1. Judicial Independence By Dame Linda Dobbs Not to be copied without permission of author © March 2014

2. The Lord Chief Justice of England and Wales “ Judicial independence and the rule of law..... are closely intertwined as a mutually dependent and loving couple after many years of marriage, where one simply cannot survive without the other.”

3. The Bangalore Principles “ Judicial independence is a pre-requisite 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”

4. What is the justification for judicial independence? “In a democratic country all power, however exercised in the community, must be founded on the rule of law. Therefore each and every exercise of political power must be accountable not only to the electorate at the ballot box, when elections take place, but also and at all times to the rule of law. Independent professions protect it. Independent press and media protect it.

5. The justification for judicial independence (2) Ultimately, however, it is the judges who are the guardians of the rule of law. That is their prime responsibility. They have a particular responsibility to protect the constitutional rights of each citizen, as well as the integrity of the constitution by which those rights exist. The judge therefore cannot be out for popularity. He or she cannot please everyone. He should never try to please everyone. That

6. The justification for judicial independence ( 3) includes the judge himself. He should never use his office to confirm his predilections or to allow his prejudices to gain some kind of spurious judicial respectability. However, because he is not accountable to the electorate as members of the legislature are, he is entitled to apply the relevant law, but only the relevant law, and although he must be aware of his powers, it is critical to the independent exercise of his responsibilities that he should fully recognise the limitations

7. The justification for judicial independence ( 4) of his power. Having been entrusted with huge power, judges have an ultimate responsibility to see that when exercising the power vested in them, they use it lawfully in precisely the same way as they ensure that political and other powers vested in other institutions of the State are exercised lawfully. Without independence and without respect for judicial independence these desirable, indeed elementary facets of a civilised society are threatened. At the same time no individual, or group of individuals, not even any judge, however high his office, has any dispensing power – that is, the power to set aside or disregard the law”

8. The justification for judicial independence ( 5) The Lord Chief Justice of England and Wales, addressing the 16 th Commonwealth Law Conference, Hong Kong, April 2009.

9. Recommendations of the House of Lords Select Committee July 2007 that the Ministerial Code on its next revision contain strongly worded guidelines setting out the principles governing public comment by ministers on individual judges; ii) that an annual report be laid before Parliament to better inform parliament and the public; iii) that the Editor’s Code of Practice enforced by the Press Complaints Commission be updated to reflect the fact that a responsible press should show greater restraint and desist from blaming judges for their interpretation of

10. Recommendations of the House of Lords Select Committee July 2007 (2) legislation which has been promulgated by politicians; iv) occasional use of media releases alongside judgements of public interest; v) that the Lord Chief Justice ensure that the views of the judiciary are conveyed to the public; vi) that judges should consider making the Judicial Communications Office more active and assertive in its dealings with the media in order to represent the judiciary effectively, with the appointment of one or more trained spokespersons who would be permitted to speak to the media.

11. Judicial ethics and independence health check list Reading through the judicial guide or code of conduct from time to time; Discussing all or aspects of the judicial guide or code of conduct with colleagues from time to time, sharing any problem issues encountered; Attending a judicial ethics course at regular intervals, in which problem questions are posed and discussed and which involve role play of practical problems; Having judicial performance objectively appraised. Conducting a self-appraisal about one’s conduct both in and out of court, asking oneself questions such as:

12. Judicial ethics and independence health check list (2) – Am I influenced by friends, family, spouse, government, political affiliation, media, pressure groups, colleagues, or any financial interests? – Do I know and confront my prejudices? – Do I pre-judge a case before it is finished? – Do I treat litigants in person with the same courtesy and fairness as represented parties? – Do my personal views of the advocate cloud my judgement? – Where I have a connection to the case, however tenuous, have I rigorously considered the appropriateness of trying the case? If I have

13. Judicial ethics and independence health check list ( 3) – decided I can try the case, have I acted with transparency in declaring that interest to the parties, to enable submissions to be made? – Have I ever tried to use my position for personal advantage in any way whatsoever? – Have I expressed views in public which are inconsistent with my position as an impartial judge? – Do I have any financial interests which could compromise my impartiality? – Am I able to stand back and assess situations as an “informed observer” to check for any possible

14. Judicial ethics and independence health check list (4) – perception of bias? – Am I maintaining the knowledge and skills I need to discharge my duties properly and fairly? – Am I acting conscientiously and ensuring that justice is not delayed and that my judgments are done expeditiously?

15. Mr Justice Thomas – “Judicial Ethics in Australia” “We form a particular group in the community. We comprise a select part of an honourable profession. We are entrusted, day after day, with the exercise of considerable power. Its exercise has dramatic effects upon the lives and fortunes of those who come before us. Citizens cannot be sure that they or their fortunes will not some day depend upon our judgement. They will not wish such power to be reposed in anyone whose honesty, ability or personal standards are questionable. It is necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations”