Paul Magrath wonders how seriously we should take the prospect of judges and court staff engaging with the public on social media

The traditional and until recently the official view was that, in order to maintain public respect for their office, judges should not engage in public discourse outside the courtroom. They could write legal articles or give speeches, but they could not express opinions or comment on general topics. If they wanted to be witty or facetious they had to confine it to remarks made in court, often involving Latin puns, for the sycophantic amusement of the lawyers present, and the bafflement of anyone in the jury box or public gallery.

But all that may be about to change. Since the summer, a handful of new twitter accounts have appeared under judicial-sounding pseudonyms. And they are not in the least bit stuffy. Ironic, self deprecating, even a little bit goofy, they reveal a human side that the judiciary are often accused of lacking.

New on Twitter

In May 2017 Mr Justice Serious began tweeting observations about those appearing in his court. His pinned tweet reads:

He describes himself as “Just a High Court Judge in the Family Division — these are my musings. Spoof/Parodia/Serious”. Though the last bit seems ambiguous, the Latinate twist on the word “parodia” invokes a formal legal education. And it would certainly be refreshing to see members of the judiciary occasionally being facetious and frivolous — letting their wigs down a bit:

In June he was joined by Ms Justice Khan’t, who describes herself as “Bringing equality and diversity to the bench” and sounds as though she is a fairly recent appointment:

She also sounds a little bit cheeky (on the day after the opening of the legal year at the full fig Lord Chancellor’s Breakfast):

Another June recruit was Mr Justice Denied, who describes himself as “Justice delayed is justice denied. Inexplicably not yet in the Court of Appeal.” He sounds a bit grumpy (perhaps with reason):

Also, perhaps, a bit eager for some of the attention his brethren have been getting:

In July they were joined by Ms Justice Prevailed, who describes herself as a “Family judge whose paramount consideration is her pension” with a cartoon avatar showing her holding a gavel.

One wonders what the tirelessly corrective Inappropriate Gavels account would have to say about that.

Meanwhile, in August, a more august — or at any rate more senior — recruit appeared: Lord Justice Delayed, who describes himself as “Delayed LJ. No longer a mere puisne. If in doubt, adjourn it out.” He appears not to suffer fools gladly.

One wonders whether he takes his more senior role quite as seriously as he should (but that seems to be a common theme with this “let your wig down” accounts):

After four High Court recruits and one from the Court of Appeal, it was perhaps inevitable that the circuit bench should want its own representative, and he duly arrived on October, welcomed by one of his more senior judicial colleagues:

 Sir Kit Judge describes himself as “Sitting at Bellingham Family Court. Longs to have the ear of @justiceserious or be served tea by @brendatheusher1” 

— which brings us to the related issue of court staff engaging (pseudonymously, and not in a serious way) on social media. For as well as well as Brenda the Usher, who joined in July, and describes herself as “ Just an usher in the Family Division silently watching life played out in court”, we now have Mandy in Listing, who joined in October, revealing a penchant for sherry and a craze for Barry Manilow. Her account describes her as an “Expert fiddler of Family Court fixtures since 1993. Will disregard the 26 week Rule for a bottle of Bristol Cream. Bane of @BrendatheUsher1’s life.” Working behind the scenes in the law courts seems to have emboldened them treat those who sit on the bench with a less than respectful familiarity:

Two things are interesting about these new accounts.

First, while they mostly comment on the foibles of lawyers, litigants and other judges in their courts, they also like to cite each another, as though the novel experience of being on Twitter is slightly nervous-making and they need to cheer one another along:

The second interesting aspect is that most if not all of these accounts relate to those working in the Family Division. This might offer an answer to the obvious question: if these new accounts are evidence of a change of direction, why aren’t there more of them?

The answer might be that this is that thing so beloved of the judiciary and the courts service, namely a “pilot scheme”. This is something the Family Division, in particular, has been known for under the leadership of its current President, Sir James Munby. But it seems extremely doubtful he would have sanctioned, let alone initiated, a pilot scheme like this without announcing it in one of his Views from the President’s Chambers. It’s rather more likely that this is an entirely unofficial development, possibly even a collective prank by members of one or more family chambers in London. (A little bird — via that little bird Twitter — has mentioned 4PB and 1KBW as possible culprits. It’s certainly noticeable how often some of their members engage with these new accounts on Twitter. The accounts themselves, in the face of discreet inquiry, have remained obdurately cryptic.)

A change of direction? 

That a new trend of judicial tweeting would represent a significant change of direction is clear from the fact that, only last year, the official Guide to Judicial Conduct (published in March 2013, but amended in July 2016) reaffirmed what in practice amounts to a comprehensive prohibition against judges blogging:

“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.

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 also makes clear (in its slightly fuddy-duddy way) that: “For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.”

Although that seems a complete answer to any speculation about these cheeky new faux-judicial tweeps, there remains a serious question as to whether — especially in the wake of unprecedented attacks on the role and status of the judiciary, and calls for better public legal education about the their work — the prohibition ought to be relaxed a bit. Wouldn’t it be good for judges to be able to blog and tweet and engage in public discussion, providing it was done in a way that did not damage their independence?

This was certainly the view of barrister Lucy Reed (whose Pink Tape blog is read by and sometimes commented on by judges) in Judiciary silenced out of court, an article she wrote for the Guardian in response to the original 2013 guidance:

“We select judges for being thoughtful, careful people and it follows that those who dip a toe in the waters of blogging are likely to do so with appropriate caution and forethought (and in my experience they do so). We pay them to think before they open their mouths. So why not trust their judgment?”

