Minor) [1985] AC 528, 558–9 [Lord Templeman]; Pannick, Judges; C. Gearty,
‘Personal Liability of Justices’ (1987) 46 CLJ 12, 14.
37
Sirros v. Moore [1975] QB 118, 132, 135, 140–1, 150.

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278 immunity, discipline and removal of judges

is liable in damages.38 Judicial immunity only extends to judicial activ-

ities carried out ‘in the honest belief that it is within [the judge’s]
jurisdiction’.39 The majority in Sirros v. Moore considered that all judges
should be absolutely immune from personal civil liability in respect of
judicial acts done in the bona fide exercise of their office as a judge of that
court, within the limits of their jurisdiction. Judicial immunity thus
applies where the judge: (i) acts in the bona fide exercise of his office
and (ii) in the belief (though mistaken) that he has jurisdiction.
Justices of the Peace were already liable in damages under the Justices
Protection Act 1848, presumably for the tort of misfeasance in public
office. The Courts Act 2003 preserves the immunity of justices for acts or
omissions in the execution of their judicial duties with respect to any
matters within their jurisdiction.40 Actions can lie against a justice in
respect of acts or omissions in the purported exercise of his judicial duty,
with respect to matters not within his jurisdiction, if it is proved that the
justice acted in bad faith.41
7.5 An allegation of judicial misconduct by a dissatisfied litigant is often,
perhaps even typically, accompanied by an accusation of malice or want of
good faith in the exercise of judicial authority. The justices’ exception
apart, the rule of absolute immunity for judicial acts within jurisdiction,
even when the judge acts maliciously, was upheld by Lord Bridge:
[I] one judge in a thousand acts dishonestly within his jurisdiction to the
detriment of a party before him, it is less harmful to the health of society
to leave that party without a remedy than that nine hundred and ninety
nine honest judges should be harassed by vexatious litigation alleging
malice in the exercise of their proper jurisdiction.42

Sirros v. Moore thus extended the protection of inferior courts to suits

alleging malice, yet one may question the high degree of immunity

38
Marshalsea Case (1613) 10 Co. Rep. 68b; Re McC (A Minor) [1975] QB 118, para. 541
[Lord Bridge]; Cf. Harvey v. Derrick [1995] 1 NZLR 314, 321 and 326, reversed by the
Summary Proceedings Amendment Act (No. 2) 1995, amending s. 193(1) of the Sum-
mary Proceedings Act 1957. For the law on senior judges before Sirros v. Moore, see
Hammond v. Howell (1674) 86 ER 1035, 1037; Taafe v. Downes (1813) 13 ER 15 at 22;
Mostyn v. Fabrigas (1774) 98 ER 1021; A.A. Olowofoyeku, Suing Judges: A Study of
Judicial Immunity (Oxford: Clarendon Press, 1993), pp. 20–1.
39
Sirros v. Moore [1975] QB 118, 136.
40
Courts Act 2003, ss. 31–35. This applies to the Justice’s clerk or assistant clerk too.
41
Courts Act 2003, ss. 32 and 35.
42
Re McC (A minor) [1985] AC 528, 541 [Lord Bridge]; Anderson v. Gorrie [1895] 1 QB
668, 670 [Lord Esher]; cf. Northern Territory of Australia v. Mengel (1996) 185 CLR 307.

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i. judicial immunity 279

enjoyed by a judge who acts with malice.43 It is difficult to defend the idea
that a man who has an arguable case that a judge has acted corruptly or
maliciously to his detriment, should have no cause of action against the
judge.44 A lesser degree of judicial immunity, allowing for the rule that
judges who act maliciously or intend to cause harm to a litigant are
deprived from judicial immunity, may not affect the free thought or
independent judgment of the judiciary.45 It seems unlikely, however, that
the HRA would provide an individual wronged by a judge with a
successful challenge of that degree of protection, at least when judges
act within their jurisdiction. Judicial immunity has been recognised in
some form since 1687 in England,46 and the European Court of Human
Rights appears reluctant to create a substantive civil right that has no
basis in domestic law.47 In addition, the Court has held that the scope of
Article 6(1) ECHR includes laws that impose a procedural bar but not
laws which extinguish a substantive right,48 which is what judicial
immunity does. If, notwithstanding these two observations, the rule of
judicial immunity was said to fall under the scope of Article 6(1) ECHR,
then it is open to debate whether judicial immunity in case of malice
would be a justified limitation to the right to a fair trial: the relationship
of proportionality between the means employed and the aim sought to be
achieved, a proper administration of justice, does not seem reasonable.49

B. State liability
7.6 The Crown Proceedings Act 1947 waived the Crown immunity from
liability but section 2(5) of the Crown Proceedings Act 1947 underpins
the common law immunity of judges by providing that no action can be
brought against the Crown in respect of acts or omissions of persons by

43
Miller v. Seare (1773) 96 ER 673, 674–5 [De Grey CJ]; A. Olowofoyeku, Suing Judges, 64.
44
Pannick, Judges, 99.
45
A. Nicol, ‘Judicial Immunity and Human Rights’ (2006) 5 EHRLR 558, 563–4; Olowo-
foyeku, Suing Judges, ch. 7.
46
Green and the Hundred of Buccle-Churches 74 ER 294 (1 Leo. 323), cited by Olowofoyeku,
Suing Judges, 9–15.
47
R (Kehoe) v. Secretary of State for Work and Pensions [2005] UKHL 48; Matthews v.
Ministry of Defence [2003] UKHL 4; James v. UK (1986) 8 EHRR 123, para. 81; H v.
Belgium (1987) 10 EHRR 339; Fogarty v. UK (2001) 12 BHRC 132, para. 25; Pinder v. UK
(1985) 7 EHRR 464, para. 5.
48
Matthews v. Ministry of Defence [2003] UKHL 4; James v. UK (1986) 8 EHRR 123,
para. 81.
49
A v. UK (2003) 36 EHRR 51, para. 77.

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280 immunity, discipline and removal of judges

any person while discharging or purporting to discharge any responsi-

bility of a judicial nature. One may wonder about the extent to which
section 2(5) of the Crown Proceedings Act is compatible with the
principle of primary state liability for judicial acts in relation to infringe-
ment of the rules laid down in Article 5 ECHR (relating to deprivation of
liberty) and Article 6 ECHR relating to the guarantees of a fair hearing in
procedendo.50 In addition, in practice, some specific statutes provide for
compensation to litigants who have incurred costs as a result of judicial
errors.51 Moreover, section 2(5) has to be disapplied under European
Community law where the principle of state liability for breach of
European Union law applies to judicial wrongs committed in the exercise
of judicial duties. Once the judicial immunity is defeated, general prin-
ciples apply and the judge is personally liable for the tort committed.
7.7 The immunity granted by the common law to judges is, arguably,
preserved in effect by the European Court of Human Rights, at the very
least with regard to acts done within jurisdiction.52 Under section 6(1)
HRA, it is unlawful for a public authority, including a court or tribunal,
to act in a way which is incompatible with a Convention right. Under
section 7(1) HRA, a person who claims that a public authority has acted
in such an unlawful manner may bring proceedings against the authority
if he is a victim of the unlawful act. Damages may be awarded for the
violation of a Convention right pursuant to section 8 HRA where this is
necessary to afford just satisfaction, subject to section 9 HRA.53
Under section 9(1) HRA, proceedings can only be brought in respect
of a judicial act by exercising a right of appeal, by an application for
judicial review, or in such other form as may be prescribed by rules.
Section 9(3) HRA provides that damages may not be awarded in respect

50
That is, while the judgment is being prepared; it does not apply to the guarantees in
iudicando, that is those relating to the content of the judgment itself, see Opinion of
Advocate General Léger in Case C-224/01 Gerhard Köbler v. Republik Österreich [2003]
ECR I-10239, paras. 77–82; Dulaurans v. France (2001) 33 EHRR 45; Kingsley v. UK
(2002) 35 EHRR 10.
51
Criminal Justice Act 1988, s. 133 allows for financial redress from the state for miscar-
riage of justice. Until 2006 an ex gratia compensation scheme provided compensation at
the discretion of the Home Secretary in ‘exceptional cases’, where ‘there had been some
misconduct or negligence on the part of the police or some other public authority’, see
Hansard HC, vol. 916, col. 330, 29 July 1976.
52
FM v. Sir Jan Peter Singer and others [2004] EWHC 793, para. 37; Hinds v. Liverpool
County Court and others [2008] EWHC 665, para. 18.
53
HRA s. 8(1) provides that the court may ‘grant such relief or remedy, or make such order,
within its jurisdiction, as it considers just and appropriate’.

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i. judicial immunity 281

of a judicial act done in good faith otherwise than to compensate a

person to the extent required by Article 5(5) ECHR, which concerns
the right to liberty or security of the person.54 Section 9(4) HRA states
that any such award of damages is to be made against the Crown. The
HRA has thus given the Crown, in the form of a ‘public authority’,
primary liability for infringing certain rights.55 Under section 9(3)
HRA, the presence of good faith means that, unless Article 5(5) ECHR
is engaged, no claim in damages lies when a judicial act is found to be in
violation of a Convention right. The common law judicial immunity does
not seem altered. Nonetheless, the principle of state liability under the
HRA has given renewed impetus to the emphasis on speed and timeliness
of the judicial process.56
When the judge cannot be shown to have acted in bad faith in a civil
case, a claimant may still be able to recover some damages under Article
41 (formerly 50) ECHR, which entitles the European Court to order a
state to afford just satisfaction to the injured party where the domestic
laws of his/her country do not allow full reparation for the infringement
of a Convention right, even where that infringement stems from a
national court adjudicating at last instance. This provision is narrowly
applied in cases where Article 6(1) ECHR has been contravened.57
Damages against the state under the HRA appear essentially vindica-
tory in character,58 as they are under constitutional instruments in
certain states of the Commonwealth, where the right to such remedy
remains exceptional.59

54
Art. 5(5) ECHR provides that everyone who has been the victim of arrest or detention in
contravention of the provisions of this article [the right to liberty and security of person]
shall have an enforceable right to compensation.
55
Chagos Islanders v. The Attorney General, Her Majesty’s British Indian Ocean Territory
Commissioner [2004] EWCA Civ 997, para. 20 [Sedley LJ].
56
See above, para. 3.42.
57
A.A. Olowofoyeku, ‘State Liability for the Exercise of Judicial Power’ [1998] PL 444,
460–1; Law Commission, ‘Damages under the Human Rights Act 1998’, Law Com No. 266;
Anufrijeva v. Southwark London Borough Council [2003] EWCA Civ 1406; R (Greenfeld) v.
Secretary of State for the Home Department [2005] UKHL 14.
58
Attorney General of Trinidad and Tobago v. Romanoop [2005] UKPC 15, 18–19 [Lord
Nicholls]; Simpson v. Attorney General (Baigent’s Case) [1994] 3 NZLR 667, 678 [Cooke
P]; J. Beatson et al., Human Rights: Judicial Protection in the United Kingdom (London:
Sweet & Maxwell, 2008), paras. 7-169–72.
59
Maharaj v. Attorney General of Trinidad and Tobago (No. 2) [1979] AC 385; on
exemplary damages, see Takitota v. Attorney General [2009] UKPC 11; see generally
Harrikissoon v. Attorney General of Trinidad and Tobago [1980] AC 265, 268; Chokolingo
v. Attorney General [1981] 1 WLR 106; Attorney General of Trinidad and Tobago v.

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282 immunity, discipline and removal of judges

7.8 The primary liability of the state has also been established for judicial
acts in violation of European Union law: when European Union law
applies, no member state is immune from liability to compensate for a
judicial wrong in the purported performance of a judicial function. This
was set in Köbler,60 where the question was whether the principle of state
liability could apply in respect of a supreme court’s judgment. The
European Court of Justice (now the Court of Justice of the European
Union) found a breach of European Community law on the basis that the
Austrian Administrative Supreme Court ought to have maintained its
request for a preliminary ruling from the European Court (instead of
considering the point of law resolved by the settled case law of the
European Court), and reached the wrong conclusion as to the application
of European Community law in the case of Mr Köbler.61 The infringe-
ment of European Community law, however, was not manifest as to give
rise to state liability because the European Community legislation or the
Court of Justice case law did not expressly cover the point in dispute; nor
was the correct answer obvious.62 Three conditions must thus be satisfied
for liability to arise under Köbler: (i) the alleged breach of Community
law must be of a rule conferring rights on individuals, (ii) the breach
must be ‘sufficiently serious’ and (iii) there must be a direct causal link
between the breach and the loss or damage sustained by the claimant.
The effective protection of the rights which individuals derive from
European Union law has been a key concern for the Court of Justice.63
For the Court, in international law, a state which incurs liability for
breach of an international commitment must be viewed as a single entity,
irrespective of whether that breach is attributable to the legislature, the
judiciary or the executive.64 A fortiori, in the European legal order where
all state authorities are bound to comply with European Union law,
which directly governs the situations of individuals, state liability for

McLeod [1984] 1 WLR 522, 530; Hinds v. Attorney General of Barbados [2001] UKPC 56,
para. 24 [Lord Bingham]; Jaroo v. Attorney General of Trinidad and Tobago [2002]
UKPC 5.
60
Case C-224/01 Köbler v. Republik Österreich [2003] ECR 1-10239, para. 33; Case C-173/
03 Traghetti del Mediterraneo SpA v. Repubblica Italiana [2006] ECR I-5177; cf. Gestas,
18 June 2008 (no. 295831), Conseil d’Etat.
61
Case C-224/01 Köbler v. Republik Österreich [2003] ECR 1-10239, paras. 117–19.
62
Ibid., 120–4.
63
Joined cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v. Federal Republic of
Germany, R v. Secretary of State for Transport ex parte Factortame Ltd and others
[1996] IRLR 267, para. 42.
64
Case C-224/01 Köbler v. Republik Österreich [2003] ECR 1-10239, para. 32.

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i. judicial immunity 283

breach of European Union law arises irrespective of the source of

that breach.65 It also follows that section 2(5) of the Crown Proceedings
Act 1947 would have to be disapplied pursuant to the principle of
supremacy of European law if, before a domestic court, a claim in
damages arises from a judicial act which has resulted in an infringement
of Community law.66
Against the principle of state liability for judicial acts in violation of
European Community law, it was submitted in particular that allowing
damages claims in respect of supreme court decisions would undermine
the principles of legal certainty and res judicata, by encouraging re-
litigation of judicial decisions. In response, the Court of Justice empha-
sised that
regard must be had to the specific nature of the judicial function and to
the legitimate requirements of legal certainty . . . State liability for an
infringement of Community law by a decision of a national court can
be incurred only in the exceptional case where the court has manifestly
infringed the applicable law.67

In Cooper v. HM Attorney General,68 the first English case considering

this form of liability, Lady Justice Arden similarly pointed out that there
was no member state liability ‘simply because the national court arrives
at the wrong answer’, because ‘regard is [required to be] had to the
specific nature of the judicial function’.69
It was further argued in Köbler that the judicial authority and reputa-
tion of judges would be diminished if a judicial mistake could result in
state liability for judicial acts; acceptance of state liability for judicial acts
would be likely to give rise to the risk that judicial independence might be
called into question.70 The Court of Justice, however, considered that the

65
Breach by the state of obligations imposed upon it by European Union law are generally
regarded as actions in the tort of breach of statutory duty.
66
Case 6/64 Flaminio Costa v. ENEL [1964] ECR 585; Case 11/70, Internationale Handels-
gesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR
1125; Case 106/77 Amminstrazione delle Finanze dello Stato v. Simmenthal [1978] ECR
629; Case C-213/89, R v. Secretary of State for Transport, ex parte Factortame Ltd and
Others [1990] ECRI-2433; R v. Secretary of State for Transport, ex parte Factortame Ltd
[1990] 2 AC 85; R v. Secretary of State for Transport, ex parte Factortame Ltd (No. 2)
[1991] 1 AC 603; P. Craig, ‘Sovereignty of the United Kingdom Parliament after
Factortame’ (1991) 11 YEL 221.
67
Case C-224/01 Köbler v. Republik Österreich [2003] ECR 1-10239, para. 53.
68
Cooper v. HM Attorney General [2010] EWCA Civ 464.
69
Case C-224/01 Köbler v. Republik Österreich [2003] ECR 1-10239, para. 70.
70
Ibid., 27–8.

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284 immunity, discipline and removal of judges

principle under discussion did not concern the personal liability of the
judge, but that of the state,71 so that judicial independence was not under
threat. Besides, the existence of a right to damages to compensate for
losses caused by an erroneous judicial decision ‘could also be regarded
as enhancing the quality of a legal system and thus in the long run the
authority of the judiciary’.72 While a manifest judicial error is unlikely
in itself to strengthen public confidence, in the long run, the principle
of state liability for judicial breaches of European Community law
enhances judicial accountability, quality of justice and therefore public
confidence too. Further cases have clarified that the principle applies in
exceptional cases.73

II. Disciplinary proceedings

7.9 Judicial immunity does not exclude disciplinary proceedings. We
discussed in Chapters 5 and 6 what conduct renders a judge liable to
disciplinary proceedings. We now focus on the disciplinary process
itself and examine by whom and how such proceedings are initiated
and determined, and what sanctions are available for misconduct
established in disciplinary proceedings. It is imperative that the
grounds and procedures for judicial discipline and removal are stated
in clear terms.74 Judicial tenure must be defined before considering
disciplinary proceedings for misconduct short of removal, and miscon-
duct leading to removal.

A. Disposal of complaints
7.10 Before the CRA, the Lord Chancellor informally resolved com-
plaints.75 Since the Constitutional Settlement, complaints from anyone
about the judicial conduct (i.e., other than against decisions in proceed-
ings) are handled by the Office for Judicial Complaints, which makes
recommendations for the Lord Chief Justice and the Ministry of Justice
to act upon.76 Following the CRA 2005, and building on the 2004

71 72
Ibid., 42. Ibid., 43.
73
Case C-173/03 Traghetti del Mediterraneo SpA v. Repubblica Italiana [2006] ECR I-5177.
74
Mt. Scopus, 5.3.
75
The process was rarely invoked, see R. Stevens, The English Judge (Oxford University
Press, 2002), 166.
76
CRA, ss. 115–117 provide the Lord Chief Justice with the power to make regulations and
rules governing disciplinary cases, with the agreement of the Lord Chancellor.

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ii. disciplinary proceedings 285

Concordat, the Lord Chief Justice and the Lord Chancellor drew up the
Judicial Discipline (Prescribed Procedures) Regulations 2006 which
define the procedures regarding the investigation and determination of
allegations by any person of misconduct by judicial office holders.77 The
Office of Judicial Complaints was created under these Regulations, as
had been anticipated in the Concordat of 2004. It is to this Office that
all complaints relating to judicial misconduct must be made. The per-
formance of the Office for Judicial Complaints in responding to, and
investigating, complaints is the subject of review by the Ombudsman.
The Ombudsman’s role, however, is merely to oversee that the Office for
Judicial Complaints has followed its ‘prescribed procedures’, and to
investigate any allegation of ‘some other maladministration’; and then
to ‘recommend’ appropriate redress where necessary.78
7.11 As mentioned earlier,79 before 1701 judicial tenure was fixed by the
Crown. The Act of Settlement 1701 made judges independent of the Crown
by providing that in the future judges’ commissions would be made during
good behaviour – quam diu se bene gesserint.80 At common law the grant of
an office during good behaviour created an office for life determinable only
by the death of the grantee or upon his breach of good behaviour.81 The
grantee held the office under the condition that ‘he shall behave himself
well in it’,82 or, in Hawkins’ words, that he shall ‘execute it diligently and
faithfully’.83 Upon the breach of this condition the grantor was entitled to
terminate the office. Acts which constituted a breach of the good behaviour
condition were those done in the exercise of official duties.84 Unjustifiable

77
CRA, s. 115(a); Judicial Discipline (Prescribed Procedures) Regulations 2006 SI 2006/676,
as amended by the Judicial Discipline (Prescribed Procedures) (Amendment) Regulations
2008 SI 2008/2098; see the Complaints (Magistrates) Rules 2008; the Judicial Complaints
(Tribunals) Rules 2008 – Roles and Responsibilities; the Judicial Complaints (Tribunals)
(No. 2) Rules 2008; Guidance for Handling Complaints Against Judicial Office Holders
within Tribunals.
78 79
CRA, s. 62 and sch. 1. See above, paras. 2.6 and 2.7.
80
Cecil, Tipping the Scales, 67–89.
81
E. Coke, Institutes of the Laws of England (W. Clarke & Sons, London, last edn, 1824), vol.
I, p. 42 a; Harcourt v. Fox (1693) 1 Show KB 425, 506, 536; M. Bacon, New Abridgment of
the Law, Offices and Officers (H), vol. III, 6th edn (1793) p. 733; J. Chitty, A Treatise on
the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject
(London: J. Butterworth and Son, 1820).
82
W. Blackstone, Commentaries on the Laws of England (1765), vol. II, book 4, ch. 18.
83
W. Hawkins, A Treatise of the Pleas of the Crown, 6th edn (London: Leach, 1787), ch. 66,
p. 310; Chitty, Prerogatives of the Crown, 85.
84
Coke, Institutes, vol. IV, 117; T.R.S. Anson, The Law and Custom of the Constitution, 3rd
edn (Oxford: Clarendon, 1907), vol. I, 222–3.

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286 immunity, discipline and removal of judges

absence from duty, neglect of duty or refusal to perform the official duties
formed grounds for removal from office.85
Today, under the Senior Courts Act 1981 and the Tribunals, Courts
and Enforcement Act 2007, High Court and Court of Appeal judges as
well as the Senior President of Tribunals hold office until retirement age
‘during good behaviour’.86 The tenure of judges during good behaviour
also no longer means life tenure but tenure until retirement age (cur-
rently seventy). Under section 108 of the CRA, the disposal of complaints
(where the facts are established) lies with the Lord Chief Justice and the
Lord Chancellor. While High Court judges and above may be repri-
manded or suspended, they can only be removed by the Queen if both
Houses of Parliament pass a resolution requiring them to go,87 and no
English judge from a senior court has been removed from office under
such procedure. The Lord Chancellor retains his powers to remove
circuit judges, but since the passing of the CRA, these powers depend
upon the new ‘prescribed procedures’ having been followed. The Lord
Chief Justice has a range of lesser powers in relation to ‘misconduct’ by
any member of the judiciary, which he must exercise too after the
‘prescribed procedures’ are satisfied, and in consultation with the Lord
Chancellor. Thus, besides suspension in cases where a person is subject to
criminal proceedings, section 108(3) of the CRA provides that ‘The Lord
Chief Justice may give a judicial office holder formal advice, or a formal
warning or reprimand, for disciplinary purposes (but this section does
not restrict what he may do informally or for other purposes or where
any advice or warning is not addressed to a particular office holder)’. The
Lord Chief Justice may also suspend a senior judge from office for any
period during which the person is subject to proceedings for an
address.88 Illness or disability provide a distinct power to the Lord
Chancellor of vacating the office, in effect requiring the resignation of
the occupant.89

85
The Earl of Shrewsbury’s Case, 9 Coke Rep 42a, 50a; Bacon, New Abridgment of the Law,
(M), 741–3; Hawkins, Pleas of the Crown, 310–11; J. Comyns, A Digest of the Laws of
England, 5th edn (London: J. Butterworth and Son, 1822), pp. 210–11; Chitty, Preroga-
tives, 85–7; Anson, vol. II, 222–3.
86
Senior Courts Act 1981, s. 11(2); Tribunals, Courts and Enforcement Act 2007, sch. 1,
para. 6.
87
Senior Courts Act 1981, s. 11(3); see, in the case of illness or disability, Senior Courts Act
1981, s. 11(8) and (9).
88 89
CRA, ss. 108(6) and 109(3). Senior Courts Act 1981, s. 11(8) and (9).

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ii. disciplinary proceedings 287

Judges below the High Court are formally less secure. The same
retirement age applies,90 but they can be removed by the Lord Chancellor
without following the Act of Settlement procedure, pursuant to statutory
powers ‘on the grounds of incapacity or misbehaviour’ in the exercise of
their judicial duties.91 However, since the formal separation of powers
between the executive and the judiciary in 2005, no such removal of
members of the circuit and district benches may be carried out without
the prior agreement of the Lord Chief Justice.92 This power of removal
has been exercised rarely in England and Wales, and for the first time
only in 1983, when a judge was caught smuggling whisky from Guernsey
into England.
Similarly, members of the Upper Tribunal or First-tier Tribunal may
be removed by the Lord Chancellor on the grounds of inability or
misbehaviour, but the exercise of the Lord Chancellor’s statutory power
of removal usually requires the concurrence of the Lord Chief Justice
of England and Wales, the Lord President or the Lord Chief Justice of
Northern Ireland as appropriate.93 The Lord Chancellor’s power to
remove other tribunal judges is set out in legislation.94 Magistrates are
removable by the Lord Chancellor with the agreement of the Lord Chief
Justice on the grounds of incapacity or misbehaviour; of a persistent
failure to meet such standards of competence as are prescribed by a
direction given by the Lord Chancellor; or if he is satisfied that the
magistrate is declining or neglecting to take a proper part in the exercise
of his functions as a Justice of the Peace.95

90
Judicial Pensions and Retirement Act 1993, s. 26.
91
The Lord Chancellor’s power to remove county court judges (now circuit judges) for
misbehaviour was introduced in 1846. Today see Courts Act 1971, s. 17(4) for circuit
judges and County Courts Act 1984, s. 11(5) for district judges, both as amended by
paras. 68 and 164 of sch. 4 to the CRA; CRA, s. 108(1); Courts Act 1971, s. 21(6)
concerning recorders; Courts Act 2003, s. 22(5) for district judges (magistrates’ courts);
Coroners Act 1988, s. 3. Before then, the Lord Chancellor would exercise his power of
removal subject to the principles of natural justice, see Ex parte Ramshay (1852) 18
QB 174.
92
Courts Act 1971, s. 17(4) and County Courts Act 1984, s. 11(5), both as amended by
paras. 68 and 164 of sch. 4 to the CRA; CRA, s. 108(1).
93
Appointed and transferred-in judges and other members of the First-tier Tribunal who
are appointed on a salaried as opposed to a fee-paid basis may only be removed by the
Lord Chancellor on the grounds of inability or misbehaviour, para. 4, Tribunals Courts
and Enforcement Act 2007; sch. 7 concerns the Administrative Justice and Tribunals
Council.
94 95
Employment Tribunals Act 1996, s. 5B. Courts Act 2003, s. 11.

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288 immunity, discipline and removal of judges

7.12 At common law a judge holding office at pleasure could be sus-

pended by the Crown. Thus, Sir Edward Coke had been suspended from
office before he was finally removed.96 At common law prior to the Act of
Settlement, the Crown could also suspend judges even if they held office
during good behaviour.97 There can be little doubt that the Act of
Settlement abolished this prerogative power in respect of judges.98 The
opposite view would be inconsistent with the object of the Act to render
the judges independent of the Crown. While, before the CRA, at law a
senior judge could not be suspended, in practice a judge would have been
expected to take leave of absence pending a criminal trial or proceedings
before Parliament for misbehaviour. The same view was expressed in
Parliament on several occasions in the course of the debates on motions
for an address. This was considered necessary because permitting him ‘to
dispense justice as a judge of the land as usual with grave accusations
hanging over his head’99 was likely to destroy public confidence in the
impartiality of judicial proceedings before him in particular, and of the
judicial process in general.
If the judge refused to take leave of absence (or to resign), it was
believed that administrative arrangements would be made to ensure that
no cases were assigned to his list.100 Similar arrangements were made if a
judge lost his faculties because of old age or illness but still refused to
retire. In the 1950s a judge of the High Court lost his faculties, and
pressure was put on him by his brethren to retire from the bench. It is

96
E. Foss, The Judges of England, 6 vols. (London: Longman, Brown, Green, and Long-
mans), vol. VI, p. 118.
97
For the royal prerogative of suspension of officers holding office during good behaviour,
see Slingsby’s Case (1680) 3 Swans 178, 36 ER 821. There are two recorded cases where
the Crown exercised this power. In 1630 King Charles I forbade John Walter, the Lord
Chief Baron of the Exchequer, to sit in court, in fact suspending him from office. In 1673
another judge holding office during good behaviour, John Archer, a Justice of the
Common Pleas, was suspended under similar circumstances. In both cases the judges
continued to receive their emoluments and retained their title. Suspension meant that
they could not exercise their official functions.
98
Moreover, the power was not transferred to any other authority.
99
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138, 1149; Kelly’s Case (1867) 185 Parl.
Deb., 3rd Ser., 268–9.
100
This would probably have been done by the Head of the Division (under his general
authority to administer his Division and his general responsibility for the orderly
running of the cause lists) instructing the clerk not to prepare any list for the particular
judge. Thus, in the Queen’s Bench Division the Lord Chief Justice would give the Clerk
of the Lists instructions to this effect. In the Court of Appeal the judge would have been
excluded by the Master of the Rolls from the panels of the court sitting to hear appeals.

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ii. disciplinary proceedings 289

said that, upon his failing to respond to the pressure put upon him, no
work was assigned to him. Finally he retired.101
The practice of suspension is now enshrined in law under the CRA.
The Lord Chief Justice may, with the agreement of the Lord Chancellor,
suspend a person, including a senior judge, from a judicial office
for any period during which the following applies: (a) the person is
subject to criminal proceedings; (b) the person is serving a sentence
imposed in criminal proceedings; (c) the person has been convicted of
an offence and is subject to prescribed procedures in relation to the
conduct constituting the offence.

He may also suspend a person from a judicial office

for any period if (a) the person has been convicted of a criminal offence;
(b) it has been determined under prescribed procedures that the person
should not be removed from office, and (c) it appears to the Lord Chief
Justice with the agreement of the Lord Chancellor that the suspension is
necessary for maintaining confidence in the judiciary.102

A similar practice of suspension as the one described in the previous

paragraph applied to Justices of the Peace and is now similarly enshrined
in the Constitutional Reform Act 2005.103
7.13 The Office for Judicial Complaints mainly administers and pro-
cesses complaints. It can initially dismiss a complaint on various
grounds including that it is untrue, mistaken, misconceived, not
adequately particularised, or raises no question of misconduct. But if
there is a matter to be investigated, the investigation is carried out by a
judge nominated by the Lord Chief Justice, of at least the same rank as
the judge under investigation.104 The defendant judge is invited to reply
to the Office for Judicial Complaints’ request for information.105 The
investigating judge will then advise the Lord Chancellor and the Lord

101
After the introduction in 1959 of a compulsory retirement age, such cases are less likely
to arise, but are not unthinkable. See also Administration of Justice Act 1973, s. 12.
102 103
CRA, ss. 108 and 109(3). CRA, ss. 108–109.
104
Where a complaint is made against either a tribunal office holder or a magistrate, it is
dealt with in the first instance by the relevant Tribunal President or Magistrates’
Advisory Committee.
105
In 2006 new disciplinary procedures introduced the naming of judges whose conduct
was the subject of an investigation, see the Judicial Discipline (Prescribed Procedures)
Regulations 2006. These regulations have been recently reviewed: Office of Judicial
Complaints, ‘Evaluation of the Consultation Exercise Following a Review of The Rules
and Regulations Governing Judicial Discipline’ (September 2012).

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290 immunity, discipline and removal of judges

Chief Justice whether there needs to be a judicial investigation by a

judge.106 These procedures and decisions may be reviewed by a review
body that comprises two judges and two lay members. Almost equally
important is its role in educating the public about its processes. To this
end, it publishes brief details of all complaints made to it with the
outcomes.
The decision was taken in 2009 by the Lord Chancellor and the Lord
Chief Justice that the Office of Judicial Conduct should publish the
names of the judicial office holders who have been disciplined during
the year, apparently as the direct result of pressure exerted by the media
in relation to judicial conduct, following a (failed) attempt by a news-
paper to have the Ministry of Justice release the names of judges found
guilty of misconduct on the basis of the Freedom of Information Act.107
In practice, however, only findings of a serious offence leading to sus-
pension or removal of a judge were publicised by way of press statement.
Although the defendant judge is named, the details of the allegations are
often rather elliptic, even though (in some cases) the curious reader
would be able to discover them with a Google search, and not all findings
of misconduct would be publicised.
This half-way house seemed destined for revision. In June 2012,
following an internal review, the Lord Chancellor and the Lord Chief
Justice decided that, in the interest of improving the openness and
transparency of the complaints system, a press statement would normally
be made where a formal disciplinary sanction had been imposed upon a
judicial office holder (including magistrates) following a finding of mis-
conduct, with deletion of the press statements from the website after one
year for statements relating to disciplinary sanctions below suspension or
removal from office, and deletion after five years for sanctions of suspen-
sion or removal from office.108 The first to have her formal warning from
the Lord Chief Justice and the Lord Chancellor publicised under these
new rules was an Employment Tribunal judge, whose conduct was found
to be below the standard of service expected of a judicial office following
complaints concerning a delayed judgment, failure to meet her minimum

106
Alternatively, the nominated judge may advise that disciplinary action should be taken
without the need for any further investigation.
107
Information Tribunal, Guardian v. Ministry of Justice, EA/2008/0084, 10 June 2009.
108
Publication of the finding of misconduct may also arise where a judicial office holder
requests the Lord Chief Justice and the Lord Chancellor to do so, see the Office for
Judicial Complaints Publication Policy.

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ii. disciplinary proceedings 291

sitting requirements in 2009 and failure to respond to correspondence

from the Employment Tribunal.109
7.14 The establishment of a formal judicial complaints mechanism
with disciplinary proceedings needs safeguards.110 Any complaints-
handling mechanism must ensure that judges must be protected from
pressure not only from the government, but also from the public.
Unsubstantiated allegations are part and parcel of many public sector
positions, and being the subject of complaint by itself by no means
suggests guilt, nor should it be considered stigmatic or considered by
the Judicial Appointments Commission at a later date when consider-
ing promotions. In practice, the great majority of complaints before the
Office for Judicial Complaints relate to dissatisfaction with the case
rather than to judicial conduct. It seems inevitable that some of these
complaints will inconvenience judges, even if it is clear that the Office
for Judicial Complaints will ultimately decide that no question of
misconduct is raised.
Most complaints are indeed unsubstantiated. In 2011–12, of the 1,615
complaints received, 79 resulted in disciplinary action, a very low pro-
portion of the judicial office holders, which comprised 3,700 full- and
part-time judiciary, about 278,000 magistrates and several thousand
tribunal members.111 Disciplinary action was undertaken against 49
magistrates, 14 tribunal members, 14 judges and 2 coroners, leading to
30 judicial office holders being removed from office, including 19 magis-
trates, 9 tribunal members and 3 members of the courts judiciary. In
2010–11, 106 cases resulted in disciplinary action, with 29 judicial office
holders being removed from office, including 22 magistrates, 6 tribunal
members and 1 coroner.112 In previous years too, the occasions where
misconduct required a disciplinary sanction of any kind, are in propor-
tion very low. Moreover, they mainly concern magistrates.
Traditionally, most judges would ‘do the decent thing’ and resign113 if
the Lord Chancellor remained dissatisfied at the end of their meeting.

109
Statement from the Office for Judicial Complaints, OJC 13/12, 8 June 2012.
110
Consultative Council of European Judges, ‘On the Principles and Rules Governing
Judges’ Professional Conduct, in Particular Ethics, Incompatible Behaviour and
Impartiality’.
111
Office for Judicial Complaints, ‘Annual Report 2011–12’, 13 July 2012, p. 5.
112
Ibid., 7.
113
J. Bell, Judiciaries within Europe, A Comparative Review (Cambridge University Press,
2006), p. 323.

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292 immunity, discipline and removal of judges

It is still the case that resignations follow conduct investigations – thus in

2011–12 there were fourteen resignations during conduct investigations.
7.15 The scope for judicial review of the removal of lower judges by the
Lord Chancellor was also discussed by Lord Campbell CJ in Ex parte
Ramshay.114 In that case the court refused an application for a quo
warranto against the county court judge who had been appointed to
succeed the applicant who had been removed from the office for inability
and misbehaviour. From the judgment of Lord Campbell CJ it seems that
the court would readily intervene if the judge was removed without
notice or hearing, but where an inquiry was duly conducted, only in very
exceptional cases would the court review the substantive ground for
which the judge was removed.
A lower court judge who has been removed by the Lord Chancellor
with the agreement of the Lord Chief Justice and who wishes to challenge
the validity of his removal would now turn to the Judicial Appointments
and Conduct Ombudsman following concerns about how a complaint
for judicial misconduct was handled by the relevant disciplinary body,
the Office for Judicial Complaints, the Tribunal President,115 or the
Magistrates Advisory Committees. The Ombudsman’s role is to review
the handling of the case, examining whether there was a failure to follow
prescribed procedures or some other maladministration, and to make
recommendations for redress. Where the Ombudsman finds that mal-
administration led to the original decision being unreliable, he can set
aside that decision and direct that a new investigation or review be
undertaken (in whole or in part). He can also recommend payment of
compensation for loss suffered as a result of maladministration.116
A minority of complaints were partially or fully upheld in 2011–12,
pointing to maladministration of the Office of Judicial Complaints in
nine cases.117

114
Ex Parte Ramshay (1852) 18 QB 174.
115
Or a judicial office holder designated by the President under rule 4(1) of The Judicial
Complaints (Tribunals) (No. 2) Rules 2008.
116
CRA, sch. 13, para. 15(4); Judicial Appointments and Conduct Ombudsman, ‘Annual
Report 2011–12’.
117
Judicial Appointments and Conduct Ombudsman, ‘Annual Report 2011–12’, 15; see e.g.,
the case study four, where the Ombudsman found that the Office for Judicial Complaints
did not conduct a full and adequate investigation, with poor case management and
unnecessary delay; in that particular case the Office of Judicial Complaints re-opened its
investigation to consider the matters of concern, Judicial Appointments and Conduct
Ombudsman, ‘Annual Report 2011–12’, 20.

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ii. disciplinary proceedings 293

B. Misconduct
7.16 In Chapters 5 and 6, we gave illustrations of some issues of judicial
conduct, with a focus on impartiality. There is, however, no statutory
definition of misbehaviour or misconduct. By their nature, issues of
judicial conduct defy neat categorisation118 and the reasons for disciplin-
ary action will be varied. It is clear that disciplinary proceedings for
misconduct are only possible in relation to non-judicial activities.
Judges should not be reprimanded for anything they say in court in
pursuance of resolving the case. They have an obligation to ask the hard
questions and put challenging observations to counsel. Their immunity
for what is said in court is designed to seek the truth. However, the
boundary lines are inevitably closely drawn. Falling asleep during a trial
might clearly constitute ‘misconduct’ since the activity, whilst done in
court, is clearly not done in the purported furtherance of the trial.
In a letter from the Lord Chancellor to the Lord Chief Justice in 1994,
drink driving and offences of violence, dishonesty or ‘moral turpitude’119
were said to constitute ‘misbehaviour’, and so would behaviour which
‘could cause offence, particularly on racial or religious grounds, or
amounting to sexual harassment’. The Office for Judicial Complaints
adds that the use of insulting, racist or sexist language in court or
inappropriate behaviour outside the court, such as a judge using his
judicial title for personal advantage or preferential treatment, may con-
stitute personal misconduct.120 Thus, in 2010 the National Secular Soci-
ety complained that sentencing remarks by Cherie Booth QC (acting as a
recorder) suggested that she would have treated a non-religious defend-
ant more harshly. The Office for Judicial Complaints stated that the
observations by the former prime minister’s wife did not constitute
judicial misconduct. She was, however, to be given informal advice from
a senior judge about her comments. It seems that comments which are
controversial by nature of their substance might only be dealt with
informally, as anticipated in section 108(3) CRA 2005.121

118
D. Wood, ‘Judicial Ethics. A Discussion Paper’ (Melbourne: AIJA, 1996), p. 15. For a
further account of ‘misconduct’, see the debates over an address for removal of a judge,
para. 7.47. The analysis in paras. 7.15–7.17 relies upon excerpts from S. Turenne,
‘Judicial Misconduct and Disciplinary Procedures – a Brave New World’ (2012) 23
European Law Business Review 107.
119
See below, para. 7.44.
120
Office for Judicial Complaints, ‘Annual Report for 2009–2010’, 11.
121
Under CRA, s. 108(3), ‘The Lord Chief Justice may give a judicial office holder formal
advice, or a formal warning or reprimand, for disciplinary purposes (but this section

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294 immunity, discipline and removal of judges

As regards wholly ‘out of court’ behaviour, the Office for Judicial

Complaints lists the following grounds for taking disciplinary action in
practice, without giving further details: inappropriate behaviour or com-
ments (which led to 5 removals in 2011–12), not fulfilling judicial duty
(13 removals in 2011–12), misuse of judicial status (2 removals in
2011–12), motoring offences (1 removal in 2011–12), criminal or other
court proceedings/convictions (the cause of 9 removals in 2011–12),
breach of professional conduct and conflict of interest.122 Breach of
professional conduct would include complaints about a judicial office
holder which are being investigated by an external professional body
such as the Bar Standards Board, General Medical Council or the Law
Society.123 Breaches of professional standards of conduct may not always
equate with misconduct giving rise to disciplinary sanctions, however,
and the standards set in the Guide to Judicial Conduct are not statutory
duties. As noted by the Consultative Council of European Judges,124
standards of conduct represent best practice which all judges should
aim to develop and to which all judges should aspire; breach of these
standards may fall short of misconduct giving rise to disciplinary pro-
ceedings. The Consultative Council rightly suggests that misconduct
must be serious and flagrant, in a way which cannot be posited simply
because there has been a failure to observe professional standards set out
in guidelines on judicial conduct. In spite of this, it is fair to say that, in
most cases, the Guide to Judicial Conduct is highly relevant in the
assessment of a breach of professional conduct.
Cases concerning sexual conduct are likely to attract prurient interest
in the press, yet they may be quite unrelated to how a judge might be
expected to approach his judicial work. As an example, a deputy district
judge resigned from the bench after his affair with a married woman led
her husband to kill the couple’s three-year-old daughter. They had met
through a contact website on which the judge appeared naked. According
to the Office for Judicial Complaints ‘it was felt by the Lord Chancellor
and Lord Chief Justice, that although the behaviour of the judge occurred
in his private life, his actions had bought the judiciary into disrepute’.125

does not restrict what he may do informally or for other purposes or where any advice or
warning is not addressed to a particular office holder).’
122
Office for Judicial Complaints, ‘Annual Report for 2011–2012’, 16.
123
Ibid., 14 and 29.
124
Opinion no. 3 of the Consultative Council of European Judges, para. 60.
125
Statement from the Office for Judicial Complaints, OJC 03/08, August 2008.

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ii. disciplinary proceedings 295

He was therefore informed that it was proposed to remove him from

office and, after he made some representations, which were dismissed, he
then resigned from office.
7.17 Where a judge is found to have committed a criminal offence, the Lord
Chief Justice or Lord Chancellor would refer him to the Office for Judicial
Complaints in order to establish whether it would be appropriate to remove
him from office in the circumstances. Thus, the conviction of assault of a
deputy High Court judge and a recorder, in June 2011, led to his removal
from his judicial positions in November 2011 by the Lord Chancellor and
the Lord Chief Justice, for bringing the judiciary into disrepute.126
7.18 A leading case on misconduct or incapacity so serious as to warrant
removal is the Privy Council’s Hearing on the Report of the Chief Justice
of Gibraltar,127 following a domestic tribunal hearing which recom-
mended the removal of the Chief Justice. Section 64(2) of the Gibraltar
Constitution Order 2006 provides that ‘The Chief Justice . . . may be
removed from office only for inability to discharge the functions of his
office (whether arising from infirmity of body or mind or any other
cause) or for misbehaviour.’ The term ‘misbehaviour’ needs to be defined
with reference to its context; since it is the criterion for removing a judge,
an appropriately high level ought to be set.128 Accordingly, the majority
of the Privy Council endorsed the reasoning of Gray J in the Australian
case of Clark v. Vanstone129 and identified four ‘ingredients’ in the
conduct under review leading to that conduct being characterised as
‘misbehaviour’ for the purposes of removal from office. The ingredients
are (i) whether it affected the ability of the (judge) to carry out the duties
and discharge the functions of his office; (ii) whether it affected the
perceptions of others as to the (judge’s) ability to carry out those duties
and discharge those functions; (iii) whether to allow the (judge) to
continue in office and to perform his duties would be perceived as
inimical to the public interest; (iv) whether the judicial office would be
brought into disrepute as a result of that conduct. Thus the first three
factors assume a link between the misbehaviour and a reason why the
judge would be less effective to continue his duties on account of it. To

126
Statement from the Office for Judicial Complaints, 2 November 2011, OJC 33/11.
127
Hearing on the Report of the Chief Justice of Gibraltar [2009] UKPC 43.
128
Lawrence v. Attorney General of Grenada [2007] UKPC 18, 23; Clark v. Vanstone (2004)
81 ALD 21, 78.
129
Clark v. Vanstone (2004) 81 ALD 21.

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296 immunity, discipline and removal of judges

some extent these indicators overlap, but the requirement that the judi-
cial office be brought into disrepute adds a judgment of the gravity of the
conduct. However, determining all four of them proved difficult in the
case of Gibraltar.
Lord Philips, Lord Brown, Lord Judge and Lord Clarke, for the major-
ity, thought that some criticism – but not enough to justify removal,
either in isolation or cumulatively – could be levelled at the Chief
Justice’s decisions to say nothing when his wife attacked various
members of the executive and the Bar Council. The majority considered
that he ought to have actively dissociated himself from these comments
to avoid the impression that his wife might be reflecting his own views.130
Lady Hale, Lord Hope and Lord Rodger, for the minority, saw no such
need, because it should not be assumed by the public that two partners to
a marriage necessarily hold the same views or that one is speaking for the
two of them and not just for herself.131 This disagreement reflects the
difficult nature of the final test above, whether the judicial office would be
brought into disrepute: is it the public at large among whom the office
should be brought into disrepute to effect removal from office? One
additional difficulty in the case of Gibraltar was the presence of a lively
media, looking for stories of discord, which would have had the potential
to have some effect on public opinion. It was therefore preferable that the
Chief Justice was not removed on this ground. One may here echo the
concerns of the minority on the impact of judicial independence if a
judge were to be subject to removal on the basis of social misjudgements,
lack of etiquette or even failure to anticipate what the media might be
expected to make of such behaviour.
In contrast to ‘misbehaviour’, ‘incapacity’ (or ‘inability’) refers not only
to unfitness through illness but also to unfitness through a defect in
character.132 This broad interpretation was supported by Lord Philips in
the case of Gibraltar on the ground of the public interest.133 ‘Inability’
also covers conduct which, though it does not by itself show the judge to
be unfit for office, becomes unacceptable because it is persistent, repeated
or continues even after it has been brought to the judge’s attention. The
accumulation of incidents may make the judge unfit for office, on the
basis that such blunders could not be accepted in perpetuity.134 It should

130
Hearing on the Report of the Chief Justice of Gibraltar [2009] UKPC 43, 36.
131 132
Ibid., 257. Stewart v. Secretary of State for Scotland 1998 SC (HL) 81.
133
Hearing on the Report of the Chief Justice of Gibraltar [2009] UKPC 43, 205.
134
Ibid., 206.

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ii. disciplinary proceedings 297

be emphasised that in the case of removal for ‘misbehaviour’, the ability

of the judge to discharge his functions is assessed in relation to the
understandable and natural reactions of others to the misbehaviour; in
the case of removal for ‘inability’ stemming from a perceived character
flaw, the emphasis is on the judge’s own ability to understand the errors
of his ways and to reform himself.
The Privy Council thought that it was proper to consider a character
flaw as constituting the ‘inability’, even though it is not an illness and
may not directly impair the lawyerly skills of the judge in open court.
A wide interpretation of this sort did not threaten judicial independence
because the judge is only liable to removal at the behest of more senior
judges, who can be expected to be mindful of the needs of judicial
independence and thus unlikely to allow too wide an interpretation of
the term.135
However, the confidence of the majority may have been misplaced. It
did consider that a series of incidents which in isolation did not consti-
tute misconduct, in cumulation over a period of years did constitute
‘inability’ on the part of a judge to discharge his office.136 But the
minority thought that the majority still did not identify the ‘cause’ of
the Chief Justice’s inability. It was unclear what, if any, character defect
was thought to be identified. Complaints about his inability to ‘control’
his wife or to dissociate from her conduct could not be said to show a
character flaw as such. Similarly a number of outbursts and displays of
distrust towards some member of the executive seemed to stem from a
desire to preserve judicial independence, which could hardly be said to be
a character flaw. Perhaps the ‘character flaw’ may be defined as a
propensity to overreact or to fail to consider the likely public reaction
to his conduct, but here too there are difficulties. An overreaction
assumes provocation on the part of others, and might not seem to be a
serious flaw. The failure to consider public reaction is not a ‘regular’ flaw
of character either, though judges are expected to anticipate media
controversies following a judgment, for example.
There seems to be a further misgiving in the case of Gibraltar. If one
expects to conclude that a judge is ‘unable’ to adapt his conduct on
account of some flaw because he has failed to adapt after having been
made aware of it by more senior judges, then applying this test in
Gibraltar is difficult. It is unclear when the Chief Justice (as the top

135 136
Ibid., 204–5. Ibid., 222–9.

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298 immunity, discipline and removal of judges

judge), was, or even could, ever have been put on notice of the need to
adapt his conduct. It might be noted that even the minority in Gibraltar
thought the Chief Justice should resign, since there were clearly questions
over public confidence in him that could never be resolved.137 They did,
however, think it important to hold that the high threshold for removal
had not been satisfied, and it is submitted that their joint opinion is the
more convincing. It might be added that it is important to resolve
complaints quickly, so that an ‘acquitted’ judge may resume his office.
In the case of Gibraltar, the length and well-publicised nature of the
proceedings made that difficult.

C. The role of the Bar Standards Board

7.19 Upon appointment, a judge remains a member of his Inn, and it is
customary to elect as benchers all members of the Inn appointed to a
senior judicial office. The question is whether the Bar Standards Board
can institute disciplinary proceedings against a judge for misbehaviour in
the exercise of his judicial functions, in his private life, or for acts done by
him while at the Bar.
The Inns of Court – Lincoln’s Inn, Inner Temple, Middle Temple, and
Gray’s Inn – are voluntary unincorporated societies of lawyers which are
independent of the state and of each other, although they act together in
matters of legal education, admission of students, call to the Bar, and
discipline.138 Only the Inns can confer the degree of barrister. Each Inn
has a governing body composed of benchers (or Masters of the Bench),
who alone have the power to fill up vacancies in their number or add to
their number. The composition and the administration of disciplinary
tribunals is today the responsibility of the Council of the Inns of Court,
which represents the four Inns.139 Statutory responsibility for the

137
Cf. Wilson v. Attorney-General [2011] 1 NZLR 399.
138
Boulton, Conduct and Etiquette at the Bar, 1–3.
139
Resolution of the Judges dated 26 November 1986. Following the decision in Re P (A
Barrister) [2005] 1 WLR 3019, the Council of the Inns of Court is responsible for
convening all hearings in relation to the regulation of barristers. Judges, since the reign
of His Majesty King Edward I, have been responsible for discipline over the Bar, though
in practice discipline is carried out by the benchers. This means that the Disciplinary
Tribunal panels’ decisions are subject to an appeal before a panel nominated by the Lord
Chief Justice, comprising, among others, one judge of the High Court or the Court of
Appeal. When sitting in this capacity the judges act as ‘Visitors’, see Code of Conduct of
the Bar of England & Wales, 8th edn, Annex M, ‘Hearings before the Visitors Rules’. See
the Final Report from the Council of the Inns of Court (COIC) Disciplinary Tribunals

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ii. disciplinary proceedings 299

disciplinary proceedings overall, however, is vested in the Bar Standards

Board, which regulates the Bar.140
It may be argued that the position of judges as benchers or members of
one Inn is not different from that of other benchers or members. The Bar
Standards Board is a voluntary, unincorporated society, governed by its
own rules, and its members may proceed against any of its members or
benchers, be they leading barristers, judges, law officers, ordinary barris-
ters or students. But the general view, founded upon a well-established
practice, is that upon appointment to judicial office, the judge’s miscon-
duct falls within the remit of the Office for Judicial Complaints, and this
excludes disciplinary proceedings at the Bar. Part-time fee-paid judges,
such as deputy district judges or recorders, who remain practising bar-
risters, are however subject to the Code of Conduct of the Bar, and thus
liable to disciplinary proceedings initiated by the Bar Standards Board.
These are posts where the judge sits for typically fifteen to thirty days a
year only, whereas salaried part-time judicial office holders are perman-
ent office holders and are subject to the same terms and conditions as a
full-time judicial office holder, including the requirement of giving up
legal practice on appointment.
Thus, a QC who sat as a deputy High Court judge and a recorder was
convicted of common assault upon his wife. Having then been expelled
by his chambers, he was soon afterwards, in 2011, dismissed by the Lord
Chief Justice. The matter was referred by the Bar Standards Board to a
disciplinary tribunal arranged by the Council of the Inns of Court. The
former judge admitted to engaging in conduct which brought the legal
profession into disrepute and was suspended in 2012 for three months
with the costs of the proceedings to pay.141 He also expressed his desire to
go back to practise at the Bar. The judge from the disciplinary tribunal
panel declared that, in the circumstances, he was not to be punished a
second time for things he had already been punished for, thus his
sentence to a short period of suspension.
The confirmed practice is underpinned by the principle that the body
whose reputation may be discredited by the misconduct may initiate

and Hearings Review Group, chaired by Desmond Browne QC, 12 July 2012; Carron
Ann Russell v. Bar Standards Board [2012], The Visitors to the Inns of Court, 12 July
2012.
140
Legal Services Act 2007.
141
Disciplinary Tribunal, Decision of 27 June 2012; Code of Conduct of the Bar of England
& Wales, 301 (iii).

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300 immunity, discipline and removal of judges

disciplinary proceedings. Thus the Office for Judicial Complaints has

competence for a full-time judicial office holder, who would not hold the
annual practising certificate required to exercise rights of audience. Both
the Office of Judicial Complaints and the Bar Standards Board may
instigate an investigation, however, when the individual is both a part-
time judge and a part-time barrister. In that case, it is unlikely that
serious misconduct would be sanctioned by the Lord Chief Justice and
the Lord Chancellor after investigation from the Office for Judicial
Complaints without being sanctioned by the Bar Standards Board. Thus,
following a conduct investigation into her conviction of driving with
excess alcohol in a public place, a recorder resigned from judicial office.
The Lord Chancellor and Lord Chief Justice had indicated their intention
to remove her from judicial office.142 She was shortly afterwards fined
and reprimanded by a disciplinary tribunal panel arranged by the Coun-
cil of the Inns of Court.143
While we focus on the disciplinary process followed by the Bar
Standards Board, other external professional bodies such as the General
Medical Council or the Law Society are expected to investigate allegations
of misconduct of, respectively, coroners who are also medical practition-
ers and solicitors.

