If only he’d been Justice Nightjack…
1:54 pm - June 17th 2009
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If bloggers are not to be afforded a right to privacy and anonymity, the same cannot be said for certain members of judiciary…
The government and the judiciary can continue to conceal the names of more than 170 misbehaving judges, a freedom of information tribunal has ruled.
The judge heading the tribunal decided that some members of the judiciary who have been sacked or reprimanded for misconduct would suffer “great distress” if details of their misdemeanours were made public.
The judges’ authority in the courtroom would be undermined, and their privacy unjustifiably invaded, if the public were allowed to know how they had been disciplined, according to the tribunal.
The ruling came out in favour of justice secretary, Jack Straw, and the judiciary as they have fought a four-year battle to hide the identities of miscreants.
If I’m to be completely honest, I’m not particularly convinced by the suggestion that the media should be given carte blanche to publish, in full, the details of every single case in which a member of the judiciary, and in this context that include coroners, magistrates and members of tribunals, is hauled over the coals on a matter of misconduct.
There are, I think, questions of degree to be taken into account when considering whether the public interest in the publication of such information overrides both an individual judge’s right to privacy and the besting interests of the judicial system, itself.
There would seem, to me, to be little to be gained in making public very minor infractions of a kind that have no real bearing on an individual judge’s capacity to carry out their job to good effect; the public may gain a little more information about a single aspect of the inner workings of the judicial system but only at the expense, perhaps, of losing an effective and dilligent judge.
In dealing with more serious cases of misconduct, and certain specific categories of misconduct, however, I do consider that there may wll be a legitimate public interest in permitting the disclosure of not only the identity of the judge in question but also the full nature of the misconduct that resulted in their being disciplined. I think the relevant question to ask when considering whether or not such a disclosure may be warranted is where the judge’s [mis]conduct was of a type, and of sufficient severity, to have proved to be prejudical to their ability to properly carry out their duties – and it’s with precisely that view in mind that I found one specific element of the Freedom of Information Tribunal’s ruling both profoundly disturbing and manifestly ill-conceived…
In their verdict, Marks and the two members of the tribunal said it was not “at all far-fetched to assume” that the courts would be disrupted if the public were allowed to know about judges’ misdemeanours. They cited the example of an unnamed “very senior judge who was reprimanded by the lord chief justice”.
Marks and his colleagues said that if barristers had known about the behaviour which had led to the reprimand, they would have used the information to try and get an adjournment of hearings or “in some cases an application that the judge in question not hear the particular case.
“This clearly has adverse implications for the public and for the administration of justice generally,” they said.
Having read the last two annual reports issued by the Office for Judicial Complaints, in which general statistical information on both complaints about, and disciplinary action against, judges, etc. is given, its difficult not to conclude both that the presumption that disclosing detailed information about judges’ misdemeanours might disrupt the courts is rather far-fetched.
Of the 1903 complaints received by the OJC between April 2006 and March 2008 that did not relate to judicial rulings, which (quite correctly) fall outside its remit, only 4% (81 cases) resulted in any kind of disciplinary action of which 24 cases related to magistrates and tribunal members failing to fulfil their judicial duties (i.e. not showing up when due to hear cases), a form of complaint that is made not be members of the public but by the clerk of the relevant court/tribunal.If we exclude the no-shows from consideration then only 3% of the complaints received by the OJC, that fall within its brief, led to disciplinary action against the individual who was the subject of the complaint.
That said, and regardless of how one might feel about the merits of making public disclosures of judicial misdemeanours, what I find particularly disturbing in this passage is what seems to be the rather glib and ill-conceived ‘example’, cited by the tribunal, in which the disclosure of a reprimand issued to a ‘very senior judge’ is deemed to be likely to have ‘adverse implications’ for both the public and the administration of justice on the assumption that, in the hands of barrister, knowledge of that reprimand, and the reason for which it was given, would have been used to seek the adjournment of hearings and/or the removal of the judge in question from particular cases.
While the tribunal is undoubtedly correct in it assessment of the likely behaviour of barristers, were they to be armed with such information, that in no sense warrants the presumption that this would run contrary to the public interest nor the implied suggestion that applications for adjournments or for a change in trial judge would be wholly without merit.
