Of course, we would all expect members of the judiciary to behave with probity in their personal and professional lives. We would not expect them to act either unlawfully or irresponsibly in terms of what they say to others and what they put into print or what they put on to modern electronic social media such as blogs, Twitter and so on. However, why should they not be free to discuss publicly their considered views on matters of law or their work in the courts? Why should they not maintain a blog or comment on blogs maintained by others?
The latest "guidance" from the Senior Presiding Judge states:
Just what has prompted this guidance is unclear and no examples are given. In practice, not many judges or magistrates maintain blogs. Of those that do, there seems to be little to no evidence that material on their blogs has in any way damaged the standing of the judiciary / magistracy. Many lawyers keep blogs and some of those lawyers are eminent in their fields and would be possible contenders for high judicial appointment. Their blogposts are always well constructed and responsible. (The side bar to this blog has links to some of them).
How are breaches - probably justifying disciplinary action which might include removal from office - to be assessed? Is there some censor somewhere scrutinising blogs and ready to pounce if he thinks something is wrong? The guidance lacks any precise criteria to assist in deciding whether some material conflicts with the guidance? It does not even give examples of what might conflict. Assessing breach will become a matter of opinion only with, very likely, the view of the person furthest up the judicial hierarchy prevailing.
Nor should robust expression of opinion be prevented by threats of disciplinary action. The famous words of Lord Atkin come to mind when delivering his opinion in Ambard v Attorney-General of Trinidad  AC 322 (PC). Lord Atkin spoke before World War II, in an era when deference for those in public office was much greater than now, and when freedom of expression was a remote dream in much of the world. In language which may sound quaint to modern ears, Lord Atkin expressed the basic relationship between, on the one hand, the proper administration of justice and, on the other, the right to comment and criticise.
Naturally, members of the judiciary are within the system and not in the same position as the 'ordinary man' looking from without. The 'ordinary man' has greater freedom to throw his brickbats and 'judicial man' has to accept the need for caution. Nevertheless, responsible comment by members of the judiciary should be encouraged and that ought to include blogging.
A final thought (for now)! Article 10 of the European Convention on Human Rights grants to everyone the 'right to freedom of expression.' There are permitted exceptions in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
However, if an exception is to be made it must be "prescribed by law" and "necessary in a democratic society." If the senior judiciary wish to actually stop blogging then perhaps they ought to seek specific authority from Parliament to do so. It would then be "prescribed by law." There has to be a legal basis for a restriction; the law or rule must be sufficiently accessible to those affected by it; the law or rule must be sufficiently precise to enable individuals affected to understand its scope and foresee the consequences of their actions so that can regulate their conduct without breaking the law.
I suspect that this matter may have some distance to run.
See also Of Interest to Lawyers No 1 and Of Interest to Lawyers No 2
The latter draws attention to the case of Referral under section 4 of the Judicial Committee Act 1933 where a majority opinion in the Judicial Committee of the Privy Council was in favour of advising Her Majesty that the Chief Justice of Gibraltar be removed from office. This was a complicated but very interesting matter which involved conduct by the Chief Justice and his wife over a lengthy period. One of the reasons why the majority recommended removal from office was their conclusion that the Chief Justice had rendered himself unable to sit on cases involving the Gibraltar government. The case is nevertheless important in the approach taken to the meaning of the word "misbehaviour" which was a ground for removal under the Gibraltar Constitution Order 2006. The Privy Council adopted the reasoning of Lord Scott of Foscote in Lawrence v Attorney-General of Grenada  UKPC 18 where his Lordship emphasised the importance of context when considering whether something amounted to misbehaviour. The Privy Council then asked itself four questions:
i) Has the Chief Justice’s conduct affected directly his ability to carry out the duties and discharge the functions of his office?
ii) Has that conduct adversely affected the perception of others as to his ability to carry out those duties and discharge those functions?
iii) Would it be perceived to be inimical to the due administration of justice in Gibraltar if the Chief Justice
remains in office?
iv) Has the office of Chief Justice been brought into disrepute by the Chief Justice’s conduct?
Power to remove a lay magistrate is to be found in the Courts Act 2003 section 11. Section 11(2)(a) refers to "misbehaviour." The role of a lay magistrate is an important one but it is a far cry from that of a Chief Justice. It seems very difficult to see that responsible blogging by a lay magistrate could amount to misbehaviour as interpreted in the above case.
Bangalore Principles of Judicial Conduct
Guide to Judicial Conduct 2011
The 2011 Guide is primarily aimed at professional full and part-time judges but the view is expressed in the Foreword that it may be of assistance to all the judiciary including lay magistrates and tribunal members.