III. Judicial mechanisms for the removal of judges

7.20 In this section the judicial mechanisms for removal are discussed.
Judicial proceedings in the form of a writ of scire facias are theoretically
still available to courts to repeal the royal grant of a judicial office.
Criminal prosecution used to be another judicial mechanism for removal.
Both would be initiated by the executive, but the final decision rests with
the courts.

A. Scire facias
7.21 The royal grant of a judicial office during good behaviour gives
tenure, but the absence of good behaviour results in the forfeiture of the
tenure of the judicial office and in the judicial office being declared

142
Statement from the Office for Judicial Complaints, OJC 03/12, 2 February 2012.
143
Disciplinary Tribunal, Decision 24 February 2012; Disbenchment was once possible, see
Manisty v. Kenealy (1876) 24 WR 918.

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iii. judicial removal mechanisms 301

vacant.144 The absence of ‘good behaviour’ would be established in

judicial proceedings commenced by the filing of a writ of scire facias,145
and the writ issued would repeal the letters patent by which the judge
held his office.146 The proceedings could be instituted by the Attorney
General in the Court of King’s Bench or by an aggrieved individual upon
the fiat of the Attorney General. It would seem, however, that even with
the very limited discretion that the Attorney General had in giving the
fiat for scire facias, the protection of judges from vexatious actions by
dissatisfied litigants was a legitimate ground for refusal, all the more since
otherwise judicial immunity from actions for acts done in the exercise of
judicial functions would have been rendered an empty formula.
Scire facias has never been employed for removing a superior judge,
though it has been used for forfeiture of offices held during good behav-
iour.147 It was frequently mentioned in the course of the debates in
Parliament on motions for an address as a possible course for removal
of judges, and it was sometimes suggested as the proper form of pro-
ceedings to be followed for removal of judges.148 Cases where those

144
See the Opinion of the Law Officers of Victoria delivered in 1864, quoted in A. Todd, On
Parliamentary Government in England: its Origin, Development and Practical Operation
(London: Longmans, Green & Co., 1867–69), vol. II, ch. 2.
145
A writ of scire facias would be available to terminate public offices, including a judicial
office, see the Opinion of the English Law Officers (Sir William Atherton and Sir Roundell
Palmer) delivered in 1862; Todd, Parliamentary Government, 728; Chitty, Prerogatives, 87,
331; G.S. Robertson, The Law and Practice of Civil Proceedings By and Against the Crown
and Departments of the Government (London: Stevens & Sons, 1908), p. 537; C. Viner,
A General Abridgement of Law and Equity, 2nd edn 30 vols., with 7 vol. Supplement
(London: G.G.J. and J. Robinson, 1792–1795), vol. 19; P.H. Short and F.H. Mellor, Practice
on the Crown Side of the Queen’s Bench Division of Her Majesty’s High Court of Justice,
Founded on Corner’s Crown Office Practice. Including Appeals from Inferior Courts. With
Appendices of Rules and Forms, 2nd edn (London: Stevens & Haynes, 1908).
146
Bynner v. The Queen (1846) 9 QB 523, 550; R v. The Eastern Archipelago Co. (1854) 43
ER 483, 485–6.
147
Either scire facias or quo warranto could be employed for effecting forfeiture of office or
revocation of grant, see Lord Bruce’s Case (1728) 2 Strange 819, 93 ER 870; Peter v.
Kendel (1827) 6 B & C 703, 108 ER 610. For early cases where scire facias was employed
to repeal patents of offices, see R v. Toly (1561) 73 ER 436; R v. Biage (1561) 73 ER 436; R
v. Eston (1562) 73 ER 437. Recorders holding office during good behaviour who had
been removed without scire facias challenged the removal by an application for manda-
mus to restore them to office, see R v. Wells (1767) 98 ER 41; R v. Bailiffs of Ipswich
(1706) 2 Salkeld 435, 91 ER 378.
148
Fox’s Case (1806) 7 Parl. Deb., 751, 767 [Lord Erskine]; O’Grady’s Case (1823) 9 Parl.
Deb., 2nd Ser., 360, 364–5 [Mr Smith]; Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser.,
1075 [Mr Denman]; I.R. Kaufman, ‘Chilling Judicial Independence’ (1978–1979) 88 YLJ
681, 694–7.

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302 immunity, discipline and removal of judges

holding office during good behaviour resisted royal attempts to remove

them without scire facias were cited in Parliament as precedents support-
ing such suggestion.149
A dominant view is that the Crown Proceedings Act 1947 abolished
other forms of scire facias concerning the recovery of Crown debts on the
Revenue side of the Queen’s Bench Division, but not the scire facias for the
purpose of rescinding royal grants from superior judges150 on the Crown
side of the Queen’s Bench Division. Thus the absence of scire facia
proceedings against a superior judge since the end of the sixteenth century
cannot preclude the availability of such procedure. Nonetheless, while it is
of the essence of the common law that its remedies, even though fallen into
disuse, may be revived if they prove again of value, the writ does appear
obsolete. It is unlikely that some satisfactory precedents could be found for
its use, and it is suggested that it has been superseded by some other
procedural remedies such as declaratory relief or an injunction151 as well as
the right to damages against the state in some specific instances.152

B. Criminal prosecution
7.22 At common law, an officer holding office during good behaviour
could be removed from office upon criminal conviction for a misde-
meanour in the exercise of his official duties, or for an offence which,
though unconnected with his official duties, was in itself so infamous as
to render him unfit to hold public office or induced the forfeiture of the
office.153 Criminal conviction resulted in the repeal of the patent by
which the office was held and entitled the Crown to seize the office

149
3 Coke Car. Reports 203, 79 ER 778–9; Foss, Judges of England, vol. VI, 372;
C.H. McIlwain, ‘The Tenure of English Judges’ (1913) 7 Am Pol Sci Rev 217, pp. 221,
223; see the arguments from Chief Baron Walter, Ld. Raym. T. 217, (1674) 83 ER 113;
Foss, Judges of England, vol. VII, 52–3.
150
Crown Proceedings Act 1947 (10 & 11 Geo. 6, c. 44), sch. I, s. 1(3); Attorney General v.
Colchester Corporation [1955] 2 QB 207, 212 and 217; A de Smith, ‘The Prerogative
Writs’ (1951) CLJ 40, 41; G.L. Williams, Crown Proceedings: an Account of Civil
Proceedings by and against the Crown as Affected by the Crown Proceedings Act, 1947
(London: Stevens, 1948), p. 114.
151
Section 9 of the Administration of Justice (Miscellaneous Provisions) Act 1938 replaced
informations in the nature of quo warranto by injunctions; the Attorney General could
move for an injunction in the High Court to restrain the judge from continuing to act in
an office to which he was no longer entitled.
152
See above, paras. 7.6–7.8.
153
Kenrick’s Case II (1826) 14 Parl. Deb. 2nd Ser., 660 [Mr Denman].

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iii. judicial removal mechanisms 303

without further proceedings in the form of scire facias.154 This and other
common law methods of removal were not excluded by the Act of
Settlement and, after its passing, judges could be removed upon criminal
conviction without an address of both Houses of Parliament.155
The power to bring proceedings by criminal information was abol-
ished by the Criminal Law Act 1967. Today, a judge who has been
convicted of a criminal offence in his judicial office or of any offence
involving moral turpitude which, though unconnected with his office,
renders him unfit to hold public office, would be suspended under the
CRA, as noted earlier.156
While no case has been recorded of superior judges being prosecuted
for misdemeanour in office, in the eighteenth and nineteenth centuries,
the Court of King’s Bench frequently gave leave to aggrieved individuals
to file criminal informations against magistrates and sometimes county
court judges.157 Such leave was normally given to prosecute magistrates
for gross neglect of duty or for misbehaviour actuated by corrupt or
malicious motives. Only one case is recorded in modern times of a
superior judge prosecuted for a criminal offence. In 1805 Robert
Johnson, one of the judges of the Court of Common Pleas in Ireland,
was prosecuted and tried upon an indictment for criminal libel on the
Earl of Hardwicke, Lord Lieutenant of Ireland and other high officials.158
The words complained of were contained in a series of articles published
in England under a false name. The publisher was convicted and revealed
the name of the contributor. Since the articles were published in England,
Mr Justice Johnson became subject to the jurisdiction of the English
courts. After long battles on the procedural issues, Mr Justice Johnson
was tried upon an indictment in the Court of the King’s Bench in London
before Lord Ellenborough CJ with three other judges. The contents of the

154
Comyns, Laws of England, vol. V, 215; Kenrick’s Case II (1826) 14 Parl. Deb. 2nd Ser., 660.
155
Anson, Law and Custom, part I, 222–3; H. Hallam, The Constitutional History of
England from the Accession of Henry VII to the Death of George II, 5th edn (London:
John Murray, 1846), vol. II, pp. 357–8; F.W. Maitland, The Constitutional History of
England: a Course of Lectures (Cambridge University Press, 1908), p. 313; Fox’s Case
(1806) 7 Parl. Deb., 761–2 [Lord Grenville].
156
CRA, ss. 108, 109(3).
157
For discussion of criminal informations generally, see Short and Mellor, Practice on the
Crown Side, 151, 398; J. Shortt, Informations (Criminal and Quo Warranto) Mandamus
and Prohibition (London: W. Clowes & Sons, 1887), p. 24. Against magistrates, see Short
and Mellor, Practice on the Crown Side, 26–9; 158–9, 398; against county court judges,
see R v. Marshall (1855) 4 El. & Bl. 475, 119 ER 174.
158
See (1805) 29 State Trials 81.

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304 immunity, discipline and removal of judges

articles for which he was prosecuted were summarised by Lord Ellenbor-

ough in his summing up to the jury:
It [the publication] defames the Lord Lieutenant as a man only fit to be a
feeder of sheep, states that his head is made up of particles of a ligneous
tendency; and then, comparing it with the Trojan Horse, adds that
notwithstanding its supposed innocuousness, its hollowness would be
soon filled with instruments of mischief. As to the Lord Chancellor of
Ireland, it degrades him in terms no less libellous . . . It likewise traduces
Mr Justice Osborne and states him to have acted corruptly under the
influence of Mr Marsden, the Secretary of State, whom it accuses of
having washed his stained hands in the very fountain of justice.159

The indulgence of Mr Justice Johnson in political controversy and the use

of very strong terms were utterly inconsistent with his judicial office and
might have justified his removal from the bench. In those days, the jury
needed only fifteen minutes to find him guilty of the charges. The judges
were spared the duty of passing sentence, for, following a change of
government, as the State Trials reporter records, a nolle prosequi between
conviction and sentence was entered upon this indictment in Trinity
term, 1806, by the new Attorney General, Sir Arthur Pigott, ‘and Mr
Justice Johnson retired from the bench upon a pension for his life’.160

IV. Parliamentary mechanisms for the removal of judges

7.23 Here we detail the procedures of impeachment and address for
removal, which have in common a public discussion in Parliament and
the fact that Parliament makes the final decision. While impeachment is
an archaic procedure of removal, the power of removal by an address to
Parliament has not been ousted by the Act of Settlement 1701 and is still
valid today. However, unless it can be attributed to improper motives or
a ‘decay of mental power’, a mistake in fact or in law or any error of
judgment will not justify removal by Parliament. These matters are rather
within the province of the appellate courts.161 Further, constitutional

159 160
Ibid., 499. Ibid., 502.
161
Thus, in Ellenborough’s Case (1816), Mr Ponsonby said that ‘it was not enough to prove a
mistake in point of fact but some gross error which would only be attributed to improper
motives and which give reasons to supposed that the badness of heart had contributed to
[the perversion of judgment], Ellenborough’s Case (1816) 34 Parl. Deb., 1st Ser., 104, at
110. Similarly, in Kenrick’s Case, Mr Secretary Pell said that ‘with respect to any
misconduct arising from error of judgment and intemperance the House ought to rest
satisfied with the adjudication of a court of justice’, Kenrick’s Case (1825) 13 Parl. Deb.,

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iv. parliamentary removal mechanisms 305

constraints shape the grounds and procedures for removal by an address.

Parliament will not inquire into the conduct of a judge or pass an address
for his removal unless he was charged with misconduct involving ‘moral
turpitude’. This will be illustrated by a survey of the major cases of
removal proceedings taken against senior judges.

A. Impeachment
7.24 Impeachment is the most solemn form of trial in English law,
reserved for trying ‘high crimes and misdemeanours’ beyond the reach
of the ordinary law of the land or which no other authority of the state
will prosecute.162 Impeachment is in fact a trial by the legislature,
wherein the Commons are the prosecutors and the Lords, ‘exercising at
once the functions of a high court of justice and of a jury’163 return the
verdict and impose the sentence. ‘Impeachments are reserved for extra-
ordinary crimes and extraordinary offenders but all persons whether
peers or commoners may be impeached for any crime whatever.’164 In
general, impeachment was employed against high public officials165 for
the punishment of ‘offences of public nature’.166 The procedure is now
considered obsolete.
Impeachment was essentially a political weapon of Parliament in its
struggle with the Crown, and no rigid rules may be found as to the
grounds sufficient for initiating proceedings. The articles of charge or
articles of impeachment employed terms such as ‘high crimes and mis-
demeanours’, ‘high treason’, ‘great misdemeanours’, ‘high misdemean-
ours’, but the acts covered by these terms varied a great deal. They

2nd Ser., 1138, at 1375; in Torrens’ Case, it was denied that ‘because a judge had made a
mistake or because there had been a failure of justice, the House was entitled to examine
as an appellate tribunal into the conduct of a judge against whom no corruption or
misconduct was charged’, Torrens’ Case (1856) 140 Parl. Deb, 3rd Ser., 1544, at 1558. By
analogy, Parliament will not interfere with matters of court practice and procedure, such
matters also being left to the courts, see Ellenborough’s Case (1816) 34 Parl. Deb., 1st
Ser., 104, at 122 and 207; McClelland’s Case (1819) 40 Parl. Deb., 1st Ser., 851; Best’s Case
(1821) 4 Parl. Deb., New Ser., 918.
162
Erskine May, Parliamentary Practice, 8th edn (1879), 681.
163
Erskine May, Parliamentary Practice, 7th edn (1964), 39.
164
Erskine May, Parliamentary Practice, 8th edn (1879), 681.
165
See Holdsworth, History, vol. I, 380–2.
166
See Mr Serjeant Pengelly’s Speech, Trial of the Earl of Macclesfield, T.B. Howell,
A Complete Collection of State Trials (London: Hansard, Bagshaw, 1809–16), vol.
XVI; Howell’s State Trials (1725), 1330.

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306 immunity, discipline and removal of judges

included official misconduct such as neglect of duty, abuse of power,

oppression of rights, or misapplication of funds. They also included acts
which Parliament deemed an encroachment upon its prerogatives,
bribery and corruption, and subversive activities, such as treason.167
There had been some doubt whether a commoner could be impeached
for any capital offence,168 but it was later settled that the Commons have
the undoubted right ‘to impeach before the Lords, any Peer or Com-
moner for Treason, or any other crime or misdemeanour’.169
The Crown cannot affect impeachment proceedings by exercise of its
power of prorogation, which terminates sessions of Parliament, or dis-
solution, which brings to an end the very existence of a Parliament.170
Nor may the Crown grant a pardon to the person accused.171 But while a
pardon is not pleadable against an impeachment, after the Lords have
pronounced their verdict and imposed the sentence, the Crown may
commute the sentences or grant a full pardon.172
Impeachment has not been resorted to since 1805.173 The Select Com-
mittee of the House of Commons on Parliamentary Privilege has twice
proposed that impeachment should be abolished by legislation.174 The Joint
Committee on Parliamentary Privilege has also recently stated that ‘the
circumstances in which impeachment has taken place are now so remote
from the present that that the procedure may be considered obsolete’.175

167
For cases of impeachment. see generally J. Hatsell, Precedents of Proceedings in the House
of Commons, with Observations (London: Printed for L. Hansard and Sons, 1818),
particularly the list of cases in vol. IV, 105–7, and Appendix 10 at 423–8. For the
meaning of the term ‘high crimes and misdemeanours’, see R. Berger, ‘Impeachment
for “High Crimes and Misdemeanors”’ (1971) 44 Southern California Law Review 395,
400–15.
168
Blackstone, Commentaries, vol. IV, 259. For discussion of this point, see Erskine May,
Parliamentary Practice, 8th edn (1879), 681–3; Hatsell, Precedents, vol. IV, 83–4.
169
So resolved the House of Commons on 26 March 1681, quoted in Hatsell, Precedents,
vol. IV, 83.
170
Hatsell, Precedents, vol. II, 335; Hatsell, Precedents, vol. IV, 273–4.
171
Lord Danby’s Case (1679), see Hatsell, Precedents, vol. IV, 208; resolution to the same
effect was passed by the Commons in 1689; finally, it was enacted by the Act of
Settlement, Hatsell, Precedents, vol. IV, 299, 308.
172
Erskine May, Parliamentary Practice, 8th edn (1879), 687.
173
The last two impeachment trials were those of Warren Hastings (1788) and Lord
Melville (1805); see generally C.L. Black, Impeachment: A Handbook (New Haven: Yale
University Press, 1974, reissued in 1998).
174
‘Report from Select Committee on Parliamentary Privilege’, HC 34 (1967–68), para. 115;
‘Third Report from the Select Committee on Privileges’, HC 41 (1976–77), para. 16.
175
Joint Committee on Parliamentary privilege, HL Paper 43-1 HC 214-1 (1998–99), para.
16; see the motion calling for impeachment of Tony Blair, tabled on 25 November 2004,

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iv. parliamentary removal mechanisms 307

Course of the proceedings

7.25 The right to institute proceedings for impeachment is exclusively
within the province of the House of Commons.176 The proceedings may
originate with a petition of an aggrieved person,177 with a report of a
committee imputing misconduct on the part of some public official178 or
with relevant information which is brought to the attention of the House
by any member. No proceedings for impeachment may commence
unless a motion to that effect is passed. A member presents the charges
and accusations against the person accused, and the House, after consid-
eration, resolves either to refer the matter to a committee for further
inquiry,179 or to impeach the accused. Before final resolution, the House
may hear the accused at the Bar either in person or by counsel.180 When
a motion to impeach is passed, the member who made the motion is
instructed to go to the Bar of the House of Lords and to impeach the
accused. The formal impeachment at the Bar having been made, a
committee is appointed to draw up the articles of impeachment; when
the articles are agreed upon, they are delivered to the House of Lords and
sent to the accused; his answers are communicated to the Commons.
Managers are appointed to conduct the trial on behalf of the Commons.
In order to secure his presence at the trial, the accused person may be put
into custody by the Commons, if a commoner, or, by the Lords, if a peer.
He remains in custody unless admitted to bail.181
At a date fixed by the Lords the trial begins, the managers present the
charges and evidence and witnesses in support, and the accused, in
person or by counsel, presents his defence and, if necessary, evidence
and witnesses in support. The Lords, after hearing the evidence and
arguments, pass a verdict of ‘guilty’ or ‘not guilty’. Each peer is asked
for his opinion on each charge separately whether the accused is ‘guilty’
or ‘not guilty’. If found not guilty (by a simple majority), the Lords
dismiss the impeachment. If found guilty, the Lords may not pass

‘Conduct of the Prime Minister in relation to the War against Iraq’. The Iraq Inquiry,
established later by the following Prime Minister Gordon Brown, may be seen as a more
appropriate response to this motion.
176
For the procedure of impeachment, see generally Hatsell, Precedents.
177
E.g., Lord Mordaunt’s Case (1666); Hatsell, Precedents, vol. IV, 120–1.
178
E.g., Commissioner Pett’s Case (1667), Hatsell, Precedents, vol. IV, 122.
179
E.g., Lord Chief Justice Kuling’s Case (1667), Hatsell, Precedents, vol. IV, 123.
180
Sir John Bennet’s Case (1621), see Hatsell, Precedents, vol. IV, 131–2.
181
Hatsell, Precedents, vol. IV, 276–7, 285 (Commons’ power of committal and bail), 192–4
(Lords’ power). See also Erskine May, Parliamentary Practice, 8th edn (1879), 684.

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308 immunity, discipline and removal of judges

judgment unless the Commons demand it.182 Upon the demand made by
the Speaker on behalf of the Commons, the Lords impose sentence upon
the convicted person. He may be imprisoned, fined, removed and dis-
qualified from office, or otherwise punished, and if the offence is capital,
he may be sentenced to death. Thus, Bacon LC (Viscount St. Albans) was
heavily fined, imprisoned, and ‘was rendered incapable of any office, or
place, or employment in the state of commonwealth; never to sit in
Parliament, or come within the verge of the court’.183
The Commons may at any stage put an end to the proceedings by
failing to take the necessary steps, such as non-appearance in the trial.184
Even after the accused is convicted, the Commons can in effect pardon
him by failing to demand a sentence.

Rights of the accused under the law and custom of Parliament

7.26 The law applicable to impeachment is not the law of the land; rather
it is the law of Parliament. As was resolved by the Lords, ‘these matters
when brought before them shall be discussed and adjudged by the course
of Parliament, and not by the civil law nor by the common law of the
land used in other inferior courts’.185 However, it does not follow from
this that the rights of the accused are less secure. Procedural safeguards
have been laid down by Parliament. It was resolved by the House of
Commons ‘that it is the undoubted right of every subject of England
under any accusation either by impeachment or otherwise to be brought
to speedy trial in order to be acquitted or condemned’.186 It was also
resolved that when an impeached person is committed to custody, ‘the
Lords may limit a convenient time to bring his particular charge before
them, for avoiding delay in justice’.187
The rights of defendants tried before the Lords were particularly
specified in an order providing
that in all cases of moment, the defendant shall have copies of all depos-
itions, both pro and contra, after publication; a convenient time before the

182
Erskine May, Parliamentary Practice, 8th edn (1879), 681, 685–6.
183
Dr Sacheverell’s Case (1709), Hatsell, Precedents, vol. IV, 265, 230. Later, he was granted
full pardon by the King.
184
As in Lord Somer’s Case (1701), Hatsell, Precedents, vol. IV, 300–1.
185
Quoted in Dr Sacheverell’s Case (1709), Hatsell, Precedents, vol. IV, 272.
186
Resolution of Commons on 26 February 1701, quoted in Dr Sacheverell’s Case (1709),
Hatsell, Precedents, vol. IV, 265, 301 n. 29.
187
Quoted in Dr Sacheverell’s Case (1709), Hatsell, Precedents, vol. IV, 193.

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iv. parliamentary removal mechanisms 309

hearing, to prepare themselves; and also, that the defendants, if they shall
demand it of the House in due time, shall have their learned counsel to
assist them in their defence, whether they be able by reason of health to
answer in person or not.188

Another procedural safeguard to secure justice is that all the Lords

must be present at the trial, and absence from trial, if without due excuse,
was deemed ‘a great and wilful neglect of duty’.189 It seems that the
hearing of the evidence and arguments could not be delegated to a
committee, for ‘in cases of impeachments . . . all the Lords must judge’.190
In conducting the trial, the managers are confined to the charges con-
tained in the articles of impeachment.191 The Commons can exhibit
other charges but the accused person must then be given an opportunity
of putting his answers to them.
The law applicable to impeachment is the law of Parliament. However,
when in doubt about a question of law the Lords would consult the
judges before making a final decision on the matter. Thus, the Lords
sought the opinion of the judges on points of evidence, on the appropri-
ate form of the indictment or information, and on the question whether
the charges had been brought in regularly and legally.192 It was laid down
that the opinion of the judges should be delivered in the presence of the
managers and the accused person.193 When the Lords found it necessary,
the judges were ordered to attend the House of Lords until the trial was
over.194 On the whole, it appears that impeachment is criminal in nature
and the Lords considered it as such.195

188
These rules were included in an order of the Lords on 28 May 1624, Hatsell, Precedents,
vol. IV, 171–2.
189
Lords’ resolution on 23 June 1701, Hatsell, Precedents, vol. IV, 301.
190
Dr Sacheverell’s Case (1709), Hatsell, Precedents, vol. IV, 369–70 (Appendix 3: Report of
Conference of both Houses on 13 January 1691).
191
Erskine May, Parliamentary Practice, 8th edn (1879), 684.
192
On evidence, see Warren Hasting’s Case (1788), Hatsell, Precedents, vol. IV, 304; on the
appropriate form of the indictment or information, see, e.g., Dr Sacheverell’s Case (1709),
Hatsell, Precedents, vol. IV, 305 and, on whether the charges had been brought in
regularly and legally, see Lord Chancellor Clarendon’s Case (1663), Hatsell, Precedents,
vol. IV, 166. The judges were also consulted by the Lords on the question whether
treason was a bailable offence, see Lord Danby’s Case (1678), Hatsell, Precedents,
vol. IV, 194.
193 194
Hatsell, Precedents, vol. IV, 304, particularly the notes. Ibid., 305.
195
Berger, ‘Impeachment for “High Crimes and Misdemeanors”’, 400–15; R. Berger,
‘Impeachment of Judges and “Good Behavior” Tenure’ (1970) 79 Yale Law Journal
1475, 1518–19.

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310 immunity, discipline and removal of judges

The use of impeachment against judges

7.27 Throughout the period of English history when impeachment was
in vogue and frequently exercised, many judges, among them Lord
Chancellors and Lord Chief Justices, were impeached in Parliament.
A short survey of cases in which proceedings for impeachment were
instituted against judges is given below. In reading this survey it should
be borne in mind, as has already been indicated, that impeachment was a
political weapon exercised by Parliament against political opponents. In
many cases judges were impeached for supporting the Crown against
Parliament, either in the exercise of their judicial functions or in advice
given extra-judicially. Even when the activities of the impeached judges
were improper or corrupt, the motives for instituting the proceeding
were not confined to purifying the administration of justice. Thus, much
as one could condemn the behaviour of Bacon, who was convicted on his
own confession of accepting numerous bribes, it is to be admitted that in
English society of that period ‘gifts’ to judges and other public officials
were commonplace, and that Bacon was attacked for his role in support-
ing the Crown in the constitutional struggle with Parliament. Nor was it
surprising that Sir Edward Coke, who had been dismissed from the
bench in 1616, and now served in the Commons, was overzealous in
the proceedings against his long-time opponent. Along the same lines, it
is safe to say that the impeachment of Lord Macclesfield a century later
was politically motivated, although the final judgment passed on him
may be sustained.
The charges presented against judges in impeachments represent a
good cross-section of the grounds deemed sufficient for initiating such
proceedings. As early as 1384 a Lord Chancellor was accused in Parlia-
ment of bribery. In that year a petition was presented against Sir Michael
de la Pole (later Earl of Suffolk), the Lord Chancellor, by a fishmonger of
London, who alleged that he could not obtain justice in his case before
the Chancellor and that he was ‘wickedly delayed’. Much worse, he
charged the Lord Chancellor of accepting bribes from him. The Lords
acquitted the Lord Chancellor of the charges, and the accuser was later
convicted of defamation and ordered to pay heavy damages.196 In 1386
Sir Michael de la Pole was impeached by Parliament upon various
charges of a political nature: that he had purchased valuable lands of

196
For a detailed account of this case, see Cecil, Tipping the Scales, 93–9.

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iv. parliamentary removal mechanisms 311

the King for less than they were worth, and that he applied appropriated
funds to purposes other than those specified.197
In 1388 Parliament resorted to impeachment for punishing Sir Robert
Belknap, late Chief Justice of the Common Pleas, and other judges for
having given false answers on the law of treason upon questions put to
them by the King. Upon their conviction the Lords ordered that ‘they
should be drawn and hanged as traitors’.198
After a long disuse the impeachment was revived in 1620 when Bacon,
the Lord Chancellor, was impeached and convicted upon his own confes-
sion of accepting numerous bribes. He was heavily fined and imprisoned
and disqualified from office for life. Later the King pardoned him.199
A year later another case of bribery was discussed in Parliament. Sir John
Bennet, a judge of the prerogative court of Canterbury, was charged with
bribery and corruption.200 The trial was not pursued in the Lords but
proceedings in the Star Chamber resulted in a conviction and heavy fine.
In 1641 Lord Chief Justice Bramston, Lord Chief Baron Davenport,
Mr Justice Berkeley, and others, were impeached201 for their opinion in
the case of Ship Money,202 upholding the power of the King to levy
taxation for ships without the consent of Parliament. Proceedings were
instituted against Sir John Kelyng CJ in 1667 for illegal and arbitrary
discharge of his judicial functions, particularly for oppressive behaviour
toward juries. The matter was dropped after the judge addressed the
House ‘with reverence and humility’.203
In 1680 Sir Francis North CJ was accused of assisting, advising and
drawing of a proclamation to suppress petitions to the King to call a
Parliament.204 In the same period, Sir William Scroggs CJ was impeached
for discharging a grand jury before they made their presentment,

197
Hatsell, Precedents, vol. IV, 57–8; Howell, State Trials, vol. I, 91.
198
Hatsell, Precedents, vol. IV, 59–61; their lives were spared, Howell’s State Trials, vol. I, 120.
199
Howell’s State Trials, vol. II, 1087 et seq.; Campbell, Lives, 388 et seq.; A.D. Gibb, Judicial
Corruption in the United Kingdom (Edinburgh: Green & Son, 1957), I et seq.; Cecil,
Tipping the Scales, 99–113.
200
Cecil, Tipping the Scales, 74–81; Hatsell, Precedents, vol. I, 131–132; Howell’s State Trials,
vol. II, 1145; (1547–1628) 1 Commons Journal 580, 583, 584, 586–8, 590, 59.
201
Hatsell, Precedents, vol. IV, 145; Howell’s State Trials, vol. III, 1283, 1301. Bramston and
Davenport were accused but not convicted; Berkeley was convicted.
202
R v. Hampden (1637), Howell’s State Trials, vol. III, 825, Howell’s State Trials, vol. II,
p. 825; Keir, ‘The Case of the Ship-Money’.
203
9 Commons Journal 4, 18, 20, 29, 35–7; Howell’s State Trials, p. 992; J. Campbell, Lives of the
Chief Justices (London: John Murray, 1849), 509–10; Hatsell, Precedents, vol. IV, 123–4.
204
Hatsell, Precedents, vol. IV, 123–4.

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312 immunity, discipline and removal of judges

arbitrarily granting general warrants in blank, and illegally refusing

bail.205 Baron Weston was impeached for saying in a charge to a jury:
‘For my part I know no representative of the nation but the King: all
power centres in him.’206
In 1725 the Earl of Macclesfield, the Lord Chancellor, was impeached
for and convicted of the sale of offices of Masters in Chancery. Despite
legislation prohibiting the sale of offices, Lord Chancellors continued to
profit from the sale of Masters in Chancery, and possibly other offices too,
until the eighteenth century. However, the immediate cause for instituting
the proceedings against Lord Macclesfield was the bursting of the South
Sea Bubble which uncovered a major judicial scandal, the common prac-
tice for Masters in Chancery to speculate with the funds placed under their
care and to put the profits in their pockets.207 When the South Sea stock
collapsed, ruining several Masters in Chancery, the public was not content
with their punishment but felt also that the Lord Chancellor had to pay a
heavy price for the misdeeds of the Masters who worked under his
supervision. Parliament, with the reluctant consent of the government,
impeached and convicted Macclesfield, sending him to the Tower and
fining him £50,000. There are conflicting views in final judgment of his
impeachment, one view being that ‘he suffered less for his own faults, than
for the evil results of a bad system’.208 Others believe that he was guilty of
serious misbehaviour even by the standards of his times, failing to exercise
the necessary control over the Masters and, in eagerness to give the offices
to the highest bidders, paying insufficient attention to the competence and
personal integrity of the men who took the offices.209

B. Address from Parliament

7.28 We turn to the power of removal by address, which has been
exercised once, when Sir Jonah Barrington was removed from office as
a judge of the Irish High Court of Admiralty in 1830 for corruption, after

205
(1680–1692) 2 Parl. Deb. 1, 22–5, Hatsell, Precedents, vol. IV, 127–8; Howell’s, State
Trials, 163 et seq.
206
Hatsell, Precedents, vol. IV, 127–8 and notes. Sir Thomas Jones, one of the judges of the
King’s Bench, was also impeached there, Hatsell, Ibid., 128.
207
L.C.B. Gower, ‘A South Sea Heresy?’ (1952) 68 LQR 214; Foss, Judges of England, vol.
VIII, 2–3.
208
J.C. Jeafferson, A Book About Lawyers (London: Hurst and Blackett, 1867), vol. I, p. 256.
209
Campbell, Precedents, vol. IV, 554–6; Foss, Judges of England, vol. VIII, 3–4; A. Denning,
The Road to Justice (London: Stevens, 1955), 20–2.

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iv. parliamentary removal mechanisms 313

he misappropriated funds due to litigants. While Parliament has estab-

lished some general principles as to what will justify inquiry into the
conduct of a judge, his censure or removal from office, whether or not
Parliament will interfere will depend on the circumstances of the case. As
Mr Denman (later Lord Chief Justice) said, in Kenrick’s Case, ‘the
question before the House [in that case and in other similar cases] must
be questions of degree and it was entirely for the House to consider
whether the case was of sufficient magnitude, and whether it brought a
sufficient scandal on the administration of justice to require the interfer-
ence of Parliament’.210 In the course of the debates on judicial conduct,
Lords and Members of Parliament have frequently employed public
confidence in the administration of justice as a yardstick for measuring
the magnitude of the misconduct complained of.211

An addition to existing procedures for removal

7.29 At common law, prior to the Act of Settlement 1700, judicial office
held during good behaviour could be terminated by impeachment, by
judicial proceedings commenced by a writ of scire facias to repeal the
letters patent or upon criminal conviction. The Act of Settlement, estab-
lishing the security of judicial tenure, provided that judges should hold
office during good behaviour, ‘but upon the address of both Houses of
Parliament it may be lawful to remove them’. Upon an address for the
removal of a judge, passed by each House of Parliament and presented to
the Crown, the Crown may lawfully remove the judge. The effect of this
provision of the Act on the availability of the mechanisms of removal at
common law prior to the Act remains a controversial issue almost three
centuries after the passing of the Act.
One view is that the Act, by establishing security of judicial tenure and
a new mechanism of removal, excluded all other methods of removal
existing prior to the Act, and that only Parliament can take the initiative
by passing an address for removal for breach of good behaviour. The
other view is that the Act only established an additional power of
removal by address which ‘may be invoked upon occasions when the

210
Kenrick’s Case (1826) 14 Parl. Deb., 3rd Ser., 660.
211
See Lord John Russell in Kenrick’s Case (1826) 14 Parl. Deb., 3rd Ser., 367; (1867) 185
Parl. Deb., 3rd Ser., 269 [per Lord St Leonards, a former Lord Chancellor] and 271–2
[Earl Russell, a former Prime Minister]; Grantham’s Case (1906) 160 Parl. Deb., 4th Ser.,
369, at 396 [per the Attorney General], 410 [per Prime Minister Campbell-Bannerman]
and 388 [Mr Dewar]; these cases are considered below, para. 7.44.

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314 immunity, discipline and removal of judges

misbehaviour complained of would not constitute a legal breach of the

conditions on which the office is held’. According to this view, ‘the
liability to this kind of removal is, in fact, a qualification of, or exception
from, the words creating a tenure during good behaviour, and not an
incident or legal consequence thereof’.212
The exclusive argument, namely that the Act of Settlement established
an exclusive method of removal, rests upon the proposition that the
proviso establishing the address does not limit the tenure during good
behaviour but describes the process by which the breach of the good
behaviour is to be ascertained. By establishing this process, it was pro-
vided that misbehaviour amounting to a breach of the good behaviour
condition should be established not by judicial proceedings but by a
resolution of both Houses of Parliament.213 This construction of the
provision establishing the address, say the proponents of the exclusive
argument, is consistent with the substance of the section creating tenure
during good behaviour.
If the opposite view is accepted and
the power, of removal [by address] is to be regarded as an unqualified
power, to be exercised for any cause, or without the existence of any cause,
the office is held during the pleasure of the legislative and executive
branches of the government, and not during the official good conduct
of the incumbent. In [the opposite] view, therefore, the provision is
inconsistent with the declared tenure of the commission.214

It clearly appears that the Act of Settlement did not exclude the power
to impeach judges. The object of the Act, which was entitled in part ‘an
Act for the further limitation of the Crown’, was to secure the inde-
pendence of the judges of the Crown but not to render them independ-
ent of Parliament or to restrict the powers of Parliament over them.
Apart from this, it would be unsound to believe that at a time of
struggle for power between Parliament and the Crown, Parliament
would give up a strong and efficient power over judges (which enabled
Parliament not only to remove a judge or disqualify him from public
office but also to sentence him severely) merely in order to assume the

212
Todd, Parliamentary Government, vol. II, 729.
213
L.R. Wooddeson, Elements of Jurisprudence Treated of in the Preliminary Part of a
Course of Lectures on the Laws of England (Dublin: printed by H. Fitzpatrick for
J. Moore, 1792), pp. 88 and 121; Chitty, Prerogatives, 83.
214
G.T. Curtis, History of the Origin, Formation and Adoption of the Constitution of the
United States (New York: Harper, 1860), vol. II, p. 69.

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iv. parliamentary removal mechanisms 315

milder power of removal by address. Indeed, some of the proponents of

the exclusive argument admit that Parliament retained the power to
impeach judges.215 The real issue, therefore, is whether the Act of
Settlement excluded all methods of removal which had been available
to the Crown prior to the Act. Since it was in accord with the legislative
object to provide judges with adequate protection from Royal interfer-
ence, the argument that the Act ‘virtually [repealed] all previous powers
which the Crown might have possessed over judicial officers’216 cannot
be easily cast aside.
7.30 Prior to the Act of Settlement the Crown could have proceeded against
judges holding office during good behaviour by filing a writ of scire facias to
repeal their letters patent, or by criminal information. If the rationale of the
exclusive argument is accepted, it should follow that both scire facias and
criminal information were excluded by the Act and subsequently could not
be used to remove judges. In light of this, the view expressed by some
authorities217 that a judge can be removed only by an address, but upon
conviction for ‘some criminal offence’ he may be removed without an
address, gives rise to some difficulties. To reconcile these difficulties it may
be argued that while Parliament cannot reasonably be said to have intended
to leave on the bench a judge who had been convicted of a criminal offence
until after an address is presented to the Crown, it is perfectly sound to
assume that it was the intention of Parliament that, short of criminal
offence, judges may only be removed upon an address. This argument,
however, does not settle the matter, for it is still inconsistent with the
premise upon which the exclusive argument is based. This point does not
merit further discussion for, as will be shown, neither criminal information
nor scire facias were excluded by the Act of Settlement.
The generally accepted interpretation of the Act is that while judges
should hold office during good behaviour and cannot be removed by the
Crown except for breach of good behaviour, established in scire facias
proceedings, Parliament itself enjoys an unqualified power of removal.
The wording of the Act supports this interpretation. The first phrase of
the relevant section provides for tenure during good behaviour (and
establishes judicial salaries), then the second phase beginning with ‘but’

215
Ibid.
216
O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360, 365 [Mr Wetherell MP].
217
Hallam, Constitutional History, vol. II, 357–8; Maitland, Constitutional History of
England, 313.

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316 immunity, discipline and removal of judges

(and in subsequent statutes with ‘subject to’),218 establishes the power of

removal by address. This wording points strongly against regarding the
power of removal by address as incidental to tenure during good behav-
iour established by the opening sentence.219
The principle of construction that judicial process is not abolished
except by clear words likewise supports the view that scire facias was not
excluded by the Act.220 This interpretation is not inconsistent with the
object of the Act of Settlement to render the judges independent of the
Crown, nor is it incompatible with tenure during good behaviour. Under
this interpretation, the Crown acting alone and without an address
cannot remove a judge. It has to establish the breach of good behaviour
for which the judge is to be removed in scire facias proceedings before a
court of law. The Crown is only responsible for initiating the proceeding;
the ultimate decision rests with the court.
The fact that this interpretation gives an unqualified power of
removal to Parliament should not give rise to difficulties. The problem
should be examined in the historical context of the struggle between
Parliament and the Crown. Bearing in mind that Parliament came out
of the constitutional conflict as the winner, it was only natural for it to
assert full control over the judges221 In order to exercise full parliamen-
tary control over the judges, impeachment was not enough, for it could
only be used for ‘high crimes and misdemeanours’. Whatever its exact
meaning, this term did not cover the broad area of improper behaviour
(such as gross immorality), or physical or mental inability for which it
was justifiable to remove a judge. To remedy this situation, an add-
itional power of removal was established which can be exercised in
appropriate cases.
Likewise, after the establishment of judicial tenure during good behav-
iour a power of removal, which is not subject to the technical condition
of good behaviour, was necessary. Before the Act of Settlement when
judges held office at pleasure, the Crown could remove them for
improper behaviour, or physical or mental inability, which although
not amounting to a breach of the good behaviour condition nor to a
criminal act was a justifiable cause for removal from office. The Act
established tenure during good behaviour and stripped the Crown of this

218
No significance is attached to the change of these words.
219 220
Todd, Parliamentary Government, vol. II, 729. Ibid.
221
W.E. Hearn, The Government of England: its Structure and its Development, 2nd edn
(London: Longmans, Green & Co., 1886), 87.

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iv. parliamentary removal mechanisms 317

power; thus a gap was created where neither Parliament by impeachment

nor the Crown by scire facias or criminal information could remove a
judge who fell within this gap. In order to fill the gap an additional
method of removal by address was established, which made it possible for
Parliament to remove a judge for improper behaviour or inability who
otherwise, after the tenure during good behaviour had been established,
could not have been removed.
The prevailing view among legal scholars is that the Act did not
exclude other mechanisms of removal existing prior to the Act and that
in exercising the power of removal by address, Parliament is not limited
to considerations of ‘good behaviour’ in its technical sense.222 This view
finds support also in statements made in the course of the debates in
Parliament on motions for an address for removal of judges,223 where
some Lords and members argue about scire facias or impeachment as the
proper or constitutional mode of removal of judges.224
It thus clearly appears from statements in Parliament and from the
language of the Act of Settlement and its aims that, after the Act, judges
holding office during good behaviour could have been proceeded against
by address, impeachment, scire facias or criminal information.

222
Lord Sankey, 90 HL Deb., 77 (23 November 1933); Todd, Parliamentary Government,
vol. II, 729; Anson, Law and Custom, vol. II, part I, 222–3; Holdsworth, A History, v. X,
415; Heuston, Lives, 518–19; McIlwain, ‘Tenure of English Judges’, 225; Berger,
‘Impeachment for “High Crimes and Misdemeanors”’, 1479–82. See the opinion of the
Law Officers (Sir William Atherton and Roundel Palmer) presented to Parliament in
1862, and the opinion of the Law Officers of Victoria (1862) quoted in Todd, Parlia-
mentary Government, vol. II, 727–8; McCawley v. R (1918) 26 CLR 9, 58–9; see also Shell
Co. Australia v. Federal Commissioner of Taxation [1931] AC 275 (PC) 280.
223
Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser. 965, 966; some minority views were
these of Mr Wetherell and Mr Canning in O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser.
360, 364–5.
224
In support of scire facias, see O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360, 364–5
[Mr Smith]; see also Lord Erskine LC in the earlier case of Mr Justice Luke Fox, judge of
the Common Pleas in Ireland, (1806) 7 Parl. Deb., 751, 767 and 770, quoted by Campbell
in Lives, 60. In support of impeachment, see O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser.,
360, 1010 [Mr Secretary Peel], though see Mr Secretary Peel’s later view that a judge
could only be removed upon an address from Parliament, in Kenrick’s Case (1826) 14
Parl. Deb., 3rd Ser., at 501; O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360, 361
[Mr Canning]; Best’s Case (1821) 4 Parl. Deb., New Ser., 918, 930 [Mr Wynn]. Articles of
impeachment were brought against Lord Ellenborough CJ in 1816 although they were
dismissed after a discussion on the merits, 32 Parl. Deb., 1st Ser., 1145 (1816). The
terminology used in the Parliamentary Reports was ‘articles of charge’ but see J. Hatsell,
Precedents, vol. IV, who uses the term ‘Articles of Impeachment’.

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318 immunity, discipline and removal of judges

Address is exclusive in practice

7.31 The question is not put to rest here. The generally accepted view
today is, and probably has been for more than the last century, that
judges cannot be removed except upon an address. The arguments for
this are overwhelming.
The heated debates on the reduction of judicial salaries in the 1930s
presented a good opportunity for discussion of the constitutional pos-
ition of the judges. Of particular importance is the collective memoran-
dum submitted to the prime minister by all the judges of the High
Court and Court of Appeal in protest against the reduction of their
salaries.225 In that memorandum the judges, after quoting the Act of
Settlement, wrote: ‘The judges hold office as expressed above during
good behaviour and are removable only on an Address to the Crown by
both Houses of Parliament.’226 In the course of the debates on the
reduction of judicial salaries, Lord Buckmaster, a former Lord Chancel-
lor, said that the judges of the Supreme Court were irremovable except
by an address from both Houses of Parliament, his words meeting with
the concurrence of Lord Cecil of Chelwood and Lord Reading, the
former Lord Chief Justice.227 In the same debate Lord Sankey LC
expressed the view that the Act of Settlement did not exclude scire
facias, but, on the other hand, he admitted that, at present, Lord Buck-
master’s proposition that ‘judges are irremovable except on an address’
is a ‘principle upon which we are all agreed’.228 The preamble of the
Judiciary (Safeguarding) Bill, presented in the House of Lords in the
wake of the judicial salaries crisis, read in part: ‘Whereas it is provided
by the Act of Settlement 1700 that His Majesty’s judges shall not be
removed from their office save in pursuance of a resolution of both
Houses of Parliament’.229 A similar statement was included in the
Status of Judges Bill, presented at the same time in the House of

225
The following judges sat on the Bench in December 1931 when the collective memoran-
dum was presented: Lord Hewart CJ, Lord Hanworth MR, Lord Merrivale, P. Scrutton,
Lawrence, Greer, Slesser and Romer LJJ, Avory, Horridge, Rowlatt, McCardie, Roche,
Swift, Acton, Branson, Talbot, MacKinnon, Finlay, Wright, Hawke, Charles, Humphreys
and MacNaghten JJ.
226
The memorandum was read by the Lord Chancellor in the House of Lords, Hansard,
HL, vol. 88, cols 1209–11 (29 July 1933).
227
Hansard, HL, vol. 90, cols. 66, 73, 85, 94 (23 November 1933).
228
Hansard, HL, vol. 90, cols. 75 and 77 (23 November 1933).
229
Hansard, HL, vol. 91, col. 228 (15 March 1934). The Bill was passed by the House of
Lords four times but never came into law.

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iv. parliamentary removal mechanisms 319

Commons by six eminent MPs.230 In the course of the debates in the

House of Lords on the Judiciary (Safeguarding) Bill, Lord Carson, a
former Law Lord, was of the opinion that judges could be removed only
by an address from the two Houses of Parliament.231 In the same
debate, neither the memorandum of the judges nor the preambles of
the Bills nor the other statements quoted above were disputed; the
memorandum of the judges, including the passage that judges can only
be removed by address, was in fact quoted with approval.232
Ten years before the judicial salaries crisis a flagrant violation of
the principle of the independence of the judiciary took place. Mr Justice
A.T. Lawrence, aged seventy-seven, was appointed Lord Chief Justice upon
the understanding that he would retire when called upon to do so. In a letter
to Prime Minister Lloyd George, Lord Birkenhead, the Lord Chancellor,
strongly opposed this disgraceful arrangement. After quoting the terms
of the Act of Settlement, Lord Birkenhead wrote that the arrangement
violates the letter of the Statute . . . and defeats the object for which the
enactment was passed. That object was to secure that the judges should
hold office independently of any political or other influence and should be
removable only for the most serious judicial misbehaviour and then in the
most public and open manner.233

This language clearly suggests that Lord Birkenhead thought that judges
could only be removed by an address.
Lord Denning has on several occasions written that ‘the accepted view
is that in England judges are not to be removed except for misconduct
and then only on the petition of both Houses of Parliament’.234 Many
eminent authorities have expressed the same view.235

230
House of Commons Bill No. 61, Parl. Papers 1933–1934, vol. IV, 251. The Bill did not go
further than the First Reading.
231
Hansard, HL, vol. 90, col. 1057 (1 March 1934).
232
Hansard, HL, vol. 90, col. 1053 (1 March 1934).
233
Lord Birkenhead, The Life of F.E. Smith, First Earl of Birkenhead (London: Eyre &
Spottiswoode, 1960), p. 403.
234
A. Denning, The Changing Law (London: Stevens, 1953), 5; Denning, The Road to
Justice, 13–15.
235
See, inter alia, Lord Brougham, The British Constitution: Its History, Structure and
Working (London: Richard Griffin & Co., 1861); Lord Cranworth LC, 189 Parl. Deb.
4th Ser., 1213 (9 August 1867); Lord Kilmuir LC, ‘Individual Freedom under an
Unwritten Constitution’ (1959) 45 Virginia Law Review 629, 642; Lord Scarman, ‘The
English Judge’ (1967) 30 MLR 1, 3; Hallam, Constitutional History, vol. II, 357–8;
Maitland, Constitutional History, 313; Dicey, Law of the Constitution, 10th edn (London:
Macmillan, 1959), 132.

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320 immunity, discipline and removal of judges

Introducing the bill for increasing judicial salaries in 1954, Sir Winston
Churchill supported the same proposition, joined a few months later by
Lord Salisbury.236 Sir Winston Churchill and Lord Salisbury only
declared an established constitutional practice. In 1891, in an answer to
a parliamentary question on a mentally ill judge who still sat on the
bench, Mr W.H. Smith, Leader of the House and First Lord of the
Treasury, speaking for the government, said:
It is the policy of the Government, of Parliament and I might also say the
Constitution, to respect the absolute independence of the Judicial Bench.
The Government has no authority whatever over a judge of the land . . . if
[the Hon. Member] has reason to believe that there is a failure of justice it
is in his power . . . to move an address to the Crown for the removal of the
judge in question. That is the only course open to any honourable
Member whether he be a Member of the Government or Parliament.237

So far as our research could reveal, no reference has been made in

Parliament since 1830 to scire facias as a mechanism of removal. On
the other hand, at the same period one can find statements to the effect
that judges can only be removed by an address.238
The Act of Settlement has never been directly considered by the
courts,239 but statements made by judges in several decisions tend to
support the generally accepted view that an address of both Houses of
Parliament is the exclusive method of removal of judges.240

A Constitutional Convention
7.32 It has been shown that the Act, properly construed, did not exclude
removal by scire facias but that, in practice, address has been firmly
regarded for almost two centuries as the exclusive mechanism of

236
Hansard, HC, vol. 525, col. 1061 (23 March 1954); Hansard, HL, vol. 188, col. 1018 (6
April 1954).
237
351 Parl. Deb., 3rd Ser., 487 (9 March 1891).
238
See e.g., (1842) 60 Parl. Deb., 3rd Ser., 267 [Lord Russell]; (1856) 140 Parl. Deb., 3rd Ser.,
760 [Sir John Shelly] and 782 [Sir George Grey, Home Secretary]; (1867) 189 Parl. Deb.,
4th Ser., 1214 [Lord Clanricarde].
239
Lord Birkenhead LC refused to offer any conclusion upon the construction of the Act of
Settlement, see McCawley v. R [1920] AC 691, 713 (PC). That case was an appeal from
McCawley v. R (1918) 26 CLR 9 where Isaacs and Rich JJ (in the Australian Supreme
Court) suggested that the address was added to the common law methods of removing
judges, McCawley v. R (1918) 26 CLR 9, 58–9.
240
Terrell v. Secretary of State for the Colonies [1953] 2 QB 482, 493 [Lord Goddard CJ]; Ex
parte Ramshay (1852) 18 QB 174, 192 [Lord Campbell]; Anderson v. Gorrie [1895] 1 QB
668, 670 [Lord Esher MR].

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iv. parliamentary removal mechanisms 321

removal. The legal construction of the Act and the accepted practice can,
however, be reconciled. On the true construction of the Act of Settle-
ment, it did not exclude judicial removal, but subsequently a consti-
tutional practice has been established that senior courts judges can only
be removed by an address of Parliament.241
The statements cited to the effect that the address is exclusive,
although made in reference to the Act of Settlement, were not made in
the context of discussion of the legal construction of the Act. They were
not necessarily part of a focused discussion on whether the Act excluded
other mechanisms of removal. For these reasons they have a limited
value, if any, in the construction of the Act of Settlement. They consti-
tute, however, a most significant illustration of the constitutional practice
governing the matter. Such constitutional practice supports the wider
constitutional principle of judicial independence, itself first pronounced
through statute before being supplemented, fortified and slightly modi-
fied by ‘the accumulated tradition of the country’.242 That the independ-
ence of the judges depends not only upon statutes but also upon ‘the
accumulated tradition of the country’ hardly needs to be demonstrated.
As Lord Sankey put it, ‘the independence and prestige which our judges
have enjoyed in their position have rested far more upon the great
tradition and long usage with which they have always been surrounded,
than upon any statute’.243
Without attempting to offer a final judgment on the matter, it is
submitted that this constitutional practice arguably constitutes a consti-
tutional convention. It is not proposed here to go into a lengthy discus-
sion on how and when a constitutional convention becomes established,
but some arguments are tentatively offered. First, the wording of the

241
In the course of our discussion, statements made in Parliament have been quoted in
support of the view that the Act did not exclude scire facias. It is accepted since 1993 that
the courts may refer to reports of proceedings in Parliament in order to discover
parliamentary intentions in cases of ambiguity or obscurity in a statute or, where giving
words their literal meaning would lead to absurdity, see Pepper (Inspector of Taxes) v.
Hart [1992] 1 All ER 42, 64, 67–9 [Lord Browne-Wilkinson]. Any statement on the Bill
for the Act in question, as set out in the official report or record of debates, may be
referred to when it is clear, was made by or on behalf of the minister or other person who
was the promoter of the Bill, and discloses the legislative intention underlying its words;
importantly, the court may also have regard to such other material (if any) of the
legislature as is relevant for understanding that statement and its effect, see Halsbury’s
Laws of England, 5th edn (2012), vol. 96, pp. 1121–2.
242
Lord Cecil, Hansard, HL, vol. 95, cols. 124 and 127 (28 November 1934).
243
Lord Sankey, Hansard, HL, vol. 90, col. 124 (23 November 1933).