Once again there are questions of degree to be taken into consideration.
The reprimand issued to the senior judge, cited by the tribunal, may easily have no bearing whatsoever on their capacity to continue with, or hear, a particular case, but it may just as easily be of considerable relevance, particularly if the nature of the reprimand and the misconduct for which it was given points to matters that may conceivably prove prejudicial to the proceedings in which the judge in question is either engaged or due to be engaged.
Of the 19 reprimands issued to members of the judiciary in 2007/8, three related to complaints of discrimination, the precise nature of which is, of course, undisclosed.
Regardless of how one feels about such cases becoming matters of public knowledge it should be self-evident that, in certain circumstances, legal counsel, both prosecution and defence, have legitimate grounds for access to such information on the basis that it may reveal attitudes and opinions, held by a particular judge, that could prove prejudicial to their client(s), to witnesses and their testimony and/or to the case they intend to present to the court.
What prosecutor would, for example, feel comfortable in prosecuting a charge of rape or sexual assault, in which a defence of consent is being mounted, in the knowledge the [male] trial judge has recently reprimanded on grounds of gender discrimination and what guarantee is there that the same attitudes and opinions that gave rise to the reprimand would not surface during such a trial?
None and none, hence the need for the disclosure of such information to legal counsel, giving them the opportunity to raise any concerns they may have as to the suitability of the judge and have them tested on their merits.
Even if one concedes that the public interest may not necessarily, or always, be served by the full public disclosure of judicial misdemeanours one cannot take the same view when it comes to the private disclosure of such information to barristers and other members of the legal profession who may find themselves appearing before a judge with a black mark on his/her record and, as such, there seems to be a compelling argument in favour of the Ministry of Justice maintaining, and making available to legal counsel, a private register of judicial misconduct.
Call me old-fashioned if you like but I remain firmly of the belief that as important as the administration of justice may be, it remains very much a secondary consideration when set against the importance of justice itself.
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'Unity' is a regular contributor to Liberal Conspiracy. He also blogs at Ministry of Truth.
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Reader comments
It seems to me that the public interest in details of members of judiciary would more, than those of a blogger-by-night. But why would it be necessary? Those who wrote in disgust (Iain Dale, Hopi Sen, Old Holbron, myself) at the decision by Justice Eady and Patrick Foster at the Times did so in support of anonymity. Unless strictly necessary – like it was a matter of life and death – anonymity should be bestowed upon all who have done nothing to deserve the contrary.
Never reading nightjack’s blog I dunno if it was lagit to publish his name or not – but from what I read here he was a senior copper who was writing about cases, is it right for him to do that?
What I do know is that the UK needs one hell of a shake up. Looking in from outside you can see where people get the idea that the place is still medieval.
The rulers rule with what looks like an iron fist, and parliament is nothing more than a sounding board for the monarchy, or is the sovereign itself. No one, and I do mean no one can see why MPs, judges, Lord’s, police etc can get away with what they do. Some even have said “Will our country really get as bad as the UK”.
if Nightjack had been briefing the press in secret, perhaps about the ‘suspicious behaviour’ of someone killed by other police officers, you can bet we’d have never heard his real name.
>he was a senior copper who was writing about cases
Detective Constable !
But I think that in the end the Police have so far been sensible (unlike the Times). They had to act, and this is written warning territory. That is progress from the sacking of Christopher Glamorganshire.
So who’s going to set up the sack Justice Eady petition on the Number 10 website?
So who’s going to set up the sack Justice Eady petition on the Number 10 website?
Paul Dacre?
I don’t think the two situations resemble one another all that closely. In the Nightjack case, a newspaper had learned the identity of the anonymous person and wanted to reveal it; Nightjack attempted to force the paper by means of a court injunction to not do so. Whereas, with the judges, the Guardian has sought to use the law to force the government to disclose their identities. You’ve got two different questions:
i) Can Bob force Bill to keep his real identity secret should Bill learn it (when Bill has made no prior undertaking to do so)?
ii) Can Bill force Bob (or a trusted third party) to reveal his identity when he wants to keep it secret?
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