Judicial conduct: benchmarks for good and bad behaviour

Posted on 19th Apr 2013 in Judges

The news that a judge has held himself to be in contempt of court – and fined himself – has yet again brought to public attention the issue of judicial conduct. The incident occurred in America, where there are plenty of examples of judicial eccentricity, to put it mildly; but that great nation is by no means unique in harbouring judges whose behaviour challenges normal tolerance of what might be considered proper behaviour from the Bench.

Judges by David PannickThere are plenty of examples not only in Prof Gary Slapper’s entertaining collections of Weird Cases, published by Wildy’s, but also in David (now Lord) Pannick’s erudite monograph, Judges (OUP, 1987).

The issue is topical too, because only last month the Judiciary of England and Wales issued the latest edition of their Guide to Judicial Conduct (March 2013). More on that anon.

The squawk of an unsilenced cellphone

According to the report in the Wall Street Journal, Judge Raymond Voet, Ionia County’s chief district judge in Michigan has zealously enforced a “one strike, you’re out” policy in relation to any interruption of court proceedings by, for example, the “squawk of an unsilenced cellphone”.

I can’t stand cellphones ringing or making noises,” the judge told WSJ’s Law Blog. “I’ve taken phones from lawyers, cops, witnesses, members of the public, and the media.

Last Friday, while a prosecutor was delivering his closing arguments in a domestic violence trial, Judge Voet accidentally poked a button that activated voice command, whereupon a female computer voice was heard to declare: “Sorry, couldn’t hear anything. Try saying, ‘call mom’ or ‘open calendar’.” It seems the judge had failed properly to lock the keypad on a new phone.

After the judge apologised, the prosecutor continued and the case was left to the jury in the usual way.  Judge Voet then filled out his notorious “Contempt of Court” form, scribbling his name in the empty space and fining himself $25. He also signed the order.

Expressing himself surprised by the coverage generated by the story, he said:

It’s a small county. Your reputation is important. I wanted to make sure anyone who had a phone taken by me knew that I lived by the same rules.

Court napping

Not long ago I posted on this blog about jurors falling asleep in court. It had many hits, presumably because it is the sort of thing that might happen to anyone, including not just jurors (who could easily be bewildered into boredom by the proceedings) but also counsel and even judges. Respect for the rule of law does seem to require that judges charged with the task of deciding issues between litigants should stay awake during the proceedings while the evidence is being adduced and the submissions of each party are being made.

The problem of judicial somnolence is not, however, a new one. According to David Pannick, Plato alluded to the problem (in The Republic), and in the 17th century Mr Justice Doderidge “had the habit of shutting his eyes while sitting on the bench, for the purpose of concentrating his attention on the argument, without being distracted…” Quite so.

The problem found a solution, in the following century, when it was said of Lord Chancellor King that he “often dozed over his cases when upon the Bench,” but “it was no prejudice to the suitors” because two eminent barristers, Sir Philip Yorke and Mr Charles Talbot, were invariably briefed for the opposing parties and, being men of “good principles and strict integrity” they “were sensible on which side the right lay”. Accordingly, they would instruct the registrar what order should properly be recorded.

Lack of concentration may take other forms. When Lord Brougham was Lord Chancellor in the 1830s, “it was common talk how he would write letters, correct proofs, read the newspapers, do anything, in short, but follow the arguments or listen to the affidavits.” When a barrister complained of this inattention, Lord Brougham riposted: “You may as well say that I am not to blow my nose or take snuff while you speak.”

Courtus interruptus

No less off-putting for counsel can be the irrelevant or outrageous comments of judges, such as that of Judge Michael Argyle in 1986, animadverting to a jury trying a tax fraud case that the lack of Test Match cricket on television (owing to a strike) was “enough to make an Orthodox Jew want to join the Nazi Party”. Argyle had gained fame as an advocate by defending Ronnie Biggs, one of the Great Train Robbers, in 1963 and as a judge had caused amusement, perhaps not intentionally, when presiding over the Oz obscenity trial (see Reg v Anderson in 1972, by asking counsel: “What is this cunnilinctus?”

Judicial unfamiliarity with contemporary life is often exaggerated, but as David Pannick points out in his book, “the ability of men and women to serve adequately as judges is likely to bear a closer relation to their knowledge and experience of life outside the courtroom”. For examaple, Lord Scrutton observed in 1932 that a judge who had not been married should not “proceed to explain the proper underclothing that ladies should wear”.

John Mortimer QC, reflecting on his role in the case of Director of Public Prosecutions v Jordan [1977] AC 699

[1976] 3 WLR 887 observed in his memoirs, Clinging to the Wreckage (1983):

No one has felt the full glory of a barrister’s life who has not, in wig and gown, been called to the podium in the committee room of the House of Lords by an official in full evening dress and, on a wet Monday morning, lectured five elderly Law Lords in lounge suits on the virtues of masturbation.

Certainly, judges and prospective judges should disabuse themselves of any notion that the job can be done in the absence of close personal experience of the human condition and the rough and tumble of contemporary life. “In England,” writes Pannick, “we expect the judge to adopt a respectable lifestyle free of any hit of the unusual, let alone the deviant.” But naïve innocence or ivory-towered aloofness from the concerns of those over whom they sit in judgment would be a hindrance to the proper performance of their duties.