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322 immunity, discipline and removal of judges

statements of ministers, Lord Chancellors and judges, Lords and

Members of Parliament, to the effect that judges are only removable by
an address, clearly suggests that they all regarded the exclusive power of
removal by Parliament as a constitutional principle binding upon them.
Indeed, those principles have sometimes been alluded to as ‘conventions’.
Thus, during the debates on judicial salaries in the 1930s, Lord Cecil
submitted that the principle that judges can only be removed by an
address, and other principles securing judicial independence, were ‘con-
stitutional principles of the utmost importance’ which ought not to be
infringed in order to preserve the separation of powers between the
executive and the judiciary.244 The rules regarding the procedure and
standard for removal have also not been regarded as mere internal rules
of parliamentary procedure but as constitutional principles, emanating
from the fundamental principle of judicial independence.
Thus, discussing the grounds for an address, Mr Denman (later Lord
Chief Justice) said that it ‘had now become a constitutional principle that
no judge should be removed from his situation unless a clear charge of
malversation could be made out against him’,245 and Lord John Russell
stated that ‘it was a principle of the constitution that judges should only
be removable for partial and improper conduct’.246 In another case Prime
Minister Ramsay MacDonald said: ‘However unfortunate the words have
been, they clearly do not constitute the kind of fault amounting to a
moral delinquency which constitutionally justifies an address.’247
As to the procedure to be followed upon a motion for an address, Sir
Charles Wetherell said: ‘As a constitutional question, the [address] for
the removal of a judge from his office, ought to be founded on evidence
taken at [the] bar.’248 The Solicitor General in another case thought it
was ‘unconstitutional to condemn a judge of rank and character without
giving him an opportunity of being heard’.249 Mr MacNeil argued in the
case of Mr Justice Grantham that ‘it had been held to be in accordance
with constitutional practice that such procedure [for address] should not
be instituted unless the prima facie case against the judge was so strong as

244
Lord Cecil, Hansard, HL, vol. 90, cols. 73, 84–5 (23 November 1933); Lord Rankeillour,
Hansard, HL, vol. 90, col. 101 (23 November 1933).
245
Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser., 965.
246
Kenrik’s Case 14 Parl. Deb., 3rd Ser., 366–7 (1826).
247
Upon the complaint of Mr Justice McCardie’s behaviour in General O’Dwyer’s Case, see
Hansard, HC, vol. 175, col. 7 (23 June 1924).
248
Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser., 965, 978.
249
O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360, 1006.

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iv. parliamentary removal mechanisms 323

to justify an address’ and in the same case the Attorney General thought
the prima facie case ‘was the first constitutional step’ for proceedings for
an address.250
In the light of this, it is suggested that some basic principles governing
the procedure and grounds for an address have arguably become consti-
tutional conventions: ‘A long series of precedents all pointing in the same
direction is very good evidence of a convention.’251 This would apply to
the procedural safeguards of hearing, notice, distinct charges, prima facie
case and to the grounds for removal such as the requirement of a moral
element in the misconduct, insufficiency or error of judgment or of
matter of court practice. These principles have been referred to as
binding upon Parliament and with full approval in every case which
was discussed in Parliament. Whether the principles by which Parlia-
ment has considered itself bound amount to constitutional conventions
or whether they are only part of the ‘law and custom of Parliament’,252 it
is safe to say that although there are no statutory limits on Parliament’s
power, as a matter of long-established practice, the judges are adequately
protected from arbitrary action both as to the procedure and the grounds
for removal by address. Thus Professor de Smith wrote in 1971 that ‘in
practice no Judge is likely to be removed except upon a parliamentary
address based on the judge’s misbehaviour’.253

Is the address mandatory upon the Crown?

7.33 At the present time there is little doubt that the address for removal
is mandatory upon the Crown. As Professor Hood Phillips254 said, ‘the
Queen would be bound by convention to act on an address from both
Houses’. However, it is not clear whether at the time of the passing of the
Act of Settlement and subsequently in the eighteenth and nineteenth

250
Grantham’s Case (1906) 160 Parl. Deb., 4th Ser., 370 and 393; Kelly’s Case (1867) 185
Parl. Deb., 368 (Lord St Leonards).
251
Hood Phillips, Constitutional and Administrative Law, 82.
252
G. Marshall, Constitutional Conventions: the Rules and Forms of Political Accountability
(Oxford: Clarendon Press, 1984); I. Jennings, The Law and the Constitution, 5th edn
(London: University of London Press, 1959), ch. III.
253
S.A. de Smith, Constitutional and Administrative Law (Englewood Cliffs, NJ: Prentice
Hall, 1971), 374; Hearn, Government of England, 83.
254
Hood Phillips, Constitutional and Administrative Law, 335; see also E.W. Ridges,
Constitutional Law, 8th edn, ed. G.A. Forrest (London: Stevens and Sons, 1950), 336.
The Crown could not refuse to act upon such an address.

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324 immunity, discipline and removal of judges

centuries the address for removal was mandatory or merely directory

upon the Crown.
It was argued that an address was no more than a form of communi-
cation from Parliament to the King with no mandatory power over him,
and the reference to an address in a statute does not change its nature.255
However, it seems doubtful that in passing the Act of Settlement estab-
lishing a new mechanism for removal in which the Crown takes the final
step, Parliament intended to leave it to the King to decide whether the
judge would be removed, after both Houses had found him unfit to
remain in office. The only (non-English) case in which a motion for an
address was passed seems to support this view. Not only did the King act
upon the address, but even beforehand it was taken for granted that the
King would do so. The only question debated was whether the King
himself or his ministers would sign the removal.256 Indeed, in no case has
anyone expressed doubt as to whether the King would act upon the
address if passed. Lord Brougham wrote in the middle of the nineteenth
century that judges were removable by ‘joint address of the two Houses
of Parliament, to which the sovereign must assent’.257

Constitutional constraints
7.34 According to our suggested construction of the Act of Settlement,
judges hold office during good behaviour and cannot be removed by the
Crown unless they break that condition, but Parliament itself enjoys an
unqualified power of removal. Parliament could remove a judge from the
bench for any other reason which might induce both Houses of Parlia-
ment to pass the necessary address to the sovereign.258 Nor does the Act
of Settlement, nor the statutes replacing it, provide for any procedure to
be followed by Parliament in passing an address. Parliament is thus
neither required to follow certain procedures nor to apply any standards

255
This is in essence the argument advanced by McIlwain, ‘Tenure of English Judges’, 226;
see also Berger, ‘Impeachment for “High Crimes and Misdemeanors”’, 1500–1.
256
Sir Jonah Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser., 1075, 1088.
257
Lord Brougham, The British Constitution, 357 (emphasis added); but see Hearn, Gov-
ernment of England, 84: ‘the Crown is not bound to act upon that address’; contra
Bagehot: ‘the sovereign . . . has three rights . . . the right to be consulted, the right to
encourage, the right to warn’, The English Constitution (London: C.A. Watts, 1964), part
III. The right to refuse seems deliberately to have been excluded.
258
E.S.C Wade and G. Phillips, Constitutional Law. An Outline of the Law and Practice of
the Constitution Including Central and Local Government and the Constitutional Rela-
tions of the British Commonwealth and Empire, 4th edn, ed E.C.S. Wade (London:
Longmans, Green and Co, 1950), p. 663.

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iv. parliamentary removal mechanisms 325

in determining whether the alleged misconduct justifies removal from

office. In practice, however, the procedure for removal by an address was
applied in such a manner as to safeguard the independence of the judges
and to protect them from unjustifiable public indignity and procedural
injustice. From the voluminous debates on motions for an address, the
clear principle has emerged that it is incumbent upon Parliament to
protect the independence of the judiciary, and this principle sets
adequate constraints on the procedures and standards of misbehaviour
required in practice for an address of Parliament. Thus the constitutional
history and the culture of judicial independence distinctively restrict this
unqualified power of removal from Parliament.
A few instructive illustrations will suffice. In Lord Ellenborough’s Case,
the Solicitor General said:
The House on the one hand should watch with jealousy over the conduct
of the judges, so on the other it should protect them while deserving
protection not only as a debt of justice to the judges but as a debt due to
justice herself, in order that the public confidence in the purity of the
administration of our laws [would not be impaired].259

In Lord Abinger’s Case, Lord John Russell stated: ‘Independence of judges

is so sacred that nothing but the most imperious necessity should induce
the House to adopt a course that might weaken their standing or endan-
ger their authority.’260 This view can be found beyond debates on
motions for an address, in almost every debate on the administration
of justice or on judicial salaries until the twenty-first century. One oft-
quoted statement of Sir Winston Churchill illustrates the degree of
commitment of the English system to the principle of independence of
the judiciary:
The complete independence of the Judiciary . . . is the foundation of many
things in our island life . . . It is perhaps one of the deepest gulfs between
us and all forms totalitarian rule . . . The British Judiciary with its trad-
ition and record is one of the greatest living assets of our race and people
and the independence of the Judiciary is part of our message to the ever-
growing world which is rising so swiftly around us.261

259
34 Parl. Deb., 1st Ser., 110 (1816).
260
(1843) 66 Parl. Deb., 3rd Ser., 1124, 1129 [Sir James Graham]; Baron Smith’s Case (1834)
21 Parl. Deb., 3rd Ser., 272, 322 [Mr Hakombe]; Grantham’s Case (1906) 160 Parl. Deb.,
4th Ser., 370, 379 [Mr Buckmaster], 408 [Mr Balfour].
261
Hansard, HC, vol. 525, col. 1061 (23 March 1951).

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326 immunity, discipline and removal of judges

Parliament’s duty to protect the judges from public indignity, procedural

injustice and unjustifiable charges has translated into an elaborate body
of rules and principles set in the course of determining cases of judicial
misbehaviour brought before Parliament. The proceedings in Parliament
upon a motion for an address have been deemed judicial, and procedural
safeguards to protect the accused judge have been firmly established. The
series of historical precedents in Parliament setting the procedure and
grounds for an address will be now examined.

C. The process of the address

7.35 This section investigates the process of the address for removal and
some of the issues connected with this procedure.262 The discussion will
be followed by a survey of the cases in which the mechanism of removal
by address has operated.

Initiating the proceedings

7.36 Although proceedings for an address for removal may originate
in either House of Parliament, proceedings have always originated in
the House of Commons except for a few cases, in particular Fox’s Case.263
In that case, proceedings for an address for removal originated in
the House of Lords but were subsequently abandoned upon a resolution
that the House of Lords could not institute proceedings against a
judge before the House of Commons had looked into the matter. Such
discussion would be prejudgment of the case, should it subsequently
come before the Lords on proceedings for impeachment. The resolution,
however, was passed over the protest of the strong minority opinion of
Lord Eldon and others, which weakened the authoritative value of the

262
The cases of Mr Justice Fox, Lord Chief Justice Ellenborough, Baron Smith, and Sir
Jonah Barrington were relied upon in Abinger’s Case; there the Attorney General
distinguished Abinger’s Case from Smith’s Case, see Abinger’s Case (1843) 66 Parl.
Deb., 3rd Ser., 1129, 1071–3. In Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser., 965,
967, O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360 was distinguished and relied upon
for other grounds. In Grantham’s Case, the cases of Smith, Lord Abinger and Torrens
were referred to, see Grantham’s Case (1906) 160 Parl. Deb., 4th Ser., 393–4. Parlia-
ment’s adherence to precedent is also shown by case of impeachment: committees were
appointed ‘to look into precedents relating to questions arising in the course of the
debate’, see Hatsell, Precedents, vol. IV, 149.
263
(1806) 7 Parl. Deb., 751; Grantham’s Case (1906), 160 Parl. Deb., 4th Ser., 370 [Mr
MacNeill]; Todd, Parliamentary Government, vol. II, 730, 741.

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iv. parliamentary removal mechanisms 327

case.264 An examination of the cases further shows that the case of

Fox did not stand in the way of motions and petitions presented to the
House of Lords charging a judge with misconduct.265 The better view
therefore is that although proceedings may originate in either House of
Parliament, ‘preferably they should be commenced in the House of
Commons’.266
Proceedings for an address for removal may be initiated by a motion
for inquiry into the conduct of a judge. The motion may be based on the
petition of an aggrieved individual, on a report of a commission imputing
misconduct to a judge, or on an investigation conducted by the MP who
moves that proceedings be initiated against the judge.267 Parliament may
then pass a resolution for an address to the Crown praying that a
commission of inquiry shall investigate the administration of a certain
court presided over by a particular judge,268 thereby, in fact, ordering the
government to make an appropriate investigation into the conduct of the
judge which will eventually serve as a basis for debate in Parliament.

Referring the matter for inquiry

7.37 A motion for an inquiry into the conduct of a judge would be made
upon previous notice,269 to allow the accused to meet the charges by
communicating his defence to other MPs. In the period between the notice
and the debate on the motion the government and other Members would
conduct some inquiries and would form their view upon the matter.270

264
Fox’s Case (1806) 7 Parl. Deb., 751, 758–9; 788–9; accord Halsbury’s Laws of England,
4th edn (1974), vol. 8, 681 n. 5.
265
Kelly’s Case (1867) 185 Parl. Deb., 3rd Ser., 257; Ellenborough’s Case (1813), 25 Parl.
Deb. 1st Ser., 207.
266
Halsbury’s Laws of England (4th edn, reissue LexisNexis, 1996), vol. VIII (II), para. 905.
267
For motions based on a petition, see Fox’s Case (1805) 45 Lords Journal 181, 203, 204;
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138; Kenrick’s Case II (1826)14 Parl. Deb.,
2nd Ser., 362, 500; Kelly’s Case (1867) 185 Parl. Deb., 3rd Ser., 260, 268–9; Best’s Case
(1821) 4 Parl. Deb., New Ser., 918; for motions based on a commission’s report, see
O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360; Barrington’s Case (1830) 24 Parl. Deb.,
484; (1830) 85 Commons Journals 196; for motions based on an MP’s investigation, see,
e.g., McClelland’s Case (1819) 40 Parl. Deb., 1st Ser., 851.
268
See such an address of the House of Commons in the case of Sir Jonah Barrington,
(1828) 2 Mirror of Parliament, 1577.
269
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138, 1140 [Mr Secretary Peel]; Smith’s
Case (1834), 21 Parl. Deb., 3rd Ser., 272, 333.
270
See Gurney’s Case (1843) 69 Parl. Deb., 3rd Ser., 189, 196–9, 202; Kelly’s Case (1867) 185
Parl. Deb., 3rd Ser., 260, 270.

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328 immunity, discipline and removal of judges

After due notice has been given, the Member at a later date would state the
alleged misconduct. Sometimes the complaint would be incorporated into
articles of charge.271 Upon presenting the charges, the Member would
move for referring the matter to a Select Committee or to a Committee
of the whole House, for further inquiry.
Before the matter could be referred for further inquiry, the charges
would have had to be specific and distinct,272 with specific and reliable
evidence in support.273 Charges which were presented against an indi-
vidual judge, but tended to impute improper conduct to other members
of the court, not party to the proceedings, would have been dismissed at
the outset.274 It has been an established ‘constitutional practice that such
procedure [for an address] should not be instituted unless the prima facie
case against a judge was so strong as to justify an address’.275
If the charges were duly introduced and the procedural requirements
met, other considerations were still to be examined. First, only such
misconduct as would warrant an address for removal should be referred
for further inquiry.276 As Sir Robert Peel suggested, before referring the
matter for inquiry, they should ask themselves ‘was the accusation a
grave one? Did it affect the impartiality, the integrity, or the moral
character of the judge?’277 In order to answer these questions, they would
have had to form their judgment as to the standards of conduct required
from a judge under the circumstances and the standards of judicial
misbehaviour which justify an address for removal. At this point the fate
of the proceedings would have been decided.
In principle, therefore, unless the prima facie case against the judge is
strong and unless the charges, if proved, would justify an address for his
removal, Parliament will not interfere. Given this principle, it seems that
Parliament does not exercise any disciplinary function over judges short
of removal by an address, and that it cannot pursue a course with the

271
McClelland’s Case (1819) 40 Parl. Deb., 1st Ser., 851. But such procedure has been so
long out of use that it is doubtful whether it is still available, Hansard, HC, vol. 865, col.
42 (10 December 1973) [the Speaker].
272
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138, 1248; Abinger’s Case, 66 Parl. Deb.
3rd Ser., 1130, 1140; Smith’s Case (1834) 21 Parl. Deb. 3rd Ser., 272, 327.
273
Abinger’s Case (1843) 66 Parl. Deb. 3rd Ser. 1129–30; Smith’s Case (1834) 21 Parl. Deb.
3rd Ser. 272, 311.
274
Ellenborough’s Case (1816), 33 Parl. Deb., 1st Ser., 709.
275
Grantham’s Case (1906) 160 Parl. Deb., 4th Ser., 370; Abinger’s Case (1843) 66 Parl.
Deb., 3rd Ser., 1043.
276
Smith’s Case (1834) 21 Parl. Deb. 3rd Ser., 272, 706, 741, 745 [Sir Robert Peel].
277
Ibid., 741.

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iv. parliamentary removal mechanisms 329

final aim not of an address for removal but of censure, criticism or

condemnation of judicial conduct. This view has been expressed many
times in Parliament. In the case of Smith, it was suggested that Parlia-
ment had no right to institute an inquiry into the conduct of a judge ‘with
any other view than to address the Crown for his removal’. Otherwise,
‘the independence of the judicial bench was a mockery and [the Act of
Settlement] was no better than waste paper’.278
Gladstone when prime minister advanced the same view in the course
of the debates on a vote of censure of the government for engineering the
appointment of Sir Robert Collier to the Judicial Committee of the Privy
Council. Gladstone argued that if such a vote of censure were passed, it
would affect the judge, contrary to established principles:
At present you are strictly restrained from interference except in one most
solemn and formal manner. You are not to tamper with the question
whether the judges are on this or that particular assailable. You are not to
inflict upon them a minor punishment. You have never thought it wise to
give opinions in criticism or in reprobation of their conduct when they
have casually gone astray. [If] the act [of a judge] was not an act with
respect to which it would be right to ask Parliament to address the Crown
for his removal, it was not an act of which hostile notice should be taken
at all. Are you prepared to [break] that fence [which] prevents you from
intermeddling with the character of the judges by means of votes, which . . .
dare not aim at their removal, but which, at the same time, have a certain
credit and authority?279

In more recent times, in the case of Grantham, the Attorney General

(Sir John Walton) strongly opposed any disciplinary measures short of
an address for removal, arguing that ‘Such a course would leave the
learned judge in the occupation of his eminent position, but discredited
and disgraced in his administration of justice by the censure of the House
of Commons’.280 The same view was again advanced in 1959, when a
motion was tabled in the House of Commons criticising the conduct of
Mr Justice Stable in a case. Shortly thereafter an amendment to that
motion was tabled. It read: ‘That this House is of the opinion that unless

278
(1834) 21 Parl. Deb., 3rd Ser., 713; (1834) 1 Mirror of Parliament 304. This view was
affirmed by Mr Napier in 1856. Opposing parliamentary discussion of the state of the
judicial bench in Ireland, he said that the ‘House could not constitutionally interfere in a
matter of that importance, unless it was prepared to follow up its interference by an
Address to the Crown’ (1856) 140 Parl. Deb., 3rd Ser., 772; see to the same effect Lord
Chancellor Chelmsford (1866) 182 Parl. Deb., 3rd Ser., 1637.
279 280
(1872) 209 Parl. Deb., 3rd Ser., 757. (1906) 160 Parl. Deb., 4th Ser., 392, 395.

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330 immunity, discipline and removal of judges

the motion explicitly asks for the removal from office of the person
concerned, assessment and correction of errors committed by judges in
the course of judicial proceedings is better left to courts of appeal.’281
7.38 In practice, however, judicial misconduct was referred to a Select
Committee for further inquiry, and subsequently the matter was
dropped on the ground that the alleged misconduct did not justify an
address for removal.282 The further inquiry normally resulted in the
revelation of new relevant facts and considerations which tipped the
scales in favour of the judge and led the House to abandon the proceed-
ings against him.
Second, the harm that such an inquiry might bring to the accused
judge would have played a part in the decision if the nature of the case
was such that subsequent non-parliamentary proceedings were pos-
sible.283 Moreover, there is a real danger of harm in such an inquiry
because of the rule that a witness testifying before the Select Committee
which inquires into the conduct of a judge, ‘is bound to answer all
questions which the committee see fit to put to him, and cannot excuse
himself, for example on the ground that it will incriminate him or that
it would prejudice him as defendant in litigation’.284
An inquiry into the conduct of a judge, no matter how it terminates, is of
itself a form of punishment, and this will also be carefully considered by
Parliament in deciding whether or not to refer the matter for inquiry.285

Course of proceedings
7.39 If the House decided to refer the case for further inquiry, it may have
referred it to a Select Committee or to a Committee of the whole House.286

281
The Times, 27 November 1959.
282
Thus the practice runs counter to the view that Parliament cannot exercise any checking
measure short of removal by address.
283
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138, 1409 [Mr Secretary Peel]. The judge
has absolute immunity in the exercise of his judicial functions, so subsequent proceed-
ings outside Parliament may be feasible only when the misconduct outside his judicial
functions gives rise to civil action or criminal prosecution against the judge.
284
Erskine May, Parliamentary Practice, 8th edn (1879), 702. See, however, R. Gordon QC
and Amy Street, ‘Select Committees and Coercive Powers – Clarity or Confusion?’
(London: Constitution Society, 2012).
285
Smith’s Case (1834) 21 Parl. Deb., 3rd Ser., 272, 311.
286
For a Select Committee, see O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360; Smith’s
Case (1834) 21 Parl. Deb. 3rd Ser., 272; Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser.,
965; for a Committee of the whole House, see Kenrick’s Case (1825) 13 Parl. Deb., 2nd
Ser., 1138; Kenrick’s Case II (1826) 14 Parl. Deb., 2nd Ser., 363.

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iv. parliamentary removal mechanisms 331

The Select Committee would investigate the alleged misconduct, gather

evidence and hear witnesses, including the accused judge. Upon com-
pleting its work, the committee would have reported its recommendation
and this is discussed in the House, sitting as a Committee of the whole
House. Alternatively, the House may have referred the matter directly to
a Committee of the whole House. The Committee of the whole House
was confined to the taking of evidence which may be reported without
any declaration of opinion, this being reserved to the House. Otherwise,
and this was the course followed in most cases, the Committee of the
whole House heard evidence and arguments and decided what further
steps were to be taken in the matter.287 The Committee of the whole
House consists of all the Members and is in fact the House in less formal
guise, presided over by a chairman instead of by the Speaker, and
conducting its business according to more flexible rules.288
The judge is given due notice of the intended proceedings. When the
charges or petitions are presented, the judge will be provided with a copy
as well as with any orders and resolutions of the House on the matter. He
may appear before the House by counsel, in person, or both, and
introduce evidence in his defence. As a general rule, the whole House
will hear evidence at the Bar notwithstanding that the Select Committee
had previously heard the same evidence.289 However, when the charges
mainly depend on documentary evidence, or when the party has been
given sufficient opportunity to be heard before committees inquiring into
his conduct, but deliberately failed to appear, this may result in a denial
of an application for hearing evidence at the Bar of the House. Upon
these grounds, Sir Jonah Barrington was denied a hearing on the merits
at the Bar of the House, although his counsel was allowed to address the
House. The resolutions arrived at in the Committee of the whole House
are reported to the House, where they are debated. If a resolution calling
for an address for removal is reported by the committee and agreed upon
in the House, a committee to draft the address will be appointed. The
draft of the committee will be considered by the House of Commons, and
upon its approval it will be carried to the Lords.
The whole process is repeated again in the House of Lords, including
setting up a Committee, hearing evidence at the Bar, debates and deliber-
ation. If the Lords come to the same decision to present an address for

287
Kenrick’s Case II (1826) 14 Parl. Deb., 2nd Ser., 500–2.
288
Erskine May, Parliamentary Practice, 8th edn (1879), 628, 701.
289
Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser., 965, 977, 978.

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332 immunity, discipline and removal of judges

removal, they insert their title in the blank left for them by the Commons
in the address. After the Lords return a message, acquainting the House
of Commons with their concurrence and that the blank has been filled,
the address is presented to Her Majesty. The complete process has been
carried to its ultimate conclusion only once in the United Kingdom, in
the case of Sir Jonah Barrington, a judge of the High Court of Admiralty
in Ireland.290

Procedural safeguards
7.40 There are no clear statutory provisions regulating the procedure for
an address for removal. Doubts might therefore be entertained as to the
nature of the proceedings in Parliament upon a motion for an inquiry
into conduct of a judge with a view to passing an address for removal. On
the whole, however, in spite of divisions between MPs on procedural
questions, it is clear that the proceedings have been deemed judicial in
nature and procedural safeguards protecting the accused judge, as well as
public confidence in the courts, have been followed. It is settled that the
charges presented to the House against a judge should be in writing.291
The judge should be duly advised of the intended proceedings against
him and copies of the petitions or the charges, as the case may be, and the
orders of the House relating to the matter should be promptly sent to
him.292 The judge is heard and allowed to cross-examine witnesses and
call witnesses in support of his defence.
The House will not alter the language of charges against a judge at a
late stage of the proceedings, since this is deemed to be a denial of due
notice and a denial of the opportunity to meet the charge.293 Delay in the
proceedings against a judge in Parliament is avoided.294 Speedy proceed-
ings secure that the charges will not hang too long over the judge’s head.
For the same reasons and for ensuring that the defence will be heard soon
after the charges are brought, the proceedings against the judge should be
initiated early at the beginning of Parliament’s session.295 The concern of
the House to protect judges from public indignity resulting from false

290
Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser., 965.
291
Baron Page’s Case (1722) 7 Parl. Hist., 962; Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser.,
1138, 1149 [Mr Secretary Peel].
292
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138.
293
Barrington’s Case (1830) 24 Parl. Deb. 2nd Ser., 965, 978.
294
O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360, 981.
295
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138, 1410; O’Grady’s Case (1823) 9 Parl.
Deb., 2nd Ser., 360, 978 [Mr Scarlett].

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iv. parliamentary removal mechanisms 333

charges is illustrated in the order issued by the Commons that the

charges against Lord Ellenborough CJ be erased from the Journals of
the House.296 So anxious has Parliament been to protect the judiciary
from unnecessary exposure to public indignity that it has been willing to
qualify the constitutional right of aggrieved individuals to lay their
grievances before Parliament. Parliament twice refused to entertain peti-
tions against judges: Earl Russell and Mr Denman, who brought up the
petitions believing that ‘if a petition is couched in respectful terms to the
House, no Member ought to refuse to present it’, were criticised in the
House of Lords and House of Commons respectively for failing to
exercise their discretion and to decline to present the petition.297
That the proceedings for an address have been deemed judicial also
appears from the frequent reference by Members to proceedings for
impeachment in support of their views of the proper procedural course
which should be followed by the House upon a motion for an address for
removal.298

The role of government

7.41 It is an established principle that the ‘Government ought not to
support a motion [for an inquiry into the conduct of a judge], without
having themselves instituted some preliminary investigations, and been
prepared to say, that there was a fit occasion for following it up by an
address to the Crown’.299 This principle derived from the government’s
responsibility for the ‘due administration of justice throughout the King-
dom’ and from the ‘obligation which they owe to the dispensers of justice
to preserve them from injurious attack or calumnious accusations’.300 In
practice, the government has conducted independent inquiries into the
allegations before forming their view on the matter. The judges have been
approached, normally by the Lord Chancellor, and given an opportunity
to refute the charges.

296
(1816) 34 Parl. Deb., 1st Ser., 131; Kelly’s Case 1867) 185 Parl. Deb. 3rd Ser., 268.
297
Kelly’s Case (1867) 185 Parl. Deb. 3rd Ser., 268; Mr Justice Best’s Case (1821) 4 Parl. Deb.,
New Ser., 918.
298
Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser., 965, 970; the mode of proceedings by
address was essentially the same as proceedings by impeachment. See also Smith’s Case
(1834) 21 Parl. Deb., 3rd Ser., 272, 324; O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360,
361.
299
Sir James Scarlett (later Lord Abinger); Smith’s Case (1834) 21 Parl. Deb., 3rd Ser., 518,
quoted with approval in Abinger’s Case (1843) 66 Parl. Deb., 3rd Ser., 1102.
300
Todd, Parliamentary Government, vol. II, 742.

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334 immunity, discipline and removal of judges

In spite of expressions to the contrary, the general view was that the
government ought not to institute proceedings in Parliament against
judges; this should be done by ordinary members of the House.301
Underlying this view is the desire to prevent unnecessary interference
by the executive with the independence of the judiciary. Also, if the
government takes up the case, it might be treated in Parliament as a
party question, creating irrelevant considerations and partisanship rather
than impartiality. However, in cases where misconduct of a judge justi-
fied the institution of proceedings in Parliament against him and no
private Member undertakes to initiate such proceedings, it clearly
appeared that it would be the duty of the government to initiate such
proceedings. As Mr Denman, later Lord Chief Justice, put it:
Suppose it should prove a case of an officer of high judicial rank acting in
a manner utterly derogatory from his station and dignity, were they to be
told that government would not then take some step in the business, and
that it must drop, unless some private member undertook the ulterior
course, of moving for parliamentary impeachment?302

One may infer from the case of Mr Justice Grantham that sometimes the
government will be expected to take the initiative.303 In that case, the
Prime Minister (Mr Asquith) stated that, as the conduct of the judge was
universally condemned, the government ‘does not propose to invite
Parliament on this occasion to take the extreme step of addressing the
Crown for the removal of the judge’.
In practice, whatever position the government takes in the proceedings
for an address, and whether they are instituted by the government or by a
private Member, it is very likely to have an important effect on the final
result.304 Considering also the government’s control over the majority in
Parliament, it is not surprising that, except in one case, the final result in
all cases was that supported by the government.
In some cases the government and the prime minister were visibly
involved. In the case of Barrington,305 the government initiated the
proceedings and actively supported an address for removal in both

301
O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360, 362, 364. For views to the contrary, see
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138, 1139 and 1148; O’Grady’s Case
(1823) 9 Parl. Deb., 2nd Ser., 360.
302
O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 363.
303
22 HC Deb. 366 (1 March 1911).
304
O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360, 362 [Mr Abercromby].
305
Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser., 965.

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iv. parliamentary removal mechanisms 335

Houses. Indeed, the Attorney General and the Solicitor General con-
ducted the case against Sir Jonah Barrington in the House of Lords, after
a resolution for an address for his removal had been passed by the House
of Commons. Conversely, except for the case of Smith,306 the govern-
ment opposed the inquiry or the passing of an address for removal in all
other cases and in all those cases the attempt to remove the judge failed.
In the case of Smith, the ministers first objected to the inquiry but later
changed their minds. This move was strongly criticised, and probably
had an adverse effect on their stand, for no more than eight days after the
matter had been referred to a Select Committee the order was discharged
and proceedings against the judge were abandoned, although supported
by the ministers.307
Not only did the government have considerable control over the final
outcome of the proceedings, but through its far-reaching control over
parliamentary time it could prevent debates on motions for inquiries into
judicial misconduct by refusing requests for time for the discussion of
such motions. Thus in 1924 the prime minister (Ramsay MacDonald)
refused a request for time for discussing a motion for an inquiry into
Mr Justice McCardie’s conduct in the General O’Dwyer case with a
view to passing an address for his removal.308 Whether time would be
granted for discussion of motions for an address for removal mainly
depended on the number of MPs who would support the motion after it
was put down on the Order Paper. Thus in the case of Grantham, the
prime minister (Sir H. Campbell-Bannerman), having been criticised for
granting time for discussing the judge’s misconduct, replied: ‘The Right
Hon. Gentleman attached some blame to me for having given a day for
the discussion of this question. I think he forgets the memorial that was
presented to me signed by 347 members of this House asking for an
opportunity.’

Effect of dissolution, prorogation and pardon

7.42 Unlike proceedings for impeachment, dissolution or prorogation of
Parliament terminates the proceedings on a motion for an address for
removal. This appears from the case of Fox309 where a special statute was
passed by Parliament ‘to continue the proceedings in the House of Lords

306
Smith’s Case (1834) 21 Parl. Deb., 3rd Ser., 272.
307
Smith’s Case (1834) 21 Parl. Deb., 3rd Ser., 272, 337, 752.
308
Hansard, HC, vol. 175, cols. 6–7 (23 June 1924).
309
(1805) 45 Lords Journal 181, 359, 366, 370.

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336 immunity, discipline and removal of judges

touching the conduct of Luke Fox . . . notwithstanding any prorogation

or dissolution of Parliament’.310
The effect that a pardon may have upon proceedings for an address
raises more difficult questions. It would seem that proceedings for an
address cannot be deemed criminal, for the most extreme measure which
may follow is an address for removal of the judge. On this view, a pardon
has no application. Even though the judge cannot be prosecuted in the
ordinary criminal courts for the offence pardoned, Parliament is free to
pass an address for his removal on account of that offence.
However, it may be suggested that the nature of the proceedings for an
address is such that it would be affected by a pardon. Certain expressions
uttered in the course of debates on motions for an address,311 and the
frequent references to impeachment in those debates, lend some support
to such suggestion. The question then is whether the rule that a pardon is
not pleadable against impeachment is also applicable to proceedings for
an address. It may be said that unless a statute or precedent ruled to the
contrary, the prerogative of pardon cannot be affected, and while it was
settled in Lord Danby’s Case and later enacted by statute, that pardon is
not pleadable against impeachment proceedings, no rule has been laid
down in Parliament, nor has it been enacted by statute, that pardon may
not be pleaded in proceedings for an address.
Furthermore, from the case of Fox, where a special statute was passed
to continue proceedings for an address for removal notwithstanding
dissolution or prorogation, it seems that the analogy existing between
address and impeachment is not sufficient to apply to an address the
same rules as those applicable to impeachment. Nevertheless, the report
of the Committee of the House of Commons which investigated Lord
Danby’s pardon lends support to the view that a pardon may not be
pleaded against proceedings for an address.312
Whether or not in law a pardon is pleadable against proceedings for an
address, it is extremely unlikely that the Home Secretary, who is now

310
45 Geo. III. c.117.
311
In Fox’s Case (1806) 7 Parl. Deb., 755–66, the following expressions were employed to
refer to proceedings for an address: ‘complaint of criminal matter’, ‘criminal complaint’,
‘criminal jurisdiction’.
312
It can be argued that the rationale behind the invalidation of Lord Danby’s pardon (‘the
setting up a pardon to be a bar of an impeachment, defeats the whole use and effect of
impeachment’) is equally applicable to a pardon in bar of an address for removal, see
The Report of the Committee of the House of Commons), cited in Hatsell, Precedents,
vol. IV, 404.

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iv. parliamentary removal mechanisms 337

responsible for the exercise of the prerogative of pardon, would ever

attempt to exercise that power in such a way as to affect proceedings
against a judge in Parliament or elsewhere.

Judicial review of the removal of judges by an

address of Parliament
7.43 Whatever the true construction of the Act of Settlement may be, it
is suggested that the action of Parliament upon a motion for an address is
unlikely to oust the jurisdiction of the court.313 This reading of section 11
(3) of the Senior Courts Act 1981, which enshrines the power of removal,
may, at first sight, seem unlikely. Parliament has unquestioned authority
over the procedures it employs as legislator: ‘to determine for itself what
the procedures shall be, whether there has been a breach of its procedures
and what then should happen’.314 In practice, the courts exercise ‘a self-
denying ordinance in relation to interfering with the proceedings of
Parliament’.315 The effective working of the constitution, however, relies
upon a long-standing comity between Parliament and the courts such
that each takes care not to intrude on the other’s province, or to under-
mine the other’s authority. Bradley further commented that, notwith-
standing that parliamentary privilege ‘stems from the “lex et consuetudo
parliament” rather than from the common law courts, it is definitely part
of the law’.316 The courts’ recognition of Parliament’s province is not one
way. Parliament has also shown respect for the courts’ province. Matters
pending before the courts are not to be discussed in Parliament; likewise,
it has been firmly established that Parliament will not intervene when the
complaints against a judge concerned matters of court practice and
procedure or when the decision complained of was discussed in the
appellate court.317

313
But removal of a judge by impeachment is not judicially reviewable in the United States,
see Nixon v. US 1993 508 US 927.
314
Joint Committee on Parliamentary Privilege, ‘Parliamentary Privilege – First Report’,
vol. I (HL 43-I / HC 214-I, April 1999), para. 13.
315
This was said in relation to Article IX of the Bill of Rights, see R. v. Parliamentary
Commissioner for Standards, ex parte Al Fayed [1998] 1 WLR 669, 670 [Lord Woolf].
316
A. Bradley, Memorandum on ‘Parliamentary Privilege – The Relationship between
Courts and Parliaments’, in Joint Committee on Parliamentary Privilege, ‘Parliamentary
Privilege – First Report’, vol. II (24 February 1998) (HL 43-II / HC 214-II, April 1999),
para. 8; also citing Holt CJ in Paty’s Case ((1704) 2 Ld. Raym. 1105): ‘The privileges of
the House of Commons are well known, and are founded upon the law of the land, and
are nothing but the law.’
317
See, e.g., Best’s Case (1821) 4 Parl. Deb. New Ser., 918.

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338 immunity, discipline and removal of judges

But section 11(3) Senior Courts Act 1981 may now fall to be inter-
preted by reference to section 3 HRA. Since any judge subject to removal
proceedings would face dismissal, the proceedings would warrant classi-
fication as civil and attract the protection guaranteed by a right to a fair
trial, under Article 6 ECHR.318 If a judge challenged the constitutional
proceedings for removal of a judge before the courts, it is therefore
suggested that, under section 6(1) ECHR, these proceedings would be
amenable to domestic judicial scrutiny. The courts would be required to
read section 11(3) Senior Courts Act 1981 in a way that is compatible
with Article 6 ECHR. Then the rules relating to the finding or hearing of
evidence, and the rules relating to the standard of proof required, would
fall within the remit of the courts.319 However, one might expect that
Parliament itself is likely to adopt procedures which are compliant with
Article 6 ECHR, thus rendering any judicial review proceedings
unnecessary.320
Parliamentary proceedings are certainly not beyond the reach of the
European Court of Human Rights, as illustrated by the case of Demicoli
v. Malta, though this applied to a journalist in criminal proceedings
before Parliament.321 In this case, the Constitutional Court of Malta
deemed it inappropriate to intervene in the House of Representative
proceedings. The editor of a political satirical magazine had been found
guilty of contempt of Parliament, but the two members whose conduct
was criticised by the editor participated throughout the investigatory
proceedings. The European Court held that the editor had the right to
a fair hearing by an independent and impartial tribunal, and that this
right was violated by the participation of these two members of the
Maltese House of Representatives. Since the editor could either be
imprisoned or fined for breach of parliamentary privilege, the proceed-
ings attracted the protection guaranteed by Article 6 ECHR.
There might arise situations in which misbehaviour for which a judge
has been removed will be tried by a court of law. There is no reason to

318
Demicoli v. Malta (1992) 14 EHRR 47; Joint Committee on Parliamentary Privilege,
‘Parliamentary Privilege – First Report’, paras. 29 and 283.
319
Hearn, Government of England, 85; Cf. Nixon v. US (1993) 508 US 927; Justice v. Ramas-
wami (Sub-Committee on Judicial Accountability v. Union of India) (1991) 4 SCC 699.
320
Joint Committee on Parliamentary Privilege, ‘Parliamentary Privilege – First Report’,
para. 29; Demicoli v. Malta (1992) 14 EHRR 47, Joint Committee on Parliamentary
Privilege, ‘Parliamentary Privilege – First Report’ vol. I (HL 43-I / HC 214-I, April 1999),
para. 29.
321
Demicoli v. Malta (1992) 14 EHRR 47.

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iv. parliamentary removal mechanisms 339

doubt that a court of law may try a judge for an act that amounts to a
criminal offence for which he had been removed upon an address.
Likewise, situations might arise in which judicial misbehaviour short of
a criminal offence, and outside the judge’s judicial duties, have been
discussed by Parliament and are then the subject of an action in the
courts. Thus, if a judge in his private capacity attacks a man, in a
circumstance which induced an MP to move for an address, and later
on an action in tort is brought by or against the judge, the court would
have full jurisdiction. In such a situation it is not inconceivable that the
findings of fact will be different. In Kenrick’s Case, Mr Scarlett (later Lord
Abinger CB) urged this situation as a reason for the House not enter-
taining a petition against a judge for misbehaviour in his private capacity.
Mr Scarlett argued that ‘[should the House] find the accusation true, and
the [aggrieved individual] should bring his action; the jury might find a
verdict for the defendant, and thus the decision of the House and of a
court of justice would be in direct opposition’.322 Rejecting this argu-
ment, Mr Denman said: ‘If that argument were valid there would be an
end altogether to parliamentary control; for in almost every case in which
their jurisdiction could be called for, the parties might possibly have legal
remedy elsewhere.’323

D. The mechanism in operation

7.44 The major cases of proceedings taken against judges after the Act of
Settlement with a view to considering an address for their removal from
office may now be surveyed. In most cases it is abundantly clear that the
proceedings were aimed at removal by address. Sometimes, however,
doubts remain whether the motion for inquiry into the conduct of the
judge was to be followed by impeachment, address for removal, or merely
by a general censure of the judge in the ensuing debates.324 This is mainly
due to the similarity in the ways of instituting different forms of proced-
ure in Parliament and in the terminology employed by Members in the
various modes of proceedings against judges. As the cases below illus-
trate, it is firmly established that misconduct involving moral turpitude is
a sufficient ground for removing a judge from office, although the
principle has normally been expressed in negative terms: Parliament will

322 323
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 505. Ibid., 506.
324
See Page’s Case (1722) 7 Parl. Hist. 962; Ellenborough’s Case (1813) and (1816) 34 Parl.
Deb. 1st Ser., 104.

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340 immunity, discipline and removal of judges

not inquire into the conduct of a judge or pass an address for his removal
unless he was charged with misconduct involving moral turpitude. In
almost every case debated in Parliament this principle has been
reaffirmed. What is meant by the phrase ‘conduct involving moral
turpitude’ can be best explained by examining the terms employed to
describe ‘conduct involving moral turpitude’, justifying an inquiry into
the conduct of a judge and an address for his removal from office.
In the majority of cases, the concepts of corruption or corrupt motives
have been used.325 One can also find references to mental and physical
disabilities,326 neglect of duty,327 partiality,328 dishonest motives,329 mis-
conduct in private life,330 perversion of justice331 and other ‘gross mis-
conducts which all persons would admit to deserve serious
reprehension’.332
The first recorded case of proceedings against a judge in Parliament
after the Act of Settlement was the case of Page in 1722.333 Sir Francis
Page, one of the Barons of the Exchequer, was charged with endeavour-
ing to corrupt the borough of Banbury by offering them a bribe to induce
them to choose a certain person as a candidate in a coming election. It
was charged that ‘Mr Baron Page not only offered to the borough to
forgive them six or seven hundred pounds they owed to him for their
new charter but likewise to give them another large sum in ready
money’.334 The suggestion advanced by some Members that the Baron

325
Ellenborough’s Case (1816) 34 Parl. Deb., 1st Ser., 104; McClelland’s Case (1819) 40 Parl.
Deb., 1st Ser., 851; O’Grady’s Case (1823) 9 Parl. Deb., 2nd Ser., 360; Kenrick’s Case (1825)
13 Parl. Deb., 2nd Ser., 1138; Smith’s Case (1834) 21 Parl. Deb., 3rd Ser., 694; Abinger’s
Case (1843) 66 Parl. Deb., 3rd Ser., 1129; Torrens’ Case (1856) 140 Parl. Deb, 3rd Ser.,
1544; Monahan’s Case (1861) 163 Parl. Deb., 3rd Ser., 984. The principles behind the
grounds for removal by address are similar to those applied by the Court of King’s Bench
in considering applications for criminal informations against county court judges and
magistrates for misconduct, see Short and Mellor, Practice on the Crown Side; J. Shortt,
Informations (Criminal and Quo Warranto) Mandamus, and Prohibition (London: W.
Clowes and Sons, 1887), pp. 26–9. The same general principles would seem to apply in
disciplinary proceedings, see above, para. 7.16.
326
Torrens’ Case (1856) 140 Parl. Deb, 3rd Ser., 1544; Fox’s Case (1806) 7 Parl. Deb., 752;
Grantham’s Case (1906) 160 Parl. Deb., 4th Ser., 369.
327
Barrington’s Case (1830) Parl. Deb., 2nd Ser., 484.
328
Smith’s Case (1834) 21 Parl. Deb., 3rd Ser., 694.
329
Abinger’s Case (1843) 66 Parl. Deb., 3rd Ser., 1129.
330
Kenrick’s Case (1825) 13 Parl. Deb., 2nd Ser., 1138.
331
Torrens’ Case (1856) 140 Parl. Deb, 3rd Ser., 1544.
332
Monahan’s Case (1861) 163 Parl. Deb., 3rd Ser., 984.
333 334
(1722) 7 Parl. Hist. 961. Ibid., 962.

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iv. parliamentary removal mechanisms 341

be censured immediately was rejected upon the ground that ‘it was
unreasonable to arraign, condemn, and censure a man, especially one
in so high a station, before they heard what he had to say in his own
vindication’.335 The complaint against the judge was put into writing, and
a copy of it was delivered to Baron Page. At a later date witnesses were
examined at the Bar of the House, and Baron Page was represented by
counsel who addressed the House on his behalf. After hearing the
evidence, the question was put whether the mover ‘had made good his
charges against Sir Francis Page’. After a long debate the charge was
dismissed by a vote of 128 to 124.
In 1725, as seen above, Lord Macclesfield, the Lord Chancellor, was
impeached and convicted of selling Masterships in Chancery.336 Almost a
century passed before proceedings were initiated against another judge.
Then, in 1805, on three petitions presented to the House of Lords against
Luke Fox, a judge of the Common Pleas in Ireland, it was moved that a
humble address be presented to His Majesty to remove the judge from his
office.337 Mr Justice Fox was alleged to have introduced political topics into
his instructions to the grand jury at the Assizes. It was said that he told
them that it was their duty to address His Majesty to have the Lord
Lieutenant of Ireland removed. He was also charged with having tried to
persuade the commanding officer of a regiment to do the same. Likewise,
he was accused of imposing a fine of £500 on the High Sheriff for being late
in meeting him when he went to the Assizes, and with insulting a petty
jury. For almost two years the case was debated and evidence heard in the
House, in a Select Committee and in the House sitting as a Committee of
the whole House. Upon a petition of the judge, Lord Grenville, the prime
minister, moved that the proceedings against the judge be abandoned on
the ground that the House of Lords could not entertain an inquiry into the
conduct of a judge before the House of Commons had looked into the
matter. For if the House of Lords passes a resolution for an address of
removal, and then the matter goes to the House of Commons, the Com-
mons may constitutionally resolve that the charges against the judge ought
to be brought by way of impeachment. In such a case, the Lords, having
prejudged the case, would not be able to try it. Over the objection of a
strong minority opinion of Lord Eldon and others, Lord Grenville’s
motion was agreed to, and there the matter ended.338 Mr Justice Fox
remained on the bench until his resignation in 1816.

335 336 337

Ibid. See above, para. 7.27. (1805) 45 Lords Journal 181.
338
Mr Justice Fox’s Case (1806) 7 Parl. Deb., 751–71, 788–9.

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342 immunity, discipline and removal of judges

Lord Ellenborough, the Lord Chief Justice, had to face charges of

misconduct both in the House of Lords and in the House of Commons.
In 1813, he was charged before the Lords that as a Member of the
Commission appointed in 1805 to inquire into the conduct of Caroline
Princess of Wales, he misstated certain points of evidence given by one of
the witnesses.339 In 1816, thirteen articles of charge were presented
against Lord Ellenborough in the House of Commons by Lord Cochrane,
charging him with judicial misconduct in a criminal case heard before
him in which Lord Cochrane was a defendant.340 Inter alia, Lord Ellen-
borough was charged with improperly compelling counsel for the
defendant to enter in the defence at midnight despite the fatigue of
counsel and the defendant, with misdirecting the jury as to the evidence
and with manifesting partiality, injustice and oppression in the course of
the trial. In both cases the Houses dismissed the charges.
In 1819 an article of charge in respect of certain crimes and misde-
meanours was presented in the House of Commons against James
McClelland, one of the Barons of the Court of the Exchequer of Ire-
land.341 The Baron was charged with ordering soldiers to clear out his
court, barring access to the court, refusing on improper grounds to
postpone a trial and other alleged misconduct. It was agreed that there
was no allegation of corrupt motives, and the matters brought up
involved questions of pure procedure which were within the Judge’s
discretion. Therefore the House refused to interfere and the article of
charge was rejected.
In 1821 a petition was presented to the House of Commons against Mr
Justice Best.342 In the course of a trial for blasphemous libel the judge
fined the defendant for contempt three times. First, the defendant was
fined £20 and then £40 twice. Upon these facts the judge was charged
with misconduct in the discharge of his judicial functions. As the fines for
contempt were unanimously upheld by the Court of the King’s Bench on
a motion for a new trial, the House refused to ‘assume the power of
acting as a court of appeal from the Court of the King’s Bench’,343 and
the petition was rejected by a vote of 64 to 37.

339
(1813) 25 Parl. Deb., 1st Ser., 207.
340
Ellenborough’s Case (1816) 34 Parl. Deb., 1st Ser., 103, 104, 114; (1816) 33 Parl. Deb., 1st
Ser., 706.
341
McClelland’s Case (1819) 40 Parl. Deb., 1st Ser., 851.
342
Best’s Case (1821) 4 Parl. Deb. New Ser., 918.
343
Ibid., 923 [the Attorney General].

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iv. parliamentary removal mechanisms 343

The next judge against whom proceedings were initiated in Parliament

was Standish O’Grady, Chief Baron of the Irish Court of Exchequer.344 In
1821, in their ninth report, the Commissioners on the courts of justice in
Ireland accused Chief Baron O’Grady of illegally increasing his judicial
fees above ‘the ancient fees to which he was by law entitled’.345 Thus,
Chief Baron O’Grady increased his remuneration when he doubled his
fees and introduced new ones. The charges were investigated by two
Select Committees of the House of Commons, which confirmed the
charges, and again by the Commissioners to whom the government
referred the reports of the Select Committees. Later, all the reports were
debated in a Committee of the whole House, which resolved that the
increase of judicial fees by the Chief Baron was ‘inconsistent with the
laws and constitution of the realm’.346 This resolution was subsequently
agreed to by the House. At this stage the government and Members of
the House strongly objected to the proceedings upon various grounds.
The judge was not heard at the Bar of the House, and it was ‘[illegal,
unjust and unconstitutional] to condemn a judge of rank and character
without giving him an opportunity of being heard in his defence’.347
The Commission’s report was no substitute for hearing at the Bar, for
the Commissioners did not have the witnesses cross-examined on the
part of the judge nor had the judge been allowed to call his witnesses to
rebut the evidence against him. Likewise, doubts had been entertained
upon the question whether it was illegal for the judge to increase the
fees, which meant that no case of ‘criminality or corruption had been
made out against the chief baron’.348 Finally, it was agreed in mitigation
of the charges, that the receipt of fees by judges in the Court of
Common Law and Exchequer had been recently abolished, making
the type of misbehaviour in question a matter of the past. Upon these
grounds, it was resolved, by a vote of 38 to 16, that ‘this House, under
all the circumstances above stated, does not deem it necessary to adopt
any further proceedings in the case of the Chief Baron O’Grady’.349
Thus came to an end the proceedings which were initiated two years
earlier.
William Kenrick, who was a magistrate in England and a judge of the
Great Sessions in Wales (an office equal in rank and tenure to that of a

344
O’Grady’s Case (1823) 9 Parl. Deb. 2nd Ser. 360, 938, 977, 1421, 1423, 1429, 1506.
345
Ibid., 996. Until 1825 judges received the judicial fees paid by suitors as part of their
remuneration, see above, para. 2.8.
346 347 348 349
Ibid., 1425. Ibid., 1006. Ibid., 1510. Ibid., 1510–15.

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344 immunity, discipline and removal of judges

judge of the King’s Bench),350 faced charges of misconduct in the House

of Commons on two different occasions. In 1825, upon the petition of
one Mr Canfor, Judge Kenrick was charged with abuse of power,
improper exercise of his judicial duties as a magistrate, and suppressing
a charge of felony. The House inquired into this matter upon the ground
that misconduct of Judge Kenrick in his capacity as Justice of the Peace, if
proved, might warrant removal from his higher judicial office, that of a
judge of the Great Sessions. After hearing evidence and counsel for the
judge, and after much debate and deliberation in the House sitting as a
Committee of the whole House, it was resolved that it was not necessary
‘to recommend to the House the institution of any further proceedings
with reference to the petition of Mr Canfor’.351
Upon another petition, Judge Kenrick, in his private capacity, was
charged with prosecuting a poor man for theft in order that he might get
possession of his house, which upon conviction would be forfeited to the
Crown. It was further charged that after the man was committed, Judge
Kenrick tried to persuade him to plead guilty, promising to ask for leniency
for him. Ultimately, the theft charge was dropped as Judge Kenrick
withdrew his prosecution. It was settled in that case that misconduct of a
judge in his private life may justify his removal from the bench. There,
Lord John Russell said that ‘when a serious stain was thrown on the
character of a person in a judicial situation it was the duty of that House
to inquire whether the individual was fit to exercise the important func-
tions attached to his situation’.352 Mr Denman formulated the principle in
these words: ‘by the Act of Settlement it was the duty of the House to
examine the conduct of the judges, if notoriously improper, even on
matters that affected their private character. If open scandal arose from
private conduct of a judge which would be prejudicial to the adminis-
tration of justice in his person, the House was bound to inquire into the
affair.’353 Although it was generally agreed that misconduct of a judge in
his private life may justify an address for removal, in the absence of clear
evidence of corrupt motives, the House refused to interfere. After hearing
witnesses and the judge’s counsel and after much debate and deliberation,
the House rejected without division a motion that the charges against the
judge were fully established. Judge Kenrick then resigned his office.

350
See (1826) 14 Parl. Deb., 3rd Ser., 659 [Mr Denman]. The office was abolished in 1830.
351
(1825) 14 Parl. Deb., 2nd Ser., 1138, 1247, 1350, 1407, 1408, 1410, 1425.
352
(1830) 24 Parl. Deb., 2nd Ser., 974.
353
Kenrick’s Case II (1826) 14 Parl. Deb., 2nd Ser., 363, 366–7, 500, 507, 658.