She went on to discuss the matter in terms of the trend towards greater transparency in the courts (on which those of us who belong to the Transparency Project, of which Lucy is chair, have commented so extensively):

“I had thought that we were entering an era of increased transparency in the judicial system (think the supreme court’s Twitter account and routine issue of press summaries, publication of judgments from family proceedings) and that legal blogging and legal related blogging was a part of that movement, and a vital component of an ever more essential public legal education movement. This guidance appears to be in tension with that.”

The idea that judges might be a bit more approachable and human is supported by another leading practitioner, Jo Delahunty QC, appointed Gresham Professor of Law since the summer of 2016, whose second series of lectures for the 2017/18 Academic Year is called Transparency in the Family Justice System. She said that if any of the new accounts were genuine (as to which she was unsure) then it would be “an interesting development”.

“It’s also interesting in appearing to be a meritocracy: a chatter and joke about the business of court life between judges of CoA, FD and CC alongside listing and clerk staff. Seniority and gender irrelevant. Rather lovely. It oils the working day. It humanises them and the system.”

It would be perfectly possible, as Lucy Reed suggests, for serving judges to engage with others on social media without compromising their independence or respect for their office. If a judge like Mr (now Lord) Justice Peter Jackson can write a judgment in the form of a letter to a child or include emoji symbols in a judgment, and be widely praised for doing so, he can surely be trusted to comment helpfully on Twitter or provide a guest post on a blog.

Admittedly Sir Henry Brooke, a former Lord Justice of Appeal, has now retired, but his Twitter account and widely respected blog contribute massively to the debate about topics such as legal aid, access to justice and the modernisation of the courts. He is not hiding behind a jokey pseudonym or spoof account, and having retired from active judging he has more freedom to express opinions. But a serving judge could certainly take a digital leaf out of his book.

The American approach

Another example of how it might be done comes from the United States, where Judge Stephen Dillard, Chief Judge of the Court of Appeals of Georgia, has a popular Twitter account (and is followed by many English lawyers). He gave a speech in Atlanta last year, which has recently been published in the American Bar Association’s students journal under the title It’s time for judges to tweet, like, and share.

“In short, I think judges have a duty to educate those we serve about the important role the judiciary plays in their daily lives. But in order to do that, we need to rethink the way we engage with the public.”

He went on to explain:

“Judges are public servants. They are accountable to the people, and they need to be accessible to the people, so long as they do so in a manner that is consistent with their oath of office and the code of judicial conduct. There is no reason that a judge cannot maintain the integrity of his or her office and engage the public in a more meaningful sense. But in order to do this, we — especially those of us in the legal profession — need to get past our collective unease with technology and embrace the social media platforms that are increasingly used by those we serve.”

By way of example, he recently tweeted (in response to a discussion):

Another prominent judicial tweeter in the US is Justice Don Willett of the Texas Supreme Court, whose account description reveals him to be a “Former rodeo bull rider. Fluent in legalese.” Not all his tweets are as respectful of his office, or that of his fellow judges, as might be expected:

When, recently, he suddenly appeared to have stopped tweeting, it was Chief Justice Dillard who explained why:

Willett was recently nominated to the Federal Court of Appeals for the Fifth Circuit. But until his current purdah, he was an avid and widely followed tweeter. According to the cited article in Texas Lawyer:

“Willett, who likes to keep his tweets lighthearted and humorous, has two cardinal rules about the medium: He never discusses cases that may come before him and he refuses to engage in what he calls “political bomb throwing.” He primarily tweets to educate the public about the judiciary and to raise his own profile in a state where judges must run for office and judicial name I.D. among voters is extremely low.”

The potential benefits

Clearly tweeting plays a role in a jurisdiction where judges may be elected and need to be recognisable public figures. Yet even in our own jurisdiction, where we do not elect our judges, there remains a need for the judiciary to engage in imaginative ways with the public they serve. (On the subject of election, the complaint is often made that our “unelected” judges are somehow more likely to thwart the will of the people, eg in relation to human rights, sentencing, etc.)

Some relaxation of the restrictions on blogging and using social media would enable more communicative members of the judiciary to explain confusing points of law or sometimes perplexing sentencing decisions, and to correct the misunderstandings that may arise from poorly researched media reports. It would enable them to communicate outside the dry confines of their judgments and official speeches, and to come across as human beings. It would also enable them to engage with other lawyers in debates on law reform, much as they already do in conferences and seminars, subject always to sensible restrictions as to political neutrality and judicial independence.

In the foreword to a recent report by Transform Justice on Rethinking judicial independence, Sir Alan Moses, a former Lord Justice of Appeal and now chair of the newspaper regulator IPSO, says:

“At every level, independence and authority cannot be maintained and improved merely by retreating behind a shell of silence and exclusivity. Society suffers, and so do the judges. This report 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.”

He also anticipates one of the more salient risks of engagement on social media, namely “trolling” and online abuse, saying:

“The institution of the judiciary is surely, by now, of sufficient strength to withstand abuse while developing more modern and open channels of communication.”

Sir Alan has long been a champion of better public engagement by judges. But similar views are now shared by more senior figures. When sworn in as the new Lord Chief Justice on 2 October this year, Sir Ian Burnett said “I believe we should be better at explaining our role and the vital importance of our independence and impartiality.” Earlier this year, Sir Robert Buckland, the Solicitor General, announced a new panel “to drive forward legal education initiatives”.

Surely a logical outcome of this drive towards better communication could include the imaginative and engaging use of social media channels by those members of the judiciary who are already familiar with them, rather than requiring them to stop using such channels and clam up the moment they are appointed? Of course there are risks, but do they outweigh the potential benefits?

Let us join with Chief Justice Dillard in declaring that here, too, “It’s time for judges to tweet, like, and share”.

And if you agree, do please share this post!