Lord Atkin once memorably remarked that ‘Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.’ His Lordship had in contemplation, in a contempt case, a bipartite problem: those who administer the law, and with the cloak of the protections afforded that role, may, and must where necessary and appropriate, make strong comment in the course of determining a controversy. And persons outside the circle of those administering justice are entitled to make ‘respectful’ but just as outspoken comment or replies about the ‘public act done in the seat of justice’. Those propositions are not in doubt.

The question the equation as thus stated does not answer is, what is the position of a judge who feels impelled to make some observations as to what is happening within the justice system itself, or some particular aspect of it, outside of the formal confines of a given case or judgment? Should the judge confine his or her observations purely to the discharge of particular judicial obligations in that given case? If not, under what circumstances is it permissible and appropriate for an individual judge to offer particular commentary of a more general character?