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iv. parliamentary removal mechanisms 345

As Barrington’s Case shows, unjustified absence from office or neglect

of official duties in some other respect may justify removal of a judge
from the bench. The case of Sir Jonah Barrington, a judge of the High
Court of Admiralty in Ireland, is the first and only case of a judge being
removed upon an address of both Houses of Parliament.354 It was
charged that Sir Jonah Barrington on several occasions had appropriated
for his own use money paid into court. The sums were £682, £200 and
£40, not small in those days. Sir Jonah flew to France and appointed
deputies to carry on his judicial duties. Sir Jonah’s embezzlement was
exposed by the eighteenth report of the Commissioners on the courts of
justice in Ireland. The report was laid before the House of Commons and
referred to a Select Committee, which investigated the matter and con-
firmed the charges against the judge. Sir Jonah did not accept the
Committee’s invitation to appear before them or to state the persons
whom he wished to be examined by the Committee. The House sitting as
a Committee of the whole House considered the charges. Sir Robert Peel,
noting that ‘there were many sufficient grounds for an address for the
removal of a judge, though no legal crime could be proved against him’,
said that ‘the absence of a judge from the realm [and] pretended indis-
position on the part of a judge . . . would justify the House in addressing
the Crown to remove [him].355 Sir Robert reasoned: ‘Was it to be
endured that a judge, who performed no duty, should be allowed to
draw his salary from the public funds? Would it become them, the
guardians of the public purse, to suffer this?’356 Mr Denman, supported
by several Members, argued that the judge should be heard at the Bar of
the House notwithstanding that a Select Committee had already heard
evidence.357 However, the general opinion in the House was that as Sir
Jonah had refused to appear before the Committee, and since the evi-
dence against him was documentary and founded upon his own admis-
sions, it was not necessary to take further evidence at the Bar. Thus,
without further hearings, the House agreed upon a motion for an address
for removal, and a committee was appointed to draft the address to the
Crown, which was approved by the House. The address recapitulated the

354
Barrington’s Case (1830) 24 Parl. Deb., 2nd Ser., 484, 965, 1075.
355
(1830) 24 Parl. Deb., 2nd Ser., 974.
356
Ibid. In Smith’s Case, Sir Robert Peel again suggested that ‘gross and grievous neglect of
duty’ would warrant a removal from the bench, Smith’s Case (1834) 21 Parl. Deb., 3rd
Ser., 694, at 744.
357
Ibid., 966.

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346 immunity, discipline and removal of judges

acts of which Sir Jonah had been found guilty and concluded: ‘It is unfit
and would be of bad example, that he should continue to hold the said
office. We therefore humbly pray your Majesty that your Majesty will be
pleased to remove Sir Jonah Barrington from the office which he holds,
Judge of the High Court in Admiralty in Ireland.’358
The address was delivered to the Lords in a conference. In the House
of Lords the whole process was repeated.359 Unlike the Commons, the
Lords heard the judge and his counsel, and they were allowed to cross-
examine witnesses. The Attorney General and the Solicitor General
conducted the case against the judge. After the hearings the address
was considered and agreed upon. A message was carried to the House
of Commons informing them of the approval, and certain Members were
appointed by both Houses to present the address to His Majesty. His
Majesty replied that he would give directions that Sir Jonah Barrington
be removed from his judicial office.360
Four years after Sir Jonah’s removal, charges of judicial misconduct
were made against another Irish judge in Parliament. Sir William Smith,
one of the Barons of the Exchequer in Ireland, was charged in the House
of Commons with keeping his court very late at night (sometimes until
6:00 a.m.), coming very late to court (after 12:30 p.m.), and introducing
political topics in charges to grand juries.361 The matter was referred to a
Select Committee, but eight days later, against the views of the ministers,
the order was discharged and the proceedings were abandoned upon the
ground that there was no corruption in the alleged misconduct and that
the House should not interfere in questions of procedure and the admin-
istration of courts.
In 1843 Lord Abinger, Lord Chief Baron of the Exchequer, was
charged in the House of Commons with using highly political language
on the bench. In his instructions to the jury on a trial of defendants who
participated in demonstrations and strikes for further reform of the right
to vote, Lord Abinger made long speeches condemning their political
ideas. The following passage is a good illustration of Lord Abinger’s
expressions for which he was accused of unconstitutional, partial and
oppressive conduct:
You will find that there is a society of persons who go by the name of
Chartists . . . what is the object of the charter which these men are

358 359
Ibid., 1075. (1830) 62 Lords Journal 162, 166, 583, 597, 602, 716, 873, 879, 901.
360 361
See Ibid., 915. (1834) 21 Parl. Deb., 3rd Ser., 272, 695.

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iv. parliamentary removal mechanisms 347

seeking? What are the points of the charter? Annual Parliaments, univer-
sal suffrage and vote by ballot. What a strange effect then would the
establishment of a system of universal suffrage produce! Under it every
man though possessing no property would have a voice in the choice of
the representation of the people. The necessary consequences of this
system would be that those who have no property would make laws for
those who have property and the destruction of the monarchy and the
aristocracy must necessarily ensue.362

The language used by Lord Abinger was deemed objectionable even in

1843 and was strongly criticised by the press and in Parliament during
the debates on the motion for an inquiry into his conduct. The Tory
government objected to the motion. The Attorney General (Sir
F. Pollock) argued that ‘a judge not only might allude, but that it
sometimes became his duty to allude, to political affairs’.363 It was also
urged that in the absence of ‘badness of heart and a corrupt intention’,364
a motion for an inquiry should not be sustained. The proponents of an
inquiry pressed their view, asserting that ‘no judge ought to travel out of
the record immediately before him’, and that ‘the people abhorred
political judges’.365 At the end, the motion was rejected by a large
majority: 228 to 73.
Mr Duncombe, who moved for an inquiry into the conduct of Lord
Abinger, was also responsible for the debate on the conduct of Baron
Gurney later in the same year.366 Upon a petition from a man who had
been convicted of sedition and was then in prison, Mr Duncombe
alleged that during the trial before Baron Gurney, constant interrup-
tions by the judge deprived the defendant of an opportunity of vindi-
cating his innocence before the jury. As the law afforded no remedy,
and an application for the remission of the sentence was refused, Mr
Duncombe moved that an address should be presented to Her Majesty
to take the case into her merciful consideration. The Home Secretary
(Sir James Graham), relying on the replies he received from the judge,
dismissed the charges against him and asserted that there was no
sufficient ground for impugning the conduct of the judge. Nor did he
think that there were special circumstances warranting an address
calling for the exercise of the prerogative of pardon. Finally, the motion
was withdrawn.

362
Abinger’s Case (1843) 66 Parl. Deb., 3rd Ser., 1037, 1048.
363 364
Ibid., 1071, 1100, 1103. Ibid., 1129 [Sir James Graham].
365 366
Ibid., 1097–8. Gurney’s Case (1843) 69 Parl. Deb., 3rd Ser., 189.

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348 immunity, discipline and removal of judges

In 1856 a Member who appeared to have been shocked by an alleged

injustice to a poor woman resulting from a matrimonial case in Ireland
charged Mr Justice Torrens, one of five judges who affirmed the decision
on appeal, with misconduct in the discharge of his judicial duties. The
judge, who was singled out for no particular reason, was accused of
admitting hearsay evidence, relying on a statement of a witness, which
the witness denied that he ever made, and of similar charges. In the
absence of any charge of corruption or incapacity and the decision
having been upheld on appeal, the House refused to ‘take upon itself
the duties of a court of review of the proceedings of the ordinary courts of
law’.367 The charges were dismissed and the motion to inquire into the
conduct of the judge was rejected.
It appears from that case that, if a judge became unable to discharge
his judicial duties properly because of ‘the decay of his mental power’,368
sufficient ground for an address for his removal from office would arise.
Thus, Lord Palmerston, the Prime Minister, said in Torrens’ Case that the
‘gross perversion of the law. . .by incapacity’ would justify removal.369
Commenting on Palmerston’s statement, the Attorney-General in
Grantham’s Case remarked:
By ‘incapacity’ I think Lord Palmerston had in his mind physical [or
mental] incapacity not mere aberration, not mere error in the exercise of
the judicial function, but the incapacity of a judge who continues so long
on the Bench that he is physically [or mentally] unable to discharge his
duties.370

Similarly, in Fox’s Case, Lord Grenville, the Prime Minister, said:

A judge may be in a situation of notorious incapacity from age, and yet it
may happen that through the peevishness natural to age, or ill humour, or
some other cause, he may wish to adhere to his situation after he has been
rendered unfit for its duties. That this would be a painful necessity for the
interference of parliament no one would doubt.371

In 1865 the conduct of Lord Westbury, the Lord Chancellor, was cen-
sured both by the House of Lords and the House of Commons. In the

367
Torrens’ Case (1856) 140 Parl. Deb., 3rd Ser., 1544, 1561 (Lord Palmerston, the Prime
Minister).
368
(1866) 182 Parl. Deb., 3rd Ser., 1633; A. Paterson, ‘The Infirm Judge’ (1974) British
Journal of Law and Society 83, 86.
369
Torrens’ Case (1856) 140 Parl. Deb, 3rd Ser., 1544.
370
Grantham’s Case (1906) 160 Parl. Deb., 4th Ser., 369.
371
Fox’s Case (1806) 7 Parl. Deb., 752.

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iv. parliamentary removal mechanisms 349

House of Lords, he was accused of recommending a clerk for retirement

on pension, knowing that he had embezzled large sums of public money.
Upon the clerk’s retirement Lord Westbury appointed one of his sons to
the vacated office. The Lords vindicated His Honour but his judgment
was condemned.372 A charge of similar nature was presented against the
Lord Chancellor in the House of Commons.373 He was said to have
helped a bankruptcy registrar to retire with a pension notwithstanding
that the registrar was suspected of official misconduct, and to have
appointed in his position someone who, it seemed, bribed the Lord
Chancellor’s son in order to convince his father to appoint him to office.
In the House of Commons it was resolved that his conduct in both cases,
shows a laxity of practice and want of caution with regard to the public
interest on the part of the Lord Chancellor in sanctioning the grant of
retiring pensions to public officers against whom grave charges were
pending, which in the opinion of this House are calculated to discredit
the administration of his great office.374

As a result of this vote of censure, the Lord Chancellor resigned

immediately.375 The Lord Chancellor being removable at the pleasure
of the prime minister, this case cannot fall into the category of proceed-
ings for an address for removal and is included here to give a complete
picture of the proceedings against judges, including the Lord Chancellor
in his (then) capacity of head of the judiciary.
The next complaint was made in 1867 against Lord Chief Baron Kelly in
the House of Lords.376 The circumstances giving rise to the complaint took
place 32 years before the complaint was presented. It was charged that Sir
Fitzroy Kelly, as the judge was then, had made a false statement before a
committee of the House of Commons which was investigating whether he
was guilty of bribery or illegal practice at an election. The committee
unseated him on the ground that he had committed bribery by his agents
and friends, but no lack of integrity was attributed to him. A petition
alleging that the judge had pledged his honour as a gentleman to the truth

372
(1856) 177 Parl. Deb., 3rd Ser., 1203; (1865) 178 Parl. Deb., 3rd Ser., 1573; (1865) 179
Parl. Deb., 3rd Ser., 6.
373 374
(1865) 180 Parl. Deb., 3rd Ser., 1045. (1865) 180 Parl. Deb., 3rd Ser., 1135.
375
(1865) 180 Parl. Deb., 3rd Ser., 1142; T.A. Nash, The Life of Richard, Lord Westbury,
Formerly Lord High Chancellor, with Selections from his Correspondence (London:
R. Bentley and Sons, 1888), vol. II, p. 110; J.B. Atlay, The Victorian Chancellors (London:
Smith Elder, 1906–1908), vol. II, pp. 268–78; Gibb, Judicial Corruption, 42–51; Cecil,
Tipping the Scales, 126–42.
376
Kelly’s Case (1867) 185 Parl. Deb., 3rd Ser., 257.

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350 immunity, discipline and removal of judges

of a statement in order to deceive the committee, was presented by Earl

Russell, who moved that the House of Lords should appoint a committee
to inquire into the complaint and if the charge were proved, that an
address for removal be presented to the Crown. Earl Russell sent a copy
of the petition to the Lord Chancellor, so that he could obtain the answers
of the judge to the charge against him. In fact, the answers given by the
judge, supported by the shorthand writer’s notes, refuted the charges.
In the debate that followed, the conduct of the Lord Chief Baron was
completely vindicated by the Lord Chancellor and other peers. It was
unanimously felt that Earl Russell should not have presented a petition
containing an unfounded charge relating to a matter which had taken
place years earlier and never before been raised. The long time which had
passed since the alleged misconduct took place weakened the charge.
Moreover, before his elevation to the bench, Sir Fitzroy had been Solici-
tor General and twice Attorney General, but no objection had been made
then, although these offices were regarded as ‘a direct road to promotion
to the office of a Judge’.377 Earl Russell, acceding to the sense of the
House, withdrew the petition.
In 1906 the conduct of Sir William Grantham, a judge of the King’s
Bench Division, was the subject of discussion and condemnation in the
House of Commons. He was charged with having displayed partisan
political bias during a trial of an election petition. The nature of parti-
sanship or partiality which would justify removal was carefully defined by
the Attorney General:
I understand partisanship to mean a conscious partiality leading a judge
to be disloyal even to his own honest convictions. I understand it to mean
that the Judge knows that justice demands that he should take one course
but that his political alliance or political sympathies may be such that he
deliberately chooses to adopt the other. In such case the moral element
undoubtedly enters into the definition of misconduct and cannot be
excluded.378

Mr Justice Grantham, who was ‘a dyed-in-the-wool Conservative’379 and

whom the prime minister called ‘an outspoken and intemperate parti-
san’,380 set aside the election of a Liberal and upheld the election of a

377
Grantham’s Case (1906) 160 Parl. Deb., 4th Ser., 369; Cecil, Tipping the Scales, 194–208.
378
Grantham’s Case (1906) 160 Parl. Deb., 4th Ser., 369, at 394.
379
Cecil, Tipping the Scales, 195.
380
Grantham’s Case (1906) 160 Parl. Deb., 4th Ser., 409.

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iv. parliamentary removal mechanisms 351

Conservative in circumstances that gave rise to allegations of political bias.

The Conservative candidate at Great Yarmouth had held a party in
October 1905 where alcohol as well as other refreshments were supplied.
At the elections held in January 1906 the Conservative was elected. The
losing Liberal candidate petitioned to have the election of the Conservative
at Great Yarmouth set aside on the ground, inter alia, that the party held
by him was a corrupt treating. Mr Justice Grantham rejected the allegation
of treating on the ground that an election was not then imminent. The
other judge sitting on the petition would have unseated the Conservative
but because the judges were equally divided the petition failed.
In another election petition, similar circumstances arose. In September
1905 the father and mother of the Liberal candidate at Bodmin held a
garden party where no alcoholic drink was served. Upon the election of
the Liberal, the Conservative petitioned to set aside the election for
corrupt treating. Holding that the party was held ‘on the eve of the
election’, the election of the Liberal candidate was set aside. Thus, a judge
unseated a Liberal for a party held in September 1905, which he deemed
‘on the eve’ of an election, while upholding the election of a Conservative
who held a party in October of that year, holding that ‘the election was
not then imminent’.
Another charge adduced against the judge was that he had made
undesirable and biased remarks about the trial at a dinner party given
by the mayor during the hearing of the petition to set aside the election of
the Conservative at Great Yarmouth. The feelings against the conduct of
the judge were so high that 347 MPs backed a motion for inquiry into his
conduct. The motion being so strongly supported, the government was
constrained to allot a day for debate on the matter. In the lengthy debate
the general view was that no corrupt motive was shown and, in the
absence of corruption or moral turpitude, the House should not resort
to the extreme penalty of passing an address for removal. However, the
judge was condemned in the strongest terms by almost every Member
who participated in the debate. As one Member put it: ‘There had been
such a practically unanimous condemnation of the course that had been
pursued that he could hardly conceive existing in the mind of any judge
worthy to occupy a place on the English Bench a wish for the retention of
office.’381 In spite of the outspoken criticism in Parliament and clear
invitations for his resignation, Mr Justice Grantham did not resign.

381
Ibid., 410 [Mr Blake].

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352 immunity, discipline and removal of judges

In 1911 Mr Justice Grantham’s conduct again came before Parliament.

Having kept his rage under strict control for five years, Mr Justice Grantham
felt that he should vindicate himself and ‘expose the falsity of the charges’
made against him. In a speech delivered on 7 February 1911, before the Bar
at Liverpool, he violently attacked the House of Commons. A month later
two MPs asked the prime minister what steps the government proposed
to take with reference to the speech made by Mr Justice Grantham. Mr
Asquith, the prime minister, noted ‘with satisfaction and without surprise
that the speech referred to has been universally and emphatically con-
demned by professional and public opinion’, and he added:
In the hope and belief that this unanimous verdict of censure may prevent
the recurrence of an incident so inconsistent with the judicial character
and the best traditions of the Bench, they do not propose to invite
Parliament on this occasion to take the extreme step of addressing the
Crown for the removal of the judge.382

In 1924, Mr George Lansbury put down a motion for an address for the
removal of Sir Henry McCardie, a judge of the King’s Bench Division. Mr
Justice McCardie was trying a libel case. An issue arising in that case was
the conduct of General Dyer, who had been dismissed by the government
for ordering troops to fire at a mob during disturbances at Amritsar in
India. In his instructions to the jury, the judge said: ‘Speaking with full
deliberation and knowing the whole of the evidence in the case I express
my view that General Dyer, in the grave and exceptional circumstances,
acted rightly, and in my opinion, he was wrongly punished by the
Secretary of State for India.’383
The motion for an address having been put down on the Order Paper,
Mr Lansbury asked the prime minister whether the government would
grant time for the discussion of the motion. Mr Ramsay MacDonald, the
prime minister, replied that ‘a discussion on this subject would only add
to the harm that has been done in India by the words complained of’.384
In addition to this political reason for refusing time, he added, signifi-
cantly: ‘However unfortunate the words have been, they clearly do not
constitute the kind of fault amounting to a moral delinquency which
constitutionally justifies an Address as proposed.’385

382
Hansard, HC, vol. 22, col. 366 (1 March 1911).
383
Hansard, HC, vol. 175, cols. 6–7 (23 June 1924).
384
Hansard, HC, vol. 175, col. 6 (23 June 1924).
385
For an account of this case, rather favourable to the judge, see G. Pollock, Mr Justice
McCardie: A Biography (London: John Lane, 1934), 132–9.

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iv. parliamentary removal mechanisms 353

The prime minister, however, did not fail to observe that the judiciary
should guard itself against pronouncements upon issues involving grave
political consequences which are not themselves being tried. Being ‘per-
fectly satisfied’ with this statement, Mr Lansbury withdrew his motion.
More recently, at the end of 1973, the question of an address for
removal of a judge again came to the fore. In October of that year, the
now defunct Industrial Relations Court exercised its power of sequestra-
tion against certain assets held in the ‘political fund’ of a large trade
union (the Amalgamated Union of Engineering Workers), which refused
to obey the Court’s order. This evoked a campaign of criticism under-
taken by trade unionists and Labour backbenchers against Sir John
Donaldson, the President of the Court. A motion was put down in
Parliament, calling for Donaldson’s removal from office for, inter alia,
‘political prejudice and partiality’. The motion attracted the signatures of
187 Labour MPs. The judge took the unusual step of defending the
decision of his Court in public and of ‘setting the record straight’.
Donaldson J explained that ‘neither the sequestrators nor the Court
had any knowledge that this £100,000 was earmarked for a political or
any other purpose’.386
Lord Hailsham LC strongly criticised the proponents of the motion for
an address to remove Donaldson J. Speaking as head of the judiciary in a
public speech, Lord Hailsham said that the public should note the
identity and party of the Members concerned and ‘strike a blow for the
integrity and independence of the judges of this country, and the immun-
ity of each one of us from being traduced by an abuse of privilege’. The
Lord Chancellor’s speech invoked violent reactions from Labour MPs
and a motion was tabled in the Commons condemning the Lord Chan-
cellor for improperly attempting to influence the proceedings of the
House and the course of a particular debate and describing his behaviour
as a ‘regrettable breach of the long-standing convention of respect
between the two Houses and a gross contempt of the House of Com-
mons’.387 Despite the important questions raised by this controversy,
neither of the motions was ever debated in Parliament. The Speaker
refused to give priority to a debate on the Lord Chancellor’s speech,
and parliamentary time for debating the motion for an address to remove

386
See Mr Justice Donaldson’s speech in Glasgow, (1973) 123 New Law Journal 1111.
387
G. Drewry, ‘The Privilege of Parliament’ (1974) 124 New Law Journal 489; Hansard, HC,
vol. 865, cols. 1089–91 (4 December 1973), 1291–7 (5 December 1973); Hansard, HC,
vol. 866, cols. 1141–2 (18 December 1973) [Lord Hailsham].

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354 immunity, discipline and removal of judges

Sir John Donaldson was not available.388 The matters fell into abeyance
when Parliament rose for the Christmas recess.

Conclusions
7.45 In Sirros v. Moore, the Court of Appeal removed the absolute
immunity enjoyed by judges of the superior courts. Judges may be liable
in tort and to judicial review proceedings where they act without or in
excess of their jurisdiction, unless the exercise of jurisdiction was caused
by an error of fact in circumstances where the court had no knowledge of
or means of knowing the relevant facts.389 Other models are possible –
civil liability might be incurred in cases of wilful default of the judge390 –
but there is no reason to prefer them, at least not in a system with
independent appointments on merit, and where judges are typically
appointed after a successful career in practice. The concern that com-
plaints about judges will lead to satellite litigation also supports treating
such complaints through the appeal system.
The Office of Judicial Complaints now has jurisdiction to hear com-
plaints on matters not directly related to the substance of judicial deci-
sions, although, unsurprisingly, many such complaints are nonetheless
received. Challenges that lie ahead for this body may be as follows. First,
fuller explanations would be preferred of cases where a judge’s (legal)
activities in his private life are the subject of complaint and one may also
wonder whether a refusal to recuse, made in good faith, should be a
disciplinary matter. A fuller disclosure of cases that were put to the Lord
Chief Justice and Lord Chancellor for consideration, especially where
some disciplinary action resulted, might be desirable. In principle, how-
ever, we approve of the point that such decisions are taken jointly and
that they may apply at all levels of the judiciary. In practice, judges in
lower courts prefer to resign if it is clear that they may otherwise be
dismissed.
However those at the level of High Court and above cannot be
dismissed by the Lord Chancellor and Lord Chief Justice alone and

388
Hansard, HC, vol. 865, cols. 1291–7 (5 December 1973); Hansard, HC, vol. 864, col.
1560 (22 November 1973); Hansard, HC, vol. 865, cols. 42–4 (10 December 1973).
389
Re McC (A Minor) [1985] AC 528.
390
Opinion No. 3 of the Consultative Council of European Judges (CCJE) to the attention
of the Committee of Ministers of the Council of Europe on the principles and rules
governing judges’ professional conduct, in particular ethics, incompatible behaviour and
impartiality, CCJE (2002) Opinion No. 3, 53, 55, 57.

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conclusions 355

indeed any such procedure will bypass the Office of Judicial Complaints
altogether. In theory the House of Commons may pass a motion to
impeach a judge for ‘high crimes and misdemeanours’ which will then
be considered by the House of Lords, but this is certainly obsolete. There
may be a continued power of the Attorney General to issue scire facias to
revoke the judge’s appointment on the basis that he has not held his
office ‘during good behaviour’; if this is not so, it is likely due to the
Crown Proceedings Act 1947. But the most likely avenue seems to be by
address to both Houses of Parliament on the basis of incapacity or that
the judge has not been of good behaviour, and practice seems to suggest
that this is regarded as the exclusive procedure – though it was last used
successfully in 1830 over financial irregularities. It may be a requirement
that the matter be laid by a MP acting privately rather than on behalf of
the government or indeed any political party.
We have considered the history in some detail on the laying of
motions in the House of Commons with a view to an address for removal
of a judge or where preliminary proceedings have been initiated with
such a view. It seems that in practice removal from office of a senior
judge would only take place upon the ground of misconduct, with the
need to show a ‘moral element in the misconduct’, such as moral
turpitude. We have thought it important to preserve the historical refer-
ences in anticipation of a time when the address of removal may need to
be employed. One further observation may be made however. The
address was introduced to protect the judges from executive interference.
An examination of the cases where a motion for an address was pre-
sented shows that, except for the case of Smith, in which the government
changed its mind, in all cases the result was one supported by the
government. It may be said that the party-bound Parliament of today
would prevent the proper exercise of the power of removal by address,
and that this power would be better transferred to another body.391 The
actual operation of the address in the nineteenth century and at the
beginning of the twenty-first century seems, however, satisfactory, with
the elaboration by Parliament of the sufficient grounds for removal and
process of disposing of the complaints against judicial conduct. But if a
judge challenged the constitutional proceedings for removal of a judge
before the courts, it is suggested that, under Article 6(1) ECHR, these

391
Cf. National Commission on Judicial Discipline and Removal, Report (Washington:
West Company Publishing, 1993), 152 FRD265, pp. 291–2.

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356 immunity, discipline and removal of judges

proceedings would be amenable to domestic judicial scrutiny. The courts

would be required to read section 11(3) Senior Courts Act 1981 in a
way that it compatible with Article 6 ECHR. Parliament itself is likely
to adopt procedures which are compliant with Article 6 ECHR, thus
rendering any judicial review proceedings unnecessary.392 In light
of these procedural safeguards, it is therefore suggested that the very
existence of a parliamentary power of removal provides a necessary
mechanism for the removal of judges in case of misconduct. Public
proceedings would also, in practice, protect senior judges from any
executive interference.

392
Green Paper on Parliamentary privilege (Cm 8318, April 2012); Lord Judge LCJ and
Beatson LJ, corrected oral evidence taken before the Joint Committee on Parliamentary
Privilege (5 March 2013), HC JCPP-OE-V.

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8

Freedom of expression and public confidence

in the judiciary

Introduction
8.1 We consider, in this chapter, the interrelated subjects of judicial
freedom of expression outside the courtroom, the freedom of the media
(the press and any other form of public communication) to criticise the
judiciary and the protection of public confidence in the judiciary. As we
shall see, the underlying values easily come into conflict. Judicial deci-
sions that are made by trained, unbiased figures after a careful attempt to
apply the law to the supposed facts should command respect, but they
should not be immune from criticism. What constitutes unfair criticism,
and when, how and by whom should such criticism be properly met?
We first discuss the policy, since 1987, of free judicial speech outside
the courtroom, subject to preserving judicial impartiality and the dignity
of the judicial office. It is now accepted that judges have a wider responsi-
bility to dispel misconceptions and to promote access to justice and
inform the public on legal matters of general public interest. An educa-
tive role introduces a form of social accountability without compromis-
ing judicial independence. In turn, this helps the wider community to
discuss, endorse, criticise or applaud the conduct of their courts on an
informed basis.1 This also contributes to shaping public support, which
depends, in part, upon public perception, and which is a condition of
judicial independence – it is easier to resist an assault on judicial inde-
pendence with public support than in a context of public apathy.2 The
boundaries for these extra-judicial comments, however, are difficult
to draw, and it seems that there is no better substitute for the word
‘circumspection’.

1
South Africa v. Mamabolo (2001) 10 BHRC 493.
2
J. Doyle, ‘The Well-Tuned Cymbal’, in H. Cunningham (ed.), Fragile Bastion. Judicial
Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South
Wales, 2000), pp. 40–1.

357

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358 freedom of expression and public confidence

Second, we examine the impact of the media scrutiny on the adminis-

tration of justice. Judges are public figures. They must not be too
susceptible or of too fragile a constitution while the media checks for
flaws in the legal process or in the judge’s behaviour; or when the media
acts as a watchdog for justice. Moreover, a free press or media goes hand
in hand with an independent judiciary.3 There has accordingly been, over
the years, an important shift in the relationship between the judiciary and
the media, such that, per Lord Judge LCJ in 2011, ‘the days when the
possibility of communication between the judiciary and the media was
regarded as anathema, and wholly wrong in principle have gone for-
ever’.4 The growth of judicial review, the constitutional role given under
the Human Rights Act 1998 (HRA) and the formal separation of powers
under the 2005 settlement explain a persistent public scrutiny of the
justice system over the years. To some extent the key questions are about
the wider responsibility of media within society, a subject beyond the
scope of this book. We should, however, discuss the role of the judiciary
in correcting the media and the long-standing convention that ministers
should not criticise individual judges in the media for individual
decisions.
Lastly, we discuss the proportionality of invoking the traditional pro-
tections of the judiciary from improper criticism outside5 court, namely
the offence of scandalising the court. There has not been any such
prosecution in England since 1931, and the greater willingness of the
judiciary to respond to public criticism makes this prosecution an
implausible mechanism to protect public confidence in the judiciary.
8.2 As we will see, the balance can shift between the right of the public to
engage in the criticism of judges as public officials, the value of protecting
the functions of the institution of justice and the freedom of judges to
engage in public debate on matters relating to the functioning of justice.

3
Pennekamp v. State of Florida 328 US 331 (1946), 335 [F. Frankfurter]; I. Judge, ‘The
Judiciary and the Media’, speech delivered at the Lionel Cohen memorial lecture, Jerusa-
lem (28 March 2011); A.W. Bradley, ‘Press Freedom, Governmental Constraints and the
Privy Council’ [1990] PL 453.
4
Judge LCJ, ‘The Judiciary and the Media’.
5
We assume that it is relatively uncontentious that there should be punishment for
contempt of court when a judge is insulted by a witness or member of public during
court proceedings themselves. This is unproblematic under Art. 10 ECHR, since Art. 10(2)
would permit such state interference as punishment for contempt provided that it were
necessary and proportionate for maintaining the authority and impartiality of the
judiciary.

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i. judicial speech outside the courtroom 359

We shall offer some specific arguments, however. Extra-judicial com-

ments in the media should be confined to points of law reform, provided
that it remains clear that the judge will faithfully apply the existing
law if called on to do so, and to factors which make the administration
of justice easier and more efficient. It may not be necessary for such
comments to be screened or in any way pre-approved but there should
nonetheless be a central body with responsibility for speaking for the
judiciary in the media. Comments about the merits of individual deci-
sions in the media cannot be made or addressed by any judge but the
convention that ministers should not criticise judges over any decisions
must be maintained and strengthened. If the media wish to report
ministerial criticism of a judge’s decision, they should remind the public
of the convention of non-criticism and that similarly, by convention, the
judge will not defend his decision in public.

I. Judicial speech outside the courtroom

A. The basic regulating principles
8.3 We now sketch the principles governing the self-regulation of
judicial expression. For a long time judicial silence was considered
necessary to avoid the politicisation of judges,6 and to a lesser extent to
reduce the risk that their expressed views might be taken by future
litigants as indicting possible bias against their case. Thus the judiciary
was banned, under the Kilmuir Rules dating from 1955, from speaking to
the media outside the courtroom: ‘So long as a judge keeps silent, his
reputation for wisdom and impartiality remains unassailable: but every
utterance which he makes in public, except in the course of the actual
performance of his judicial duties, must necessarily bring him within the
focus of criticism.’7 But the Kilmuir Rules never applied to retired judges,
and so retired judges have played an important role in voicing the
judiciary’s concerns on some occasions.
The Kilmuir Rules always co-existed, however, with a long-standing
practice of public lectures and comments off the bench on existing law or
proposed legal reforms. Some exceptions could also be found, such as

6
‘. . . an overspeaking judge is no well-tuned cymbal’, Sir F. Bacon, ‘Essays: Of Judicature’,
in J. Spedding, R. Ellis and D. Heath (eds.), Works of Francis Bacon, vol. VI (New York:
Hurd and Houghton, 1861 reprint), p. 3.
7
A. W. Bradley, ‘Judges and the Media – the Kilmuir Rules’ [1986] PL 383, 384.

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360 freedom of expression and public confidence

Lord Widgery LCJ and Lord Denning, who gave press interviews on their
work and attitudes to the law.8 Shortly after passing the Kilmuir Rules,
Lord Kilmuir spoke publicly in 1956 to the Holdsworth Club about the
Nuremberg trials. Just before, in 1955, at the first Commonwealth Law
Conference, Lord Radcliffe had spoken on the work of the Judicial
Committee of the Privy Council. Judges have always been in high
demand for judicial lectures before members of the profession, learned
societies and universities in England and abroad. Some well-established
judicial lectures, such as the Hamlyn lectures, the Holdsworth Club, the
Commonwealth Law Conference and the annual conventions of the
American and Canadian Bar Associations have given judges the oppor-
tunity to make statements on legal matters of public interest.
It seems that the coexistence of public lectures and the Kilmuir Rules
was never comfortable. Arguments in support of an absolute interpret-
ation of the Kilmuir Rules were that the press and television would not
invite judges to give neutral, academic lectures; they would rather press
for comments on controversial matters, for ‘newsworthy’ comments; they
would also naturally approach those judges thought to be most likely to
say something ‘interesting’, such as Lord Denning. Public comments
from judges on various issues might mean that many more judges would
have to disqualify themselves because of the appearance of bias, due to
their having made comments on a matter which later came before them
in court.
When Lord Denning published his lectures in 1949, the Lord Chan-
cellor, Viscount Jowitt, wrote to him:
I always hold my thumbs, as the children say, when I hear that a judge has
written a book and I am old-fashioned enough to think that the less they
write the better it is for all concerned. I feel this for two reasons. Firstly
because a judge is so likely to commit himself to some proposition of law
with regard to which he has not had the advantage of hearing argument
and which may therefore be too widely stated, and secondly because he
may so easily slip over the borderline which separates controversial and
uncontroversial matters.

It is arguable that the fear of appearing partisan only justifies circum-

spection and moderate language today. But the second reason remains a
valid concern.

8
Lord Widgery, The Times, 7 August 1972; A. Denning, The Sunday Times, 17 and 24 June
1973.

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i. judicial speech outside the courtroom 361

8.4 As time went by, the discretion that was once seen as serving
impartiality came to be seen as excessive remoteness from the public.
Miscarriages of justice and the lack of diversity in the social composition
of the judiciary partly triggered that change of perception. The turn now
taken by the relationship between the judiciary, the public and the media
in England and Wales is also explained in the following statement
(originally applying to the Australian judiciary):
There is a lively debate about the proper relations between the judiciary
and the political branches. Senior judges have talked more openly about
the inevitable judicial choices confronting them. They have dismissed the
fairy tale of the declaratory theory. Debating contentious . . . decisions,
judges have spoken of giving effect to the contemporary values of the
[English] people. They have talked of the ever-greater impact of inter-
national law on [English] law. They have said parliaments sometimes
prefer to leave the hard policy questions to the courts. They have warned
that parliaments are less able to stand between the people’s liberties and
the power of the executive government . . . These statements invite sup-
plementary questions . . . They are part of debates that seem open-ended.9
‘In the absence of fairy tales’,10 it has become accepted that judges must
earn public confidence. It is suggested that judicial independence is not
supported by too great a distance from the public; it requires a necessary
but rather delicate engagement with the public on appropriate occasions.
Thus it is the judiciary’s responsibility to enhance the public understanding
of their work. Those who want judicial independence must not be afraid
to explain their work and to gain the trust that underlies independence.11
On matters relating to the administration of justice, judges are allowed,
even expected, to be responsive communicators outside their courts.12
8.5 In 1987, the Kilmuir Rules were abolished. The Lord Chancellor,
Lord Mackay, considered that it should be left to each individual judge to
decide whether or not to speak publicly.13 On his understanding, judicial

9
B. Lane, ‘The Role of the Judiciary in a Modern Democracy’, Second Annual Symposium
of the Judicial Conference of Australia, Sydney (8–9 November 1997).
10
Lord Reid, ‘The Judge as Lawmaker’ (1972) 12 Journal of the Society of Public Teachers of
Law 22.
11
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, 6th Report of Session 2006–07, HL paper 151 (11 July 2007), para. 140.
12
Art. 9 of the United Nations Basic Principles on the Independence of the Judiciary, GA
Res. 40/32 and GA Res. 40/146 (1995).
13
Similarly, T. Bingham, ‘Judicial Ethics’, in R. Cranston (ed.), Legal Ethics and Professional
Responsibility (Oxford: Clarendon Press, 1995), p. 35 (also published in T. Bingham, The
Business of Judging. Selected Essays and Speeches (Oxford University Press, 2000), p. 69.

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362 freedom of expression and public confidence

independence ultimately rests on the good judgement of the judges them-

selves. The bias argument was thought to have been overplayed as even a
secretly biased judge would still be a biased judge,14 and it might be for the
best that a litigant would have a proper opportunity to air concerns which
may have been raised by extra-judicial comments.15 Lord Mackay argued
that in some cases the media can secure a wider public understanding of
the working of the law, and the participation of judges would enhance the
value of such programmes.16 He later said that since the judiciary were an
important part of the community, he did not understand why ‘they should
be mute when everybody else can say what they like’.17
The abolition of the Kilmuir Rules emphasised the need to clarify the
principles regulating when judges may or may not speak out. The cardinal
(self-regulated) principle is that of circumspection: the reticence to speak
out, as opposed to an absolute silence, is what the judicial office requires.18
Some clear boundaries remain in principle, and as a matter of conven-
tion19 a judge will not offer public endorsement to a politician standing for
election, or express public criticism of the fitness of a colleague appointed
to the bench.20 A judge should refrain from answering public criticism of a
judgment or decision, whether from the bench or otherwise. Judges should
not air disagreements over judicial decisions in the press.21 Beyond this,
and still subject to circumspection, the limits on the substance of judicial
free speech appear constrained by the constitutional cultures of the various
stakeholders in the judiciary. Lord Mackay reiterated the long-standing
principles that judges must avoid public statements ‘either on general
issues or particular cases which might cast any doubt on their complete
impartiality’ and ‘they should avoid any involvement, either direct or
indirect, in issues which are or might become politically controversial’.22

14
Re JRL; Ex parte CJL (1986) 161 CLR 342, 352.
15
Lord Mackay, Lord Mackay, The Administration of Justice (London: Stevens & Sons/
Sweet & Maxwell, 1994), p. 26.
16
Lord McKay, ‘The Judiciary and Non-judicial Activities’ (1970) 35 Law and Contempor-
ary Problems 9, 21.
17
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, 38.
18
Lord Hope, ‘What Happens When a Judge Speaks Out?’, Holdsworth Club Presidential
Address (19 February 2010), p. 11.
19
Judicial Executive Board, ‘Guidance to Judges on Appearances before Select Committees’,
November 2012.
20 21
Ibid., paras. 3, 8 and 9. Guide to Judicial Conduct, 8.1.1.
22
Letter to the Lord Chief Justice dated 16 October 1989, copied to all judges and full-time
judicial officers in England and Wales.

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i. judicial speech outside the courtroom 363

8.6 The principle in force today remains one of free but circumspect
judicial speech. There cannot be any objection on the ground of bias based
on the judge’s extracurricular utterances per se, whether in textbooks,
lectures, speeches, articles, interviews, reports or responses to consultation
papers.23 Impartiality is what regulates judicial speech outside the court-
room. The Guide to Judicial Conduct warns of the greatest circumspection
in language and tone when judges talk to the media.24 Judges should not
comment or criticise the government on policy issues, for fear of being
perceived as political and thus losing public confidence in them.25
Thus the Guide to Judicial Conduct provides that propriety, and the
appearance of propriety, are essential to the performance of all of the
activities of a judge:
5.1(2) As a subject of constant public scrutiny, a judge must accept
personal restrictions that might be viewed as burdensome by the
ordinary citizen and should do so freely and willingly. In particular,
a judge shall conduct himself or herself in a way that is consistent with
the dignity of the judicial office.
...
5.1(6) A judge, like any other citizen, is entitled to freedom of expression,
belief, association and assembly, but in exercising such rights, a judge
shall always conduct himself or herself in such a manner as to preserve
the dignity of the judicial office and the impartiality and independence
of the judiciary.

As to what the judge might say outside the courtroom on judicial

matters:
5.1(11) Subject to the proper performance of judicial duties, a judge may:
5.1(11.1) Write, lecture, teach and participate in activities
concerning the law, the legal system, the administration
of justice or related matters;
5.1(11.2) appear at a public hearing before an official body
concerned with matters relating to the law, the legal system, the
administration of justice or related matters;
5.1(11.3) serve as a member of an official body, or other govern-
ment commission, committee or advisory body, if such
membership is not inconsistent with the perceived impartiality
and political neutrality of a judge; or

23 24
Locabail [2000] QB 451, 77–8. Guide to Judicial Conduct, 8.1.1.
25
Judicial Executive Board, ‘Guidance to Judges on Appearances before Select Committees’,
paras. 3, 10–13; HL Select Committee on the Constitution, ‘Relations between the
Executive, the Judiciary and Parliament’, 52.

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364 freedom of expression and public confidence
5.1(11.4) engage in other activities if such activities do not
detract from the dignity of the judicial office or otherwise
interfere with the performance of judicial duties.

The Supreme Court’s Guide to Judicial Conduct similarly states:

3.1 Each Justice will strive to ensure that his or her conduct, both in and
out of court, maintains and enhances the confidence of the public, the
legal profession and litigants in the impartiality of the individual
Justice and of the Court.
3.2 Each Justice will seek to avoid extra-judicial activities that are likely to
cause him or her to have to refrain from sitting on a case because of a
reasonable apprehension of bias or because of a conflict of interest that
would arise from the activity.

This illustrates that judicial governance is dominated by conventions,

expressed by the Judges’ Council, the representative sounding board for
the judiciary, rather than by legal rules. The range of restraints, and a
degree of social isolation inherent in the acceptance of the judicial office,
are significant, and recognised as such by the Guide to Judicial Conduct:
Any social activity or involvement in a community organisation, particu-
larly, but not exclusively, educational, charitable and religious organisa-
tions must be assessed in the light of the judge’s duty to maintain the
dignity of the office and the judge’s ability to discharge his or her duties.
Engagement with non-political issues, such as arts, culture or history, can
be acceptable, provided that no particular agenda is being promoted.26

The Guide also offers advice on internet interviews, and warns judges of
putting personal information or photographs on the web which might
compromise their judicial independence, reminding them that while
newspaper and broadcast interviews are relatively ephemeral, web ver-
sions remain permanently available to potentially millions of people
worldwide.
There can be a fine line between informing the public on matters
relating to the administration of justice and the judge’s participation in a
public controversy which might be of a political nature, which would then
affect the reputation and career of the judge.27 We have seen in previous
chapters that ill-advised public statements may be treated as judicial
misconduct and dealt with according to the extent the judge’s actions are
thought to have compromised the perception of his impartiality.

26
Guide to Judicial Conduct, paras 8.4.1 and 8.8.8.
27
Lord Irvine, Hansard, vol. 572, cols. 1259–60, 5 June 1996.

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i. judicial speech outside the courtroom 365

B. Individual speech
No comments on individual cases
8.7 Some further principles are well established. There should be no
comment from judges on individual cases, which also requires that a
judge must avoid associating himself with a particular cause, group or
organisation. Judges do not discuss pronouncements on individual cases,
whether or not the matter has finally been disposed of on appeal. The
golden convention is that they do not comment on pending cases, either
in their court or in another judge’s court.28 Despite this, at the beginning
of the twenty-first century or so, the practice of journalists ‘doorstepping’
judges who had given a controversial decision developed. ‘Doorstepping’
is ‘the situation where reporters call out questions to you as you enter or
leave a building or a car’.29 It has mostly disappeared, with the assistance
of the Press Complaints Commission. Lord Woolf commented on the
press’s practice:
One of the first times I came to the notice of the press was when I was
called upon to decide a case in which a man claimed damages for a
personality change caused by an accident. The medical evidence sup-
ported his claim that the personality change had resulted in him commit-
ting rape. I awarded him damages, aware that he was being sued by his
victim and that she would be the ultimate recipient of a large proportion
of the compensation he received. This subtlety was lost on the press, who
greeted my decision with uproar. My wife was door-stepped (I believe
that is the technical term) and was asked for a reaction to my judgment.
She replied, ‘I can’t say a word – my husband will kill me’. Her remarks
were not reported. The term ‘the gentlemen of the press’ is not entirely
archaic.30

Another aspect of the ‘no comment’ policy is that associating oneself with
a particular cause, group or organisation must be avoided.31 This cannot

28
Guide to Judicial Conduct, para. 8.1.1; HL Select Committee on the Constitution, ‘Rela-
tions between the Executive, the Judiciary and Parliament’, paras. 126 and 150; Lord
Woolf, Hansard, HL, col. 882 (21 May 2003).
29
Lord Chief Justice and Senior President of Tribunals, ‘Media Guidance for the Judiciary’
(February 2012), p. 11.
30
Lord Woolf, ‘Should the Media and the Judiciary be on Speaking Terms?’, Eighth RTÉ/
UCD Law Faculty Lecture, Dublin (22 October 2003), in C. Campbell-Holt (ed.), The
Pursuit of Justice (Oxford University Press, 2008), p. 149; Lord Irvine, ‘“Reporting the
Courts”: The Media’s Rights and Responsibilities’, 4th RTÉ\UCD Lecture, UCD, Dublin
(14 April 1999).
31
Guide to Judicial Conduct, 8.2.2.; UK Supreme Court Guide to Judicial Conduct, 3.3.

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366 freedom of expression and public confidence

be taken lightly in a context of rising applications for bias. Thus Lord

Phillips was challenged following an interview given to the press where
he said, among other things, that he had considerable sympathy for those
who found themselves in a situation similar to Mrs Purdy. Mrs Purdy
had asked for an order requiring the Director of Public Prosecutions to
clarify his policy for the controversial prosecution of assisted suicide, and
her case had recently been decided by the House of Lords, with Lord
Phillips sitting on that case.32 A group opposed to the legalisation of
assisted suicide applied to the (now) Supreme Court for the (then) House
of Lords’ decision on Purdy to be set aside, on the ground that Lord
Phillips, as one of the members of the Appellate Committee that heard
that case, was apparently biased.33 A panel of justices, none of whom had
been a member of the Appellate Committee in the case of Mrs Purdy,
dismissed their application. They held that the fair-minded and informed
observer, having considered the facts, would not have concluded that
there was a reasonable possibility that when he heard the case Lord
Phillips was biased.34
8.8 Some degree of freedom exists within lectures to derogate from the
rule that judges should not comment on others’ judgments. Thus, in a
lecture published in 2005, Lord Hoffmann criticised certain judgments of
his colleagues in the House of Lords.35 In 2007 a High Court judge
criticised the Court of Appeal’s decision of Halsey v Milton Keynes
NHS Trust on mediation as ‘clearly wrong and unreasonable’ during a
lecture at a City law firm.36 He claimed that the 2004 ruling has created a
barrier to mediation that should be removed. In rare cases, judges seem
able to comment extra-judicially on decisions in which they were
involved. Thus, in discussing extra-judicially the limits of parliamentary
sovereignty, Lord Bingham refers to the three judges’ obiter dicta (Lords
Steyn and Hope, Lady Hale) in Jackson,37 and declares himself unable ‘to
accept that [his] colleagues’ observations are correct’.38 It was already

32
R (Purdy) v. Director of Public Prosecutions [2009] UKHL 45.
33
Application in R (Purdy) v. Director of Public Prosecutions [2009] UKHL 45, 8 December
2009.
34
Decision of 12 December 2009.
35
L. Hoffman, ‘Tax Avoidance’ (2005) 2 British Tax Review 197. We are indebted to Grant
Hammond for this example, see G. Hammond, ‘Free Speech and Judges in New Zealand’,
in H.P. Lee (ed.), Judiciaries in Comparative Perspective (Cambridge University Press,
2011), p. 195.
36 37
Law Society Gazette, 18 July 2007. R (Jackson) v. Attorney General [2005] UKHL 56.
38
T. Bingham, The Rule of Law (London: Penguin, 2010).

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i. judicial speech outside the courtroom 367

clear from the judgment, however, that Lord Bingham did not share his
colleagues’ views. In this context, his arguments can be seen as part of an
ongoing discussion in academic and judicial circles about what the law is
on a particular point; thus it is of public benefit.39

Moderate language
8.9 The editorship of a journal is generally seen as incompatible with
holding judicial office since it involves a regular commitment and as the
editor might be seen as endorsing the opinions expressed in such journal.
By comparison, writing books and articles, or editing legal textbooks,
is not incompatible with holding judicial office and the discharge of
judicial functions; this is indeed a long and well-established tradition
within the English judiciary.40 Contributing to legal publications, for
example as a recorder, is appropriate and furthers rather than hinders
the administration of justice. So recalled the Court of Appeal in Timmins v.
Gormley.41 The recorder had published extensively on personal injury
topics in almost all the publications devoted to that subject. It was
submitted before the Court of Appeal that there was a real danger that
the recorder was subject to unconscious but settled prejudice against
insurers, and that his findings supported the allegation of bias. The Court
found that the case turned on the statements made in those articles.
Noting that there is nothing improper in the recorder being engaged in
his writing activities, the Court held:
It is the tone of the recorder’s opinions and the trenchancy with which
they were expressed which is challenged here. Anyone writing in an area
in which he sits judicially has to exercise considerable care not to express
himself in terms which indicate that he has preconceived views which are
so firmly held that it may not be possible for him to try a case with an
open mind.42

The Court allowed the appeal and ordered a retrial on the basis that, from
some of the articles he had written, the recorder held pronounced pro-
claimant anti-insurer views with a real danger of bias as a consequence.

39
Hammond, ‘Free Speech and Judges in New Zealand’.
40
In the 1940s MacKinnon LJ used to contribute ‘notes and queries’ on law and judges in
many issues of the Law Quarterly Review.
41
Timmins v. Gormley [2000] 1 All ER 65.
42
Ibid., para. 85; reference is made to the decision of the High Court of Australia in the case
of Vakauta v. Kelly (1989) 167 CLR 568; see also Buscemi v. Italy, ECtHR, 1999-VI, paras.
67–8; Newcastle City Council v. Lindsay [2004] NSWCA 198.

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368 freedom of expression and public confidence

The importance of moderate language in considering, for example, the

drawbacks of incorporating the European Convention on Human Rights
(ECHR) into UK law was asserted in the Scottish case Hoekstra, in which
four defendants were convicted of drug offences in Scotland in March
1997. The appeals before the Appeal Court, invoking the appellants’
rights under the ECHR, were rejected in January 2000. Leave to appeal
to the Privy Council was also refused but a further stage of the appeal
before the Appeal Court remained to be heard in March 2000. Before that
time, the judge (who had formally retired but had been appointed to sit
as a retired judge) published articles in the press criticising the incorpor-
ation of the ECHR into UK law, suggesting that it would provide ‘a field-
day for crackpots, a pain in the neck for judges and legislators and a
goldmine for lawyers’.43 The case then went before a differently consti-
tuted appellate court, which set aside the decision of the court of which
that judge had been a member, on the basis of apprehended bias on his
part. The Appeal Court recalled that:
Judges, like other members of the public and other members of the legal
profession, are entitled to criticise developments in our law, whether in
the form of legislation or in the form of judicial decisions. Indeed criti-
cism of particular legislative provisions or particular decisions is often to
be found in judges’ opinions. Similarly, judges may welcome particular
developments in our law. It is well known that in their extra-judicial
capacity many prominent judges – not only in England – publicly advo-
cated incorporation of the Convention and equally publicly welcomed the
Government’s decision to incorporate. But what judges cannot do with
impunity is to publish either criticism or praise of such a nature or in such
language as to give rise to a legitimate apprehension that, when called
upon in the course of their judicial duties to apply that particular branch
of the law, they will not be able to do so impartially.44

The restriction on judicial speech is thus one of manner, when the

forceful manner of speech gives the appearance of prejudgment or bias
on a particular issue. Lord Hope’s unequivocal condemnation of torture
in a scholarly article in 2004, combined with a criticism of the US
government’s conduct at Guantanamo Bay, only superficially stands
against the rule: it is right that Lord Hope authoritatively recalls the
position at law, that evidence which has been obtained by the use of any
form of inducement or pressure is inadmissible.45 The fundamental

43 44
Hoekstra v. HM Advocate (No. 3) [2000] HRLR 410. Ibid.
45
Lord Hope, ‘Torture’ (2004) 53 ICLQ 803, 807.

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i. judicial speech outside the courtroom 369

nature of that rule justifies its clear assertion in a legal writing. In

addition, if anything, transparency also justified Lord Hope’s reference
to this scholarly piece in sitting in a case about the admissibility of torture
evidence.46 A committed view, thus, can and must be expressed in a
considerate tone, in order for its proponent to stay within the remit
of freedom of expression, without appearing biased to a reasonable
observer.
8.10 In recent times, Judge James Pickles took part, without the Lord
Chancellor’s permission, in some BBC broadcasts and he also wrote for
the Daily Telegraph in 1985 about sentencing and parole. Having been
threatened with the sack, he nonetheless wrote a second article for The
Listener in 1986. He then gave a verbal undertaking to Lord Lane, the
then Lord Chief Justice, that he would contact him before speaking to
the press, but he rescinded the agreement when, according to him, the
Lord Chief Justice proved tardy in answering his letters. He gave press
interviews and criticised the judiciary in a book published in 1987.47 He
was again been threatened with dismissal for calling Lord Hailsham, the
then Lord Chancellor, a ‘brooding quixotic dictator’, ‘born with a golden
spoon in his mouth’.48
Pickles’s public confrontations with the Lord Chancellor and Lord
Chief Justice ended with the relaxation, detailed above, of the Kilmuir
Rules. Judge Pickles was not slow to take advantage of this newly
found freedom. In 1990 he tried a young mother for helping shop-
lifters and sent her to prison for six months. The Court of Appeal,
headed by Lord Chief Justice Lord Lane, freed the mother on pro-
bation, holding that she should not have been sentenced to youth
custody. Pickles called an impromptu press conference in a pub in
which he described Lord Lane as ‘a dinosaur living in the wrong
age’.49 Lord Woolf observed in 2003, though without express reference
to Judge Pickles, that the public soon tired of a certain circuit judge
with ‘a penchant for self-publicity’.50 Today it seems likely that some
sanctions, though possibly short of removal, would have been
undertaken.

46
A v. Home Secretary (No. 2) [2005] UKHL 71.
47
J. Pickles, Straight from the Bench: Is Justice Just? (London: Phoenix House, 1987); The
Guardian, 26 May 1986.
48
D. Woodhouse, The Office of the Lord Chancellor (Oxford University Press, 2001), p. 28.
49
The Guardian, 28 November 1990.
50
Woolf, ‘Should the Media and the Judiciary be on Speaking Terms?’, 8.

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370 freedom of expression and public confidence

8.11 It is inappropriate for judges to accept fees or honoraria for

lectures,51 though they can receive their expenses. Judges cannot
teach regularly at a university or other educational institution for a
salary. A judge may teach regularly for no remuneration, provided it
does not interfere with his official functions – but it is likely to prove
too heavy a burden. Judges receive royalties for their writings, many
of the books published being edited collections of the lectures they
have given.52

Speeches on the administration of justice

8.12 In the 1970s, apart from the Lord Chief Justice, who sometimes
made public statements on matters affecting the administration of justice
or judges (normally in his annual speech at the Lord Mayor of London’s
banquet for the judges), judges did not normally offer public statements.
Statements of judges on various aspects of the administration of justice
from the bench or in a lecture before a learned society would only
occasionally be reported in the press.
In recent times, the frequency of speeches has increased, and they are
systematically published on the judiciary website. There are too many
significant speeches one way or another for us to consider, but one
lecture must be mentioned. In 2003 Lord Woolf LCJ delivered an excep-
tionally critical lecture at Cambridge on ‘The Rule of Law and a Change
in the Constitution’. Lord Woolf underlined the failures of the Blair
government to appreciate the role of the Lord Chancellor in representing
the judiciary through his membership of the Cabinet, arguing that the
Lord Chancellor could act as ‘lightning conductor at times of high
tension between the executive and the judiciary’.53 He spoke against the
constitutional changes, such as the abolition of the role of the Lord
Chancellor, being made without any consultation of the judiciary and
being announced in a mere government press release. He also expressed
concerns at the creation of a Supreme Court, and raised a concern,
reiterated by Lord Phillips in 2011, that the running costs of the Supreme
Court would be recouped by imposing a surcharge on court fees. Lord

51
Guide to Judicial Conduct, 8.8.2. The Guide also suggests that where a judge gives a
lecture for a commercial undertaking there is no objection, if he considers that it would
be appropriate, to his requesting that any fee otherwise payable be paid to a charity of his
choice.
52
Examples are scattered throughout the footnotes of this work.
53
Lord Woolf, ‘The Rule of Law and a Change in the Constitution’ (2004) 63 CLJ 317, 320.

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i. judicial speech outside the courtroom 371

Woolf finally spoke against the creation of a specific Asylum and Immi-
gration Tribunal, which he considered went against the rule of law.
There is a fine line between commenting on matters of expertise and
interest and entering the realm of political controversy. The topics
addressed – the constitutional reform of the Appellate Committee of
the House of Lords, the administration of justice through a new tribu-
nal, the abolition of the role of representation of the judiciary by the
Lord Chancellor in Cabinet – all fall within the remit of judicial free
speech. They are matters upon which the judiciary should be able
legitimately to comment, given its expertise and the fact that the
changes considered have a substantial impact upon its constitutional
and practical structure. The depth of the changes and the casual
approach to them by the government, previously discussed,54 justify
the strong terms used by Lord Woolf in that lecture, which was widely
commented upon in the press.
The trend in public speeches is an expansive one. Between January and
December 2010 senior judges gave forty speeches, including fourteen
given by the Master of the Rolls, six given by the Lord Chief Justice
and one by the Senior President of Tribunals. By comparison, between
January and December 2003 there were twenty judicial speeches, includ-
ing eleven given by the Lord Chief Justice, and one by the Master of the
Rolls. This enhanced engagement with the legal community, the public
and the media illustrates the awareness of the judiciary that people
should understand how rulings are reached and the constraints under
which they work.55 Judges increasingly take part in radio programmes –
such as Clive Anderson’s series on BBC Radio 4, ‘Unreliable Evidence’ –
where judges comment on matters of general interest, such as the impact
of funding shortages and high staff turnover on the civil justice system.56
8.13 Occasionally, judges write obituaries on their late colleagues. They
sometimes write letters to newspaper editors, upon which the sensible
advice is now to consider whether it is appropriate to include any
reference to the writer’s judicial position; to ensure that the writer not
seen to be commenting on a particular case or a politically sensitive issue;
and to ask a colleague to read the draft in advance.57

54
See Chapter 2.
55
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, 152.
56
BBC, 13 February 2007.
57
The Lord Chief Justice and the Senior President of Tribunals, ‘Media Guidance’, 14.

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372 freedom of expression and public confidence

8.14 Judges are not only excluded from taking part in politically partisan
activities in any form, they must not state their views on political matters.
It is often said that judges do not comment on public policy within the
courtroom, unless it is legally relevant to deciding the case, as it may be
when construing the intention of a statute or regulation. Sir Alfred
Denning (as he then was) took up the issue. He agreed that judges should
carry out faithfully the intentions of Parliament and should not enter into
any captious or irresponsible criticism of what Parliament had done, nor
display a want of confidence in Parliament. However, continued Den-
ning, there were circumstances where judges were entitled to comment:
Parliament’s policies may have results it did not foresee. Its enactments may
not work out in practice in the way in which it had intended. The drafts-
manship may be obscure and give rise to unexpected difficulties. When this
happens, the judges have the right and indeed the duty to point it out; and
in the past they have often done so without being accused of impropriety.58

He may equally point to defects in the law or in the workings of an Act, as

appears in particular cases before him. That view remains applicable today.
In practice, judges sometimes offer comments and suggestions on law
and policy within the courtroom. Courts or trial judges can question the
wisdom of legislation, and point out that a particular statute is creating
what most people would regard as an injustice. In 2009 a Crown Court
judge criticised sentencing laws which he said left the courts unable to
protect women from domestic abuse.59 The judge had passed a prison
sentence with an extended parole licence provision on a man for assault
on his partner occasioning actual bodily harm. He had to change the
sentence because the total of the prison term and the extended sentence
went beyond the legal maximum of five years. Saying that the man
represented a serious risk to women, the judge said:
I make it clear that this sentence is not consistent with my public duty,
only consistent with the law of the land . . . The fact that the court is
unable to discharge its function to protect women might be considered by
some as a worrying aspect of this case . . . the current state of the law
means I am prevented from passing a sentence which properly reflects the
facts of this case.

While these criticisms are not common practice, and the above examples
tend to be part of the reasons that the judge must give for his decision,
they nonetheless blur the line on what is acceptable or not acceptable

58 59
Denning, The Changing Law, 12–14. The Daily Telegraph, 6 September 2009.

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i. judicial speech outside the courtroom 373

speech: ‘If it is accepted that a judge can comment on the operation of the
law within a case, on what basis is it to be said that the fundamental value
of free speech is to be confined outside the courtroom?’60 Indeed, it may
often be supposed that when a judge goes to lengths to explain why he is
not passing the sort of sentence that he would have liked to pass, he is
aware that this will draw public attention to the case, beyond explaining
the good or bad fortune to the defendant himself.
Criticisms of rules or policies that a judge is obliged to give effect to in
any event are legitimate provided that they are of potential educational
value for the lay public. Judges have always had the ability to comment
on the law: unless a penalty for an offence is fixed by law, a judge can give
an absolute discharge on the conviction of any defendant and that may
entail an implicit comment that there was no merit in applying the law to
that defendant. One recent example is the prosecution of Mrs Gilderdale
in 2010 for the attempted murder of her daughter who was bed-bound
and had tried to take her own life by injecting an excess of morphine into
her system. The factual allegation, which was not disputed, was that Mrs
Gilderdale had afterwards administered some sleeping pills and anti-
depressants to ensure that her daughter’s attempt would be successful.
The trial judge tried unsuccessfully to persuade the Crown Prosecution
Service to drop the charge of attempted murder in favour of one
of assisted suicide, and after the jury acquitted, this was the offence of
which Mrs Gilderdale was convicted. Even then she received only a
conditional discharge for one year, which was widely taken to be a
criticism of the law and the decision to prosecute. The judge had also
paid tribute to the jury, saying: ‘I do not normally comment on the
verdicts of juries but in this case their decision, if I may say so, shows
that common sense, decency and humanity which makes jury trials so
important in a case of this kind.’61 The role of judges is always to seek to
explain the law as they apply it to the instant case, and that entails some
freedom to comment on the values underpinning the law.
Indeed, speaking out may sometimes constitute a moral duty in
extreme circumstances, for example in applying laws relating to racial
segregation at certain troubled times in history.62

60
Hammond, ‘Free Speech and Judges in New Zealand’.
61
R v. Kay Gilderdale, unreported, Lewes Crown Court (January 2010); The Guardian, 25
January 2010.
62
D. Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective
of Legal Philosophy (Oxford: Clarendon Press, 1991); 2nd edn, published as Hard Cases in

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374 freedom of expression and public confidence

Influencing legal developments

8.15 Some judges interviewed strongly believed in the necessity to
engage with proposals relating to the administration of justice, in par-
ticular on criminal matters and sentencing, in order to make the law
work. The Judicial Executive Board itself recognises two qualifications to
the convention against comment on bill provisions or government policy.
They apply ‘where the Bill or policy directly affects the operation of the
courts or aspects of the administration of justice within the judge’s
particular area of judicial responsibility or expertise’. First, ‘the judge
may comment on the practical operation or technical aspects of the Bill
or policy’.63 This is underpinned by the principle of joint responsibility
(with the Lord Chancellor) for the operation of the courts. Second,
‘in these circumstances, a judge may properly comment on the merit of
a Bill or policy which affects the independence of the judiciary’.64
Other judges interviewed thought that the only proper channel for
influencing proposals was through the Law Commission, where trad-
itionally judges have been appointed as Law Commissioners (though this
is less noticeable in recent times) and whose proposals are frequently
open to consultation, including consultation with individual judges.
Judges also sit on bodies with responsibility for the justice system, for
example the Sentencing Council for England and Wales, which provides
guidance that statute requires the sentencing judge to take into account.
In addition, formal responses given by the judiciary to particular
government proposals constitute another transparent and formal mech-
anism for engaging with legal development. They tend to be widely
reported, and while they may create a tension with the executive, Sir
Igor Judge (as he was then) emphasised that ‘we do not expect our
response to carry the day’ and ‘in the end Parliament legislates, and then
it does not really matter what the judges think’ because ‘the judges apply
the law that Parliament has produced’.65 Hence the Council of Her
Majesty’s Circuit Judges gave a negative response to the Home Office’s

Wicked Legal Systems: Pathologies of Legality (Oxford University Press, 2010); S. Turenne,
Le juge face à la désobéissance civile. Etude en droits américains et français comparés
(Paris: Librairie Générale de Jurisprudence, Paris, 2007).
63
Judicial Executive Board, ‘Guidance to Judges on Appearances before Select Committees’,
para. 13.
64
Ibid.; Lord Judge CJ, ‘Judicial Independence and Responsibilities’, 16th Commonwealth
Law Conference, Hong Kong (9 April 2009).
65
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, 55.

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i. judicial speech outside the courtroom 375

paper ‘Convicting Rapists and Protecting Victims – Justice for Victims of

Rape’ in January 2007. Less usual, but perhaps typical is the Judges’
Council letter to Justice Secretary Kenneth Clarke in June 2011, where
the judges denounce the waste of the court’s time in immigration appeals,
claiming that 85 per cent of cases did not have any merit.66 The letter was
leaked in the press, and no official reaction to it is known.
Since the Constitutional Reform Act 2005 (CRA), which separated
very clearly the judiciary from the executive, judges have been greatly
involved in the administration of justice, a task substantially done until
then by the Lord Chancellor’s Department. Yet this is not felt to be
acknowledged by the public at large nor even by the executive itself, and
so judges do not seem to have any peculiar authority when speaking of
matters affecting the administration or delivery of justice. According to
Alan Moses, engaging with the public in this administrative capacity only
confuses their public image, and ‘what provides the mark of recognition
is the mask’.67 Some interviewees referred us to this speech and con-
curred that judicial authority – symbolised by the ‘mask’ – is perceived
only to exist in respect to decision making.
8.16 Moreover, private meetings take place between ministers and
judges, especially the Attorney General, the Justice Secretary and the
Lord Chief Justice’s office. The discussions are and must be limited to
the impact of particular policies in terms of the administration of justice.
Judges cannot formally, or even informally, anticipate the courts’ view on
the lawfulness of any proposed measure. They cannot discuss whether a
specific proposal would be ruled by the courts to be in breach of the
HRA; this would make it difficult for them to judge in their courts the
new legislation they would have helped to draft. That has not always been
understood, and in 2004, the former Home Secretary, Charles Clarke,
expressed his ‘frustration’ ‘at the inability to have general conversations
of principle with the law lords’.
When, in 2004, the House of Lords found disproportionate and
discriminatory the indefinite detention of suspected foreign terrorists
under post-9/11 anti-terrorism laws, the government introduced control
orders. Charles Clarke’s frustration referred to his hope to learn from
meetings with judges what sort of restrictions on terrorist suspects a

66
The letter says: ‘Most claims fail, most of the claims which fail are without merit, and
many are abusive of the court’s process.’
67
Moses LJ, ‘The Mask and the Judge’, Margaret Howard Lecture Speech (15 May 2006).

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376 freedom of expression and public confidence

court might find lawful. Lord Bingham, the senior Law Lord, recalled that
he had been told that the Home Secretary wanted a ‘purely social meeting’
with the Law Lords. ‘One was, perhaps, a little sceptical.’68 Charles Clarke
repeated his criticisms of the Law Lords’ refusal to meet before the House
of Lords Select Committee on the Constitution during its inquiry into
relations between the executive, the judiciary and Parliament in 2006–07.69
The Committee rightly pointed out that such a meeting ‘risks an unaccept-
able breach of the principle of judicial independence’,70 but that did not
prevent Charles Clarke from asserting similar views in 2011, when giving
evidence before the Joint Committee on the Draft Detention of Terrorist
Suspects (Temporary Extension) Bills.71
8.17 Can there be a more explicit dialogue between judges, Parliament
and the government about the way in which legal rules, such as the ones
deriving from the ECHR, are interpreted? The traditional objection
would be that ministers, like anyone else, should seek independent legal
advice about the viability of any of their proposals – starting, in the
government’s case, with their chief legal adviser, the Attorney General.
The counter-argument is that, on some matters, which will clearly be
litigated at Supreme Court level, the judges alone might know what they
are likely to decide. Such discussions would without doubt compromise
judicial independence; should the government amend its proposals after
any such discussion, there would be immense pressure on a future court
to approve the amended version. One might also be sceptical as to what
extent the government would be concerned in proposing sound laws and
to what extent it was trying to avert the political consequences of failure
in the courts, for it is no part of the judiciary to help to pre-empt
the latter.
The Lord Chief Justice confirmed in 2008 that the judiciary’s role in
any pre-legislative scrutiny exercise is to comment only on the practical-
ity of the drafting and the workability of policy for the Courts: ‘Judges
must not risk collusion with the executive when they are likely to be
required to adjudicate on challenges to the actions of the executive . . . the

68
J. Rozenberg, Standpoint, October 2010.
69
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, Oral Evidence, 26.
70
HL Select Committee on Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, Oral Evidence, 97.
71
Oral Evidence taken before the Joint Committee on the Draft Detention of Terrorist
Suspects (Temporary Extension) Bills (4 April 2011), Q162, HC 893 (2010–2011).

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i. judicial speech outside the courtroom 377

Law Lords should not even be perceived to have prejudiced an issue as a

result of communication with the executive.’72
The same reservations apply to post-legislative scrutiny, where Select
Committees make inquiries into the way in which the courts are inter-
preting and applying legislation. This may be done from time to time,
however, such as when the Joint Committee on Human Rights investi-
gated the courts’ interpretation of section 6 HRA and concluded that
their interpretation had been too narrow.73 The Lords Select Committee
on the Constitution considers post-legislative scrutiny highly desirable: it
‘should be undertaken far more generally’, as a way to ‘boost the level of
constructive dialogue between Parliament and the courts’.74
More widely, it is now perceived that concerns about the adminis-
tration of justice and the impact of legislation and other policy proposals
upon the courts and the judiciary should be addressed by Select Com-
mittees, in addition to the opportunity provided annually to the Lord
Chief Justice to appear before the House of Lords Select Committee on
the Constitution.75 This parliamentary forum provides for the oversight
of the judiciary, with evidence taken from the Lord Chief Justice or some
other senior judges on specific topics. This more recent form of judicial
accountability remains subject to the conventions regulating judicial
speech outlined in this chapter. They have recently been affirmed by
the Judicial Executive Board in the context of Select Committee appear-
ances.76 While it seems legitimate to encourage judges ‘to discuss their
views on key legal issues in the cause of transparency and better under-
standing of such issues amongst both parliamentarians and the public’,77
this is likely to have a limited impact, for reasons already outlined.

72
Lord Phillips, ‘The Supreme Court and Other Constitutional Changes in the UK’,
Address to Members of the Royal Court, The Jersey Law Society and Members of the
States of Jersey, Jersey (2 May 2008), p. 7.
73
Joint Committee on Human Rights, Ninth Report of Session 2006–07, ‘The Meaning of
Public Authority under the Human Rights Act’ (HL Paper 77/HC 410) and Seventh
Report of Session 2003–04, ‘The Meaning of Public Authority under the Human Rights
Act’ (HL Paper 39/HC 382); HL Constitution Committee, ‘Fourteenth Report of Session
2003–04, Parliament and the Legislative Process’ (HL 173-I); Sixth Report of Session
2004–05, ‘Parliament and the Legislative Process: The Government’s Response’ (HL 114);
Law Commission, ‘Post-legislative Scrutiny’ (Cm 6945).
74
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, para. 130.
75
Ibid., para. 120.
76
Judicial Executive Board, ‘Guidance to Judges on Appearances before Select Committees’.
77
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, para. 125.

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378 freedom of expression and public confidence

C. Who speaks for the judiciary?

8.18 Prior to the CRA, it was the practice for chief justices to be made
members of the House of Lords when or shortly after they were
appointed. This gave them the right to speak publicly in the chamber
on issues relating to the independence of the judiciary. The judges have
always had the view that, in relation to the administration of justice, and
in relation to sentencing, where the expertise of the judges is obvious,
they are entitled to express their views in Parliament and, with their
legislative hats on, to seek to influence Parliament. It seems part of a good
administration of justice that judges highlight the dangers of particular
government or legislative proposals before they are passed by Parliament
and prove to be unworkable or to have an undesirable impact on the
administration of justice in practice. Under the CRA, however, the Lord
Chief Justice is disqualified from sitting in the House of Lords. In
practice, the Lord Chief Justice speaks publicly if a particular government
policy is likely to have an adverse impact upon the administration of
justice, assuming that ministers have failed to provide a satisfactory
response during private consultations.78
The Lord Chief Justice can also make his views known to a Select
Committee such as the Lords Select Committee on the Constitution.79
Criticism in this political forum is regarded as an ‘ultimate weapon’80 to
be resorted to as seldom as possible. One interviewee considered ‘the
nuclear option’81 of the Lord Chief Justice refusing to sign the budget, on
the ground (for example) that he had asked for five years for an increase
in the number of judges and that it had not happened yet and created
difficulties in the administration of justice. The judge suggested that no
one wanted to consider a ‘show down’ before Parliament and yet that this
may become a necessity. But such a show down would be played out in
the media, and as we shall see, the judiciary feel that they have been
under-protected from criticism in recent years in the media. Further,
participation in a public debate would create the risk that they will be

78
Ibid., paras. 52–3.
79
CRA, s. 5 allows the Lord Chief Justice (and the Lord Chief Justice of Northern Ireland
and the Lord President of the Court of Session in Scotland) to ‘lay before Parliament
written representations on matters that appear to him to be matters of importance
relating to the judiciary, or otherwise to the administration of justice’.
80
Lord Hope, ‘What Happens When a Judge Speaks Out?’, 11.
81
An expression used by the Lord Chief Justice, (then Lord Phillips), see HL Select
Committee on the Constitution, ‘Relations between the Executive, the Judiciary and
Parliament’, Appendix 8: Evidence by the Lord Chief Justice (3 May 2006), QQ. 48–50.

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i. judicial speech outside the courtroom 379

drawn into wider debates which risk undermining public confidence in

their impartiality in future cases. Debates about legal aid, maximum and
minimum sentences and the size of the prison population all concern
the administration of justice but they are also issues of deep political
controversy.82
The Lord Chief Justice has clarified that this ‘nuclear option’ might be
used in a constitutional crisis, ‘if something was proposed by way of
legislation that was so contrary to the rule of law that judges would feel:
“We have got to step in and make plain our objection to this”’.83 The
Lord Chief Justice admitted considering this option in relation to the
failure (as he saw it) of the then Lord Chancellor to provide safeguards
following the creation of the Ministry of Justice.84 The then Lord Chan-
cellor, Lord Falconer, also suggested that representations should only be
made when the judiciary failed to obtain satisfaction through prior
discussions, and on issues relating to judicial independence, such as
undue interference in judicial appointments or inadequate resourcing
of the court system.85
8.19 Yet judges have had to adjust to the increased challenges of securing
an effective response to unwarranted criticisms. They must strengthen
the ways to engage in and influence debates about matters relating to the
administration of justice without laying themselves open to the accus-
ation of entering some areas of deep political controversy.86 The legal
profession itself may play an active role in sustaining public confidence in
the judiciary. Similarly to the media, it may act as a check on the
judiciary. Thus, the May 1992 issue of Legal Business published a ranking

82
Lord Irvine, Hansard, HC, vol. 572, cols. 1259–60, 5 June 1996.
83
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, para. 118, QQ. 48, 50. The Select Committee has suggested a protocol
for addressing any representation made by the Lord Chief Justice under s. 5 of the CRA.
A prompt formal and written response to the Lord Chief Justice’s concerns is expected,
‘probably in the form of a written ministerial statement’, and ‘before the bill has
progressed too far in either House’ if the Lord Chief Justice’s concerns relate to a
particular bill, Ibid., paras. 117–19; Lord Falconer Q. 63. The Select Committee also
recommended the publication of such representations in Hansard and a debate on the bill
or policy in question on the floor of the House, Ibid., paras. 118–19. A hearing before a
committee, perhaps the House of Lords Select Committee on the Constitution and the
Constitutional Affairs Select Committee in the House of Commons, might be appropri-
ate, Ibid., para. 118.
84
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, Q. 61.
85 86
Ibid. Lord Irvine, Hansard, HC, vol. 572, cols. 1259–60, 5 June 1996.

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380 freedom of expression and public confidence

order of High Court judges called ‘The most respected and the least
respected’ which it claimed was the result of a survey it had conducted
among members of the legal profession. Of the judge who came bottom
of the poll, the editor wrote:
The judge should be seen to be even-handed, fair and reasonable. . . . it is
my submission that, on this test, X fails abysmally – and his conduct
should therefore disqualify him from being a High Court judge . . . sheer
bloody-mindedness and rudeness . . . his behaviour in court . . . under-
mines the very credibility of English law and he does a disservice to all
involved in the legal process . . . the behaviour of X is unacceptable. He is
not suited for the bench . . . he holds a public office and his behaviour
reflects upon the integrity of that office . . . X is an embarrassment to
the Bench.

The comments from lawyers about one of the five most disliked judges
included the following: ‘[he] is incapable of making up his mind. It is
said that if his wife puts out two bowls of cereal for him, he never gets to
work.’ He is ‘very wimpish when it comes to making decisions because
he has a fear of offending anyone’, and is accused of trying ‘to run cases
without truly having grasped what it is about’; he is also said to be ‘slow
as a hearse’.87 Only one of the judges at the bottom of the popularity
ranking, Mr Justice Cresswell, responded, saying that he did not accept
the alleged criticisms of his decision-making or other judicial abilities;
‘ill-informed and unjust criticism in whatever tone will never deter me
from taking care with my work’. In a similar exercise in 2006, The
Lawyer attempted to defuse some of the criticism by claiming that the
harshest criticism was not for judges but for the court system as a
whole, pointing that good case management was a key element in
assessing judges.88
But legal professionals could also support the judiciary in facing
excessive media criticism – most obviously, by intervening to point out
facts of a case which the media have ignored but which play an important
part in explaining the decision. In some countries, such as the United
States or New Zealand, the American Bar Association (ABA), the Law
Society and Bar Association have reaffirmed their role in respect to
criticisms of judges. In the English context, this may have some impact
too, at least in responding to media criticisms, all the more since the
senior judges have themselves regularly spoken as advocates for the legal

87 88
The Independent, 7 April 1994. The Lawyer, 9 October 2006.

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i. judicial speech outside the courtroom 381

profession, in particular in relation to proposals to change legal aid.89

The ABA Commission on Separation of Powers and Judicial Independ-
ence recommended that state bar associations intervene in specific cir-
cumstances: when the criticism is serious and will most likely have more
than a passing or de minimis negative effect in the community; when the
criticism displays a lack of understanding of the legal system or the role
of the judge and is based at least partially on such misunderstanding; and
when the criticism is materially inaccurate, the inaccuracy should be a
substantial part of the criticism so that the response does not appear to
be nit-picking.
8.20 The Council of Europe recommends that communication to the
press of issues of public interest is made by a judge responsible for
communication or some spokesman for the judiciary.90 The Judicial
Communications Office created in 2005, now known as the Press
Office (a part of the Judicial Office) actively corrects inaccurate state-
ments made about the courts. It is not to spin, but to provide the media
with the basic facts they need. This office follows the judiciary’s involve-
ment in the public forum, either in providing information to the com-
munity at large or in working with the media to enhance the coverage of
the administration of justice.
8.21 Subject to the above, it is the responsibility of the Lord Chief Justice
and the Heads of Divisions that all judges adhere to this principle of non-
partisan judgment. In addition, since the creation of the Office for
Judicial Complaints in 2005, judicial speech, whether in court or outside
the court, can also be the subject of disciplinary procedures. Insulting,
racist or sexist language certainly amounts to misconduct.91 Two
examples may suffice. One judge was given formal advice by the Lord
Chief Justice in 2010, following the Office of Judicial Complaints’ finding
that his comments represented an inappropriate judicial comment. As he
jailed an illegal immigrant and drug runner, the judge said the case
illustrated how a ‘lax’ immigration policy had led to ‘hundreds and
hundreds of thousands’ of immigrants arriving in Britain to claim gener-
ous welfare benefits. Not only was this an inflammatory remark made

89
See, e.g., Lord Ackner reacting in 1988 to the proposals to change legal aid and reducing
the role of barristers, and recently, Lady Hale, ‘Equal Access to Justice in the Big Society’,
Sir Henry Hodge Memorial Lecture 2011 (27 June 2011).
90
Art. 19, Council of Europe, Recommendation no. 12 of 2010.
91
Judicial Studies Board, ‘Equal Treatment Bench Book’.

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382 freedom of expression and public confidence

without statistical foundation, it was also the case that the immigrant had
arrived in Britain on a visitor’s visa but claimed asylum when the visa ran
out.92 Second, another judge received a formal reprimand following some
of his observations during the trial of some pro-Palestinian campaigners
and his summing up. The Office of Judicial Complaints found that his
comparison of Israel to the Nazi regime 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.93

II. Media scrutiny under check

8.22 A robust and informed public debate about judicial affairs promotes
judicial accountability. Media scrutiny must be welcomed, but its limits
considered too, given the threat to judicial independence caused by
excessive media or ministerial criticism. The possible responses from
the judiciary are examined.

A. The development of media scrutiny

8.23 Public scrutiny is perhaps the most of important of all checks on the
judiciary: ‘Without publicity, all other checks are insufficient: in com-
parison to publicity, all other checks are of small account . . . It is the
keenest spur to exertion and the surest guard against improbity. It keeps
the judge himself, while trying, under trial.’94 The media sometimes acts
as the first check on judicial conduct. It also conveys to the judiciary
the sense of the community on matters of general public interest. Hence
the press, lawyers and members of the public are entitled to criticise the
court, even if the language used is intemperate, or the terms of the
criticism, in some respects, erroneous. Courts ought to be able to bear
trenchant criticism directed at all aspects of the administration of justice,
including judicial decision making, judicial conduct, judicial appoint-
ments or court procedures and management.
In 1969, the Salmon Committee observed that ‘the right to criticise
judges . . . may be one of the safeguards which helps to insure their high
standard of performance, and also that the same meticulous care which

92
Daily Mail, 5 August 2009.
93
Office for Judicial Complaints, Statement OJC/25/10, 7 October 2010.
94
J. Bentham, Rationale of Judicial Evidence, Specially Applied to English Practice. From the
Manuscript, ed. J.S. Mill (London: Hunt and Clarke, 1827).

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ii. media scrutiny under check 383

has always been taken in appointing them in the past will continue to be
taken in the future’.95 In an address to magistrates, Lord Hailsham LC
gave this advice to the justices:
So long as you do not find your private home invaded or your personal
privacy intruded upon do not treat the Press as your enemy. What goes
on in court is public property and it is not merely their right but their duty
to report, and it is their right and very often their duty to comment.
Private justice is almost always a denial of justice.96

Lord Denning said in later years: ‘Justice has no place in darkness and
secrecy. When a judge sits on a case, he himself is on trial . . . If there is
any misconduct on [his] part, any bias or prejudice, there is a reporter to
keep an eye on him.’97
It is not difficult to find examples of media scrutiny improving the
delivery of justice. Media pressure played a part in exposing some of the
notorious miscarriages of justice in the 1970s. The media might also be
able to signal flaws in the legal process, as it did on the use of expert
evidence in court in relation to cot death. The two wrongful convictions
of Sally Clark and Angela Cannings98 for murdering their babies had,
each time, partly relied on the expert evidence at the original trials of
Professor Sir Roy Meadow, an experienced paediatrician, who refuted the
proposition that Sally Clark’s two sons may have died from cot death.
The prosecution of Sally Clark for murdering her two babies partly relied
on his flawed statistical calculations, that the probability of the two
deaths having been incidences of cot death was 1 in 73 million. Aside
from the fact that the calculation underlying this probability is incorrect,
this calculation was never compared with an estimate of the probability
that the two deaths were the result of a double murder.99 Professor Sir
Roy Meadow was vilified through the extensive media reports of the
proceedings, but the media pressure showed more generally a failure of
the system,100 since not just the experts but the lawyers and judges
involved may have been able to prevent the miscarriage of justice but

95
Salmon LJ, ‘Report of the Interdepartmental Committee on the Law of Contempt as it
affects Tribunals of Enquiry’, Cmnd 4078 (London: HMSO, 1969), p. 15.
96
Lord Hailsham, ‘Presidential Address’ (1971) 27 The Magistrate 185, 186.
97
Lord Denning, Address before the High Court Journalists Association, The Times,
3 December 1964.
98
R v. Cannings [2004] 1 WLR 2607.
99
HC Select Committee on Science and Technology, ‘Scientific Advice, Risk and Evidence
Based Policy Making’, Seventh Report (2005–06) (16 March 2005), p. 168.
100
Meadow v. General Medical Council [2007] 1 All ER 1, paras. 168–70.

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384 freedom of expression and public confidence

failed to do so. In particular, the same expert evidence had been used in
family courts for some time, but they were not open to the public or
media, and thus its flaws only came about with the criminal trials of
Angela Cannings and Sally Clark.
The media pressure has been key in making the family courts more
open and accessible, with, for example, a campaign by The Times starting
in July 2008 to open up the family courts to the press, so that experts and
social services would be more accountable for the childcare system. This
was done, following Sir Mark Potter, ‘not for the purposes of currying
favour with the press’, but because of ‘the harm’ being done ‘both to the
child care system and the reputation of family judges by the complaints
of aggrieved parties to which they could not reply and the consequent
allegations of secret justice’.101 Accordingly, a Practice Direction and
Guidance were issued in 2009 permitting wider press access to family
proceedings.
8.24 The media have become more or less consistently outspoken over
the years. Their criticism may sometimes be unfair, though the risk of
misunderstanding is ‘just part of the job – one of the consequences of the
fact that trials are heard in public’.102 It is fair to suggest that in years
gone by, much criticism was aimed at appointees who had little to show
by way of legal pedigree and who owed their position to contacts with the
Lord Chancellor, though such criticism would often only emerge in
newspaper obituaries (‘it is possible that party claims were considered
as much as legal qualifications. There were at least a dozen men with
better credentials’).103 Contemporary criticism would more likely be
offered to some judges who arguably should, but had not, been removed
for misconduct or infirmity. In 1891 The Times emphatically called for
the retirement of Mr Justice Fitzjames Stephen, who had been afflicted
with mental illness but still remained in office, writing that the capacity of
the judge was ‘the universal topic of conversation whenever lawyers
meet’, ‘a subject of wonder and regret to the whole profession’.104 The

101
Potter LJ, ‘Do the Media Influence the Judiciary’, The Foundation for Law, Justice and
Society in Affiliation with the Centre for Socio-Legal Studies, University of Oxford
(2011), p. 7.
102
Lord Hope, ‘What Happens When a Judge Speaks Out?’, 9–10.
103
The Times, 1 December 1911, quoted in S.W. Durran. The Lawyer, Our-Old-Man-of-the-
Sea (London: Kegan Paul & Co., 1913), p. 225.
104
The Times, 6 March 1891, quoted in H. Cecil, Tipping the Scales (London: Hutchinson,
1964), pp. 179–80.

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ii. media scrutiny under check 385

Profumo scandal in 1963 gave rise to allegations against judges and

criticism of the courts.105 In 1968 Lord Avonside, a Scottish judge, was
strongly criticised for accepting an invitation from Edward Heath, then
the Leader of the Opposition, to serve on a committee of the Conserva-
tive Party which was appointed to consider party proposals for a Scottish
Assembly. Lord Avonside resigned from the committee under public
pressure. In 1970 Sir Henry Fisher also came under fire for having
resigned from the High Court after only two-and-a-half years on the
bench. He was particularly criticised for joining a firm of merchant
bankers upon his resignation, as it was believed that he broke an estab-
lished tradition that, upon retirement from the bench, judges do not take
business appointments.
However, such scrutiny was of rather an ad hominem nature. It is hard
to see a similar tendency of the media to criticise judges over the merits
of individual decisions. Some fifty years ago, the press was criticised for
failing to discharge properly its public duty to bring to light the short-
comings in the administration of justice. Mr Blom-Cooper (as he then
was) wrote that:
criticism of the judiciary over the last fifty years has been confined to
conversations over the coffee cups and to the seclusion of private solici-
tors’ offices and barristers’ chambers . . . The English have cloaked their
judges with an immunity from public criticism which tends only to
diminish the quality of justice administered by those so privileged.106

Professor Griffith complained that ‘judges are treated as though they

were Caesar’s wives and we should be unsuspicious’.107 The JUSTICE
Report on Law and the Press also expressed some dissatisfaction with the
role of the press in checking the judges. It recommended that ‘the
newspapers [should] devote more continual and serious attention to
matters concerning the administration of justice and employ more
experienced reporters and editorial staff for this purpose’.108 Some sug-
gested that in fact newspapers were afraid to criticise judges for fear of
being punished for contempt. In the course of a debate in the House of
Lords on the law and the press, Lord Gardiner LC observed that ‘unfor-
tunately, the administration of justice in this country is insufficiently

105
For an account of the Profumo scandal see Cecil, Tipping the Scales, 188.
106
L. Blom-Cooper, ‘The Judiciary in an Era of Law Reform’ 37 Political Quarterly 378
(1966).
107
J. Griffith, ‘Conspiracy and the Judges’, New Statesman, 17 October 1971, p. 854.
108
JUSTICE, ‘The Law and the Press’ (1966), p. 17.

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386 freedom of expression and public confidence

criticised’.109 But in fact much may have been owed to the inherent
tendency of many editors to avoid criticism of judges. In 1971, upon the
death of Lord Goddard (Lord Chief Justice 1947–58), the Times columnist
Bernard Levin had made vitriolic comments110 on Lord Goddard’s short-
comings. He attacked Goddard in the strongest terms for his conduct in
the Craig-Bentley Trial and in the Laski libel action and for his campaign
against penal reform.111 Today, his criticism of Lord Goddard seems
simply ‘orthodox’112 and in 1993 Bentley was granted a posthumous
pardon in relation to the sentence of death, following a Divisional Court
judgment to that effect. In 1998 the Court of Appeal allowed a posthumous
appeal against conviction because Lord Goddard’s summing up was so
prejudiced that it denied him that fair trial which is ‘the birthright of every
British citizen’.113 Yet among the numerous letters written in June 1971 to
The Times commenting on Bernard Levin’s’ article, one Mr Peter Black
perceptively wrote that ‘had Goddard still been among us, Levin’s perfectly
justified expression of opinion on a matter of public importance would
probably not have been printed as it stood’.114
The controversy surrounding the publication, in 1971, of the Report
on the Judiciary of a JUSTICE subcommittee offered another example of
the reluctance to criticise the bench. The report proposed reforms in the
appointment and removal of judges as well as other reforms in the
training of judges and the eligibility of solicitors and academic lawyers
for higher judicial posts. The Report divided the Council of JUSTICE
which could not reach an agreement on its recommendations, and a
number of its eminent members objected to its publication on the ground
that it might ‘shake public confidence in the Judiciary’ or might engender
‘mistrust of the Judiciary in those who without reading the full Report
might draw unjustified inferences from recommendations above’.115
Ultimately, after the report was ‘leaked’ to the general press, JUSTICE
decided to publish it as a report of the subcommittee which prepared it,
and not as a JUSTICE report.
It is difficult to understand why a serious study on the appointment,
retirement and removal of judges should be suppressed only because the

109
Hansard, HL, vol. 274, cols. 1371, 1439, 25 May 1966.
110
The Times, 8 June 1971.
111
D. Yallop, To Encourage Others (London: W.H. Allen, 1972); E. Grimshaw and G. Jones,
Lord Goddard: His Career and Cases (London: Allan Wingate, 1958), pp. 40–60, 129–50.
112
The Times, 7 September 2004.
113
R v. Bentley [2001] 1 Cr App R 307, para. 68; see above para. 5.23.
114 115
The Times, 12 June 1971. JUSTICE, ‘The Judiciary’.

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ii. media scrutiny under check 387

reforms proposed imply that the existing system is defective. As one critic
wrote, ‘the system loses far more than it gains by continuing to shield the
judiciary from public scrutiny, and the public can only gain from the
exposure of possible defects in the system’.116 The JUSTICE Report affair
has nothing to do with fear of the contempt power, but with a then long-
established tradition to avoid outspoken criticism of judges and the
administration of justice.
8.25 Deference started to become unfashionable in the 1980s. In more
recent times, in 1986, the Daily Mirror responded to the Spycatcher
injunction with upside-down photographs of the Law Lords who had
upheld the injunction, below the headline ‘YOU FOOLS!’.117 No action
was taken, and Sedley LJ (as he was then) observed that since that day,
‘not only deference but civility towards the bench has become unmod-
ish’.118 Miscarriages of justice, such as those involving the Birmingham
Six119 and the Guildford Four in the 1980s, triggered personal criticisms
of the judges involved in those miscarriages.
In 1989, Lord Lane quashed the convictions of the Guildford Four.120
But he was to be ‘haunted’121 by the words he used when he presided in
January 1988 in the three-judge Court of Appeal which rejected the
appeals of the Birmingham Six: ‘As with many cases referred by the
Home Secretary to the Court of Appeal, the longer the case has gone on
the more this court has been convinced the jury was correct.’ The same
year, Lane turned down the appeal of the Tottenham Three, wrongly
jailed for the murder of PC Keith Blakelock, after finding that there was
‘no lurking doubt’ in spite of the flimsiness of the prosecution case. The
Three’s successful appeal in 1991 brought criticism of the Lord Chief
Justice and an apology from the Presiding Judges.
When the Birmingham Six returned to the Court of Appeal in 1991,
Lloyd LJ defended Lane, saying: ‘The scientific issues before the court
(in the earlier appeal) were not the same as they are now.’ Nonetheless,
the acquittal of the Six brought renewed calls for Lane’s resignation.
Bernard Levin wrote in The Times, under the title ‘Hoist by their own

116
Ibid., Foreword.
117
Attorney-General v. Guardian Newspapers Ltd (No. 2) [1990] AC 109.
118
S. Sedley, ‘Foreword’, in I. Cram (ed.), Borrie and Lowe: the Law of Contempt, 4th edn
(London: LexisNexis Butterworths, 2010), p. viii.
119
R v. McIlkenny [1992] 2 All ER 417.
120
R v. Richardson, R v. Conlon, The Times, 20 October 1989.
121
Obituary, The Times, 24 August 2005.

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388 freedom of expression and public confidence

arrogance’,122 that the ‘narcissistic arrogance’ of Lane’s ‘worthless cer-

tainty’ was a danger to justice, and he urged him to go. A Commons’
motion to that effect was signed by 140 MPs. When he retired in 1992,
Bernard Levin wrote ‘the odious nature of Lord Lane’s retirement bun-
fight suggests that many of them [the judiciary] still don’t know why
they are distrusted and even despised’.123
When Lane retired in 1992, Lord Donaldson, the Master of the Rolls,
denounced the attempts to make the Lord Chief Justice a ‘scapegoat’,
saying that he could now break the traditional silence of judges about their
colleagues and ‘give voice to the anger and disgust which we have felt at the
campaign of calumny waged against you in recent months’. Nonetheless,
in 1993, a journalist in the Sunday Times commented: ‘Corruption is
almost unknown in the brotherhood of judges, but stupidity, crassness
and blatant prejudice especially against women are not.’124
8.26 Today the overall picture has evolved once more. Aided by more
transparent appointment and disciplinary processes, there is less criti-
cism of the competence and integrity of the English judges. Further, the
media stereotype of the English judges as being overwhelmingly upper
class and remote from society is markedly less pronounced and certainly
they are less consistently portrayed as conservative establishment figures.
However, the advent of the HRA, which allows and sometimes arguably
requires, judges to quash administrative decisions or policies which
violate a protected human right, calls for judgments of a more ‘evaluative’
kind,125 prompting complaints that the judges are striking down policies
of the democratically elected. Sir Mark Potter observes with irony that
the High Court judge was, in the late 1980s, typically portrayed in some
parts of the media, as a ‘portsoaked reactionary, still secretly resentful of
the abolition of the birch and hostile to liberal influences of any kind’.
The same judge is now, in the same parts of the media, ‘an unashamedly
progressive member of the chattering classes, spiritually if not actually
resident in Islington or Hampstead, out of touch with “ordinary people”,
and diligently engaged in frustrating the intentions of Parliament with
politically correct notions of Human Rights’.
8.27 Thus, much of the English media criticises judges for leniency or
inconsistency in sentencing. In 1995 the Chairman of the Conservative

122 123
18 March 1991. The Times, 15 June 1992.
124
The Sunday Times, 10 June 1993.
125
T. Bingham, ‘The Human Rights Act’ (2010) EHRLR 568, 570.

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ii. media scrutiny under check 389

Party urged members of the public to write to judges and magistrates and
complain about lenient sentencing.126 Giving evidence before the Consti-
tution Committee in 2006, Paul Dacre, editor of the Daily Mail, stated
that ‘whilst the public still have huge faith in the independence and
integrity and incorruptibility of the British judiciary’, they are becoming
‘slightly confused’ because they see ‘political judgments being made by
judges which fly in the face of what they perceive as national interests’
and ‘an increasingly lenient judiciary, handing down lesser and lesser
sentences’.127 Perhaps the best-known example, and the one always cited
by the judges interviewed, is the low sentence given to a convicted
paedophile where the judge had correctly applied existing sentencing
guidelines. Regrettably, the Home Secretary of the day joined in the
attack on the trial judge, and the incident heightened concerns among
the judiciary that the Lord Chancellor is not in a sufficiently strong
position to remind his Cabinet colleagues of their duties to respect the
decisions of the judiciary.128 The Select Committee on the Constitution,
in its Sixth Report (2006–07) regretted the ‘misleading and wholly
inappropriate’ rhetoric developed by some newspapers, such as the Daily
Mail in a 2003 editorial: ‘Britain’s unaccountable and unelected judges
are openly, and with increasing arrogance and perversity, usurping the
role of Parliament, setting the wishes of the people at nought and
pursuing a liberal, politically correct agenda of their own, in their zeal
to interpret European legislation.’129 In 2006 Clare Dyer, the legal editor
of the Guardian, confirmed the critical trend in giving evidence before
the House of Lords Constitution Select Committee, saying that judges
were increasingly seen as ‘too left wing, too bleeding liberal, too wet’ and
‘too pro-human rights and too soft’.130
8.28 We note these trends not in order to criticise them but as necessary
background to discussing how judges should anticipate and respond to
media criticism, not all of which will be well founded. We were struck,
however, by how many judges interviewed thought that their public
image had never been worse, and criticism had been more forthcoming

126
A. Lester, ‘Judges and Ministers’, 18 LRB, vol. 18, n. 8, 18 April 1996, p. 10.
127
Ibid., 143.
128
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, para. 45.
129
Daily Mail, 20 February 2003.
130
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judiciary
and Parliament’, 142.

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390 freedom of expression and public confidence

than ever before, notwithstanding that they still compare well with most
other professionals in England. The media rhetoric contrasts with the
relatively high opinion of the justice system in the UK compared with
other European countries. Thus the November 2010 Eurobarometer
survey indicates that 50 per cent of the individuals surveyed tend to trust
the justice system/the UK legal system, against 47 per cent of individuals
who tend not to trust it.131

B. Judicial anticipation and response to media criticism

8.29 The harm to individual judges and the threat to judicial independ-
ence caused by excessive media or ministerial criticism do require a
response from the judiciary. Given that judges are not elected in this
country, we can quite safely suggest that no judge would consciously do
that which his conscience tells him is wrong for gaining media praise, nor
fail to do ‘what is right’ in fear of media criticism. Lord Mansfield CJ, in
an oft-quoted passage, said:
I will not do that which my conscience tells me is wrong, upon occasion,
to gain the huzzas of thousands or the daily praise of all the papers which
come from the press: I will not avoid doing what I think is right, though it
should draw on me the whole artillery of libels.132

Upon this point Mr Justice Cardozo, has also spoken:

Historic liberties and privileges are not to bend from day to day because of
some accident of immediate overwhelming interest which appeals to the
feelings and distorts judgment . . . A community whose judges would be
willing to give it whatever law might gratify the impulse of the moment
would find that it had paid too high a price for relieving itself of the
bother of awaiting a session of the Legislature and the enactment of
statute in accordance with established forms.133

Judges’ decisions may still be subconsciously or subliminally influenced

by the anticipated views of media commentators. The particular difficulty
is that media opinions cannot be equated with the opinion of the public
at large. The press or media constructs public opinion as much as it

131
The Public Opinion Analysis sector of the European Commission, Eurobarometer
survey of November 2010.
132
R v. Wilkes (1770) 4 Burr. 2527. 2561. 98 ER 327, 346; H. McCardie, The Law, the
Advocate and the Judge, A Reading Delivered before the Honourable Society of the Middle
Temple (19 May 1927), p. 26.
133
Doyle v. Hofstader 257 NY 244, 268 (1931).

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ii. media scrutiny under check 391

channels ‘public opinion’. The message conveyed does not even have to
be true: while the media have reflected concerns about a ‘compensation
culture’, research done in 2004 showed that the existence of such culture
was a myth, but a myth which fuelled wide misperceptions, and nurtured
changes in the law of damages.134 So it is for the benefit of the legal
system itself that judges have developed two strategies for dealing with
the press without compromising their independence and professional
distance by constantly engaging with the media.
One strategy is educational and essentially prophylactic: potential
misconceptions or misreporting of their decisions may be anticipated
and incorporated in the decision. The other strategy is reactive: where,
despite all due caution, a decision has been misreported and is causing
public disquiet, moves may be made to correct the mistake, but without
entering into argument over the merits of the decision. If two solutions
were possible, no action will be taken to counter criticism that the judges
preferred the worse solution, but a correction may be made if it is
popularly suggested that a judge could have done something which he
had no power, or lacked jurisdiction, to do.

The anticipation of media storm

8.30 The prophylactic strategy is relatively recent and depends on an
understanding that law reports are now available freely online and by no
means read only by professionals and by law students. Lord Neuberger
recalled in 2011 the ever more important duty of judges to communicate
the law through their judgments as clearly as possible, as the law, reflecting
society as well as legislation, becomes ever more complicated.135 In cases
involving difficult moral and ethical issues, such as in the assisted suicide
cases (Pretty and Purdy),136 the courts have ignored the strong media tide
in support of Ms Purdy’s call for clarification of the law in respect of
assisted suicide. Both the Court of Appeal and the House of Lords instead
clearly emphasised the limits of their remit – it is for Parliament to change
the law on a difficult issue such as the one raised in Purdy.137

134
HC Constitutional Affairs Committee, ‘Compensation Culture: Third Report of Session
2005–06’, vol. 2, report HC 754-II (10 March 2006), example cited by Potter LJ, ‘Do the
Media Influence the Judiciary’.
135
Lord Neuberger, ‘Open Justice Unbound’, Judicial Studies Board Annual Lecture (16
March 2011), para. 14.
136
R (Purdy) v. Director of Public Prosecutions [2009] UKHL 45; Pretty v. Director of Public
Prosecutions and Secretary of State for the Home Department [2001] UKHL 61.
137
R (Purdy) v. Director of Public Prosecutions [2009] UKHL 45, para. 26 [Lord Hope].

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392 freedom of expression and public confidence

Judges are encouraged to anticipate the storm and assist the press, in
an attempt to avoid misreporting, especially in relation to sentencing.
Summaries of complex judgments are expected to be handed down to
assist the media, explaining why a particular sentence has been imposed,
and pointing out any statutory restrictions that may have prevented them
from imposing a higher one. They are provided in the media releases
which now regularly accompany judgments in particularly high-profile
or complex cases. Beyond assisting the media, this is enhancing trans-
parency of justice. Similarly, if the media is running a story based on a
single out-of-context comment, an accurate account of what actually
happened in court should be provided with the full transcript. Public
information officers attached to the Lord Chief Justice are expected to
anticipate media storms and to prepare appropriate press releases for
immediate effect, thus reducing the risk of misreporting. Judges have a
system in place before attacks are launched.138
Thus, for the first time, the intense media coverage of the trial of
Rosemary West in 1995 was managed by the Lord Chancellor’s press
office. West was tried and eventually convicted of the murder of eleven
people in Gloucester. This was the first trial in the United Kingdom
where reporters covering it were provided with a media annexe adjacent
to the trial courtroom, with sound links from the trial courtroom being
relayed into other courtrooms. More than 150 reporters were accommo-
dated when it came to the summing up and sentencing at the end of the
trial. Media management for the West trial became the template for
future high-profile trials and for major public inquiries headed by a
judge, such as Lord Hutton’s Inquiry into the death of Dr David Kelly
in 2004, or for high-profile inquests, such as those into the death of Diana
Princess of Wales and Dodi al Fayed.
8.31 The House of Lords Constitution Committee emphasised, in 2007,
that individual judges should make ‘every effort to explain the reasoning
behind their judgments or sentencing decisions in the clearest possible
manner in order to avoid any misunderstanding of the true position by
either the media or the public’.139 Indeed, the inaccuracy of the reporting
of sentencing prevents an open debate, itself a precondition for sensible

138
Compare with the United States ABA guidelines, ‘Rapid Response to Unfair and Unjust
Criticism of Judges’ (2008).
139
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judi-
ciary and Parliament’, 150; C. Sunstein, ‘If People Would Be Outraged by Their Rulings,
Should Judges Care?’ (2007) 60 Stanford Law Review 155.

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ii. media scrutiny under check 393

sentencing.140 The report recognises that individual judges and the

judiciary as a whole can be treated as ‘fair game’ by columnists and
headline writers in the tabloid press. The judgment of Foskett J in an
application for judicial review in relation to the Baby P case is rightly
cited as ‘an impeccable exercise in judicial distancing from the views and
influence of the media, as well as the politics of the matter’,141 while
addressing the need for clarity with a thorough judgment on an issue that
was widely publicised. The judge introduced his judgment in these terms:
Almost anything that happens in connection with the Baby P case, or with
its wider implications, occasions comment. That is entirely to be expected
and is, of course, a welcome feature of any informed and balanced public
debate about how tragedies of the nature that occurred in relation to Peter
can be avoided in the future. Whether the outcome of the present court
case has anything to contribute to that important debate will be for others
to judge.
However, any informed and balanced view of the consequences of the
case before the court needs an understanding of the precise issues for
consideration and the way in which the court deals with those issues. It
does also require a clear appreciation of what this case is not about.142

The judge then carefully circumscribed the scope of his judgment,

excluding some matters of interest to the press and clarifying that the
judgment concerned the fairness of the procedures followed by the public
authorities to dismiss the applicant. He later stated:
48. Second, the Claimant is undoubtedly of the view that she has been
subject to press and media interest and intrusion that has gone beyond an
acceptable threshold, a view that appears to be shared by others and, at
least to some extent at some stage, according to an interview in the papers
before me, by the Secretary of State himself. Again, I cannot avoid
reference to the involvement of the press in relation to some parts of
the background since it forms a significant feature of that background and
may have a bearing on at least one important feature in the case. How-
ever, anything I say about the press interest should not be seen as either
condemning or condoning what has occurred. There will be those who
consider the press interest in the Claimant to have been entirely appro-
priate and called for; there will be those who consider it to have been
unfairly personalised and unnecessarily and aggressively intrusive. That is
a matter of personal opinion and taste. My position on this issue must be
one of neutrality. No issue of law arises from it . . .

140
Lord Woolf, ‘Should the Media and the Judiciary be on Speaking Terms?’.
141
Potter LJ, ‘Do the Media Influence the Judiciary’, 4–5.
142
Sharon Shoesmith v. OFSTED and others [2010] EWHC 852 (Admin), para. 24.

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394 freedom of expression and public confidence

49. Third, I can deal with the issues and arguments in this case only on
the basis of the evidence put before me.143

In the Court of Appeal, Maurice Kay LJ further emphasised the role of

the press in this case:
134. I cannot leave this case without commenting on the way in which Ms
Shoesmith was treated. In another case, Sedley LJ was moved to say:
‘It seems that the making of a public sacrifice to deflect press and public
obloquy, which is what happened to the appellant, remains an accepted
expedient of public administration in this country. (Gibb v Maidstone &
Tunbridge Wells NHS Trust [2010] EWCA Civ 678, (at paragraph 42)’
135. In my view, it is also what happened in the present case.144

8.32 This educational strategy does not have to be pursued only in

judgments. Other local initiatives to educate the press about the adminis-
tration of justice may be appropriate too. Lord Judge LCJ placed a strong
emphasis in 2011 on the need for practical cooperation between the
judiciary and media representatives:
In England, judges with administrative responsibilities, for example, the
senior judge in the Crown Court of, say, Leeds or Manchester is encour-
aged to have a working relationship with the editor of the local news-
papers, so that if for example it appears that a judge in his sentencing
remarks has said something outrageous or absurd, at least before this goes
into print, it can be checked that he has indeed said that which was
attributed to him, or that if he did, there was a context which explains
it. A record of what the judge actually said should be made available. In
that way what might be a misguided headline is avoided. On the other
hand, if the judge did indeed utter a remark which, whatever the context,
was absurd or stupid or revealing a prejudice, why then, it should be
reported, and criticised for absurdity, stupidity or prejudice.145

Thus the guidance on ‘Family Courts: Media Access & Reporting

July 2011’, was, for the first time, drafted by a group of lawyers and
journalists, both from the print and broadcast media. This guidance is
a further step in the established cooperation between the Society of
Editors, lawyers and the judiciary for the production of guides to
reporting restrictions in the Crown Court and the Magistrates Court.
A newspaper reporter can draw the attention of the court to the contents

143
Ibid., paras. 48–9.
144
Shoesmith (on the application of) v. OFSTED and others [2011] EWCA Civ 642, paras.
134–5.
145
Judge LCJ, ‘The Judiciary and the Media’, 7.

