Above it all

Stephen Sedley

  • Suing Judges: A Study of Judicial Immunity by Abimbola Olowofoyeku
    Oxford, 234 pp, £27.50, December 1993, ISBN 0 19 825793 7
  • The Independence of the Judiciary: The View from the Lord Chancellor’s Office by Robert Stevens
    Oxford, 221 pp, £25.00, November 1993, ISBN 0 19 825815 1

For some reason the Mansion House was not struck by a thunderbolt on the night in 1936 when the Chief Justice, Lord Hewart, told the guests at the Lord Mayor’s Dinner: ‘His Majesty’s Judges are satisfied with the almost universal admiration in which they are held.’ Or, for that matter, on the same occasion in 1953 when the Lord Mayor told the diners: ‘Her Majesty’s judges have a greater understanding of human nature than any other body of men in the world.’ But who is to judge the judges? Well, there’s the Court of Appeal, and beyond it the judicial committee of the House of Lords, both of them capable of rapping judicial knuckles and occasionally drawing blood; but they’re just more judges. More fearsomely, there’s public opinion, stoked by a less than obsequious press – although the press can wound more easily than it can strike. And what if a judge’s indolence or spleen has cost someone their liberty or their job or their home? If the author of the disaster had been anybody else the victim might have expected to be able to sue for compensation: but nobody can sue a judge, however incompetent or even malicious, for anything which he or she has done as a judge. A doctor, an architect, a solicitor – certainly; a barrister – well, sometimes; a magistrate, rarely; a judge, never. In fact (though Abimbola Olowofoyeku has uncharacteristically missed this case) in 1746 the Chief Justice of the Common Pleas gave judgment for £1000 damages in favour of a Lieutenant Frye against the president of a court martial which had wronged him, and then encouraged Frye to sue the other members. When they protested through the Lords of the Admiralty to the King, the Chief Justice had the whole lot of them arrested for contempt and released them, when they apologised, with the warning: ‘Whosoever set themselves up in opposition to the law or think themselves above the law will find themselves mistaken.’

Why should judges not be accountable like others if they do unjustifiable harm to people who have come or been brought before them for justice? Abimbola Olowofoyeku’s intelligent study examines the answers given by the legal systems of Britain, Canada, Nigeria, New Zealand and the United States, with glances at other West European countries, and finds most of them long on rhetoric and short on logic. Of course there are, as he says, good reasons for not allowing every disappointed litigant to have a go at the judge; but there are few good reasons for shielding from ordinary civil liability a judge who has deliberately or recklessly abused his or her office and done compensable harm to an individual. Yet since the early 17th century judges of the higher courts have enjoyed complete civil immunity for unlawful acts done in office, regardless of jurisdiction, motive or circumstance, and judges of the lower courts nowadays benefit from the same protection. The immunity, it is true, applies only to acts done in office; but in office, as King Lear observed, a dog’s obeyed. The very oath of office requires the judge to do justice without fear or favour, affection or ill-will (it used to be ‘to do justice indifferently to all men’, but it was realised that this could be misunderstood): why then should the only redress for breach of the oath be the ultimate sanction of dismissal?

The case for immunity from civil proceedings is not predicated on the notion that judges are above the law. They are undoubtedly open to prosecution for criminal corruption in office. No such case exists in the annals of British law, but those of the United States are rich in cases of judges who have joined their customers in jail. (True, Francis Bacon in 1621 had to resign the Lord Chancellorship for taking bribes, but he explained engagingly that this had not meant that he necessarily gave judgment in favour of the donors. And Lord Chancellor Macclesfield was impeached and fined in 1725 for selling offices – no crime in itself – that were purchased with suitors’ money.) The ground for civil immunity is that such lawsuits would compromise judicial independence, a predicate which attracts understandable suspicion because it comes from the judges themselves. For example:

It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly ... The public are deeply interested in this rule, which indeed exists for their benefit and was established in order to secure the independence of the judges.

This was a judge speaking in 1863. Fifty years earlier another judge had said:

There is something so monstrous in the contrary doctrine that it would poison the very source of justice and introduce a system of servility, utterly inconsistent with the constitutional independence of the judges – an independence which it has been the work of ages to establish – and would be utterly inconsistent with the preservation of the rights and liberties of the subject.

With such advocates, who needs critics? Wrapped up in the rhetoric there is some sound policy, but in propounding it such judges have propounded too much. The constitutional independence of the judiciary is one thing, and an important thing; but if there are occasional cases where anger or prejudice or gross neglect distorts judgment, then in those cases the rights and liberties of the subject are equally important. It is only by permitting such allegations to be tried, the argument goes, that it can be known whether there are cases of this kind and, if there are, what redress can be offered.

It is not, of course, the judiciary alone which wants judges to be independent. Any sane society does. The question is: independent of what and of whom? Of the executive, certainly; of the parties to the dispute; of external pressures which may distort judgment; of personal biases: and no doubt of more besides. The Universal Declaration on the Independence of Justice adopted in Montreal in 1983 asserts: ‘Judges individually shall be free, and it shall be their duty, to decide matters before them impartially, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.’ And: ‘Judges shall enjoy immunity from suit or harassment for acts and omissions in their official capacity.’ Although no doubt the first question for cynics is how many non-lawyers were at the conference which adopted this text, the first passage is of real importance in a world in which many interests, from governments to gangsters, want to and sometimes do influence and intimidate judges. A developed society in which there is no assured recourse to trustworthy courts of law is not civilised. But does the second passage follow from the first?

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