Decisions decisions

A perennial problem for judges is the inability to make a decision. No doubt acute consciousness of the responsibility of deciding a matter of supreme importance to the litigants may cause a kind of block in some judicial minds. It was said of Benjamin Cardozo, a Justice of the US Supreme Court in the 1930s, that:

At times… the anguish which had preceded decision was apparent, for again and again, like Jacob, he had to wrestle with the angel all through the night; and he wrote his opinions with his very blood.

But the rule of law depends on certainty, and it is sometimes said that certainty is more important than right. People need to know where they stand, even if they don’t think the law is fair. As a law reporter, one gets to hear quite a lot about the judges one covers. There was one new judge who was said to have turned up embarrassingly late for work because he had not been able to decide which of two different cereals to eat for breakfast.

A related problem is long delays in giving judgment. It is not uncommon these days for judges in the High Court or Court of Appeal to reserve judgment for weeks or even months, before handing them down. On occasions, they overlook a matter altogether, unless and until reminded. In 1823 Lord Eldon was asked to give a decision in a case he had heard in 1817. He had “entirely forgotten it” and so the case had to be reargued.

Litigants who await judgment should, perhaps, be allowed to send the judge a gentle reminder, lest they forget (literally). But the process of appointment should, ideally, weed out anyone prone to indecision. After all, the one thing you expect from a judge, failing all else, is an ability to make a decision.

Judicial conduct: the official guide

Brothers in LawLord Judge CJ, introducing the new edition of the Guide to Judicial Conduct, notes that

the responsibilities and the public’s perception of the standards to which judges should adhere are continuously evolving. To take by one example, when I came to the Bar it was considered in order for a son to appear before his father. This would be unacceptable today.”

That may seem an obvious risk of bias, but there are more subtle occasions where the duty to ensure that “justice is not only done, but seen to be done” may arise. In the comic film Brothers in Law (based on a novel by Henry Cecil (Leon), himself a judge), the hapless young pupil barrister (played by Ian Carmichael, pictured right) attending a Bar Golf Club tournament is paired with a crusty judge (John Le Mesurier), who grows increasingly frustrated by the pupil’s hamfisted playing. Some days later, the pupil finds himself in court, presenting a divorce petition with equal hamfistedness and you can see the judge struggle with his conscience in an effort to deal fairly with his case. Should he perhaps have recused himself – but on what grounds?

The six principles

This new guide has been drafted by a standing committee chaired by Patten LJ. It sets out and elaborates upon the six principles known as the Bangalore Principles of Judicial Conduct endorsed at the 59th session of the UN Human Rights Commission at Geneva in April 2003. These are as follows:

  1. Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
  2. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
  3. Integrity is essential to the proper discharge of the judicial office.
  4. Propriety, and the appearance of propriety, are essential to the performance of all of the activities of the judge.
  5. Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.
  6. Competence and diligence are prerequisites to the due performance of judicial office.

There seems to be considerable overlap between these principles, and some of them are so obvious as to need little if any elaboration. Nevertheless, the guide provides useful context and examples.

The guide notes:

Judicial independence is sometimes mistakenly perceived as a privilege enjoyed by judges, whereas it is in fact a cornerstone of our system of government in a democratic society and a safeguard of the freedom and rights of the citizen under the rule of law.

The guide goes on to say that “The relationship between the judiciary and the other arms [of government] should be one of mutual respect, each recognising the proper role of the others.” The problem for judges is that, unlike some members of the Government, cannot answer back when their decisions are misinterpreted. Indeed, they are not supposed to have strong views on any political issue. But in relation to their own decisions, “A judge should refrain from answering public criticism”. (Even from the Home Secretary.)

Media and publication

There is separate guidance as to how to react when factually misreported in the media, but this is not publicly accessible so I cannot comment on it. In other respects, the judge’s relationship with the media should be one of guarded discretion:

Many aspects of the administration of justice and of the functioning of the judiciary are the subject of necessary and legitimate public consideration and debate in the media, legal literature and at public meetings, seminars and lectures, and appropriate judicial contribution to this consideration and debate can be desirable. It may contribute to the public understanding of the administration of justice and to public confidence in the judiciary.

But “caution should be exercised when invited to take part in what may be legitimate marketing or promotional activities…” Also, perhaps, in competitive cooking contests.

As for blogging and tweeting, the guidance previously issued is summarised as follows:

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, judicial office-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.

Of course, writing comes (or should come) naturally to a good judge, and while blogging is usually unpaid, it is worth noting that the only form of paid employment which a full-time judge is allowed to pursue is writing and editing.

Judge not lest ye be judged

Unfortunately, judges can’t get out of doing their job by reference to this proverb. What they must do, however, is to conduct themselves in such a way as not to raise eyebrows or stimulate gossip. “Judges have to accept that the nature of their office exposes them to considerable scrutiny and puts constraints on their behaviour which other people may not experience.”

Few examples of unjudicial behaviour could trump that found in one of Gary Slapper’s memorable Weird Cases: it concerned a man in Georgia who was a habitual user of cocaine, marijuana, synthetic heroin and hookers, and who carried two loaded handguns during drug deals. He lost his day job after being caught out in a sting operation… but what made it an especially problematic case was that the job in question was that of being a federal judge.

They don’t make them like that over here. (At least I hope they don’t.)

Acknowledgements: apart from the story in the Wall Street Journal, all quoted material is generally taken from Pannick’s Judges or the latest Guide to Judicial Conduct. I am grateful to Professor Gary Slapper for his constant stream of anecdotage on Twitter, @garyslapper which enliven the dullest days.