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ii. media scrutiny under check 395

of these guides, so as to avoid the expense of employing lawyers for the

purpose. The result is fewer inappropriate reporting restrictions, or, if
such restictions are imposed, their prompt removal, without, in the
words of the Lord Chief Justice, the independence of the judiciary or
the media being diminished.146
The same public consultation exercise is underway regarding live text-
based communications in relation to the proceedings – mainly tweeting –
of hearings by journalists, while practice guidance has been provided by
the Lord Chief Justice on this subject.147 A similar increased transparency
exists in relation to super-injunctions.148
Senior judges can now be given television and radio interview training;
it has become possible for judges to take part in their local court ‘open
days’ and talk to their local reporters. The first media guidance for judges
was provided in 2000 by Lord Irvine’s office on how to handle the media
while dealing with cases attracting major press coverage.

Correcting misreporting from the media

8.33 The second strategy alluded to above is the reactive one of making
corrections. We referred, in our introduction, to the convention that
judges do not respond to criticism in individual cases. As Lord
Denning said, ‘from the nature of our office we cannot reply to criticism.
We cannot enter into public controversy. We must rely on our conduct
itself to be its own vindication.’149 Even when they are misreported,
individual judges traditionally do not publicly put right the inaccuracies,
though they may refer to the matter in open court.150 The principle has
always, rightly, been that a judgment speaks for itself, for better or for
worse.151 Sir Igor Judge, then President of the Queen’s Bench Division,

146
Ibid.
147
Lord Chief Justice, ‘Practice Guidance: The use of live text-based forms of communi-
cation (including Twitter) from Court for the purposes of fair and accurate reporting’, 14
November 2011.
148
The report of a committee chaired by Lord Neuberger on that matter addressed media
concern by distinguishing between the rare super-injunction and other cases, and by
emphasising the need to improve the procedures/practice of parties proposing to seek
anonymity in case of high media interest.
149
Ex parte Blackburn (No. 2) [1968] 2 WLR 1201, 1207.
150
Cecil, The English Judge. For two early cases of a judge writing a letter to the press in
matters concerning his judicial conduct, see L. Radzinowicz, ‘Sir James Fitzjames
Stephen’, Selden Society Lecture 1957, p. 41; The Times, 21 August 1975.
151
Hammond, ‘Free Speech and Judges in New Zealand’.

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396 freedom of expression and public confidence

told the Constitution Committee in 2006 that ‘enhancing public confi-

dence is a most difficult concept and it is particularly difficult . . . for
judges who actually are not in the business of trying to sell themselves to
anyone. If our judgments do not speak for themselves there is nothing
that the Communications Office or the press office can do.’152
In the United States, where public criticism is rife and no restraints
similar to England and Wales apply, a ‘Prohibition on Judicial Response’
can be found in the Code of Conduct.153 However, judges should be
prepared to correct factual errors (as opposed to entering into argument
or debate over the merits of their decisions) and to inform the public of
the limits of their powers in certain cases, for example when criticised for
not doing something which was in fact outside their jurisdiction or
otherwise legally impossible. Given that most people draw their know-
ledge of the judiciary and the justice system from the media, the judiciary
must also ensure that the media criticisms also reflect an understanding
of the limits or obligations imposed by the law on the judge.154
A summary or a statement of the merits or the meaning of a decision
is a convenient way to meet those expectations.
Some cases involve repeated visits to the courts, and these provide
ideal opportunities for judges to set the record straight. A High Court
judge criticised a Sunday Telegraph journalist over his reporting of a case
heard in the family courts in 2010.155 The journalist had written two
articles about a case involving a one-year-old child taken into care and its
mother, father, grandmother and guardian, and a city council. In his
ruling, the judge said that the two articles written by the journalist about
the case were ‘unbalanced’, ‘inaccurate’ and ‘wrong’. The journalist’s
second article criticised the council for basing its decision to place the
child in care on the evidence of an unnamed paediatrician, and referred
to the judge being ‘so excoriatory’ about the paediatrician’s evidence. But
the judge in his ruling corrected the journalist about his reporting, saying
that that paediatrician had had no involvement in the case at all; the
journalist was also criticised for failing to attend the hearings and relying
on one of the parties only in his account of the proceedings:
Parents involved in court proceedings cannot always be relied upon to be
unbiased and dispassionate. More often . . . they are partisan and

152
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judi-
ciary and Parliament’, 148.
153 154
Canon 3 (A)(6). Judge LCJ, ‘The Judiciary and the Media’, 7.
155
The Guardian, 17 May 2011.

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ii. media scrutiny under check 397

tendentious. It is not only judges that need to recognise that but journal-
ists too. As this case has shown, to rely uncritically upon what a parent
says can lead to reporting that is unbalanced, inaccurate and just
plain wrong.156

8.34 Support for media relations has been available from 1987 onwards,
from the Lord Chancellor’s Press Office, in relation in particular to high-
profile trials. The press office, first staffed in 1987 by one professional
communicator, progressively expanded and gained responsibility for
managing not just media issues but also internal communications as well
as a departmental website and an intranet. The Lord Chancellor’s press
office gained full strength when Lord Taylor, who was appointed as new
Lord Chief Justice in 1992, heralded a new relationship with the media
with regular press conferences for legal correspondents and interviews.
He was also the first head of the judiciary to appear on the BBC’s
Question Time. Lord Taylor supported a greater public engagement of
judges on the ground of judicial accountability:
It is simply no longer sensible to remain silent when so much attention,
much of it highly critical, is focused on courts and the judicial process. In
the absence of any reply it would be assumed against the judges that they
were so arrogant and complacent as to believe that they could ignore
criticism, or that they had no good answer to it. I think that it is gradually
gaining acceptance that the judiciary has a duty not only to defend itself,
but also to be accountable. Some countries even have public relations’
departments, for example Australia. Lord Woolf told me that once a year
he held a press conference to inform the public about the work of the
judiciary. He certainly demonstrated that it is possible to maintain judicial
independence from the executive and at the same time be accountable
to the public.157

8.35 While misreporting is often unintentional, it can be repeated and

become an accepted fact in the media. The judiciary’s policy is to obtain
retractions from the press, and a correction of the archives. In a rare case,
the Sun’s front page on 28 July 2011 carried a single column panel saying
‘Judge is cleared – see page 2’. The original story, on the front page, ran
under the headline ‘Paedo trial judge “drunk in court”’. This was a rather
sensational interpretation of a Press Association report in April 2011 that
that a Crown Court judge was under investigation by the Office of

156
In response, the journalist in question complained about the obstacles to reporting cases
in family courts.
157
Daily Telegraph, 24 April 1996.

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398 freedom of expression and public confidence

Judicial Complaints. He had been accused of being ‘influenced by

alcohol’ at a trial in Swindon in which he acquitted a man of raping
an eight-year-old girl after the jury failed to reach a verdict. When the
Office of Judicial Complaints, having investigated the matter, rejected
the mother’s claim,158 the judge asked for some front page reference to
his exoneration, and the Press Complaints Commission negotiated on his
behalf to obtain the publication of the retraction of the original story. The
retraction concluded with a quote from the judge pointing to the effect of
this damaging and unfounded allegation on him and his family, adding
that ‘It was a slur on the judiciary as a whole. I’m pleased it has been
thoroughly investigated and rejected.’159
Corrections can also be made to protect the name of one who has been
wrongly accused in the media. This can occur in the Family Court where
the decisions themselves typically omit the names of the parties. Thus the
President of the Family Division issued in August 2011 a press release in
a paedophile allegations case even before giving two judgments in open
court.160 In the press release, the judge explained that in two previous
hearings the High Court had found that the father had not sexually
abused his daughter, and that the mother had manufactured the ‘evi-
dence’. His first public judgment (omitting only the name of the child)
would explain why he had reached the same conclusion as the two
previous judges. His second judgment would explain why he had found
a woman in contempt of court. The press releases stated that the child’s
mother, with the assistance of another woman, had unlawfully and in
breach of court orders put into the public domain via email and the
internet a series of unwarranted and scandalous allegations about the
father and others. This was accompanied by some poor press reporting,
and even an MP publicly taking the defence of the mother and breaking a
super-injunction under parliamentary privilege for that purpose. The
judge made the judgment public in order for the father to publicly clear
his name:
I have read all the papers in the case carefully. The father of the child, who
may be named, is not a paedophile and he has not sexually abused his
daughter . . . These proceedings have had a serious effect on the life of the

158
Office for Judicial Complaints, Statement OJC 25/11 (27 July 2011).
159
The Guardian, 28 July 2011. The PCC has been criticised for failing to regulate the
press’s conduct and its powers have come under review under the Leveson inquiry into
phone-hacking.
160
Re X (a child), 25 August 2011, not yet reported.

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ii. media scrutiny under check 399

father, and have threatened the stability of the child. Her mother’s actions
are wholly contrary to her interests. The father is entitled to tell the world,
and the world is entitled to know, that he is not a paedophile; that he has
not sexually abused his daughter, and that the allegations made against
him are false.

8.36 There is a growing consensus as to who – the individual judge, the

Judicial Communications Office or even the Lord Chief Justice or the
Lord Chancellor themselves – should correct mistaken media reporting.
Although much depends on the nature of the criticism, judges should pre-
empt possible misunderstandings in their own judgments and they should
not seek to clarify their judgments in the press when they have failed to do
so in their judgments. Here later clarification might only be sought by
other means, from the Judicial Communications Office or even some
informed academic commentary. Persistent factual errors in reporting
the facts of the case or their own reasons are corrected that way.
Where the matter is not so much one of the details of a particular case,
but one of a wider legal misunderstanding about the powers and respon-
sibilities of judges, then the Judicial Communications Office should
intervene. For example, in murder cases, the judge’s sentence may
comply with the sentencing guidelines, and yet the victim or the victim’s
family may regard it as too lenient, and the media will criticise the
judgment instead of the guidelines.161 The Judicial Communications’
Office should correct such misconceptions, if they are thought liable to
mislead the public on an important matter. We note that, in 2008, the
Judicial Communications Office set a judges’ media panel, with a few
judges being deployed, after media training, to take part in interviews or
media discussions so that a judicial viewpoint can be clearly stated. They
do not comment on specific cases but they can, for instance, explain how
sentencing policy works in relation to a type of crime. Moreover, the
Lord Chancellor, who, under section 3 CRA, must uphold judicial inde-
pendence, should be prepared to speak where the very independence of
judges is potentially undermined by misinformed criticism.
Recently, a High Court judge, Mr Justice Eady, gave a series of
controversial rulings in defamation cases brought against the media.
The Daily Mail editor, in a series of attacks, described him as unaccount-
able and hostile to freedom of speech. Lord Pannick QC used his maiden
speech in the Lords in 2008 to defend him.162 He suggested that, in the

161 162
Criminal Justice Act 2003, ss. 172–74. The Times, 24 November 2008.

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400 freedom of expression and public confidence

face of ill-informed attacks, an independent judiciary should be seen,

where necessary, to defend itself and respond to those attacks. Mr Justice
Eady was further criticised by the editor of the Daily Mail when the latter
gave evidence to the Parliamentary Select Committee on Culture, Media
and Sport in 2009. The judge was accused of ‘moral and social nihilism’
and ‘arrogance’, though the editor added that this was not intended to be
anything personal.163 In a rare public speech some months later, the
judge responded, without giving names, that ‘The media have nowhere to
vent their frustrations other than through personal abuse of the particu-
lar judge who happens to have made the decision.’164 He suggested that
‘letting off steam’ that way was an inevitable consequence of adopting,
under the HRA, the balancing approach and an ‘intense focus’ on the
particular facts of the case.
8.37 Ensuring accurate and fair media reporting does not, however,
justify privileged press relationships, that is, off-the-record briefings or
unattributable comments to journalists by judges, a phenomenon on the
increase according to the House of Lords Constitution Committee in
2007.165 That view was firmly made by Lord Mackay and Sir Igor Judge
(as he was then) and endorsed by the same Constitution Committee.

C. Executive criticism in the media

8.38 When commenting upon judicial decisions, the executive must
avoid criticism that would undermine the independence of or public
confidence in the judiciary, and avoid actions which may call into
question their willingness to abide by judges’ decisions, other than stating
their intention to appeal.166 Ministers can disagree with the outcome of
individual judgments and express their intention to appeal, but express
or implied personal attacks on judges are not acceptable, nor can intem-
perate and inaccurate comments be tolerated.167

163
Oral evidence to the Parliamentary Select Committee on Culture, Media and Sport, 23
April 2009.
164
Eady J, ‘Privacy and the Press: Where Are We Now?’, Judiciary of England and Wales
Justice Conference (1 December 2009), p. 4.
165
HL Select Committee on the Constitution, ‘6th Report’, 154–5.
166
Article 18, Recommendation CM/Rec (2010) 12 of the Committee of Ministers of the
Council of Europe to member states on judges: independence, efficiency and responsi-
bilities, adopted by the Committee of Ministers on 17 November 2010.
167
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judi-
ciary and Parliament’, Oral Evidence, para. 41.

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ii. media scrutiny under check 401

Under Section 3 CRA, the Lord Chancellor and other Ministers of the
Crown must uphold the continued independence of the judiciary. This
provision reflects the concerns of the Judges’ Council that, with the
abolition of the traditional role of the Lord Chancellor, there would not
be anyone to protect the judiciary from politicians’ attacks. The sooner
the Lord Chancellor speaks out, privately and, if necessary, publicly,
to defend the independence of the judges, the better it is.168 The Lord
Chief Justice commented in 2010 upon the ‘imperceptible threat’ to the
independence of the judiciary created by the ministerial criticism of a
judicial decision:
There was a time when it became a habit of government Ministers who
were unhappy with a decision reached by the courts not merely to say, ‘I
intend to appeal’, which is a perfectly reasonable response to a decision
that you disagree with, but, in effect, to go to the media to criticise the
individual judge on a personal basis and to explain why, spinning fast, the
judgment was absolutely daft. That I did regard as an imperceptible threat
because the independence of the judiciary, when all is said and done,
depends on the public will that the judiciary should be independent. If
judges are constantly criticised by Ministers for their decisions, it under-
mines the principle and the perception.169

We noted earlier the breakdown in the relationship between the judiciary

and the Cabinet in 2006 in the Sweeney case, where the judge had
correctly applied existing sentencing guidelines.170 The Home Secretary
of the day (John Reid MP) joined the media in the attack on the trial
judge as ‘unduly lenient’.171 The Select Constitution Committee pointed
to a ‘systemic failure’172 as the Lord Chancellor was too slow to defend
judges against his colleagues in the Cabinet, raising doubts as to whether
the Lord Chancellor is in a sufficiently strong position to remind his
Cabinet colleagues of their duty to respect the decisions of the judi-
ciary.173 One judge interviewed commented that the Lord Chancellor
was a politician and had to face his own battle on the budget, as well as
dealing with prisons. She expressed concern about what would happen

168
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judi-
ciary and Parliament’, Oral Evidence, 97 (Lord MacKay).
169
HL Select Committee on the Constitution, ‘Meetings with the Lord Chief Justice and the
Lord Chancellor’, 9th Report of 2010–2011, HL Paper 89, 16.
170 171
Sentencing Remarks, T20067014, 12 June 2006. Daily Telegraph, 20 June 2006.
172
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judi-
ciary and Parliament’, 49.
173
Ibid., 45.

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402 freedom of expression and public confidence

when a non-lawyer becomes Lord Chancellor, doubting that they would

understand the requirements of judicial independence.174
The Lord Chancellor did not publicly defend the judge in question
until appearing on the BBC’s Question Time programme three days after
the sentence was handed down. Even then, he claimed that the Home
Secretary did not attack the judge. The following day, his junior minister
further criticised the judge in a radio programme, but the Lord Chancel-
lor extracted an apology from her. The Attorney General decided not to
appeal the sentence imposed by the trial judge, concluding that it was not
‘unduly lenient’. The Lord Chief Justice later labelled the attacks ‘intem-
perate, offensive and unfair’, while the Secretary of the Council of HM
Circuit Judges, told the BBC that ‘some of the judges felt that there was
quite a silence, and there was no-one actually speaking on behalf of the
judges . . . We are thinking that we must perhaps change that.’175 The
senior judiciary was also too slow in heading off the inflammatory press
coverage which followed the sentencing decision. The Lord Chancellor,
giving evidence to the House of Commons Constitutional Affairs Com-
mittee one month later, accepted that the Sweeney case had an impact on
undermining confidence in the judiciary, and some interviewees
prompted that example in the course of discussing the relationship of
judges with the media.
The Sweeney episode is by no means isolated. To some extent, toler-
ance of executive criticism seems to have come from the very top of
British politics. The prime minister’s comments following the decision to
grant indefinite leave to remain in the UK to the nine Afghan nationals
were an improper interference with the administration of justice, as the
decision was in the process of being appealed. The prime minister
remarked that ‘it’s not an abuse of justice for us to order their deport-
ation, it’s an abuse of common sense frankly to be in a position where we
can’t do this’. But the judgment was upheld with the words that ‘Judges
and adjudicators have to apply the law as they find it, and not as they
might wish it to be.’176 In that case, the public criticism of judges clashes
with the protection of the functioning of the institutions of justice.

174
Chris Grayling, who became Lord Chancellor in September 2012, is the first non-lawyer
acceding to this position in modern times.
175
For a summary of the events, see HL Select Committee on the Constitution, ‘Relations
between the Executive, the Judiciary and Parliament’, 46.
176
R (S) v. Secretary of State for the Home Department (2006) EWHC 111. There was no
public reaction from the Lord Chancellor.

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ii. media scrutiny under check 403

The relationship between judges and the Cabinet took another turn
when David Blunkett, then Home Secretary, criticised a judge in 2003 for
upholding the right of six asylum seekers to receive support from the
National Asylum Support Service, writing in a tabloid under the headline
‘It’s time for judges to learn their place’.177 He said that he was ‘person-
ally fed up’ with judges overturning his decisions in asylum cases.178 The
Lord Chancellor, Lord Irvine, pointed out that ‘maturity requires that,
when you get a decision that favours you, you do not clap. And when you
get one that goes against you, you don’t boo.’ The Lord Chancellor
retired from office soon afterwards. Lord Woolf, then Lord Chief Justice,
also responded before Parliament that ‘unfortunately there are times
when the judiciary are left with the impression that their efforts are
neither appreciated nor welcomed’. Lord Woolf wrote privately to David
Blunkett protesting at his attacks on judges in the case of asylum
seekers,179 before speaking publicly in 2004 in response to the extraor-
dinary proposal of the Home Secretary and the Lord Chancellor that,
under the ouster Clause 11 of the Asylum and Immigration (Treatment
of Claimants etc) Bill, the courts would be prevented from considering a
legal challenge to a decision of an immigration tribunal.180 The – failed –
attempt to restrict the jurisdiction of the courts blatantly undermined
judicial independence. In such a case, as pointed out by Lord Lloyd, a
former Law Lord, to the Select Committee on the Constitution, ‘the Lord
Chancellor’s duty is absolute; he must point out in Cabinet that this
would undermine the independence of the judiciary’.181
More recently, after assuming that the criticism under New Labour
might be a thing of the past, the Lord Chief Justice’s expressed optimism
in 2010 was undermined by the unusually robust criticism from not just
the Home Secretary but also the prime minister. The Home Secretary
(Theresa May) said, in a statement to the House of Commons, that the
government was ‘disappointed and appalled’ by the UK Supreme Court

177
News of the World, 23 February 2003; R (Q) v. Secretary of State for the Home
Department [2004] QB 36. No public reaction from the Lord Chancellor is known.
178
This followed a Court of Appeal decision requiring state support for genuinely destitute
asylum seekers, see R (Q, D, J, M, F & B) v. Secretary of State for the Home Department
(2003) EWHC 195 (Admin).
179
D. Blunkett, The Blunkett Tapes: My Life in the Bear Pit (London: Bloomsbury, 2006),
p. 267.
180
The Times, 24 February 2004.
181
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judi-
ciary and Parliament’, 39.

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404 freedom of expression and public confidence

judgment on the right of convicted sex offenders to have lifetime restric-

tions on their freedoms reviewed from time to time to ensure that they
remain necessary. The Lord Chancellor (Kenneth Clarke) wrote to the
Home Secretary to remind her of the government’s duty to uphold the
independence of the judiciary.182 The prime minister recently reacted to
a judgment of the European Court of Human Rights on prisoners’ voting
rights, declaring: ‘It makes me physically ill even to contemplate having
to give the vote to anyone who is in prison.’183 These criticisms only
underline the need for the Lord Chancellor to ensure that his Cabinet
colleagues respect judicial decisions. Yet this is not happening. In a
statement presenting the draft Bill on voting eligibility for prisoners to
Parliament, the Lord Chancellor outlined three possible options for
reform, including re-enacting the current general ban on prisoner voting,
with a few minor changes. The Explanatory Notes (from the Lord
Chancellor’s Department) flatly state that ‘the Government is unable to
say that the provisions are compatible with [the ECHR]’.184 The Lord
Chancellor is, arguably knowingly, putting forward a proposal that
breaches an ECHR right. The two other options for reform, however,
would be compliant with the ECHR.
8.39 It has been suggested that a convention that ministers should not
criticise adverse decisions ought to have been included in the Concordat.185
The House of Lords Constitution Select Committee recommended the
insertion in the Ministerial Code of a reference to the ‘constitutional
conventions which ought to govern public comment by ministers on
judges’.186 One may doubt the effectiveness of such measure in the light

182
R (F and Thomson) v. Secretary of State for the Home Department [2010] UKSC 17.
183
Hansard, HC, vol. 517, col. 921, 3 November 2010; the Grand Chamber of the European
Court of Human Rights gave six months to the UK to bring forward measures to repeal
the blanket ban on prisoners’ rights, see Scoppola v. Italy (No. 3) [2012] ECHR 868; the
prime minister responded saying that ‘No one should be in any doubt, prisoners are not
getting the vote under this government’. See also Greens and M.T. v. UK, Applications
nos. 60041/08 & 60054/08 ECtHR 23 November 2010; Hirst v. UK (No. 2) [2005] ECHR
681; T. May, Hansard, HC, vol. 523, cols. 959–60, 16 February 2011: at the 2011
Conservative Party conference, she disparaged a tribunal judge who, she claimed, had
ruled that an illegal immigrant could not be removed from the UK because of a pet cat,
see above, para. 2.13.
184
Explanatory Notes, Voting Eligibility (Prisoners) Draft Bill, November 2012, paras. 58
and 88.
185
Bradley, ‘Judges and the Media’, 478–80.
186
See HL Select Committee on the Constitution, ‘Relations between the Executive, the
Judiciary and Parliament’, paras. 41 and 50.

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iii. scandalising the court and defamation 405

of the New Zealand experience, where the insertion of such principle in the
equivalent Ministerial Code was not seen as sufficient hindrance from
unfair and improper criticisms.187 It was there further suggested that judges
ought to be able to make a complaint to the Judicial Conduct Commis-
sioner about what had been said about them, with a power given to that
Commission to require the publication of correction.188 This would be
similar to the power already given to the Press Complaints Commission.
One similar proposal which may be considered in the various contem-
porary reviews into media governance is that when a minister lambasts an
adverse decision, the press should add that the minister is breaking
convention in criticising the judge, and that judges themselves will not
respond to public debates about their decisions. This does at least inform
the public that they are only hearing one side of the story, and that they
ought not to be hearing from the minister at all. The point is one of public
information, not one of deterring such statements. Indeed, effective deter-
rence seems very difficult, and even when some ministers have remem-
bered the protocol not to attack individual judges, they have instead
criticised the HRA, while meaning their audience to understand that the
individual judgment is the real cause of their ire. The Joint Committee on
Human Rights found that ministers are making ‘unfounded assertions
about the Act’ and using the Act as ‘a scapegoat for administrative failings
in their departments’.189 Tension between the judiciary and the executive is
likely to continue, despite the reminder from the House of Lords Consti-
tution Committee that this kind of comment is unacceptable.190

III. Scandalising the court and defamation

8.40 Given the unfair reception of some judicial decisions, and the poten-
tial of some such criticism to undermine confidence in the justice system,
is there a case for having criminal sanctions against bad-faith criticism,
even if they are to be deployed only in extreme cases? If not, is it proper
that judges should be able to sue their critics in defamation – typically by
suing the newspaper in which the offending comments were published?

187
New Zealand Cabinet Manual, para. 4; the Standing Orders of the House of Representa-
tives also prohibit Members of Parliament from criticising judges, Standing Orders of
the House of Representatives, 1999, No. 114.
188
Hammond, ‘Free Speech and Judges in New Zealand’.
189
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judi-
ciary and Parliament’, para. 147.
190
Ibid.

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406 freedom of expression and public confidence

Scandalising a court, or murmuring judges in Scotland,191 can be

defined as ‘any act done or writing published calculated to bring a court
or a judge of the court into contempt or to lower his authority’.192 It
applies any time, by contrast with the sub judice rule which applies to
pending legal proceedings only.193 The offence requires publication in
the print, broadcast or electronic media, or acts akin to publication, such
as statements to the media.194 The publication must be voluntary, and
the publisher must know that the publication contains the allegations in
question195 and that the allegations reflect on the courts.196 The Privy
Council confirmed in Ahnee v. DPP that no additional element of mens
rea was required when the publication is intentional and the defence of
fair criticism in good faith does not apply.197
8.41 The offence of scandalising the court was in disuse in England even
before the recognition of the right to free speech under the HRA. The
Phillimore Committee198 recommended ‘a new and strictly defined crim-
inal offence’. It proposed that the offence should be constituted by the
publication, in whatever form, of matter imputing improper or corrupt
judicial conduct with the intention of impairing public confidence in the
administration of justice, that it would be triable only on indictment, and
that prosecution should only be at the instance of the Attorney General.199

191
Stair Memorial Encyclopaedia, vol. VI, p. 117, para. 320.
192
R v. Gray [1900] 2 QB 36, 40 [Lord Russell CJ]; Skipworth’s Case (1873) LR 9 QB 230;
Onslow’s and Whalley’s Case (1873) LR 9 QB 219; In the Matter of a Special Reference
from the Bahama Islands [1893] AC 138; Bennett v. Southwark London Borough Council
(Bennett) [2002] ICR 881, para. 27 [Sedley LJ]. Scandalising the court is one form of
contempt among others, such as ‘contempt in the face of the court’, for example,
throwing missiles at the judge, insulting persons in court, demonstrating in court;
‘contempt out of court’, such as reprisals against witnesses after the conclusion of
proceedings, disobedience to court orders, or conduct, whether intentional or not, liable
to interfere with the course of justice in particular proceedings’, see the Contempt of
Court Act 1981; Cram (ed.), Borrie and Lowe, 401. The boundaries between the various
forms of contempt can be blurry: it is possible for contempt by scandalising to be
committed by what is said or done in court, see e.g. Lewis v. Judge Ogden [1984] 153
CLR 682; Cram (ed.), Borrie and Lowe, 11.18.
193
It falls outside the strict liability rule under the Contempt of Court Act 1981, and is not
confined to a particular medium, see Cram (ed.), Borrie and Lowe, 11.10.
194
Law Commission, ‘Consultation Paper No 207’, p. 6.
195 196
McLeod v. St Aubyn [1899] AC 549. Perera v. R [1951] AC 482 (PC).
197
Ahnee v. DPP [1999] 2 AC 294, p. 307.
198
The Phillimore Committee, ‘Report of the Committee on Contempt of Court’, Cmnd
5794 (1974).
199
The Phillimore Committee, ‘Report’, 164–6.

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iii. scandalising the court and defamation 407

It should be emphasised that the purpose of this offence (an instance of

the law of contempt) is to uphold judicial authority or the process of the
administration of justice, and not the private interest of the judges
acting in a personal or extra-judicial capacity.200 Thus, in In the Matter
of a Special Reference from the Bahama Islands, the Privy Council held
that criticisms of the Chief Justice which were not directed at him in his
official capacity as a judge were not contempt.201 In such case, the judge
can only sue in defamation or libel to remedy any damage to his
personal reputation.202
Although the ‘scandalising’ form of contempt has not been found by
an English court since 1931, prosecutions and convictions continue to
take place in other jurisdictions such as Australia, New Zealand, Hong
Kong and Singapore203 and have resulted in some appeals to the Privy
Council. The surprising grant of leave to prosecute, in Northern Ireland,
an MP who criticised a judge’s handling of a judicial review application,
in March 2012, put the offence on the agenda of the Law Commission,
which recommended its abolition in December 2012.204 The House of
Lords has now accepted the abolition of that offence, and our account
below provides some background to this position.205
8.42 In the leading authority, R v. Editor of The New Statesman, ex parte
DPP, Mr Clifford Sharp, the editor of The New Statesman, was punished
for contempt after the journal published an article implying that the
religious beliefs of the judge, Mr Justice Avory, made it inevitable that he

200
R v. Almon (1765) Wilm 243, 97 ER 94; Badry v. DPP of Mauritius [1982] 3 All ER 973;
R v. Metropolitan Police Commissioner ex parte Blackburn (No. 2) [1968] 2 QB 150, 154
[Lord Denning].
201
In the Matter of a Special Reference from the Bahama Islands [1893] AC 138.
202
Ibid.; McLeod v. St Aubyn [1899] AC 549, 561 [Lord Morris].
203
See In re Phelan (1877) 5, 7 [Kotzé]; S v. Harber and another [1988] ZASCA 34; S v.
Kaakunga 1978 (1) SA 1190 (SWA); Ahnee and others v. Director of Public Prosecutions
[1999] 2 WLR 1305 (PC); R v. Koptyo (1987) 47 DLR (4th) 213 (Ont. CA); Narmada
Bachao Andolan v. Union of India and others (1999) 8 SCC 308; Attorney-General for
New South Wales v. Mundey [1972] 2 NSWLR 887; Solicitor-General v. Radio Avon Ltd
[1978] 1 NZLR 225 (CA); Wong Yeung Ng v. Secretary for Justice [1999] 2 HKLRD 293
(CA); M. Chesterman, ‘Contempt: in the Common Law, but not the Civil Law’ (1997) 46
ICLQ 521.
204
The prosecution was discontinued in Northern Ireland in May 2012 following a
preliminary hearing and after Hain wrote to the Attorney General to explain and
clarify his remarks; UK Law Commission, ‘Contempt of Court: Scandalising the
Court. A Consultation Paper’, Law Commission Consultation Paper No. 207 (London,
2012), p. 6.
205
Hansard, HL, cols. 871–9 (10 December 2012).

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408 freedom of expression and public confidence

would rule against a woman who was a birth control advocate.206 Lord
Hewart CJ rejected the argument of the defence, that the article was not
intended to bring the judge into contempt but to convey that the subject
was so controversial that no one who held strong views on one side could
prevent his judgment from being unconsciously influenced by them. The
Court found that the imputation of unfairness and lack of impartiality to
a judge in the discharge of his judicial duties lowered the judge’s author-
ity and interfered with the performance of his judicial duties. The
apology of Mr Sharp was accepted, and he was ordered to pay the costs
of the proceedings.207

A. A defence of truth and fair comment

8.43 Should a defence of truth, for statements of facts, and a defence of
fair comments, for value judgments, be made available to a person
charged with scandalising the court, as applies in defamation law? For
a long time the weight of authority at common law seems to have gone
against justification of truth as a defence to the charge of scandalising the
court. In New Zealand, William J agreed upon the basic principle of a
defence of truth, but rejected it as lacking a basis in law, commenting that
the court does not sit to try the conduct of the judge.208 R v. Colsey is the
last case in which the power of contempt was exercised for criticism of
judges in England and Wales, and it shows the court overreacting.209 The
editor of Truth was punished for contempt because of comments on a
decision of the Court of Appeal dealing with trade union law. Comment-
ing on the judgment of Lord Justice Slesser,210 who had once been a law
officer in a Labour government, Truth wrote: ‘Lord Justice Slesser, who
can hardly be altogether unbiased about legislation of this type, main-
tained that really it was a very nice provisional order or as good a one as
can be expected in this vale of tears.’ Lord Hewart CJ, for the Court, ruled

206
R v. Editor of The New Statesman, ex parte Director of Public Prosecutions (1928) 44 TLR
300.
207
Attorney General v. Barry Wain [1991] 2 MLJ 525; Attorney-General v. Lingle [1995] 1
SLR 696. The ‘scandalising’ form of contempt is there a constitutionally recognised
qualification to the free speech clause.
208
Attorney-General v. Blomfield (1914) 33 NZLR 545, 563; S-G v. Radio Avon Ltd [1978] 1
NZLR 225, 231.
209
R v. Colsey, ex parte Director of Public Prosecutions, The Times, 9 May 1931; Cram (ed.),
Borrie and Lowe, 426. The Privy Council has been the source of the most recent case law,
see e.g., Vidyasagara v. The Queen [1963] AC 589.
210
R v. Minister of Labour, ex parte National Trade Defence Association (1931) 47 TLR 364.

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iii. scandalising the court and defamation 409

that these comments constituted contempt and ordered the editor of

Truth to pay a fine of £100 and costs.
Nonetheless, as was suggested in New Zealand, the imputation of bias
to judges may sometimes be justified: ‘if then the judge shows bias,
should the honest critic, who says that he has done so, be fined or
imprisoned?’211 Similarly, suppose that a person alleged that Sir Francis
Bacon was accepting bribes and offered proof for his allegation. Would
he be quite properly committed for contempt by Bacon and forbidden to
produce any evidence in support of his charges?
The need for public scrutiny of judicial conduct must therefore limit
the scope of application of the offence of scandalising the court. In 1969
the Salmon Committee underlined that if there is a just cause for
challenging the integrity of a judge, it could not be contempt of court
to do so.212 The JUSTICE report on Contempt of Court recommended,
in 1959, that there should be the opportunity of making bona fide
charges of partiality or corruption against a judge. It considered, how-
ever, that the appropriate means for this purpose was not the press but a
letter to the Lord Chancellor or the complainant’s Member of Parlia-
ment.213 In addition to a defence of truth, the Phillimore Committee
added an important proviso that public interest requires that normally
allegations of judicial corruption or lack of impartiality should first be
submitted to the Lord Chancellor.214
The Law Commission’s opinion in 1979, however, was that only false
allegations should be subject to sanctions at all.215 Since the 2005 settle-
ment, the Office for Judicial Complaints provides an effective channel for
complaints of partiality or corruption (the latter being a rather unlikely
event) against a judge. The concern underlying JUSTICE’s proposals
remains strong and can be seen in the conclusion of the Law Commission
of Canada216 in 1982 that truth should not be available as a defence as it
may result in ‘guerrilla warfare’ against the judiciary.
The authoritative answer to the question of a defence of truth seems to
have been provided by the European Court of Human Rights. In De Haes
and Gijsels v. Belgium, the Court refers to the necessity of protecting the

211
Mr Justice McKenna, ‘The Judge and the Common Man’ 32 MLR 601, 604.
212 213
Salmon LJ, ‘Report’, 421. JUSTICE, ‘Contempt of Court’ (1959), p. 15.
214
The Phillimore Committee, ‘Report’, 166.
215
Law Commission, ‘Offences Relating to Interference with the Courts of Justice’, Law
Com. No. 96 (1979), paras. 3.64–3.70.
216
Law Commission, ‘Contempt of Court’ (1982), p. 26.

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410 freedom of expression and public confidence

judiciary from ‘destructive attacks that are unfounded’.217 When alle-

gations are excessive, some factual basis for making criticisms would
provide them some protection.218 Conversely, in the absence of a
sufficient factual basis, some accusations will have an excessive breadth
which may appear unnecessarily prejudicial and will thus justify a
domestic conviction for criminal defamation.219 This suggests that
a defence of justification must be available in English law for the
European Court to uphold the offence of scandalising the court in
compliance with the ECHR.220
8.44 In some common law jurisdictions an allegation of bias or corrup-
tion is automatically contempt. Thus, in a Malaysian case in 1999, an
appeals court upheld the contempt conviction of a Canadian journalist
for scandalising the court, for imputing that a court had been influenced,
at least in part, by outside pressures. The appellant had written an article
which stated that a case where the plaintiff was the wife of a judge had
moved through the judicial system with unusual speed. The appellant
became the first journalist in fifty years to be jailed for contempt of court
in the Commonwealth.221 Similarly, in the Indian case of EMS Namboo-
diripad v. TN Nambiar,222 the content of the allegations alone, without
considering its context, constitutes contempt. The Supreme Court upheld
the conviction for contempt by the Chief Minister of Kerala, who accused
judges of class bias in a public statement, commenting that judges
are ‘guided and dominated by class hatred, class interests and class
prejudices and where the evidence is balanced between a well-dressed
pot-bellied man and a poor ill-dressed and illiterate person the Judge
instinctively favours the former’. The Court found that ‘the likely effects
of his words must be seen and they have clearly the effect of lowering the
prestige of Judges and Courts in the eyes of the people’.223
By comparison, following the European Court of Human Rights,
depending on their contents, tone and context, allegations of bias from
the judges can constitute an expression of opinion which raises matters
of public interest. In Kyprianou v. Cyprus, the European Court confirmed

217
De Haes and Gijsels v. Belgium (1998) 25 EHRR 1, para. 37.
218
E. Barendt, Freedom of Speech, 2nd edn (Oxford University Press, 2007), p. 224.
219
Prager and Oberschlick v. Austria (1995), Series A No. 313, (1996) 21 EHRR 1, paras. 34–7.
220
Cram (ed.), Borrie and Lowe, 11.27; C.J. Miller, Contempt of Court, 2nd edn (Oxford
University Press, 2000), ch. 12; Arlidge, Eady and Smith, paras. 5-258 et seq.
221
‘Justice in Malaysia’, The Wall Street Journal, 13 September 1999.
222 223
AIR 1970 SC 2015, para. 699. Ibid., para. 713.

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iii. scandalising the court and defamation 411

that public confidence in the courts underpins the protection of the

authority of the judiciary with criminal sanctions against those making
unfounded criticisms against the judiciary.224 This was to be balanced
with the lawyer’s freedom of expression in defending his clients. The
Court held that the ‘disproportionately severe’ penalty imposed on coun-
sel was ‘capable of having a “chilling effect” on the performance by
lawyers of their duties as defence counsel’:225
[Lawyers] might for instance feel constrained in their choice of pleadings,
procedural motions and the like during proceedings before the courts,
possibly to the potential detriment of their client’s case. For the public to
have confidence in the administration of justice they must have confi-
dence in the ability of the legal profession to provide effective representa-
tion. The imposition of a prison sentence on defence counsel can in
certain circumstances have implications not only for the lawyer’s rights
under Article 10 but also the fair trial rights of the client under Article 6 of
the Convention . . . It follows that any “chilling effect” is an important
factor to be considered in striking the appropriate balance between courts
and lawyers in the context of an effective administration of justice.226

B. Is the offence necessary?

8.45 The key question now is whether any offence of scandalising the
court, even one which recognises some kind of ‘justified comment’
defence, is ‘necessary’ for upholding respect for the English judiciary –
which is the question raised by Article 10(2) of the ECHR. Though
criticisms of judges constitute political speech which requires the highest
protection under the ECHR,227 in The Sunday Times v. The UK, the
European Court of Human Rights held that some limits to freedom of
expression can be found in the law of contempt where the purpose to
be served is the maintenance of the authority and impartiality of the
judiciary.228 The European Court stated:
If the issues arising in litigation are ventilated in such a way as to lead the
public to form its own conclusion thereon in advance, it may lose its
respect for and confidence in the courts. Again, it cannot be excluded that
the public’s becoming accustomed to the regular spectacle of pseudo-trials

224 225
(2007) 44 EHRR 27, para. 528. Ibid., paras. 531 and 537.
226
Ibid., para. 531; Skalka v. Poland (2004) 38 EHRR 1.
227
Wingrove v. UK (1996) 24 EHRR 1; Lingens v. Austria (1986) 8 EHRR 103; Thorgeirson
v. Iceland (1992) 14 EHRR 843.
228
Sunday Times v. UK (No. 1) (1979–80) 2 EHRR 245, para. 55; C. Walker, ‘Scandalising in
the Eighties’ (1985) 101 LQR 359, 365.

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412 freedom of expression and public confidence

in the news media might in the long run have nefarious consequences
for the acceptance of the courts as the proper forum for the settlement of
legal disputes.229

However, this decision has received some criticism and notably depends
on some substantial margin of appreciation. It need not apply today to
the offence of scandalising the court and should the question arise, then
it ought to be noted that the ‘necessity’ to protect judges in this way is
not perceived to be strong in England and Wales or in other major
Commonwealth countries. In the Australian case of Attorney-General
for NSW v. Mundey, Hope J said:
There is no more reason why the acts of courts should not be trenchantly
criticized than the acts of public institutions, including parliaments.
The truth is of course that public institutions in a free society must stand
upon their own merits: they cannot be propped up if their conduct does
not command the respect and confidence of the community. If [the
judiciary’s] conduct justifies the respect and confidence of a community
they do not need the protection of special rules to protect them from
criticism.230

One may add to that the desirability of not deterring good-faith criticism,
which may be an unintended consequence of the law even if it is limited
to ‘bad-faith’ criticism.231 In Ambard v. Attorney-General for Trinidad
and Tobago, a local newspaper was found in contempt by the Supreme
Court for criticising discrepancies in sentencing in two attempted
murder cases. The Privy Council overturned the ruling:
The path of criticism is a public way; the wrong-headed are permitted to
err therein: provided that members of the public abstain from imputing
improper motives to those taking part in the administration of justice, and
are genuinely exercising a right of criticism, and not acting in malice or
attempting to impair the administration of justice, they are immune.
Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny
and the respectful even though outspoken comments of ordinary men.232

While in Canada the offence of scandalising the court is not incompatible

with the Charter of Rights’ protection of the right to freedom of

229
Sunday Times v. UK (No. 1) (1979–80) 2 EHRR 245, para. 64.
230
Attorney-General for NSW v. Mundey [1972] 2 NSWLR 887, 908 [Hope J]; Walker,
‘Scandalising in the Eighties’, 377–84.
231
On discerning ‘good faith’, see R v. Metropolitan Police Commissioner, ex parte Black-
burn (No. 2), 155–6 [Lord Salmon].
232
Ambard v. Attorney-General for Trinidad and Tobago [1936] AC 322, 335.

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iii. scandalising the court and defamation 413

expression, the emphasis, as in England, is on the broad shoulders that

judges should have or, as Cory JA said in R v. Koptyo, ‘The courts are not
fragile flowers that will wither in the hot heat of controversy. They
[judges] are well-regarded in the community because they merit respect.
They need not fear criticism nor need to sustain unnecessary barriers to
complaints about their operations or decisions.’233
Statements of a sincerely held belief on a matter of public interest,
even if intemperately worded, are thus protected under the Canadian
Charter of Rights.
8.46 We should consider too the various elements which shape the way
the balance tilts between freedom of expression and the need to protect
the authority and the impartiality of the judiciary. The robustness of the
judiciary must be assessed, and the general context of scurrilous allega-
tions against judges is equally relevant. While in England such proceed-
ings of scandalising the court are rare and none have been successfully
brought since 1931, ‘. . . on a small island such as Mauritius the adminis-
tration of justice is more vulnerable than in the United Kingdom. The
need for the offence of scandalising the court on a small island is
greater.’234 The proximity between judges and the government in some
countries constitutes another relevant factor, which however points
to the offence being equally used as an instrument to silence honest
criticism of biased judges.235
The context of the allegations is a prominent consideration. In the civil
libel suit De Haes and Gijsels v. Belgium, the European Court found that
the restraint on defamation was not justified on the facts.236 The appli-
cants, one editor and one journalist, had been ordered to pay damages to
certain judges for accusing them, in several articles, of bias. The Court
held that defamatory criticism based on the past history of the father of
one of the judges criticised was inadmissible. It also reasoned that the
allegations of bias were the expression of an opinion, rather than a matter
of fact, in the context of serious debate taking place in Belgium. The
Court continued:

233
R v. Koptyo (1987) 47 DLR (4th) 213 (Ont. CA), 469.
234
Ahnee and others v. Director of Public Prosecutions [1999] 2 WLR 1305, 1313; R. Sackville,
‘How Fragile Are the Courts? Freedom of Speech and Criticism of the Judiciary’, 13th
Lucinda Lecture, Monash University (29 August 2005), pp. 5–6.
235
G. Robertson and A. Nicol, Media Law, 5th edn (London: Sweet and Maxwell, 2007),
paras. 7-054–7-055.
236
De Haes and Gijsels v. Belgium (1998) 25 EHRR 1.

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414 freedom of expression and public confidence

Although Mr De Haes and Mr Gijsels’ comments were without doubt

severely critical, they nevertheless appear proportionate to the stir and
indignation caused by the matters alleged in their articles. As to the
journalists’ polemical and even aggressive tone, which the Court should
not be taken to approve, it must be remembered that Article 10 protects
not only the substance of the ideas and information expressed but also the
form in which they are conveyed.237

It seems to us that even the prospect of prosecution is disproportionate

today, given the lesser deference afforded to figures in authority, the
potential to deter even good-faith criticism and the increasing number
of ways in which the judiciary is defending itself from unfair criticism.

C. Defamation
8.47 The Media Guidance for the Judiciary advises judges that suing the
media for libel is a matter of last resort.238 Whatever damages the judge
may receive would go towards repayment of the legal costs and any
money left over is expected to be donated to charity. Defamation actions
are in fact rare and they should remain so. Successful actions against the
media criticising judges in the performance of their duties may have an
undesirable ‘chilling’ effect on media criticism which, for the most part,
acts as a healthy check on the judiciary’s conduct. The status and dignity
of the judicial office also prima facie goes against the judge’s initiation of
legal proceedings – judges should be able to cope with robust criticism,
however provocative the comments may be. Moreover, legal proceedings
sustain attention to words which would otherwise have been largely
ignored by the public or quickly forgotten, and judges are invited to
consider any implications for the reputation and standing of the judiciary
collectively as well as for the judge.239 Finally, judges suing for defam-
ation could be construed as an example of the courts looking after their
own interest.240
In 1992 Mr Justice Popplewell won a public apology and damages
against the Today newspaper for suggesting that he ‘appeared to nod off’
during a murder trial.241 In 1996 a Crown Court judge won a public

237
Ibid., 47–8; for a similar emphasis on the public interest of a publication, see Amiha-
lachioaie v. Moldova (2004) 17 BHRC 689; see also Jersild v. Denmark, 23 September
1994, Series A no. 298, p. 23, para. 31, and Goodwin v. UK, 27 March 1996, Reports of
Judgments and Decisions 1996-II, p. 500, para. 39.
238 239
‘Media Guidance’, 16. ‘Media Guidance’, 16.
240
Law Reform Commission of Australia, ‘Contempt’, Report No. 35 (1987), para. 452.
241
The Times, 22 and 24 July 1992.

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conclusions 415

apology and damages from a news agency over distorted reports of a sex
assault case he presided over. The misleading reports of the judge’s
remarks stated the defendant had been told that ‘he would not be in
the dock if he had sent his victim a bunch of flowers’. Some media
published that account, leading to calls for the immediate resignation
of the judge.242 In 2011 Sedley LJ also successfully sued for libel, winning
an apology in court from the Daily Telegraph for the false statements it
had made about Lord Justice Sedley’s conduct of a particular case in an
article entitled ‘Judge “hastened deaths of elderly”’. The Daily Telegraph’s
article was based on a complaint made to the Office for Judicial Com-
plaints. The complaint was fed to the newspaper before the Office of
Judicial Complaints reached the conclusion (after three months) that the
allegations were without substance.
In all the cases mentioned, the accusations were so severe that the
judges could have been said to be unfit to practise as a result.243 The legal
action was commensurate with the damage caused.244 Swift action is
required – the judge’s reputation is damaged while the Office for Judicial
Complaints’ investigation goes on and some alternative tracks to defam-
ation proceedings are available. If, as in the case of Lord Justice Sedley,
the false statements come from a law practitioner, a complaint could be
filed with the Law Society or Bar Council and one interviewee suggested
that this would normally be the first port of call. The Press Complaints
Commission could be an alternative port of call if its membership were
reformed (there currently are seven newspaper editors out of seventeen
commissioners) and if it were given the power to fine.245

Conclusions
8.47 The principles of freedom of expression and judicial accountability
permit extra-judicial comments to the extent that they preserve public
confidence in the judiciary and the administration of justice. It is sug-
gested that the current rule of circumspection in judicial speech outside

242
The Lawyer, 7 February 1996.
243
Cf. Herald and Weekly Times Ltd v. Popovic (2003) 9 VR 1; John Fairfax Publications Pty
Ltd v. O’Shane [2005] NSWCA 164; John Fairfax Publications Pty Ltd v. O’Shane (No. 2)
[2005] NSWCA 291.
244
‘Media Guidance’, 15–16.
245
A new press watchdog backed by statute has recently been recommended, see Leveson
LJ, ‘An Inquiry into the Culture, Practices and Ethics of the Press Report’, HC 780-I
(2012).

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416 freedom of expression and public confidence

the courtroom is as good as it can get. It is better that judges should speak
out from time to time rather than remain for ever silent.246 Judges must
speak with reticence and moderation, for fear of a politicisation of their
words, fear of compromising their impartiality in future cases, and fear of
damaging the dignity and political independence of the judicial office by
their words.247 The increasing practice of individual judges speaking out
calls, however, for greater monitoring in the coming years, and commu-
nication based on a greater exposure of judges outside the courtroom
should be seen as a priority for the Judicial Communications Office, this
in order to strengthen judicial independence.248
It is right that judges speak out with circumspection on matters con-
cerning ‘the law, the legal system, the administration of justice or related
matters’. In the absence of an effective guardian as the Lord Chancellor
used to be before 2005, channels for expressing the judiciary’s views or
responses, when appropriate, must also be strengthened. As in many other
Commonwealth countries such as Australia, the judicial response, if such a
response is deemed appropriate, must be prompt, clear and concise.
Future respect for the judiciary also depends upon a long-term goal of
education of the public about the judiciary and the importance of judicial
independence with a great number of judicial speeches from its senior
judges, and greater information made accessible to the public. But the
Judicial Office could perhaps consider having a greater number of media-
trained judges speaking with the media, and it could perhaps further
consider the ‘fire brigade’ style of some American states, in which judges
enlist a series of individuals, such as law professors, editorial board
members and other select persons to quickly speak out to clear up
distortions when judge-bashing has started.249 Third-party commentary
from such ‘fire brigade’ would limit the impact of the damage done to
public confidence.
Further, if English judges are not the ‘remote sphinx type figures as the
judge used to be thought of in the past’,250 one wonders how close to the

246
Hope, ‘What Happens When a Judge Speaks Out?’, 11.
247
Lord Irvine, Hansard, HC, vol. 572, 5 June 1996, cols. 1259–60.
248
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judi-
ciary and Parliament’, 153.
249
C.P. Danos, ‘Responding to the Unwarranted Criticism of Judges’, National Center for
State Courts (19 May 1997, revised March 2003); see P.D. Schulz, Courts and Judges on
Trial, Analysing and Managing the Discourses of Disapproval (Berlin: Lit Verlag, 2010).
250
Clare Dyer, cited in HL Select Committee on the Constitution, ‘Relations between the
Executive, the Judiciary and Parliament’, 153.

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conclusions 417

ordinary citizen they should be, that is, how much about their lives and
their activities in the local community we could or should know. Clare
Dyer from the Guardian told the Constitution Committee in 2006–07
that ‘people want to know more about the people they are reading about’.
Professor Dame Hazel Genn also pointed that, as judges get involved on
their initiative in their local communities, ‘there is scope for them to do
more’, and ‘It is important that somebody has responsibility for project-
ing positive images of the judiciary’. Indeed, judges who do not speak out
outside the courtroom may choose to speak out on matters that interest
them. Their engagements in charities may or may not be controversial.
The recent guidance relating to blogging and the use of Twitter by
judicial office holders (magistrates, in practice) sends a necessary strong
message of circumspection but it fails to acknowledge how a responsible
use of social media can also foster a better understanding of the machin-
ery of justice.251
As a benign illustration, and a break from tradition, in January 2011 a
BBC documentary showed four of the UK Supreme Court Justices,
including the President of the Court and its Deputy President, in their
everyday life.252 The synopsis claimed to reveal a ‘glimpse of the human
characters behind the judgments and explores why the Supreme Court
and its members are fundamental to our democracy’. The documentary
offered some basic information about the court, addressing what happens
when judges cannot agree on a judgment, raising also the issue of diver-
sity. It showed how judges did not think that they had the freedom to
decide according to their personal opinions. We also saw the justices at
home, providing us some minimal information about them. This was a
rather enjoyable educational programme for those who knew little about
the UK Supreme Court. But will this glimpse of the justices’ humanity
lead to a more intrusive scrutiny of their private lives? Those questions
would seem to constitute another ground for the Judicial Communi-
cations Office to consider the proper extent of judicial exposure outside
the courtroom as a priority.253
8.48 Attacks on the judiciary should be distinguished from similar
attacks on politicians and other public figures on the basis of the practical

251
Lord Chief Justice and Senior President of Tribunals, ‘Guidance for the Judiciary –
Blogging by Judicial Office Holders’, August 2012.
252
BBC, ‘The Highest Court in the Land: Justice Makers’.
253
HL Select Committee on the Constitution, ‘Relations between the Executive, the Judi-
ciary and Parliament’, 153.

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418 freedom of expression and public confidence

difficulty of the judge’s bringing a civil action to clear his name and the
tradition that judges do not reply to criticism.254 Judges cannot respond
to criticisms and engage in public debate to the same extent as other
victims of newspaper libel.255 Lord Judge LCJ said:
It is difficult if not impossible for the judge to answer, because inevitably it
would mean commenting on a case which he had tried or decided, when
everything that needs to be said about the decision should have been dealt with
in the judgment, so that for the judge that must be the end of it; and finally, and
perhaps in the end most importantly if we are discussing the independence of
the media and the judiciary, because of its corrosive long-term effect on the
public’s view of the judiciary and the exercise of its functions.256

But the greater willingness of the judiciary to respond to public criticism,

which we have already scrutinised, ‘reflects the reality that the traditional stoic
silence in the face of an ill-informed or even malicious attack is by no means
the most effective way of maintaining confidence in the judicial system’.257
It is also arguable that the press can be limited in action, and be more likely
to err on the basis of the rules allowing proceedings to take place in camera
or enabling the judges not to disclose particular facts. In general, those rules
have been wisely applied, and the principle of open justice, ‘a sound and very
sacred part of the constitution of the country and the administration of
justice’,258 limits the scope of these rules to some very specific cases.
It seems to us that the offence of scandalising the court is unnecessary.
The value of public scrutiny of the judiciary supports the view that a
comment about the competence or integrity of the court that is fairly
made but would yet impair the confidence of the public is for the public
benefit. Judges must have broad shoulders, so that the test for prosecu-
tion under the offence of scandalising the court has a higher threshold.
It could require a real and compelling threat which, viewed contextually,
is likely to cause a sufficiently serious and substantial prejudice upon the
administration of justice for criminal prosecution to be brought for
scandalising the court.259 Bringing the judiciary into disrepute, whether
for alleged ineffectiveness, incompetence, or lack of probity or impartial-
ity falls short of that threshold.

