Judges urged to come out of their 'shell of silence and exclusivity'

Judges continuing to retreat “behind a shell of silence and exclusivity” risk putting the rule of law under threat, former Lord Justice of Appeal Sir Alan Moses has said.

Writing in a new report on judicial independence by the charity Transform Justice, Sir Alan said: “We need to think about a crucial and profound issue which affects us all: how may judicial independence be protected while judges learn to engage and participate in the communities in which they serve?”

The current chairman of the Independent Press Standards Organisation (IPSO) said that in the past, the best way for judges to command respect and avoid ignorant criticism and abuse was to maintain silence. “But is that any longer a bargain that serves the community,” he asked. “It is a bargain which is from time to time broken, noisily and provoking judicial outrage, as the article 50 case illustrated.

“If judges contributed with greater vigour and clarity to an explanation of the issues involved and how the judiciary should approach them, then, at least if ignorant criticisms will not altogether be avoided, the ignorance of the criticism would be all the more apparent.”

Sir Alan said the report, a compilation of essays by former magistrates, academics and commentators, shows that “judicial independence cannot serve its master, the rule of law, unless it shows greater sensitivity to the modern demands and techniques of communication”.

Penelope Gibbs, director of Transform Justice, said the new Supreme Court president, Lady Hale, and the new Lord Chief Justice, Sir Ian Burnett, must take leading roles to ensure the judiciary engages more with the public.

“The recent furores over the article 50 case and whether Sir Martin Moore-Bick is the right person to inquire into the Grenfell fire shows just how little the public understands judges and judicial independence. But we are soon to have new leaders in the Supreme Court and the Royal Courts of Justice. They have the chance to think again about judicial independence.

“Some people now think there is a culture of fear in the judiciary and the magistracy, where no-one dares voice their views publicly. If the current cadre of senior judges do not open themselves up and legitimise a more open culture, I fear that the ‘enemies of the people’ sentiment may extend way beyond the front page of the Daily Mail.”

Magistrates marginalised

The report pays particular focus to the constraints on magistrates in what they can say and do inside and outside the courtroom compared to their paid, senior counterparts. It says that magistrates have gradually been stopped from participating in forums where local criminal justice matters are discussed, such as community safety partnerships and local criminal justice boards.

Former magistrate Bernard Hunter, who was removed from the magistracy for criticising the now repealed criminal courts charge during a radio interview in May 2015, writes that judges and magistrates should be allowed in exceptional circumstances to speak out in measured tones about existing legislation.

The report also suggests that the lack of diversity among magistrates is contributing to a loss of judicial independence. In this year’s judicial diversity statistics, only 11 per cent of magistrates (1,686) declared themselves as from a black, Asian, and minority ethnic background. Just four per cent (635) of magistrates are aged under 40.

Regaining independence

While public trust in the England and Wales judiciary remains high, it could learn from the approaches of other countries, says the report. In Romania, Judge Cristi Daniellet has two Facebook profiles; he posts updates on court proceedings and takes part in television interviews, which helps to increase public confidence in the Romanian judiciary.

Blair Gibbs, a former senior policy advisor to the Lord Chancellor and justice secretary, wrote that a US-style problem-solving court for criminal justice cases can increase public confidence by allowing judges to have more discretion over decisions, rather than being limited to strict sentencing guidelines.

He says that evidence from pilots of these courts in England and Wales have been “poor” because they were “trialled inadequately” and in too few places. “The evaluation of the flagship pilot in North Liverpool was flawed, so scepticism abounds,” he added.

The report concludes that these proposals and others should form part of a judiciary-led open-policy making project to understand what judicial independence is and what it should be. This would involve engagement with judges at all levels, practitioners, court users, commentators, and academics.

Matthew Rogers is a reporter at Solicitors Journal

@lex_progress matthew.rogers@solicitorsjournal.co.uk