Yet more "Guidance" ~ Beware all ye judicial bloggers!

Should judicial office holders retain freedom of expression?  This is the issue lying at the heart of "guidance" issued by the Senior Presiding Judge for England and Wales (Lord Justice Goldring) to magistrates.

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:

Blogging by Judicial Office Holders

Introduction

This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.

Definitions

A “blog” (derived from the term “web log”) is a personal journal published on the internet. “Blogging” describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.

Guidance 
 

Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.

Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.

Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.

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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).

For my part, I fail to see why the maintenance by any Judge or Magistrate of a responsible blog should adversely affect public confidence in the judiciary.  There is of course the potential for it to do so but that depends on what is published and it is probably wise for the blog owner to retain control over comments placed on the blog by others.  For instance, public confidence would be damaged if a blogpost were to demonstrate actual bias or give rise to an appearance of bias.

The judge's guidance is probably relatively uncontroversial until one gets to the end.  Material must be removed which conflicts with the guidance.  Then there is the threat of disciplinary action.   

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. 

At one extreme, calling Judge XX an idiot or calling the Lord Chancellor a clown (which he is not) would almost certainly breach the guidance but, at the opposite end, why would it be wrong for a magistrate to discuss matters such as the impact of technology (or lack of) on the handling of cases in court; or the practical implications of some new legislation etc.  Certainly any appearance of bias must studiously be avoided.  The list of what can be responsibly discussed is endless and informed comment on such matters can only be in the public interest.  Very often, such informed comment can only come from those at the "sharp end" of the system since they are seeing on a daily basis the impact of policy, legislation, administrative decisions etc.  The standing of the judiciary could actually be enhanced by such discussion.

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 [1936] 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.

'But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way. . . . Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.'

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.

Follow up and Updates:

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 [2007] 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.

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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.