254
The Phillimore Committee, ‘Report’, 162.
255
Prager and Obserschlick v. Austria (1996) 21 EHRR 1, para. 34.
256
Judge, ‘The Judiciary and the Media’, 5.
257
Sackville, ‘How Fragile Are the Courts?’, 11.
258
Scott v. Scott [1913] AC 417, 473 [Lord Shaw].
259
South Africa v. Mamabolo (2001) 10 BHRC 493, para. 75 [Sachs J].

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9

Conclusions

9.1 Judicial independence has carried different meanings throughout

history, just as social standards differ with the economic and political
environment. This book has focused on the importance of the insti-
tutional checks and balances over the judiciary and their practice in
England, with the purpose of exploring the modern meaning of judicial
independence. Our analysis is developed in the context of England and
Wales. This does not imply that any meaning of judicial independence
is deeply entrenched in any given society and cannot be measured
under a common standard. Rather, judicial independence is perhaps
best understood in relation to the background of any given society.
It will have a different meaning in a jurisdiction where judges are
appointed from the ranks of practising lawyers in comparison to a
jurisdiction where there is no distinction between barristers and solici-
tors, and where judges are appointed and trained for their roles from
graduation. Thus, the contemporary features of the English judiciary
are its constitutionalisation under the Constitutional Reform At 2005
(CRA), the managerialism that is now attached to the judicial office and
its professionalisation.
Beyond the particular scrutiny of the English judiciary, the analysis of
this book would confirm the insight that judicial independence is under-
pinned by a cluster of principles whose weight varies against the history
and constitutional background of any given society. These principles
have been examined in turn, through successive chapters, and in relation
to each other. Separation of powers, merit and fair reflection of society in
appointments, and impartiality in the exercise of the judicial function are
core values which sustain judicial independence; judicial tenure, an
adequate salary and the principle of immunity from civil liability in the
discharge of the judicial office complete this set of constraints upon
judges and others in the name of judicial independence.

419

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420 conclusions

Constitutionalisation of the judiciary

9.2 Only in the CRA has the long-standing convention that government
ministers must uphold the continued independence of the judiciary been
formalised. Although there had been a tradition of independence, with
the Lord Chancellor avoiding sitting in a judicial capacity, there were
anxieties that England would be found in violation of Article 6 ECHR.
This, combined with personal tensions within the Cabinet, led to the
abolition of the Lord Chancellor’s position as head of the judiciary in
the CRA. We have welcomed the thrust of the CRA. It better satisfies any
interpretation of the separation of powers that judges should be
appointed by an independent commission, that a politician should not
be mainly concerned with judicial discipline and that the highest court of
appeal, also a quasi-federal court for the UK, should be housed separately
from the higher chamber of the legislature.
The independence of the judiciary is conceived within the realm of
boundaries between the courts and Parliament and, in this respect, the
development of judicial review and constitutional adjudication under
the Human Rights Act 1998 (HRA) has shifted demarcation lines. The
modern remedy of judicial review acknowledges a right to official deci-
sions that are lawful, reasonable and fair, and its development has added
too to the growth in judicial power. Yet judicial review affords the
protection of the rule of law, and while the exercise of judicial review
may strain the relationship between the executive and the judiciary,
it cannot be interfered with lightly. But the political context rather
explains much of the political role played by the English judiciary over
the last ten years: a wealth of anti-terrorist legislation has been enacted in
response to major events, in particular the 11 September 2001 attacks in
the United States and the 7 July 2005 bombings in London, and the
courts have had to engage with the protection of fundamental rights
under the European Convention on Human Rights (ECHR). The incorp-
oration of the European Convention into domestic law with the HRA has
strengthened the position of the judiciary but it has also led to the
realisation of the political impact of judicial decisions, under the courts’
obligation to declare primary legislation incompatible if it does not admit
of a reading compliant with the European Convention. Executive action
may be declared unlawful outright. Perhaps symbolically, the first case
to be heard by the new Supreme Court in 2009 led to quashing govern-
mental orders to freeze the assets of al-Qaeda suspects as they had been
taken without parliamentary approval.

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constitutionalisation of the judiciary 421

9.3 The UK Supreme Court is at the forefront in accommodating the

demands of international law while maintaining the coherence of the UK
quasi-federal legal order. Its unique feature, by comparison with the US
Supreme Court, is that its human rights review jurisdiction preceded
devolution, or quasi-federal review, when devolution preceded the
human rights review in the United States or even Canada. The incorpor-
ation and interpretation of the HRA has been largely complementary to
the common law, and it is hoped that the future of the Act will be
determined by a mature inquiry into its effects.
While political attention is turned to the judicial interpretation of the
HRA, English judges also have the power to set aside primary legislation
which does not comply with the law of the European Union and, with the
development of European criminal law in particular, tensions are also
expected in the judicial efforts to make European Union law fit in
domestic law. The Europeanisation of procedures, rules and standards
in the judicial workings is here to stay however. In substance and
procedure, the right to a fair trial under Article 6 ECHR has stimulated
the development of the English judicial system. It made delay in judicial
proceedings justiciable; it has influenced the substance of judicial impar-
tiality at common law, and quality of justice is a goal strongly promoted
by the Council of Europe.
9.4 Separation of powers fosters the culture of judicial independence but
the continuation of judicial independence is not a matter of course. It is
constantly subject to challenges, by other branches of government and as
a result of different types of internal development. In England, the
enhancement of judicial independence in practice, since the institutional
separation of the judiciary from the executive under the CRA, has, to
some extent, been subdued. This is partly as the value of judicial inde-
pendence was already firmly established as a matter of convention before
2005. The independence of the judiciary still rests not on formal consti-
tutional guarantees and prohibitions but upon a mixture of statutory
and common law rules, constitutional conventions and parliamentary
practice, fortified by professional tradition and public opinion.
The trust in tradition and popular opinion must nevertheless be
sustained, however, so that judicial decisions are complied with or can
be defended against unwarranted criticism from the media and from
government ministers. The policy considerations that surface in some
decisions under the HRA rightly expose judges to greater scrutiny, and
the value of public scrutiny must be balanced with the need to protect

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422 conclusions

public confidence in the courts. Judges do not traditionally reply to

criticisms and do not engage in public debate to the same extent as others.
If the convention that ministers do not criticise judges is to fall by the
wayside, then the role of the Lord Chancellor becomes more important.
Yet the office of Lord Chancellor today may not be the ‘buffer’ between
the judiciary and the government and/or Parliament that it once was,1 in
spite of its constitutional duty to uphold judicial independence. The
silence beyond a statement from the Lord Chief Justice’s Judicial Office
to correct the misreporting of a case may not be sufficient to enhance
public trust in the courts and judges, and the elaboration of further means
of response may be needed from the Judicial Office.
Should judges be able to have unfair and misleading criticisms
addressed in some suitable manner, then it would seem that the offence
of scandalising the court is unnecessary. But judges can only expect
institutional support in respect of their decisions when they are applying
the law, as they understand it to be, to the cases in front of them. Any
other comment, including off-the-cuff remarks about policy and remarks
about persons which are unnecessary to explain the verdict, does not
enjoy any such protection and may give rise to disciplinary proceedings.
Equally, we have expressed concern over the continuing tradition of
English judges acting as chairmen of public inquiries at the behest of
the government. It is difficult to dissociate the figure of the appointed
judge in the exercise of his judicial functions from the figure of the
judge acting as a fact-finder for the purpose of a public inquiry. In the
latter case, the judge acts outside his judicial capacity and is not subject
to the judicial oath; this must be emphasised as the line between law
and politics is easily blurred in the conduct of inquiries. We suggest
that the Lord Chief Justice should have an effective veto on the matter
and should exercise it where the subject matter is politically sensitive.
The Lord Chief Justice should also be able to take account of the needs
of judicial business, which should not be disrupted by such an extra-
judicial function.
It seems right, however, that judges speak outside the courtroom with
circumspection on matters of expertise concerning the law, the legal
system, the administration of justice or related issues. It is better that
judges should speak out from time to time rather than remain for ever
silent. Nonetheless, they must speak with reticence and moderation, for

1
G. Drewry, ‘Lord Haldane’s Ministry of Justice – Stillborn or Strangled at Birth?’ (1983) 61
Public Administration 396, 407.

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accountability to parliament 423

fear of damaging the dignity and independence of the judicial office by

their words. The increasing practice of individual judges speaking out
therefore calls for greater monitoring, as well as greater clarity as to who
shall speak publicly on behalf of the judiciary to uphold judicial inde-
pendence. Public confidence in the courts and in the administration of
justice also relies upon educating the public about the judiciary, and the
recent guidance relating to blogging by judicial office holders, while it
sends a necessary message of circumspection, fails to acknowledge how a
responsible use of social media can also develop a better understanding of
the machinery of justice.

Accountability to Parliament
9.5 The separation of powers and constitutionalisation of the judiciary
call for renewed mechanisms of judicial accountability. One tool for
accountability that has been increasingly used consists in the appearance
of judges before Select Committees in Parliament. This has brought
greater transparency of judicial business, as information appears in the
public domain through the work of these Committees. Thus, the debates
on the Constitutional Reform Bill, leading to the CRA, reflected the full
engagement of Parliament with these constitutional matters. However,
legislative time is limited, and so are the resources and expertise available
to Select Committees. The discipline of the party whip has also main-
tained the executive grip over the legislature, and this also leads us to
suggest that, while accountability to Parliament is required, the equilib-
rium reached by the CRA in the appointment process should be main-
tained and the concern for a non-partisan process – as well as a concern
for the costs of such confirmation hearings – must prevail. The greater
involvement of the Lord Chancellor in the appointment process, sug-
gested by the Crime and Courts Bill 2012, cannot be supported. But the
presentation by the Chairman of the Judicial Appointments Commission
to Parliament of the process behind the appointments made at the
UK Supreme Court is a welcome development. The duty upon the UK
Supreme Court, under the CRA to produce an annual report to Parlia-
ment is another mechanism of accountability. The Supreme Court
Annual Report and Accounts for 2011–2012, however, fall short of
engaging with a substantive review of its legal activity, in contrast not
only with some other European supreme courts such as the German
Bundesgerichtshof or the French Cour de cassation and Conseil d’Etat, but
also with the Annual Report from the Senior President of Tribunals,

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424 conclusions

whose latest report to the Lord Chancellor developed in some respects a

review of the case law. Greater emphasis on substance would be appro-
priate, not least because some parliamentarians seem genuinely ignorant
of much of the business of the courts, and similarly, the Lord Chief
Justice who produces an annual review, could include a brief coverage of
the more important decisions in the Court of Appeal.

Managerialism
9.6 The development of judicial independence since the CRA has also
been restricted under the administrative and financial pressures exerted
upon judges. While the individual independence of judicial office holders
is not affected, the development of institutional independence is burden-
some and amplified by the enlargement of the ‘judicial family’ to tribu-
nals since 2011. The administration of justice since 1971 has supported
the progressive formalisation of the chains of commands within the
judiciary, with governance arrangements made visible and further
streamlined with the integration of the administration of magistrates’
courts and the Tribunals’ Service into Her Majesty’s Courts and Tribu-
nals Service in 2011. The administration of justice was gradually aligned
with the administration of other public services in the 1980s, and its
‘normalisation’ was supported by reforms of the machinery of justice
such as the Woolf reforms. Upon reading the accumulated quantitative
data on judicial business (without any attempt to provide a substantial or
qualitative analysis of the complexity of proceedings) one may ask
whether the Courts and Tribunals Service is simply an enforcement
agency for the executive; some margin of appreciation or greater flexibil-
ity must exist to preserve the quality of justice and give due consideration
to the complexity of some proceedings. Greater resources will ensure
effectiveness in the conduct of judicial business and support judicial
independence.
Shared administration of justice between the Lord Chief Justice and
the Lord Chancellor is a bare minimum to ensure the proper delineation
of the exercise of the judicial function and the prerogatives of good
administration. While the Courts and Tribunals Service sets out agency
standards, the senior judges must be able to influence these standards or
targets in order to ensure the fine tuning of procedural fairness with
efficiency and economy in the conduct of judicial business. Nevertheless,
even in times of greater prosperity, shared administration of justice
through an executive agency is a reasonable model, as it provides for

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a fair reflection of society 425

greater accountability for the workings of the judicial system and fits in
well with a context of constitutional transition.
The more overt pressures on the judiciary remain financial. The
number of judges remains static but caseloads only increase, and the
savings to be found by better case management are limited. Cuts in legal
aid, possibly regarded as one solution in some quarters, are no more than
a panacea. In addition, there is no right that any judicial pay increase
which may be recommended by the Senior Salaries Review Body will be
acted upon and recently such recommendations have been disregarded.
Given that the judges’ pay reflects the higher income bracket – as indeed
it should, if they are to be regarded as independent in their decision
making – there is little prospect of this situation changing.

A fair reflection of society

9.7 The main achievement of the CRA towards judicial independence
lies in the Judicial Appointments Commission. In a firm departure from
the system of ‘secret soundings’ that applied to the recruitment of a small
pool of practitioners, the transparency promoted by the Commission and
its outreach efforts enhance appointments on merit, and the Commission
has had no hesitation in wrestling with the executive on the matter of
appointments. A forthcoming challenge for the Judicial Appointments
Commission is also to engage with the appointments to the European
Court of Justice and the shortlisting process for the English judge at the
European Court of Human Rights.
Yet the current concern regarding appointments is one of enhancing
diversity. The lack of women as well as black and Asian minorities in the
composition of the senior judiciary is striking. While this reflects the
wider difficulties in the legal profession that too few women and ethnic-
minority lawyers hold senior positions, the debate looks set to continue
as to whether the criterion of ‘merit’ might legitimately include consider-
ation of a candidate’s gender, ethnic origin or other background factors;
we have argued that at the level of the Supreme Court at least, where
decisions relate to policy or principle, a broader range of experience and
expertise in the court, from both judicial and non-judicial backgrounds,
would enhance the decision-making process, but the arguments are less
likely to apply at the lower levels of the judiciary. Here, the argument
might be made that gender or race might be a legitimate tie-breaker if the
candidates in question are of sufficient and equal merit but this too may
make little difference; our interviewees thought that it was rare that two

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426 conclusions

candidates could not be separated at all after their CV, references,

interview and test performances are taken into account. It may be that
targets will be introduced until such time as the profile of the judiciary is
considered suitably diverse. In so far as targets could shift, in practice,
into quotas, we have expressed reservations about this measure. It cer-
tainly would need to be complemented by other measures to promote
applications from the very best minority candidates. We have also drawn
attention to the difficulties that solicitors in top firms might have in
seeking time off to work as recorders, and have suggested that some
outstanding academics might be suitably deployed at High Court or
appellate level. In the case of solicitors at least, the wider pool would be
expected to include a relatively large proportion of female and ethnic-
minority candidates.

Professionalisation
9.8 Whether or not these measures regarding diversity are adopted, but
especially if they are, it would be prudent to consider other aspects of
what has been loosely termed the ‘judicial career’. It is a historical fact
that senior judges come from practice at the Bar; the idea of a ‘judicial
career’ does not exclude such appointment to the bench in middle age.
Indeed, the emergence of ‘some semblance of a career judiciary’, in the
sense of some career patterns being developed, was noted in the 1990s.2
Thus, the Judicial Appointments Commission and the Association of Her
Majesty’s District Judges have now developed a process of using appraisal
information for deputy district judges in the reference process for selec-
tion exercises. If promotions were to be heavily based on appraisals by
peers, however, it may trigger a concern of abdication of responsibility
from the appraiser, although this could be monitored by the Judicial
Appointments Commission.3
Appraisal goes with training, which has contributed to the modernisa-
tion of the attitude of the judiciary.4 Some further rationalisation of judicial
training is taking place so that, for example, tribunal and court judges
are expected, in the near future, to be trained together in generic skills
for judicial office holders. Training serves, too, the further purpose of

2
The Home Affairs Select Committee Report in 1996, and Sir Robin Auld in 2001.
3
J. Bell, Judiciaries within Europe, A Comparative Review (Cambridge University Press,
2006).
4
Lord Chief Justice, ‘The Judicial Studies Board Lecture 2010’ (March 2010).

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professionalisation 427

supporting progression and mobility within the various groups of judges;

indeed training may be necessary to make such progression and mobility
a reality. Here again, financial constraints mean that ongoing professional
development is currently limited but training is certainly a feature of a
professional judiciary. The professionalisation of the judiciary is best
supported by the establishment of the Judicial Appointments Commission,
as it seeks to remove patronage from the appointment system and to
enhance the value of transparency necessary to judicial independence.
There is nevertheless a gap between developing professionalisation and
a career judiciary, where appointment is confirmed after training in a
judicial school, and that frontier needs to be clearly marked. The current
system should be cultivated while encouraging diversity in the compos-
ition of the judiciary with reforms in the legal profession. There too, one
may point to the dominance of the executive in the Legal Services Board,
which regulates the legal profession – and any change there would in due
course influence the character of the judiciary.
9.9 Another modern development that affects judicial independence lies in
the establishment of the Office for Judicial Complaints, which has now
assumed responsibility for investigating complaints about judges, although
the outcome, where the alleged facts have been sustained, is in the hands of
the Lord Chancellor and the Lord Chief Justice. A distinction is made
between anything necessarily connected with the delivery of a judgment
and any other conduct of the judge, though in the area of complaints this
distinction is easily blurred. It is suggested that a decision by a judge not to
recuse himself in the face of a plausible suggestion of apparent bias should be
outside the remit of the Office of Judicial Complaints and remain addressed
by the Court of Appeal. Where the complaint clearly concerns extra-judicial
business, it seems that two contentious areas concern online opinions and
activity, and indiscreet sexual activity. There are no easy answers as to what
should be the exact standards in order to maintain the reputation of the
judiciary but they cover the judge’s official and non-official spheres of
activities, and shield judicial independence from dependencies, associations,
and even less intensive involvements which might cast doubts on judicial
neutrality. The standards of conduct in the exercise of the judicial office have
traditionally been high and continue to be so, under the strong supervision
of the Court of Appeal in addition to the new regulatory framework
introduced in the CRA.
However, those at the level of the High Court and above cannot be
dismissed by the Lord Chancellor and Lord Chief Justice alone and

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428 conclusions

indeed any such procedure will bypass the Office of Judicial Complaints
altogether. The most likely avenue for removal seems to be by address to
both Houses of Parliament on the basis of misconduct involving moral
turpitude. The address was introduced to protect the judges from execu-
tive interference, as the acceptable way to check judicial behaviour. In
modern times, however, the executive control over the legislature means
that the address may, in practice, be inconsistent with the independence
of judges. It is significant that an examination of the cases where a
motion for an address was presented shows that, except for Baron Smith’s
case, in which the government changed its mind, in all cases the result
was one supported by the government. Yet the actual operation of the
address in the nineteenth century and at the beginning of the twentieth
century seems satisfactory, with the elaboration by Parliament of the
sufficient grounds for removal and the general considerations weighed in
the process of disposing of the complaints against judicial conduct which
have, arguably, become conventions today.

The meaning of judicial independence

9.10 Our analysis of judicial independence in England has reflected upon
the core tenets of judicial independence. Judges should have security of
tenure and only be removed for specific grounds and by means of an
adequate procedure. The process of selection of judges should be free
from any politicisation, personal or other irrelevant considerations. Upon
appointment, a judge should receive adequate remuneration, which
requires a regular pension scheme and should be adequately safeguarded
against being used as a means of asserting control over judges. A judge
must also be free from political or other pressures. A judge must first be
immune from such risks of distorting justice as direct pressure, bribery or
approaches by the litigant, a friend or counsel; he must also be removed
from any sophisticated entanglements, be they political, personal or
financial, that might appear to influence him in the exercise of his judicial
functions, let alone entanglements that might actually influence him. The
judiciary should also be representative of the society which it judges.
Whatever social background a judge comes from he or she should
endeavour to ensure that their background and prejudices do not influ-
ence their decisions.
Judicial independence sets constraints upon judges and others in order
to serve the demand of impartiality in the judicial evaluation at the heart
of the rule of law. The contribution of this book would also be to suggest

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the meaning of judicial independence 429

that one additional constraint applies to judges, to the extent that the
judiciary must account for its conduct of judicial business in the broadest
sense, and, in doing so, must visibly demonstrate its independence.
Judicial accountability is no longer simply construed as accountability
to other judges as a group sharing an ethos, particular values and skills,
and through decision making, by way of appeal and review.5 This ends
a traditionally fairly comfortable relationship between the judiciary,
Parliament and the executive in England and Wales. Nonetheless, the
proper relationship between the judiciary and the other branches of the
government will be based on dialogue of respect and the judiciary and
the executive must work together in a proper relationship as a part of
the total government of the country: judicial accountability is now inex-
tricably interwoven with judicial independence.
Judicial independence, as an essential safeguard of fundamental rights,
is also intertwined with some other fundamental values underpinning the
judicial system, and common standards of judicial independence can
only be drawn in relation to them. The value of constitutionality provides
adequate protection of the values of the justice system, assuring fairness
and justice in adjudication, efficiency of the judicial process, securing
access to justice, public confidence in the courts – and the safeguarding of
judicial independence. A proper legal system is one which advances each
of these values on its own, and achieves a suitable balance between them
whenever they conflict with one another. As we identified, the values at
play in the practice of judicial independence today in England showed a
judiciary in tune with the cultural, social and political realities of its
jurisdiction, adjusting to the formidable changes introduced by the
constitutional settlement. But the challenges faced in seeking judicial
independence are similar among jurisdictions. On the key facets of
judicial independence – appointments, tenure, salaries, removal – judges
at different levels and from different backgrounds share remarkably
similar concerns. We have offered a view of what the elements of judicial
independence should be, its significance in ensuring the rule of law, and
the strains it faces from the executive, the legislature or others, with the
hope of providing a framework for our readers to develop their own
analysis, and so that our readers beyond England can for themselves
establish and develop the standards of judicial independence in their
own jurisdictions.

5
V. Bogdanor, ‘Parliament and the Judiciary: The Problem of Accountability’, Third
Sunningdale Accountability Lecture, 2006.

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Annex 1

Courts and tribunals structure

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https://doi.org/10.1017/CBO9781139005111.011 Published online by Cambridge University Press

The structure of the courts Employment Appeal Tribunal

Appeals from the Employment
Tribunals
UK Supreme Court
Employment Appeal Judges
Appeal only, on points of law and members
Justices of the Supreme Court

Court of Appeal Employment Tribunal (England

& Wales; Scotland)
Appeal only, on points of law to either the Criminal or
Civil Divisions Claims about matters to do with
Lord Chief Justice, Heads of Division and Court employment
of Appeal Judges Employment judges and
members

High Court
Chancery, Queen’s Bench and Family Divisions. All three
Upper Tribunal
divisions hear appeals from other courts, as well as ‘first
instance’ cases. Appeals from the First-tier Tribunal
High Court and Deputy High Court Judges
Upper Tribunal judges

Crown Court County Court

Jury trial for all indictable and some either-way Trial for most civil cases.
criminal offences. Appeals against conviction First-tier
Circuit judges, recorders, district judges,
and sentence from the magistrates’ court.
deputy district judges Appeals from executive agency
Circuit judges, recorders and juries
decisions
Tribunal judges and members

Magistrates’ Court
Trial for most criminal offences. Some civil and family matters. There are a number of other tribunals outside this
Magistrates, district judges (magistrates’ courts), deputy DJ (MC)s structure (for example, School Exclusion Panels) – their
supporting legislation explains their individual appeal routes.

Figure 1. Court structure

Source: Judicial Office
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Court of Appeal, Court of Session, Court of Appeal (NI)

Upper Tribunal and First Tier Tirbunal Presided over by Senior President: Lord Justice Sullivan

Upper Tribunal Employment Appeals

Tribunal

Administrative Appeals Chamber Tax and Chancery Chamber Immigration and Asylum Chamber Lands Chamber
(First instance jurisdiction: forfeiture cases and (First instance jurisdictions: Financial Services
safeguarding of vulnerable persons. It has also been and Markets and Pensions Regulator.)
allocated some judicial review functions.) Hears appeals from: Taxation Chamber and
Also hears appeals from: PAT (Scotland), from the Charity jurisdictions in the General
PAT (NI) (‘assessment’ appeals only), Regulatory Chamber. It has also been
MHRT (Wales), allocated some judicial review functions.
SENT (Wales)

First Tier Tribunal Employment Tribunal

(England and Wales)

War Pensions and Social Entitlement Health, Education General Regulatory Tax Chamber Immigration and Property Chamber
Armed Forces Chamber and Social Care Chamber Asylum Chamber Acting Chamber
Jurisdictions include:
Compensation Chamber
Jurisdictions: Jurisdictions include: Immigration and Employment Tribunal
Direct and indirect (timetable and
England and Wales Social Security and Jurisdictions: Charity, Asylum (Scotland)
taxation, content
appeals only Child Support,* Mental Health, Consumer Credit, to be decided)
MPs Expenses
Asylum Support,** Special Educational Estate Agents,
Criminal Injuries Needs and Disability,
Transport (Driving
Compensation Care Standards, Standards Agency
Primary Health Lists Appeals),
Information Rights,
Claims Management
Services,
Gambling,
Immigration Services,
Local Government
Standards,
* Exept NHS charges in
Scotland
Environment
** No onward right of
appeal

Key: United Kingdom Great Britain England and Wales England only Scotland only

Figure 2. Tribunal structure

Source: Judicial Office
INDEX

Note: Documents and entries in a foreign language are given in italics.

Abinger, Lord 7.44(346–7) initiating proceedings 7.36(326–7)

access to justice 9.10(429) judicial independence 7.31(320)
accountability see judicial judicial review of removal of judges
accountability 7.43(337–9)
Act of Settlement 1700 1.2(6), Lord Birkenhead 7.31(319)
2.7–2.8(29–31) Lord Buckmaster 7.31(318)
address from Parliament 7.29(313) Lord Denning 7.31(319)
arguments re methods of removal of Lord Hailsham 7.44(353–4)
judges 7.29–7.30(313–17) Lord Salisbury 7.31(320)
common law methods of removal mandatory upon the Crown
7.22(303), 7.29(313) 7.33(323–4)
constitutional constraints as mechanism in operation
7.34(324–5) 7.44(339–54)
judicial tenure 7.11(285), 7.12(288), Baron Gurney 7.44(347)
7.30(315–16) Chief Baron O’Grady 7.44(343)
actual bias James McClelland 7.44(342)
compared with apparent bias 5.6(193–4) Judge William Kenrick
examples of 5.6(193) 7.44(343–4)
address from Parliament Lord Abinger 7.44(346–7)
7.28–7.34(312–26), 9.9(428), Lord Chief Baron Kelly
7.45(355) 7.44(349–50)
Act of Settlement 7.29(313) Lord Ellenborough 7.44(342)
additional or exclusive? Mr Justice Best 7.44(342)
7.29–7.30(313–17) Mr Justice Fox 7.44(341)
constitutional constraints Mr Justice Grantham 7.44(350–2)
7.34(324–6) Mr Justice McCardie 7.44(352–3)
constitutional convention Mr Justice Torrens 7.44(348)
7.32(320–3) Sir Francis Page 7.44(340–1)
dissolution or prorogation of Sir John Donaldson 7.44(353–4)
Parliament 7.42(335–6) Sir Jonah Barrington 7.44(345–6)
effect of a pardon 7.42(336–7) Sir William Smith 7.44(346)
exclusive in practice Prime Minister Asquith 7.41(334),
7.30–7.32(317–23) 7.44(352)
government’s role 7.41(333–5) Prime Minister Ramsay Macdonald
grounds for removal 7.32(322–3) 7.41(335), 7.44(352–3)

433

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434 index
address from Parliament (cont.) Administrative Court 3.4(51)
process 7.35–7.43(326–39) appeals from 3.5(53)
referring matter for inquiry type of work done 3.4(51)
7.37–7.38(327–30) administrative justice, access to
removal procedure 7.32(322–3) 3.7(56)
Sir Winston Churchill 7.31(320) Administrative Justice and Tribunals
adjudication see constitutional Council 3.7(57–8)
adjudication Admiralty Court, Queen’s Bench
administration of justice Division 3.4(51)
Central London County Court Advisory Panel on Judicial Diversity
3.42(98) 4.16(122), 4.29(137)
centralisation issues 3.31(82–3) alternative dispute resolution
developments since 1971 9.6(424) 3.32(84–5), 3.41(96)
hierarchy 3.13(65) American Supreme Court appointment
judges process 4.36(148–9)
deployment of 3.34–3.36(85–9) animosity see personal animosity
dialogue with Parliament and apparent bias
government 8.17(376–7) appearance of bias 5.18(216)
meetings with ministers compared with actual bias
8.16(375–6) 5.6(193–4)
number of 3.36(88–9) criminal jury safeguards re one
tensions with 3.31(83) member 5.9(201)
warning Parliament at pre- dependent on issues of the trial
legislation stage 8.18(378) 5.9–5.10(201–2)
Judges’ Council’s arguments 3.27(77) examples of 5.6–5.10(194–203),
judicial involvement 1.3(10–11), 5.17–5.19(211–16)
8.15(375) fair-minded observer test 5.6(194),
judicial speech outside courtroom 5.6–5.7(196–7), 5.8(200),
see judicial speech outside 5.9(202), 5.15(208)
courtroom gender 5.19(216)
lack of independence 3.11(63), judges
3.27(77) background of 5.10(202–3)
new public management principles comments on individual cases
3.31(83) 8.7(366)
organisation of 1.3(10–11) interventions by 5.6(195)
overview 3.43(100–1) membership of pressure groups
quality vs. efficiency 3.32(84–5) 5.20(216–20)
resources allocation 3.27(77–9) preliminary views expressed
‘seen to be done’ 1.4(12) 5.6(194–5)
sharing between Lord Chief Justice previous dealings with defendant
and Lord Chancellor 9.6(424–5) 5.17–5.18(212–14)
speedy as matter of right 3.42(98) written articles by 5.18(215–16)
Administration of Justice Act 1968 litigants in person 5.8(200)
3.36(88) Lord Phillips 8.7(366)
Administration of Justice Act 1973 race 5.19(216)
4.44(162) tribunals 5.8(200)
administrative adjudication by courts appeal, separate remedy from
and tribunals 3.7(56–7) complaint 1.4(13)

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index 435
Appeal Court judges, Crime and Courts Bangalore Principles of Judicial Conduct
Bill (2012) 3.34(87) 1.4(11), 5.3(185–6)
appeal-proof judgments 1.4(13) family members of judge 5.13(207)
appeals bankruptcy court, Chancery Division
on ground of bias 5.1(181), 5.4(190), 3.4(51)
5.5–5.10(193–203), 5.18(213), Bar Council, judges returning to bar on
see also apparent bias retirement 6.17(268)
manner of conducting a trial Bar Standards Board 7.19(299)
5.2(182–3), see also Court of disciplinary proceedings
Appeal 7.19(298–300)
misconduct of trial judge 5.2(184), fee-paid judges 7.19(299)
5.21(220–2), see also Court of initiating disciplinary proceedings
Appeal 7.19(300)
appeals for funds Bar, the see barristers
Guide to Judicial Conduct 6.12(260) Barrington, Sir Jonah 7.28(312), 7.39(332),
judges’ involvement in 6.12(260–1) 7.41(335), 7.44(345–6)
United States 6.12(261) barristers
Appellate Jurisdiction Acts (1876 and case assignment 3.37(91)
1888) 3.6(53) judicial appointments 4.1(103),
appointments, judicial see judicial 4.4(107–8)
appointments BBC, UK Supreme Court Justices
appraisal, judicial 4.29(136–8), 9.8(426) documentary
arbitrators, absolute immunity 7.3(276) 8.18–8.21(378–82)
Asquith, Prime Minister Herbert Belknap, Sir Robert 7.27(311)
7.41(334), 7.44(352) Beloff, Michael, QC 4.46(169)
associations, judges’ involvement in benefit fraud prosecutions 4.27(134)
6.10(258–9) Best, Mr Justice 7.44(342)
Asylum and Immigration Tribunal bias
3.5(53) actual and apparent 5.1(179–81),
Attorney General 5.6–5.10(193–203)
public confidence in office of see also actual bias; apparent bias
3.11(63) complaints of see bias complaints
role and responsibilities reform decision by sitting judge 5.4(190)
3.12(65) as ground for appeal 5.1(181),
statutory supervision duties 5.4(190), 5.5–5.10(193–203),
3.11(63–4) 5.18(213)
Australia judicial oath 5.1(182)
criticism of judges 8.45(412) non iudex in sua causa 5.1(182)
Federal Court of 3.27(77) recorders having political activities
autonomy, institutional 3.28(79–80) 6.2(245–6)
Avonside, Lord 6.4(248–9) UK Supreme Court 5.4(190)
vs. inconvenience 5.4(188–9)
Bacon, Sir Francis see also disclosure; judicial
duties and functions of judges impartiality, waiver
2.4(25) bias complaints
impeachment 7.27(311) pecuniary interest 5.12(203–6)
bad behaviour in court see misconduct personal relationships
of judge 5.13–5.16(206–11)

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436 index
bias complaints (cont.) Cardozo, Mr Justice 8.29(390)
Lord Denning 5.13(206) careers see judicial careers
professional connections Carswell, Lord 4.14(119)
5.15(207–9) case assignment 3.37–3.39(89–94)
social links 5.16(209–10) administrative priority 3.37(91)
Bingham, Lord 2.14(39), 3.31(83), barristers 3.37(91)
3.42(97) caseload balance between judges
administration of judiciary 1.3(8) 3.37(90)
defective directions to jury Commercial Court 3.38(92–3)
5.23(225–6) continuity 3.37(90–1)
democratic process 2.15(45–6), Court of Appeal 3.38(93)
4.36(149) English flexibility 3.39(93–4)
fair and unfair trials 5.21(220–1) family court proceedings 3.38(92)
involvement in non-profit Germany 3.39(93–4)
organisations 6.11(259) tribunals 3.38(92)
judicial conduct standards 5.3(185) Case of Commendams 2.3(23–4)
judicial impartiality 5.1(179) case management 3.40–3.42(94–9)
judicial independence 4.45(166) Commercial Court 3.40(94)
judicial speech outside courtroom judges’ involvement 3.40(94–5)
8.8(367) Judicial Studies Board 3.40(95)
precedent rules 5.29(238–9) public confidence 3.40(95)
waiver 5.5(191) Senior Presiding Judge’s role
Birkenhead, Lord 7.31(319) 3.18(69)
Birmingham Six 8.25(387–8) Case of Prohibitions 2.3(23)
Blair, Prime Minister Tony 2.11(35) Central London County Court,
blogging 8.17(377) administration of justice
guidelines for judiciary members 3.42(98)
6.15(266–7) CEPEJ 3.32(83–4)
‘Bloody Judge Jeffreys’ 2.9(31) CEPEJ checklist
Blunkett, David 8.38(403) assessment of court resources
Booth, Cherie 6.9(258) 3.32(84)
Bridge, Lord 7.4–7.5(277–8) information and communication
Brooke, Lord Justice 3.42(98) technology 3.32(83–4)
Browne-Wilkinson, Lord Nicolas reasons for 3.32(84)
3.27(78) review of court activities
Buckmaster, Lord 7.31(318) management 3.32(84)
budgets see resources Chairman of the Judicial College
3.16(68)
Campbell, Sir Colin, Commissioner for Chancellor of the High Court 3.16(68)
Judicial Appointments 4.5(108) Chancery Division 3.4(51), 3.12(64)
Canada Bankruptcy Court 3.4(51)
judicial remuneration 4.43(158–60), Companies Court 3.4(51)
4.49(175–6) Patent Court 3.4(51)
scandalising the court 8.45(412–13) type of work done 3.4(51–2)
Canadian Charter of Rights, protections Chancery Supervising Judges 3.18(69)
under 8.45(412–13) role of 3.13(66)
Canadian Supreme Court appointment Chancery in Tudor times 2.2(21)
process 4.36(148) charities see appeals for funds

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index 437
Chartered Institute of Legal Executives collegiality 4.46(169–70)
(CILEX) 4.17(123), 4.21(125), Collins, Lawrence 4.23(128)
4.24(130) commercial activities
checks and balances re judiciary conflict of interest 6.13(262)
1.1(2) family assets management 6.13(262)
Chief Executive holding shares 6.13(262)
of HMCTS 3.23(73) judges’ involvement in 6.13(261–2)
of the Judicial Office 3.16(68) links with former chambers or firm
of Tribunals 3.7(57) 6.13(261)
childcare system 8.23(384) Commercial Court
Churchill, Sir Winston case assignment 3.38(92–3)
address from Parliament 7.31(320) case management 3.40(94)
judicial independence 7.34(325) new building 3.12(64)
circuit bench 1.6(15) Queen’s Bench Division 3.4(51)
circuit judges 3.3(49), 3.4(52) role in judicial process 3.32(84)
appointment 3.3(50) Committee of Administrative Tribunals
case assignment 3.37(89–90) and Enquiries 3.7(54–5)
Crime and Courts Bill (2012) common law
3.34(87) incorporated into ECHR 2.14(41–2)
deployment of 3.34(86–7) judicial impartiality 5.1(179)
judicial appointments 4.18(123) used instead of HRA 2.14(42)
salary increases 4.44(161–2) community activities 6.9–6.12(257–61)
women 4.25(131) appeals for funds 6.12(260–1)
Civil Division of Court of Appeal associations 6.10(258–9)
workload statistics 3.5(53) non-profit organisations
civil liability, judges’ exemption from 6.11(259–60)
1.2(5–6) Companies Court, Chancery Division
Civil Procedure Rules, case 3.4(51)
management 3.40(95) compatibility of ECHR/EU law with
civil servants, Crown Prosecution UK Acts of Parliament 1.7(18)
Service 3.9(59–60) complaint, separate remedy from
Clarke, Home Secretary Charles appeal 1.4(13)
8.16(375–6) complaints, disposal of see disposal of
Clarke, Lord Chancellor Kenneth complaints
4.11(115) complaints procedure, judicial conduct
code of conduct, written 5.3(184–6), 1.4(13)
see also Guide to Judicial Concordat (2004) 1.3(9–10)
Conduct Lord Chief Justice 1.3(9), 3.1(47–8)
Code of Conduct of the Bar of England Ministry of Justice and HMCTS
and Wales 5.14(207) cooperation 3.26(76)
Coke, Chief Justice Sir Edward separation of powers of judiciary and
dismissal by James I 2.3(23), executive 1.3(9)
7.12(288), 7.27(310) conditional cautions 3.11(62)
duties and functions of judges conduct rules 1.2(6), 7.16(294)
2.4(25–6) conflict of interest
king’s interference with judicial apparent at short notice 5.4(188)
proceedings 2.3(23–4) potential 5.4(187)
collective independence 1.3(10–11) Consolidated Fund 4.41(156)

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438 index
constitutional adjudication 1.7(17–20), excessive intervention by judge
2.3(24) 5.22(224–5)
American model 1.7(17) as generalist court 3.4(50–1)
compatibility of Act of Parliament higher court decisions criticised
2.15(44) 5.29(236–9)
devolution matters 1.7(18) House of Lords decisions
English model 1.7(18) 5.29(236–7), 5.29(239)
European model 1.7(17) maintenance of behaviour standards
Lord Hope 2.15(45) 1.4(12), 5.2(183)
constitutional constraints for address misconduct condemnation 1.4(12)
from Parliament 7.34(324–6) prejudice 5.27(234–5)
constitutional convention pressure on defendant to plead guilty
creation of a 7.32(321–2) 5.26(233–4)
governing address from Parliament private communications 5.28(235–6)
7.32(320–3) rudeness 5.25(231)
judicial independence 7.32(321–2) as senior court 3.4(52)
Constitutional Reform Act 2005 sleepiness 5.30(240)
see CRA tenure of judges 2.7(30), 7.11(286)
constitutional reform as piecemeal women judges 4.25(131)
2.16(46) court estate 3.12(64–5)
constitutionality, value of 9.10(429) building maintenance problems
contributions, judicial pensions 3.12(64)
4.47(172–3), 4.49(176) Court of Justice 4.38(151)
conventions and practices, judicial Judicial Appointments Commission
independence 1.7(20) 9.7(425)
coroners, absolute immunity 7.3(276) judicial independence 4.48(174–5)
cot death cases 8.14–8.23(373–84) pensions for part-time judges
Council of Europe, acceptance of 4.48(173–4)
HMCTS 3.22(73) selection
County Court, creation of unitary of candidates 4.38(150–1),
3.12(64–5) 4.38(153)
county courts 3.3(49–50) of candidates pre-Lisbon Treaty
appeals from 3.5(53) 4.38(151)
closure of 3.12(64) of UK judges 4.38(152)
court administration, loyalty 3.27(79) state liability 7.8(282–4)
Court of Appeal 3.5(53) tenure of six years 4.38(153)
bias as ground for appeal 5.4(190), court staff, quality of 3.31(83)
5.6–5.10(194–203) courts
candidates’ promotion from High administrative adjudication
Court 4.29(136) 3.7(56–7)
case assignment 3.38(93) allocation of resources 3.27(77–9)
Civil Division 3.5(53) internal independence 3.34(85)
Criminal Division 3.5(53), 5.21(221) performance of 3.30(82)
defective directions by judge to jury province of and Parliament’s
5.23(225–7) province 7.43(337)
disciplinary role 5.21(220–2), 5.31(242) structure of 3.2–3.6(48–53)
excessive delay in delivering county courts see county courts
judgment 5.24(227–30) Crown Court see Crown Court

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index 439
High Court see High Court application of section 159 Equalities
magistrates’ courts see magistrates’ Act 2010 4.15(120)
courts appointments
overview 3.3(49) court and tribunal 4.11(115),
UK Supreme Court 3.3(49) 4.29(136)
Courts Act 1971 3.22(72), 3.35(88) deputy High Court judges
Courts Act 2003, immunity for Justices 4.10(115), 4.29(136)
of the Peace 7.4(278) Lord Chancellor in process
Courts Boards, courts’ performance 4.50(177), 9.5(423)
3.30(82) part-time 4.31(139)
Courts and Legal Services Act 1990 UK Supreme Court 4.33(141)
4.17(123) Criminal Division of Court of Appeal
Courts and Tribunals Service workload statistics 3.5(53)
see HMCTS criminal justice, risk of
CRA ‘instrumentalisation’ 3.11(63)
constitutionalisation of judiciary Criminal Justice Act 2003, conditional
9.1–9.4(419–23) cautions 3.11(62)
governance arrangements 1.3(10) ‘Criminal Justice, Simple, Speedy and
judges Summary Justice’ scheme
discipline and removal of 7.1(272), 3.41(95)
7.11(286) criminal law, need to study two sources
involvement in administration of 3.11(63)
justice 8.15(375) Criminal Procedure and Investigations
represented by Lord Chief Justice Act 1996, section 35 3.40(94)
6.5(249) Criminal Procedure Rules 2005 3.38(91–2)
Judicial Appointments Commission actively managing a trial 5.22(224)
1.6(16), 2.11(36), 9.5(423) criminal proceedings
Judicial Appointments and Conduct case management 3.38(91)
Ombudsman 4.6(110) triangulation of interests 3.38(91)
Lord Chancellor 2.11(34–6), criminal prosecution, removal of judges
6.3(247), 9.2(420) 7.22(302–4), 7.28(312),
Lord Chief Justice 2.11(36), 7.30(315–17)
3.1(47–8), 3.13(65), 8.18(378) Crown
ministers to uphold independence of address from Parliament as
judiciary 1.2(7) mandatory 7.33(323–4)
pre-enactment consultation process address to see address from
2.11(34–6) Parliament
separation of powers 6.2(246), power struggle with Parliament
9.2(420) 2.2–2.6(22–9)
suspension 7.12(289) Royal control of judges see judges in
following criminal offence history, under Royal control
7.22(303) see also state liability
of Justices of the Peace 7.12(289) Crown Court
UK Supreme Court 2.11(36) appeals from 3.5(53)
Crime and Courts Bill (2012) 3.12(64), judges under Crime and Courts Bill
3.34–3.35(87–8), 4.26(133) (2012) 3.34(87)
abolition of scandalising the court as senior court 3.4(52)
offence 8.41(407) workload statistics 3.4(52)

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440 index
Crown Proceedings Act 1947 deputy district judges
scire facias 7.21(302) Crime and Courts Bill (2012)
section 2(5) 7.6(279–80) 3.34–3.35(87–8)
Crown Prosecution Service 3.9(59–60) judicial appointments 4.18(124)
lawyers as judges 4.27(133–4) Deputy Heads of Family and Civil
nemo iudex in sua causa 4.27(134) Justice, informal meetings
Crown Prosecutors, Code for 3.9(60), 3.16(68)
3.11(62) deputy High Court judges, selection of
4.10(115)
deadlines for delivering judgments Deputy Senior Presiding Judge 3.17(69)
5.24(230) Designated Civil and Family Judges,
decisions role of 3.13(66), 3.19(70)
as reasoned judgments 1.2(5) devolution matters
disciplining and removal of judges Privy Council 2.15(44)
1.4(11–13) UK Supreme Court 2.15(44–6)
declarations of incompatibility 1.7(18), devolved legislatures 2.15(45)
2.12(37–8) Lord Reed 2.15(45)
defamation of judiciary 8.47(414–15) Director of Public Prosecutions 3.9(59),
defective directions by judge to jury 3.11(63)
5.23(225–7) assisted suicide 3.11(62)
defendants, fate in hands of judiciary Director of Public Prosecutions for
3.9(60–1) Northern Ireland 3.11(63)
delays Director of the Revenue and Customs
delivery of judgments 5.24(227–30) Prosecution Office 3.11(63)
judicial proceedings 3.42(97–9) Director of the Serious Fraud Office
democratic process, Lord Bingham 3.11(63)
2.15(45–6) directorships, incompatible with
Denmark, administration of justice judicial office 6.13(261–2)
3.27(77) disciplinary proceedings 7.9–7.19
Denning, Lord (284–300)
address from Parliament Bar Standards Board see Bar
7.31(319) Standards Board
intervention by judge 5.22(223) complaints disposal see disposal of
judicial immunity 7.4(277) complaints
past criticism by party 5.18(215) leave of absence 7.12(288)
personal relationships bias misconduct see misconduct of judge
5.13(206) disciplinary tribunal participants,
press interviews 8.3(360) absolute immunity 7.3(276)
published lectures and judicial disclosure
silence 8.3(360) Guide to Judicial Conduct 5.4(188)
response to criticism 8.33(395) judicial impartiality 5.4(187–9)
right to criticise judges 8.23(383) vs. inconvenience 5.4(188–9)
Department of Work and Pensions, disincentives, recruitment and
benefit fraud prosecutions retention 4.45(168)
4.27(134) disposal of complaints
deployment see judicial deployment 7.10–7.15(284–92)
Deputy Chief Justice, informal challenging validity of judge’s
meetings 3.16(68) removal 7.15(292)

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Office for Judicial Complaints targets 4.15(121)
7.10(284–5), 7.12(289), 7.14(291) UK Supreme Court 4.32(140),
Ombudsman 7.10(285) 4.35(143–6)
resignations 7.14(291–2) Donaldson, Sir John 7.44(353–4)
safeguards 7.14(291) ‘doorstepping’ 8.7(365)
see also Lord Chancellor; Lord Chief Dyer, Clare 8.27(389), 8.47(417),
Justice 8.47(417)
disqualification
Guide to Judicial Conduct Eady, Mr Justice 8.36(399–400)
5.17(211–12) ECHR
judicial impartiality 5.4(186–7) Arts 5 and 6, state liability 7.1(274),
membership of pressure groups 7.6–7.7(279–81)
5.20(216–17) Arts 5 and 14 2.14(40)
past criticism by judge or party Art 6 1.2(4), 2.14(40), 3.11(62),
5.18(214–15) 5.1(179), 7.43(338),
personal animosity 5.16(210) 7.45(355–6), 9.3(421)
personal relationships 5.13(206–7) Art 6(1) 1.2(7), 3.7(55), 3.42(97)
professional connections Art 8 2.13(38), 2.14(40), 3.11(63)
5.15(207–9) Art 10(2) 8.45(411), 8.46(414)
significant financial interest Art 14 2.14(39)
5.12(204–5) Art 41 7.7(281)
district bench 1.6(15) common law incorporated into
district judges 3.3(49–50) 2.14(41–2)
appointment 4.18(124), 3.3(50) criticism of judges 8.45(411)
Crime and Courts Bill (2012) HRA 2.12(36–7)
3.34–3.35(87–8) incorporation into domestic law
deployment of 3.34–3.35(86–8) 9.2(420)
Judicial Shadowing Scheme judicial impartiality 5.1(181)
3.3(50) judicial independence 5.1(181)
district judges (magistrates’ court) political resolutions 2.14(40–1)
3.3(50), 3.35(88) ECtHR 4.39(153–4)
diversity, South African Constitutional 2012 UK judge appointment
Court 4.35(144) procedure 4.39–4.40(154–5)
diversity within judiciary 1.6(17) criticism of judges 8.45–8.46(411–14)
Constitution Committee (2012) English courts following
4.12(116), 4.14(119–20) jurisprudence 2.14(43),
distinct from merit 4.14(119–20), 5.29(238–9)
4.16(122) English courts not bound by
as fair reflection of society jurisprudence 2.14(43)
4.20–4.21(125–6) HMCTS 3.22(73)
Judicial Appointments Commission judicial appointments 4.38(150–1),
1.6(17), 4.1(102–3), 4.7(110), 4.39–4.40(154–5)
4.12(116–17), 4.19(124), Judicial Appointments Commission
4.21(126), 9.7(425–6) 9.7(425)
pre-Judicial Appointments judicial immunity 7.7(280)
Commission 4.4(107–8) scandalising the court offence
recommendations to Lord 8.43–8.44(409–11)
Chancellor (2010) 4.16(122) separation of powers 1.2(7)

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education experience, qualification to serve as
to deal with media 8.29–8.32(391–5), judge 4.17(123)
8.47(416–17), 9.4(423) extra-judicial activities 1.5(15),
to increase public confidence 6.1(243–4)
9.4(423) commercial activities see commercial
Ellenborough, Lord 2.10(33–4), activities
7.44(342) community activities see community
Employment Appeal Tribunal activities
3.7(54–5) political activities ban 6.2–6.5(244–9)
employment tribunals 3.7(54–5) professional life after retirement
Equality Act 2010, section 159 see professional life after
4.15(120–1) retirement
ethnic diversity in judicial public inquiries see public inquiries
appointments 3.3(50) social life see social life
ethnic minorities 4.35(145) Extradition Act 2003 3.9(60)
European Charter on the Statute for
Judges, judicial pensions fair trials, absolute right of criminal
4.47(171) defendants 5.21(220–1)
European Committee for the Efficiency fair-minded observer test, apparent bias
of Justice see CEPEJ 5.6(194), 5.6–5.7(196–7),
European Convention on Human Rights 5.8(200), 5.9(202), 5.15(208)
see ECHR Falconer, Lord
European Court of Human Rights judge’s terms of service 4.47(172)
see ECtHR women judges 4.25(132)
European Court of Justice see Court of Family Court, creation of unitary
Justice 3.12(64–5)
European Foundation for Quality Family Courts: Media Access &
Management Excellence Reporting July 2011 8.32(394–5)
(EFQM) 3.29(80) family courts and proceedings 3.38(92),
European Framework Agreement on 8.23(384)
part-time work 4.48(174) Family Division 3.4(51)
European Union Law type of work done 3.4(52)
Europeanisation of procedures, rules Family Division Liaison Judges 3.18(69)
and standards 9.3(421) role of 3.13(66)
national law incompatible with fee-paid judges, political activity
1.7(19), 9.3(421) exemption 6.2(244–5), 6.3(247)
state liability 7.1(274), 7.6(280), Finance Act 2004 4.47(171)
7.8(282–4) financial interest and bias 5.12(203–6)
executive disqualification 5.12(204–5)
appealing judgments 8.38(400) indirect 5.12(205)
criticism Fisher, Mr Justice 6.17(268)
of HRA 8.38(401) Fisher, Sir Henry 8.24(385)
of judiciary 8.38–8.39(400–5), Fitzjames Stephen, Mr Justice 8.24(384)
9.4(422) football associations, judges’
judiciary involvement in 6.10(258)
formal separation from 3.15(67) Fox, Mr Justice 7.44(341)
working relationship with fractional working in courts and
3.43(99–101) tribunals 4.31(139)

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Franks Committee 3.7(54–5) permitted activities outside
free speech, suppression of 2.10(32–3) courtroom 8.6(363)
Freedom of Information Act 2000 personal relationships and bias
7.13(290) 5.13–5.15(206–8)
Freemasons 5.20(217–18), 6.10(259) political activities ban 6.2(244–5)
friendship see personal relationships professional standards of conduct
and bias 7.16(294)
propriety 8.6(363)
Gardiner, Lord 8.24(385) social life of judges 6.15(263–5)
gender, apparent bias 5.19(216) social links and bias 5.16(209–10)
General Medical Council, investigation UK Supreme Court 5.3(185)
of misconduct 7.19(300) Guildford Four 8.25(387–8)
Genn, Dame Hazel 8.47(417) Gurney, Baron 7.44(347)
George III, judges’ commissions and
salaries 2.7(30) Hailsham, Lord
Germany, case assignment 3.39(93–4) address from Parliament 7.44(353–4)
Gladstone, William 7.37(329) appointment of judges 4.4(106)
Goddard, Lord 5.21(221), 8.24(386) arms trade arbitration 6.6(251)
good behaviour see judges, tenure binding court decisions 5.29(236–7)
during good behaviour, judges Press Amalgamations Court
in history, tenure during good 6.6(250–1)
behaviour public inquiries 6.6(251)
governance, judicial 1.3(8–11) recorders as MPs 6.2(245)
government lawyers as judges right to criticise judges 8.23(383)
4.27(133–4) Hale, Lady
Government of Wales Act 2006 3.6(53) diversity 4.14(119–20)
government’s role in address from Lord of Appeal in Ordinary
Parliament 7.41(333–5) 4.25(131)
Grantham, Mr Justice 7.44(350–2) UK as federal state 2.15(45)
Grayling, Justice Secretary Chris women as judges 4.35(145)
2.13(38) Hallett, Lady Justice
Guide to Judicial Conduct 1.4(11–12), administration of justice structure
5.3(185–6) 3.1(48)
appeals for funds 6.12(260) judges as ordinary citizens
bias and strong convictions 6.14(263)
5.17(211–12) Hardwicke, Chief Justice Lord
circumspection 8.6(363) 2.10(33)
disclosure 5.4(188) Heads of the Divisions of the High
disqualification 5.17(211–12) Court 3.16–3.17(67–9)
involvement in contentious Her Majesty’s Courts and Tribunals
organisations 6.11(259) Service see HMCTS
judge’s position as taxpayer Hickinbottom, Gary 4.23(128)
5.12(205) hierarchy in administration of justice
judicial impartiality 5.1(180–1) 3.13(65)
judicial speech outside courtroom High Court
8.6(363–4) Crime and Courts Bill (2012)
life after retirement 6.18(270) 3.34(87)
online social networks 6.15(265) as generalist court 3.4(50–1)

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High Court (cont.) Lord Chancellor 3.23(73), 3.26(75–6)
judges 3.4(52) Lord Chief Justice 3.26(75–6)
appointment of 1.6(16), 1.7 Ministry of Justice 3.26(75–6)
(19–20), 4.4(105–7), 4.10(115) National Audit Office 3.24(74)
deployment of 3.34(86) objectives 3.23(73)
serving in Upper Tribunal practical role 3.23(73), 3.25(75)
3.8(58) quality management
tenure of 2.7(30), 7.11(286) 3.29–3.32(80–5)
women 4.25(131) scrutiny of courts administration
judicial career 1.6(15–16) 3.24(74)
‘on the circuit’ 3.4(51) ‘timely access’ to justice 3.26(76–7)
part-time appointment tribunals and courts merger
recommendations 4.31(140) 4.28(135)
promotion to Court of Appeal tribunals’ lack of resources 3.7(55)
4.29(136) HMCTS Performance Committee
salary increases 4.44(161–2) 3.30(82)
as senior court 3.4(52) Hodge, Henry 4.23(128)
three divisions of 3.4(51) Holt, Chief Justice 2.5(26–7)
workload statistics 3.4(51–2) Hope, Lord
High Court and above constitutional adjudication 2.15(45)
judges 1.4(11) judicial speech outside courtroom
‘senior judiciary’ 1.6(16) 8.9(368–9)
higher courts House of Commons
decisions criticised 5.29(236–9) address from Parliament
rules of precedent 5.29(236–8) initiating 7.36(326–7)
history of judiciary 2.2–2.10(21–34) safeguards 7.40(332–3)
HM Inspectorate of Court exclusion from 1.2(8)
Administration 3.24(74) impeachment 7.25(307–8), 7.45(355)
HMCTS 1.3(9), 1.6(16), 9.6(424) judges
background history 3.22(72–3), full-time 6.2(244)
3.25(75) further inquiry into conduct of
Board, courts’ performance 7.39(332)
3.30(82) inquiry into conduct of
Chief Executive 3.23(73) 7.37–7.38(327–30)
cooperation with Ministry of Justice House of Commons Constitutional
3.26(76) Affairs Committee 3.11(64)
day-to-day governance 3.26(76) House of Commons Disqualification Act
Executive Committee, courts’ 1975 6.2(246)
performance 3.30(82) House of Lords
financial impact on 3.1(48) exclusion from 1.2(8)
forecasting judiciary vacancies impeachment 7.25(307–8)
4.8(113) initiating address from Parliament
HM Inspectorate of Court 7.36(326–7)
Administration 3.24(74) judges
improvements 3.43(100–1) full-time 6.3–6.4(246–9)
judicial partnership with warning Parliament at pre-
3.22–3.32(72–85) legislation stage 8.18(378)
Lean programme 3.29(80) Lord Chancellor 6.3(246)

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index 445
House of Lords Select Committee on course of proceedings 7.25(307–8)
the Constitution 8.17(377), the Crown 7.24(306)
8.27(389) explanation of 7.24(305)
criticism in political forum history of 7.24(305–6)
8.18(378–9) House of Commons 7.25(307–8),
diversity 4.12(116), 4.14(119–20) 7.45(355)
explanation of judgments and Lord Macclesfield 7.27(311–12)
sentencing 8.32(392–3) obsolete nature of 7.24(306)
off-the-record briefings to journalists as political weapon 7.27(310)
8.37(400) procedural safeguards 7.26(308–9)
Parliament in judicial appointment removal of judges 7.24–7.29(305–13)
process 4.36(147–9), 4.50(177) rights of accused 7.26(308–9)
HRA 9.2(420) Sir Francis Bacon 7.27(311)
arguments against 2.14(39–43) Sir Michael de la Pole 7.27(310–11)
Bills before Second Reading 2.12(37) Sir Robert Belknap 7.27(311)
conflict between politicians and see also removal of judges, arguments
judges 1.7(19), 8.26–8.27(388–9) following Act of Settlement
a doubtful future 2.13(38) ‘in the public interest’, prosecutors’
executive criticism of 8.38(401) decisions 3.11(62–3)
impact of 2.12–2.14(36–44) inability of judge 7.18(296–7)
politicians’ use of media 2.16(46) incentives, recruitment and retention
public confidence 1.5(14) 4.45(168)
section 2 and English courts incompatibility
2.14(42) amending legislation 2.12(37–8)
section 3 2.14(39), 2.14(41–2), declarations of 1.7(18), 2.12(37–8)
7.43(338) inconvenience vs. judicial impartiality
section 6(1) 7.7(280) 5.4(188–9)
section 7(1) 7.7(280) independence
section 9(1) 7.7(280) individual see individual
section 9(3) 7.7(280) independence
section 9(4) 7.7(281) institutional 1.3(10–11)
state liability 7.1(274), 7.7(281) internal 1.2(6–7)
tribunals’ organisation 3.7(55) independence of judiciary see judicial
human rights independence
accommodation in domestic law India, scandalising the court 8.44(410)
9.3(421) individual independence 1.2(4)
legislation contrary to principles personal 1.2(6)
2.14(41) substantive 1.2(5–6)
Human Rights Act 1998 see HRA Inns of Court 7.19(298–9)
Hutton Report 6.7(253) Inquiries Act 2005 6.7(254)
institutional independence 1.3(10–11)
Immigration and Asylum Tribunals internal independence 1.2(6–7)
3.7(54) intervention by judge 5.22(222–5)
immunity see judicial immunity amounting to cross-examination
impartiality see judicial impartiality 5.22(224–5)
impeachment contributing own views 5.22(223–4)
against judges 7.27(310–12) Court of Appeal 5.22(224–5)
applicable law 7.26(308–9) Lord Denning 5.22(223)

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Ireland excessive intervention in trials
administration of justice 3.27(77) 5.22(222–5)
judicial remuneration 4.44(163–4) explanation of their application of
Irish Free State Bill, Law Lords in law 8.14(373)
political debates 6.4(247) extra-judicial activities see extra-
Irvine, Lord judicial activities
appointment of High Court judges fee-paid 6.2(244–5), 6.3(247)
4.4(107) High Court see High Court
as Lord Chancellor 2.11(35) High Court and above 1.4(11),
part-time judges and political 1.6(16)
activity 6.2(244) higher court decisions criticised
5.29(236–9)
Jackson, Lord Justice 3.41(97) HRA contentious requirements
Judge in Charge of Modernisation 2.14(39)
3.23(74) influencing legal developments
informal meetings 3.16(68) 8.15–8.17(374–7)
Judge, Sir Igor 8.33(395–6) Law Lords 6.3(246–7)
judges leave of absence re misconduct
accountability through reasoning 7.12(288)
2.14(39) lodgings on circuit 6.14(263)
appointment of see judicial loss of faculties 7.12(288–9)
appointments, judges managerial responsibility 3.1(48)
case management involvement manifesting prejudice 5.27(234–5)
3.40(94) media
as chair in public inquiries 9.4(422) anticipation of media storm
challenging validity of removal 8.30–8.32(391–5)
7.15(292) cooperation of media
circuit see circuit judges representatives 8.32(394–5)
clarity in explanation of judgments reluctance of media to criticise
and sentencing 8.32(392–4) 8.24(385–7)
community activities see community response to media criticism
activities 8.29–8.37(390–400)
constraints for judicial independence number of 3.36(88–9)
9.10(428–9) online social networks 6.15(265–7),
correcting media misreporting 6.19(271)
8.33–8.37(395–400) as ordinary citizens 6.14–6.15
criticism of 8.45–8.46(411–14), (262–4)
9.4(422) part-time see part-time judges
defamation actions against media peers 6.3(247)
8.47(414–15) performance standards 3.11(63)
defective directions to jury political matters 2.14(39–41)
5.23(225–7) pressure on defendant to plead guilty
delays in giving judgments 3.42(99) 5.26(233–4)
deployment of 3.34–3.36(85–9) public scrutiny of 8.23–8.28(382–90),
discipline and removal 1.4(11–13) 9.4(421–2)
district see district judges removal of see removal of judges
excessive delay in delivering resignations 7.14(291–2)
judgment 5.24(227–30) resignations untimely 6.17(268–9)

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retention of control 3.31(82) under royal control 2.3(22–5),
retired 8.3(359) 2.10(32), 7.12(288)
retirement age 6.16(267), extra-judicial opinions 2.3(24)
7.11(286–7) interference with judicial
rudeness 5.25(231–3) proceedings 2.3(23–4)
sanctioning of 5.2(183–4) judicial office transfers 2.3(24)
sleepiness 5.30(239–41), 7.16(293) promotion 2.3(24)
strategies re media 8.29(391) removal from office 2.3(22–3),
suspension from office 7.12(288–9) 2.3(25), 2.6(28)
as taxpayers 5.12(205–6) royal favours 2.3(25)
tenure during good behaviour salaries and pensions 2.3(24)
7.29(313), 7.30(315–17) suspension from office 2.3(23),
unable to reach decision 5.24(230) 2.3(25)
warning Parliament at pre-legislation Whig historians’ view 2.9(31),
stage 8.18(378) 2.10(33)
see under judges by their respective Judges’ Remuneration Act 1965
designations 4.44(161)
judges’ commissions judgments
George III 2.7(30) deadlines for delivering 5.24(230)
Queen Anne 2.7(29–30) excessive delay in delivery
Judges’ Council 3.13(66), 3.21(71–2) 5.24(227–30)
appointments to Judicial speaking for themselves 8.33(395–6),
Appointments Commission 8.36(399)
4.6(109) Judicature Act 1873 3.21(70)
governance by conventions 8.6(364) judicial accountability 1.1(2), 3.27(78),
history 3.21(70–1) 3.28(80), 9.10(429)
involvement in ‘quasi-political’ resources and judicial independence
events 6.12(260) 3.27(78), 3.28(80)
Lord Chief Justice 3.21(71) Select Committees in Parliament
role of 3.21(71–2) 9.5(423)
transfer of administration of justice to Parliament 9.5(423–4)
3.27(77) judicial administration
working groups 3.21(71) see administration of justice
judges in history judicial appointments 1.6(15–17)
in 18th and early 19th centuries barristers 4.1(103), 4.4(107–8)
2.9–2.10(31–4), 7.22(303) cloning of existing judiciary
impeachment 7.27(310–12) 4.11(115–16), 4.14(119)
power struggle between Crown and Court of Justice 4.38(150–1)
Parliament 2.2–2.6(22–9) Crime and Courts Bill (2012)
Stuart period 2.9(31) 4.11(115)
tenure during good behaviour criticisms of process 4.4(107)
2.3(23), 2.6(28), 7.11(285–6) diversity 1.6(17), 4.1(102–3),
Tudor times 2.2(22) 4.7(110), 4.12(116–17),
under Parliamentary control 4.19(124), 4.21(126), 9.7(425–6)
2.5(26–7), 2.10(31–2) ECtHR 4.39–4.40(154–5)
impeachment 2.5(26) ‘encouragement to apply’ 4.12(117)
political motives 2.5(26) Equality Act 2010, section 159
reducing royal interference 2.6(27) 4.15(120–1)

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judicial appointments (cont.) Judicial Appointments Commission
as fair reflection of society 1.2(8), 1.6(16), 2.11(36), 3.3(50),
4.20–4.21(125–6) 4.5–4.12(108–17), 9.5(423)
House of Lords Select Constitution appraisal 9.8(426)
Committee see House of Lords challenges remaining 4.50(177–8)
Select Committee on the composition 4.5(108)
Constitution Court of Justice and ECtHR 9.7(425)
judges 4.4(106–7), 4.6(109–10) CRA 2.11(36), 4.1(103)
circuit judges 4.18(123) diversity 1.6(17), 4.1(102–3), 4.7(110),
CPS lawyers as 4.27(133–4) 4.12(116–17), 4.19(124),
deputy district judges 4.18(124) 4.21(126), 9.7(425–6)
district judges 4.18(124) effects of 4.50(176–7)
government lawyers as exclusion of MPs 1.2(8)
4.27(133–4) judges
High Court and above 4.4(105–6) appointment of 4.6(109–10),
legal academics as 4.26(133) 4.50(177)
qualifications to serve as deployment of 3.34(87)
4.17–4.18(122–3) recommendations for
Queen’s Counsel as 4.22(126–7) appointment of 4.6(109–10),
solicitors as see solicitors as judges 4.9(113–14)
women as 4.25(131–2), 4.35(145) judicial appraisal 4.29(136–7)
Judicial Appointments Commission merit see merit
see Judicial Appointments non-statutory eligibility criteria
Commission 4.19(124–5)
lay members in appointment panels reasons for 4.5(108–9)
4.11(115–16) selection process 4.7(110–11)
legal executives 4.24(130) delays following selection 4.8(113)
Lord Chancellor 4.50(177) references 4.7(112–13)
Lord Justice of Appeal 4.18(123) tests 4.7(110–12)
ministers’ role 1.2(8) solicitor candidates analysis
non-statutory eligibility criteria 4.23(129)
4.19(124–5) transparency of appointments
part-time under Crime and Courts 1.6(16), 4.1(102), 9.7(425)
Bill (2012) 4.31(139) tribunals 3.7(54), 4.28(135)
political questions 4.37(149–50) UK Supreme Court appointments
pools of candidates 4.21(125–6) 4.33(141–2)
public advertisement 4.4(107) Judicial Appointments and Conduct
qualities for 4.1(102) Ombudsman 4.6(110),
quality of 4.1(102) 7.10(285), 7.15(292)
quotas 4.14(120) judicial appraisal 4.29(136–8),
recommendations of Advisory Panel 4.46(169)
to Lord Chancellor 4.16(122) judicial careers 1.6(15–17), 9.8(426–7)
recommendations for part-time in appraisal 9.8(426)
High Court 4.31(140) effect of Crime and Courts Bill (2012)
recorders 4.18(123) 3.34(87–8)
tribunals judiciary 4.28(134–5) judicial selection process 4.9(114)
UK Supreme Court 4.33(140–2), managerial judges 4.46(170)
4.36(146–8) mentoring and appraisal 4.29(138)

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mobility and progression scope of 7.3–7.5(275–9)
4.29–4.31(136–40) state liability see state liability
recommendations of Advisory Panel judicial impartiality 1.2(4), 4.20(125),
to Lord Chancellor (2010) 5.1(179), 9.3(421)
4.16(122) appeals see appeals
tribunal judges deployed to High appearance of 5.4(188–9)
Court 4.28(135) bias actual and apparent see actual
Judicial College 1.3(10) bias, apparent bias, bias
sample directions to jury 5.23(225) common law 5.1(179)
Judicial Committee of Privy Council disclosure see disclosure
2.15(44) disqualification see disqualification
Judicial Communications Office ECHR 5.1(181)
8.36(399), 8.47(416) Guide to Judicial Conduct see Guide
judicial complaints see disposal of to Judicial Conduct
complaints membership of pressure groups
judicial conduct 1.4(11–13) 5.20(216–20)
basis of good 1.4(12–13) moderate language outside
complaints procedure 1.4(13) courtroom 8.9(368)
historical 5.3(184) preconceived views expressed
judicial oath 5.3(185), 5.4(189) 5.17–5.19(211–16)
principles of 1.4(11), 5.3(185–6) procedure, disclosure and waiver
propriety 1.4(11–12) 5.4–5.5(186–93)
standards fostering judicial recusal of judge see recusal of judge
independence 5.3(184) requirements 5.18(212–13)
Judicial Conduct Commissioner two meanings 5.1(179–80)
8.39(405) vs. inconvenience 5.4(188–9)
judicial delays see delays judicial independence 1.1(1–2)
judicial deployment 3.34–3.36(85–9) 17th century 2.2–2.6(22–9)
Crime and Courts Bill (2012) address from Parliament 7.31(320),
3.34–3.35(87–8) 7.37(329)
internal independence 3.34(85) autonomy 3.28(79–80)
Judicial Discipline (Prescribed checks and balances 3.28(80)
Procedures) Regulations 2006 collective 1.3(10–11)
5.2(183), 7.10(285) conduct standards 5.3(184)
Judicial Executive Board 1.3(9), constitutional convention
3.13(65), 3.16(67–8) 7.32(321–2)
members 3.16(68) constraints and core values 9.1(419),
role of 3.16(68) 9.10(428–9)
judicial governance 1.3(8–11), 3.7(57) conventions and practices 1.7(20),
judicial immunity 1.2(5–6), 7.1(273) 9.4(421)
absolute 7.3(275–6), 7.45(354) Court of Justice 4.48(174–5)
bona fide judicial activities 7.4(278) dialogue between judges, Parliament
degrees of 7.4(276–8) and government 8.17(376)
exceeding jurisdiction 7.2(274–5) domestic and international legal
Justices of the Peace 7.4(278) culture 1.2(8)
Lord Bridge 7.4–7.5(277–8) ECHR 5.1(181)
Lord Denning 7.4(277) enhancing public understanding
malice 7.5(278–9) 8.4(361)

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450 index
judicial independence (cont.) judicial pensions 2.8(30),
European Framework Agreement on 4.47–4.49(170–6)
part-time work 4.48(174) assurance of retirement benefits
executive criticism in media 4.47(171)
8.38–8.39(400–5) contributions towards own pensions
individual 1.2(4) 4.47(172–3), 4.49(176)
institutional 1.3(10–11) Court of Justice 4.48(173–4)
judicial governance 1.3(8–11) European Charter on the Statute for
judicial oath 5.1(182) Judges 4.47(171)
judicial remuneration 4.41(156–7), part-time judges 4.48(173–4)
4.45(165–6), 4.49(176) Pensions Act 2011 4.47(172–3),
legislation to secure 2.6–2.8(27–31), 4.49(176)
8.39(405) period of service 4.47(171)
Lord Chancellor 1.2(7–8), 8.38(401) tax treatment of 4.47(171–2)
meaning of 9.10(428–9) value 4.47(170)
Office for Judicial Complaints Judicial Pensions and Retirement Act
9.9(427) 1993, section 9A 4.47(173)
parliamentary accountability 1.7(20) Judicial Pensions Scheme 4.47(171)
personal 1.2(6) judicial power of judiciary 1.7(19)
popular pressures 1.5(14) judicial process 3.32(84–5), 3.42(97)
post-1700 2.10(31–2) see also CEPEJ checklist
reinforcement of 1.7(20) judicial remuneration 4.41–4.49(156–76)
selection processes and criteria adequacy questions 4.45(164)
4.37(149–50) Administration of Justice Act 1973
significance for England and Wales 4.44(162)
9.1(419) Canada 4.43(158–60)
Sir Winston Churchill 7.34(325) claiming expenses 4.47(170)
substantive 1.2(5–6) comparison
Tudor times 2.2(21–2) with top civil servants 4.45(165)
judicial inquiries, commissioning of with top commercial practitioners
6.8(257) 4.45(167)
judicial legitimacy 4.36(149) international models 4.43(158–9),
judicial mechanisms for removal of 4.44(162–3)
judges 7.20–7.22(300–4) Ireland 4.44(163–4)
judicial misconduct see misconduct of judges’ input 4.43(158)
judge judicial independence 4.41(156–7),
judicial mobility and progression 4.45(165–6)
4.29–4.31(136–40) managerial duties 4.46(169–70)
judicial oath 1.2(4) pensions see judicial pensions
independence and bias distinguished performance-related pay 4.46(168–9)
5.1(182) promotion as reward for
judicial conduct 5.3(185), 5.4(189) performance 4.46(169)
tribunal members 1.5(14) recruitment and retention
Judicial Office for England and Wales 4.45(165–6), 4.49(176)
3.14(66–7) salaries
functions groups 3.15(67) assessment 4.45(166)
importance of communication decrease in higher judiciary salary
3.15(67) 4.44(162–3)

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index 451
drop considerations 4.45(166–7) Judge Pickles 8.10(369)
George III 2.7(30) judicial impartiality 8.9(368)
historical setting of 4.44(161) Lord Bingham 8.8(367)
increase in higher judiciary salary Lord Woolf 8.10–8.14(369–73)
4.44(161) moderate language 8.9–8.11(367–70)
increasing and decreasing no comments on individual cases
4.44(161–4) 8.7–8.8(365–7)
prohibition against supplementing obituaries of colleagues 8.13(371)
2.8(30–1) political controversy or judicial
salaries crisis 7.31(318–19) expertise 8.12(371)
structure 4.41(156) principles currently in force 8.6(363),
structure reviews by Review Body 8.47(415–16)
3.30(82), 9.6(425) public lectures and comments 8.3
significance of 4.41(156–7), 9.6(425) (359–60), 8.8(366–7), 8.11(370)
Venice Commission speaking for the judiciary
4.44–4.45(162–4) 8.18–8.21(378–82)
see also Review Body on Senior statute intention difficulties
Salaries 8.14(372)
judicial resources, efficient use of written contributions to legal
3.12(64–5) publications 8.9(367), 8.11(370)
judicial review 3.7(57), 9.2(420) judicial speech within courtroom
possible restrictions 2.15(46) commenting on rules or policies
removal of judges by address from 8.14–8.15(372–4)
Parliament 7.43(337–9) explanation of application of law
tribunals 4.28(135) 8.14(373)
Judicial Shadowing Scheme, district Judicial Studies Board, case
judges 3.3(50) management training 3.40(95)
judicial silence judicial system, resources for 1.3(10)
excessive remoteness from public judicial tenure see tenure
8.4(361) judicial training 4.30(139), 9.8(426–7)
Lord Denning’s published lectures judiciary
8.3(360) criticism of 8.45–8.46(411–14),
Lord MacKay 8.5(361–2) 8.48(417–18)
outside courtroom 8.3(359) defendants’ fate 3.9(60–1)
judicial speech outside courtroom diversity within 1.6(17), 4.1(102–3),
8.3–8.21(359–82), 9.4(422–3) 4.7(110), 4.12(116–17), 4.19
on administration of justice 8.4(361), (124), 4.21(126), 9.7(425–6)
8.12–8.14(370–3) formal separation from executive
basic principles 8.3–8.6(359–64) 3.15(67)
‘doorstepping’ 8.7(365) growth in size and complexity
Guide to Judicial Conduct 1.6(16)
8.36(399–400) history 2.2–2.10(21–34)
importance of manner of expression House of Lords Select Committee on
8.9(368–9) the Constitution 8.18(378–9)
increase in speeches 8.12(370–1) increase in judicial power 1.7(19)
individual speech 8.7–8.17(365–77) international reputation for
influencing legal developments impartiality and probity
8.15–8.17(374–7) 1.7(18)

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judiciary (cont.) Justices of the Peace
media judicial immunity 7.3(276), 7.4(278)
anticipation of media storm powers 3.35(88)
8.30–8.32(391–5) traffic offences 6.15(264)
correction of misreporting women 4.25(131)
8.33–8.37(395–400), Justices Protection Act 1848 7.4(278)
8.47(416)
criticism response 8.29–8.37 Kelly, Lord Chief Baron 7.44(349–50)
(390–400), 8.47–8.48(416–18) Kenrick, Judge William 7.44(343–4)
defamation actions against Kilmuir, Lord 8.3(360)
8.47(414–15) Kilmuir Rules 8.3(359–60)
executive criticism in abolition of 8.5(361–2)
8.38–8.39(400–5) absolute interpretation of 8.3(360)
representatives’ cooperation Kokott, Advocate General 4.48(174–5)
8.32(394–5)
strategies to deal with 8.29(391), Lane, Elizabeth 4.25(131)
8.47(416) Lane, Lord 8.25(387–8)
under-protected from media judges’ control 3.31(82)
criticism 8.18(378–9) Law Commission
non-involvement in plea bargaining influencing legal developments
3.10(61–2) 8.15(374)
retractions from the press as pre-legislative institution 1.7(19)
8.35(397–8) Law Lords
scrutiny as legal advisers in late 20th century
post-legislative 8.17(377) 6.4(248)
pre-legislative 8.17(376–7) non-involvement in politically
public 8.23(382), 9.4(421–2) contentious matters 6.3(246–7)
social background of 1.6(15–16) in political debates 6.4(247)
tribunals see tribunals judiciary political issues in late 20th century
women 4.14(120) 6.4(248–9)
working relationship with executive role of 6.3(247–9)
3.43(99–101) Law Society, investigation of
jurors, absolute immunity 7.3(276) misconduct 7.19(300)
jury lay members in judicial appointment
defective directions from judge panels 4.11(115–16), 4.37(150)
5.23(225–7) Lean programme 3.29(80)
freedom to deliberate 5.23(226–7) leave of absence, disciplinary
hearing excessive intervention from proceedings 7.12(288)
judge 5.22(222–5) Leeds Magistrates Court, inspection
‘seeds of pressure’ 5.23(227) report 3.26(76)
justice, administration of legal academics as judges 4.26(133)
see administration of justice Legal Aid, Sentencing and Punishment
‘justice delayed is justice denied’ of Offenders Act 2012
3.32(84) 3.41(96–7)
JUSTICE Report on Contempt of Court legal executives 4.24(130)
8.43(409) legal profession
JUSTICE Report on Law and the Press supporting judiciary facing media
8.24(385–7) criticism 8.19(380–1)

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index 453
sustaining public confidence in number of 3.36(88)
judiciary 8.19(379–80) power to discipline 1.4(13),
Legal Services Board 9.8(427) 7.1(272), 7.11(286)
Leggatt Review of Tribunals (2001) power to remove 1.4(11),
3.7(54) 7.11(287)
recommendations 3.7(55–6), 3.8(58) retirement age of 3.36(89)
leniency in sentencing 8.27(388–9) judicial independence 1.2(7–8),
Leveson Inquiry 6.8(256) 8.38(401)
Levin, Bernard 8.25(387–8) judicial pensions 4.47(171–2),
libel see defamation of judiciary 4.49(175)
listing see case assignment leadership from 3.34(85)
listing officers, responsibilities legislative sittings of House of Lords
3.37(90–1) 6.3(246)
litigants in person as Minister of Justice 6.3(247)
questioning judge’s impartiality misconduct press statements
5.8(200) 7.13(290–1)
waiver 5.5(191–2) no longer head of judiciary 1.2(7)
Lord Avonside 8.24(385) non-statutory eligibility criteria for
Lord Chancellor judicial appointments
administration of justice 4.19(124–5)
resources for 3.27(77–8) office of 4.3(103–4), 6.3(247)
sharing 9.6(424–5) performance standards 3.29(81)
appointment reports
in past 4.3(104), 4.5(108) from Lord Chief Justice 3.7(57)
post-CRA 4.3(105) from Senior President of
Cabinet member 4.3(104) Tribunals 3.7(57)
case assignment 3.37(89) role 9.4(422)
courts’ boundaries 3.34(85) current role 1.2–1.3(7–9)
CRA 2.11(34–6), 9.2(420) separation of powers principle
responsibilities under 3.14(66), 4.3(103–5), 9.2(420)
9.2(420) Speaker of the House of Lords
Crime and Courts Bill (2012) 9.5(423) 4.3(104)
duty re Cabinet undermining judicial transfer of appointment decisions to
independence 8.38(400) Lord Chief Justice 4.11(115)
head of judiciary 4.3(104) UK Supreme Court appointments
High Court judges’ salary increases 4.33–4.34(141–3)
4.44(161–2) Lord Chief Justice 1.2(8)
HMCTS 3.23(73) case assignment 3.37(89–90)
investigation of complaints complaints investigation 7.13
7.13(289–90), 7.45(354) (289–91), 7.45(354)
judges Concordat (2004) 1.3(9), 3.1(47–8)
agreement to suspend 7.12(289) courts’ boundaries 3.34(85)
appointment of 4.4(105–7), CRA 2.11(36), 3.1(47–8), 3.13–3.14
4.9(113–14), 4.50(177) (65–6), 3.26(75–6), 8.18(378)
assignation of individual judges to delays 3.42(98)
courts 3.34(86–7) disqualified from sitting in House of
filling High Court vacancies Lords 8.18(378)
3.36(89) High court vacancies 3.36(89)

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Lord Chief Justice (cont.) Macclesfield, Lord 7.27(311–12)
HMCTS 3.26(75–6) MacDonald, Prime Minister Ramsay
judges 7.41(335), 7.44(352–3)
acting as chair of public inquiries MacKay, Lord
6.19(270) abolition of Kilmuir Rules 8.5(361–2)
agreement to remove 1.4(11), judge’s terms of service 4.47(172)
7.11(287) as Lord Chancellor
assignation of individual judges to appointment of judges 4.4(106–7)
courts 3.34(86–7) women judges 4.25(131)
deployment of 3.34(85–6) principles of speech outside
number of 3.36(88) courtroom 8.5(362)
pensions 4.47(171–2) magistrates’ courts 3.3(49)
power to discipline 1.4(13), closure of 3.12(64)
7.1(272), 7.11(286) Magna Carta 1215 5.3(185)
power to suspend 7.12(289) Malaysia, scandalising the court
press statements of misconduct 8.44(410)
7.13(290–1) managerialism 9.6(424–5)
retirement age of 3.36(89) developments since 1971 9.6(424)
Judges’ Council 3.21(71) managerial duties, judicial
judicial appointments eligibility remuneration 4.46(169–70)
criteria 4.19(124–5) managerial responsibility of judges
Judicial Executive Board member 3.1(48)
3.16(68) post-CRA pressures 9.6(424)
leadership from 3.14–3.15(66–7), Mansfield, Lord
3.34(85) as Chief Justice, association with the
media management 8.30(392) executive 2.10(33–4)
performance standards 3.29(81) media praise or criticism 8.29(390)
recommendations from Office for Master of the Rolls 3.16(68)
Judicial Complaints 7.10(284), Mauritius, scandalising the court
7.13(289–90) 8.46(413)
responsibilities 1.3(9–10) media 8.1–8.2(357–9)
delegation of 3.1(47–8) anticipation by judges of storm
in Judicial Office for England and 8.30–8.32(391–5)
Wales 3.15(67) as check upon accountability of
under CRA 3.14(66) judiciary 1.5(14–15)
sharing administration of justice correcting by judiciary
9.6(424–5) 8.33–8.37(395–400)
support for judicial flexibility ‘doorstepping’ by journalists 8.7(365)
4.31(140) educating by judiciary 8.32(392–5)
transfer of appointment decisions executive criticism of judiciary
from Lord Chancellor 4.11(115) 8.38–8.39(400–5)
veto 9.4(422) first check on judicial conduct
Lord Justice of Appeal, judicial 8.23(382–3)
appointments 4.18(123) high-profile trials 8.30(392)
loyalty, court administration 3.27(79) judges’ response to criticism
8.29–8.37(390–400)
McCardie, Mr Justice 7.44(352–3) judiciary under-protected from
McCLelland, James 7.44(342) criticism 8.18(378–9)

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index 455
leniency in sentencing 8.27(388–9) Ministry of Justice
press failing to report justice cooperation with HMCTS 3.26
shortcomings 8.24(385–7) (75–6), 3.28(80)
press starting to report justice recommendations from Office for
shortcomings 8.25(387–8) Judicial Complaints 7.10(284)
regulation of 6.8(256) responsibilities 2.11(36)
responses by judiciary to UK Supreme Court budget 3.25(75)
government proposals misbehaviour
8.15(374–5) four ingredients 7.18(295–6)
scrutiny see media scrutiny see also misconduct of judge
strategies for dealing with 8.29(391), misconduct of judge 5.2(184),
8.47(416–17) 5.16(210)
used by politicians to influence appeals 5.21(220–2)
judiciary 2.16(46) retrial 5.21(222)
Media Guidance for the Judiciary sentence quashed 5.21(222)
8.47(414) sentence reduction 5.21(221–2)
media scrutiny criminal conduct 7.17(295)
development of 8.23–8.28(382–90) disciplinary proceedings
improving delivery of justice 7.16–7.19(293–300)
8.14–8.23(373–84) examples of 7.16(293–4)
Lord Avonside 8.24(385) falling asleep during trial 5.30
Mr Justice Fitzjames Stephen (239–41), 7.16(293)
8.24(384) General Medical Council 7.19(300)
Profumo scandal 8.24(385) immunity in exercise of judicial
Sir Henry Fisher 8.24(385) function 7.16(293)
mediation see alternative dispute Law Society 7.19(300)
resolution leave of absence 7.12(288)
Mental Health Review Tribunal Office for Judicial Complaints
3.7(56) 7.19(299)
merit 4.13–4.16(117–22), 9.7(425–6) press statements 7.13(290–1)
assessment of 4.13(118–19) resignation 7.14(291–2)
definition 4.13(117–18) sexual conduct 7.16(294–5)
distinct from diversity 4.14(119–20), statistics 7.14(291)
4.16(122) see also address from Parliament;
equal 4.15(120–1) rudeness
five qualities and abilities 4.13(118) misconduct of judge in private capacity,
Judicial Appointments Commission trial by court of law 7.43(338–9)
4.13(117–18) misreporting of cases 9.4(422)
UK Supreme Court 4.35(143–6) mobility, judicial see judicial mobility
undermined by diversity targets and progression
4.15(122) MPs
‘merit and good character’ 1.4–1.6 exclusion from Judicial
(13–16), 4.1–4.2(102–3), 4.4 Appointments Commission
(107), 4.7(110), 4.11(116) 1.2(8)
military tribunals, absolute immunity as recorders sitting in own
7.3(276) constituency 6.2(245–6)
ministers’ role in judicial appointments Mt Scopus Standards of judicial
1.2(8) independence 1.2(4)

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National Audit Office, HMCTS Guide to Judicial Conduct 6.15(265)
3.24(74) judges’ involvement in 6.15(265–7),
Neuberger, Lord 6.19(271)
alternative dispute resolution risks associated with 6.15(265–6)
3.41(96) organisation of justice 1.3(10–11)
clear communication of the law
8.30(391) Page, Sir Francis 7.44(340–1)
Equality Act 2010, section 159 pardon, address from Parliament
4.15(120) 7.42(336–7)
New public management 3.31(83) Parliament
non iudex in sua causa dissolution or prorogation of
an interest in, not party to 7.42(335–6)
5.12(203) duty to protect judges from public
distinguished from bias 5.1(182) indignity 7.34(325–6)
non-profit organisations power struggle with Crown
Guide to Judicial Conduct 6.11(259) 2.2–2.6(22–9)
judges’ involvement in 6.11(259–60) role in UK Supreme Court
non-secret societies, judges’ appointment process
involvement in 6.10(259) 4.36–4.37(146–50)
Northern Ireland, UK Supreme Court see also address from Parliament
representation 4.33(141–2) parliamentary accountability,
Northern Ireland Act 1988 3.6(53) independence of judiciary 1.7(20)
Parliamentary Commissioner for
oath, judicial see judicial oath Administration 3.7(57)
O’Brien, Dermod 4.14(119) parliamentary control of judges
Office for Judicial Complaints 1.3(10), see judges, under Parliamentary
1.4(13), 5.2(183–4) control
challenges 7.45(354) parliamentary mechanisms for removal
complaints of judges 7.23(304–5)
disposal of 7.10(284–5) Parliamentary Ombudsman, court staff
of partiality or corruption actions 3.24(74)
8.43(409) Parliament’s province and courts’
processing of 7.12(289), province 7.43(337)
7.45(354) part-time judges
unsubstantiated 7.14(291) judicial pensions 4.48(173–4)
defamation 8.47(415) political activity exemption 6.2
disciplinary proceedings 7.19(300) (244–5), 6.3(247)
and judicial speech 8.21(381–2) Patents Court, Chancery Division
liability 7.19(299) 3.4(51), 3.5(53)
educating the public 7.13(290) Peach Report (1999) 4.4(108)
judicial independence 9.9(427) pecuniary interest and bias 5.12(203–6)
misconduct examples 7.16(294) disqualification 5.12(204–5)
tribunals 3.7(54) indirect interest 5.12(205)
O’Grady, Chief Baron 7.44(343) Peel, Sir Robert 7.37(328)
online social networks peers, judges 6.3(247)
blogging 6.15(266–7) pensions see judicial pensions
comments and information issues Pensions Act 2011, judicial pensions
6.15(266) 4.47(172–3), 4.49(176)

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performance standards of judges preliminary views expressed by judges,
3.29(81) apparent bias 5.6(194–5)
period of service, judicial pensions President of the Family Division
4.47(171) 3.16(68)
personal animosity President of the Queen’s Bench
bias 5.16(210–11) Division 3.16(68)
disqualification 5.16(210) Presiding Judges
personal relationships and bias responsibilities 3.17(69)
animosity 5.16(210–11) role of 3.13(66)
Code of Conduct of the Bar of see also Senior Presiding Judge
England and Wales 5.14(207) press
complaints 5.13–5.16(206–11) failure to report justice shortcomings
disqualification issues 5.13(206–7) 8.24(385–7)
Guide to Judicial Conduct 5.13–5.15 retractions 8.35(397–8)
(206–8) starting to report justice
Lord Denning 5.13(206) shortcomings 8.25(387–8)
social links 5.16(209–10) see also media
Phillimore Committee 8.41(406), Press Complaints Commission
8.43(409) 8.47(415)
Phillips, Lord Nicholas 3.27(78–9) Press Office
‘merit’ in UK Supreme Court judiciary facing media criticism
appointments 4.35(144) 8.20(381)
UK Supreme Court’s independence new relationship with media
3.27(78–9) 8.35(397), 8.48(418)
Pickles, Judge 8.10(369) pressure groups, judicial impartiality
plea bargaining 5.26(234) 5.20(216–20)
non-involvement of judiciary prime minister, judicial selection
3.10(61–2) 4.9(113)
Pole, Sir Michael de la 7.27(310–11) prison visitors, absolute immunity
police 7.3(276)
investigation of offences 3.9(60) Privy Council
officer serving as jury member devolution matters 2.15(44)
5.9(201) Judicial Committee 2.15(44)
Police and Crime Commissioners UK Supreme Court Justices 3.6(53)
judges 6.2(246) professional connections, lack of bias
judicial impartiality 6.2(246) 5.15(207–9)
magistrates 6.2(246) professional life after retirement
Police Disciplinary Board, absolute 6.16–6.18(267–70)
immunity 7.3(276) entering business 6.17(268–9)
political activities ban 6.2–6.5(244–9) entering politics 6.18(269–70)
political issues, judicial appointments retirement age 6.16(267)
4.37(149–50) returning to the Bar 6.17(267–8)
popular pressures, independence of untimely resignation 6.17(268–9)
judiciary 1.5(14) professionalisation 9.8–9.9(426–8)
precedent rules 5.29(236–9) Profumo scandal 8.24(385)
predetermination see actual bias promotion
prejudice, manifested by judges fast-track appointments system
5.27(234–5) 4.29(138)

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458 index
promotion (cont.) length and cost 6.7(252)
frequent reversal or reprimand six cardinal principles 6.7(252–3)
5.21(221) tradition of appointment 6.7(251–2),
Judicial Appointments Commission 6.8(256–7)
4.29(138) pubs 6.15(263–4)
as reward for performance 4.46(169)
within benches 4.29(136) quality of judicial appointments
propriety, judicial conduct 1.4(11–12) 4.1(102)
prosecuting attorneys, absolute quality of justice, efficiency questions
immunity 7.3(276) 3.32(84–5)
Prosecution of Offences Act 1985 3.9(59) quality management
prosecutors 3.9–3.11(59–64) HMCTS 3.29–3.32(80–5)
decisions 3.10(61) meaning 3.29(81)
decisions not to prosecute ‘in the statistics 3.29(81)
public interest’ 3.11(62–3) ‘quasi-judicial officers’, absolute
irregularities 3.10(61) immunity 7.3(276)
overview 3.9(59–60) Queen
role of 3.9(60) appointment of judges 4.4(105–6),
public confidence 1.4(11–12), 4.33(142)
1.5(14–15) power of removal of judges 1.4(11)
in Attorney General’s office 3.11(63) Queen Anne, judges’ commissions
case management 3.40(95) 2.7(29–30)
enhancement of 8.4(361), 8.47(416) Queen’s Bench Division 3.4(51)
Eurobarometer survey Nov 2010 admiralty court 3.4(51)
8.28(390) commercial court 3.4(51)
HRA 1.5(14) technology and construction court
judges’ extra-judicial activities 3.4(51)
6.1(243) Queen’s Counsel as judges 4.22(126–7)
judicial conduct standards 5.3(184) quotas, judicial appointments 4.14(120)
judicial legitimacy 4.36(149)
judiciary as fair reflection of society race, apparent bias 5.19(216)
4.20(125) Radcliffe, Lord 8.3(360)
lack of in appointments process Reading, Lord 6.18(270)
4.5(108) recorders 3.4(52)
multinational corporations 1.7(18) also local councillors 6.2(245)
need for more women judges also MPs 6.2(245–6)
4.25(131) judicial appointments 4.18(123),
sleeping judges 5.30(240) 4.27(133–4)
social background of judiciary office of 4.18(123–4)
1.6(16) political activities giving rise to bias
public inquiries 6.2(245–6)
commissioning of judicial inquiries recruitment and retention
6.8(257) disincentives 4.45(168)
Hailsham, Lord 6.6(251) incentives 4.45(168)
judges as chair 9.4(422) judicial remuneration 4.45(165–6),
judges’ involvement in 6.6–6.8 4.49(176)
(249–57), 6.19(270) Review Body on Senior Salaries
judicial vs. political 6.7–6.8(254–7) 4.45(166–8)

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recusal of judge financial cuts 3.43(99), 9.6(425)
conflict of interest apparent at short for judicial system 1.3(10)
notice 5.4(188) retention and recruitment
delay issues 5.4(189–90) see recruitment and retention
judicial impartiality 5.1(180), retirement age of judges 6.16(267),
5.4(186), 5.4(188) 7.11(286–7)
preconceived views expressed retirement benefits, assurance of
5.17–5.19(211–16) 4.47(171)
response to application for retirement pensions see judicial
5.31(241–2) pensions
vs. inconvenience 5.4(188–9) retractions from the press 8.35(397–8)
see also apparent bias, examples of Review Body on Senior Salaries
Reed, Lord 2.15(45) 4.41–4.43(156–60)
reinterpretation 2.12(37), 2.14(43) advice not binding on government
remedies of appeal and complaint 4.43(159–60), 4.44(162),
1.4(13) 4.47(172)
removal of judges deterioration of terms and
address from Parliament see address conditions 4.49(176)
from Parliament Finance Act 2004 4.47(171)
arguments following Act of judicial salary structure reviews
Settlement 7.29–7.30(313–17) 3.30(82)
CRA 7.1(272), 7.11(286) performance-related 4.46(168–9)
criminal prosecution 7.22(302–4), recruitment and retention
7.29(313), 7.30(315–17) 4.45(166–8)
impeachment see impeachment role of 4.42–4.43(157–9),
judicial mechanisms 7.20–7.22 4.45(164–6), 4.49(175)
(300–4) Royal Commission on Tribunals of
Lord Chancellor 7.11(287) Inquiry 6.7(252)
Lord Chief Justice 7.11(287) royal control of judges see judges in
parliamentary mechanisms history, under royal control
7.23(304–5) rudeness
scire facias 7.21(300–2), 7.29(313), defendant’s confidence 5.25(232–3)
7.30(315–17), 7.31(320) distraction of jury 5.25(231–2)
remuneration see judicial remuneration effect on safety of conviction
reputation of judiciary for impartiality 5.25(231)
and probity 1.7(18) nature of judge’s interruptions
Resident and Designated Civil and 5.25(231)
Family Judges, role of 3.13(66), rule of law, protection by courts 1.7(19)
3.19(70)
Resident Judges of the Crown Court, Sachs, Michael 4.23(128)
responsibilities 3.19(70) salaries see judicial remuneration
resources Salisbury, Lord 7.31(320)
accountability and judicial Salmon Committee 8.43(409)
independence 3.27(78), right to criticise judges 8.23(382–3)
3.28(80), 9.6(424) Salmon principles re public inquiries
courts and judicial system 6.7(252–3)
3.27–3.28(77–80), 3.42(98), Samuels, Alec 5.29(237)
3.43(101) sanctioning of judge 5.2(183–4)

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460 index
Saville Report 6.8(256) request to sit in High Court 3.34(87)
scandalising the court role of 3.7(57)
abolition of offence 8.41(407) Senior Presiding Judge
Canada 8.45(412–13) case management 3.41(95–6)
defence of truth and fair comment informal meetings 3.16(68)
8.43–8.44(408–11) member of Judicial Executive Board
definition 8.40–8.41(406–7) 3.16(68)
ECtHR 8.43(409–10) responsibilities 3.17(69)
India 8.44(410) role of 1.3(9), 3.13(65–6)
Malaysia 8.44(410) Senior Salaries Review Body see Review
Mauritius 8.46(413) Body on Senior Salaries
a necessary offence? 8.45–8.46 sentence reduction on appeal,
(411–14), 8.48(418), 9.4(422) misconduct of judge
New Zealand 8.41–8.43(407–8) 5.21(221–2)
Scarman, Lord 6.7(253–4) sentencing
scire facias, removal of judges 7.21 leniency 8.27(388–9)
(300–2), 7.29(313), 7.30 ‘without prejudice’ indication
(315–17), 7.31(320) 5.26(234)
Scotland Sentencing Council for England and
administration of justice 3.27(77) Wales 8.15(374)
UK Supreme Court representation sentencing guidelines 4.29(138)
4.33(141–2) separation of powers of judiciary and
Scotland Act 1998 3.6(53) executive
Scott Inquiry 6.7(253) Concordat (2004) 1.3(9)
Scottish Parliament Acts 2.15(45) CRA 1.2(8), 9.2(420)
Scroggs, Lord Chief Justice William ECtHR 1.2(7)
2.5(26) sleepiness 5.30(239–41), 7.16(293)
secret justice 8.23(383–4) Smith, Sir William (Baron Smith)
‘seeds of pressure’ influencing jury 7.44(346), 7.45(355–6)
5.23(227) social background of judiciary
Select Committees, accountability to 1.6(15–16)
Parliament 9.5(423) social life 6.14–6.15(262–7)
Senior Courts Act 1981 crime 6.15(264–5)
judicial tenure 7.11(286) exposure to charges of hypocrisy
section 11(3) 7.43(337–8), 6.15(264)
7.45(355–6) Guide to Judicial Conduct
section 14 5.12(205–6) 6.15(263–5)
senior judges, leadership from judges’ lodgings on circuit
3.17–3.20(68–70) 6.14(263)
‘senior judiciary’, High Court and judges as ordinary citizens
above 1.6(16) 6.14–6.15(262–4)
Senior President of Tribunals 1.3(9), online social networks 6.15(265–7),
3.1(48), 3.13(66) 6.19(271)
annual report 9.5(423) pubs 6.15(263–4)
deployment of judges 3.34(86) traffic offences 6.15(264–5)
member of Judicial Executive Board social links, bias 5.16(209–10)
3.16(68) social networks see online social
reports to Lord Chancellor 3.7(57) networks

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Social Security and Child Support Technology and Construction Court
Appeals Tribunals 3.7(54), Queen’s Bench Division 3.4(51),
3.7(56) 3.12(64)
society, a fair reflection of role in judicial process 3.32(84)
4.20–4.21(125–6) tenure
solicitors as judges 4.23(127–30) Court of Appeal judges 2.7(30),
arguments against 4.23(128–9) 7.11(286)
career difficulties 4.23(129–30) during good behaviour 2.3(23),
history 4.23(127–8) 2.6(28), 7.11(285–6), 7.29(313),
reduction in applications 4.23(129) 7.30(315–17)
solicitor-advocates 4.23(128) High Court judges 2.7(30), 7.11(286)
South African Constitutional Court, post Act of Settlement 2.7(29–30)
diversity 4.35(144) security of 1.2(6)
South Sea Bubble 7.27(312) security under Act of Settlement
state liability 7.1(273–4), 2.7(29)
7.6–7.8(279–84) Senior Courts Act 1981 2.7(30),
Court of Justice 7.8(282–4) 7.11(286)
damages 7.7(281) Tribunals Courts and Enforcement
ECHR, Arts 5 and 6 7.1(274) Act 2007 2.7(30)
European Union law 7.1(274), UK Supreme Court Justices 2.7(30)
7.6(280), 7.8(282–4) terms of service, executive control over
HRA 7.7(281) 1.2(6)
statistics terrorist legislation 9.2(420)
courts’ performance 3.30(82) ‘tickets’ 3.37(90), 3.38(92)
improved accuracy 3.30(82) Torrens, Mr Justice 7.44(348)
quality management 3.29(81) Tottenham Three 8.25(387)
Stevens, Robert 2.1(21) traffic offences, judges’ involvement in
stipendiary magistrates see district 6.15(264–5)
judges (magistrates’ court) training, judicial 4.30(139), 9.8(426–7)
‘Stop Delaying Justice’ joint initiative transparency, Judicial Appointments
3.41(95–6) Commission 4.1(102)
strategies for dealing with media Treaty on the Functioning of the
8.29(391), 8.47(416) European Union
Straw, Lord Chancellor Jack 4.9(114) Art 252 4.38(152)
Stuart period, judiciary 2.9(31) Art 255 4.38(152)
suicide, assisted 3.11(62–3) tribunals 3.7–3.8(54–9)
Sumption, Lord 4.35(146) administrative adjudication 3.7(56–7)
Supreme Court see UK Supreme Court advantages over lower civil courts
Supreme Court of Judicature Acts (1873 3.7(55)
and 1875) 2.10(34) apparent bias 5.8(200)
suspension of judges 7.12(288–9) case assignment 3.38(92)
Susskind, Richard 3.40(94) choice of 1.4(12)
High Court judges serving in Upper
tax treatment of judicial pensions Tribunal 3.8(58)
4.47(171–2) HRA’s impact on organisation 3.7(55)
Taylor, Lord judges deployed under Crime and
accountability of judiciary 8.35(397) Courts Bill (2012)
judicial inquiries 6.7(253–4) 3.34–3.35(87–8)

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462 index
tribunals (cont.) CRA 2.11(36)
judicial review 4.28(135) devolution matters 2.15(44–6)
lack of resources 3.7(55) diversity 4.32(140), 4.35(143–6)
office holders 3.7(54) first case of 9.2(420)
as part of the justice system 3.7(54) Guide to Judicial Conduct 5.3(185),
role of 3.7(56) 8.6(364)
structural reform 3.7(54) human rights accommodation in
structure of 3.2(48–9) domestic law 9.3(421)
Tribunals, Courts and Enforcement Act merit 4.35(143–6)
2007 3.7(54) Parliament
Administrative Justice and Tribunals annual report to 9.5(423–4)
Council 3.7(57–8) role in appointment process
deployment between courts and 4.36–4.37(146–50)
tribunals 3.34(87) Upper Tribunal decisions 3.8(59)
judicial tenure 7.11(286) UK Supreme Court Justices
qualifications to serve as judge BBC documentary
4.17–4.18(122–3), 4.28(135) 8.18–8.21(378–82)
Senior President of Tribunals 3.7(57) not House of Lords members
two-tier tribunal system 3.7(56) 6.3(247)
tribunals and courts merger 4.28(135) tenure 2.7(30)
tribunals judiciary, Judicial United States Federal Court 3.27(77)
Appointments Commission Universal Charter of the Judge
4.28(135) 4.46(169)
Tribunals’ Protocol for appraisals ‘unsafe’ convictions 5.21(220)
4.29(137) Upper Tribunal 3.7(56), 3.8(58–9)
Tribunals Service, executive agency of
Ministry of Justice 3.7(54) Vajda, Christopher QC 4.38(152)
Tudor times, judicial independence Venice Commission, judicial
2.2(21–2) remuneration 4.44–4.45(162–4)
Vice-President of Queen’s Bench
UK Association for Women Judges Division
4.14–4.15(120–2) informal meetings 3.16(68)
diversity targets 4.15(121–2) member of Judicial Executive Board
UK as federal state, view of Lady Hale 3.16(68)
2.15(45)
UK Supreme Court 3.3(49), 3.6(53), waiver 5.5(190–3)
4.32–4.36(140–8) definition of 5.5(190–1)
appointment process 4.33(140–2) litigants in person 5.5(191–2)
authorities 4.34(142–3) options at start of hearing
of chief executive 3.27(79) 5.5(191)
BBC documentary on Supreme subsequent complaint issues
Court Justices 5.5(192–3)
8.18–8.21(378–82) time to decide 5.5(192)
bias 5.4(190) unpressurised decision taking
budget 3.25(75) 5.5(191–2)
accountability 3.27(78) Westbury, Lord Chancellor
case load 4.29(136) 7.44(348–9)

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Whig historians, judges in 18th and Woolf, Lord
early 19th centuries 2.9(31), ‘doorstepping’ 8.7(365)
2.10(33) excessive delay in delivering
Widgery, Lord 6.7(253–4) judgment 5.24(229–30)
press interviews 8.3(360) judge’s terms of service 4.47(172)
Williams, Gareth QC 4.22(126) judgments on asylum seekers
women 8.38(403)
at Court of Appeal 4.25(131) judicial speech outside courtroom
at High Court 4.25(131) 8.10–8.12(369–71)
on the bench 4.25(131–2) public inquiries 6.8(257)
change in views of judiciary 4.14(120) report on access to justice (1996)
circuit judges 4.25(131) 3.40(94)
judges 4.25(131–2), 4.35(145) The Rule of Law and a Change in the
judicial posts encouragements Constitution lecture
4.25(131–2) 8.12(370–1)
Justices of the Peace 4.25(131) working groups, Judges’ Council
QCs 4.22(127) 3.21(71)
senior partners of solicitors’ firms written articles, bias 5.18(215–16)
4.22(127) written code of conduct 5.3(184–6)

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