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8 - Freedom of expression and public confidence in the judiciary

Published online by Cambridge University Press:  05 June 2014

Shimon Shetreet
Affiliation:
Hebrew University of Jerusalem
Sophie Turenne
Affiliation:
University of Cambridge
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Summary

Introduction

8.1 We consider, in this chapter, the interrelated subjects of judicial freedom of expression outside the courtroom, the freedom of the media (the press and any other form of public communication) to criticise the judiciary and the protection of public confidence in the judiciary. As we shall see, the underlying values easily come into conflict. Judicial decisions that are made by trained, unbiased figures after a careful attempt to apply the law to the supposed facts should command respect, but they should not be immune from criticism. What constitutes unfair criticism, and when, how and by whom should such criticism be properly met?

We first discuss the policy, since 1987, of free judicial speech outside the courtroom, subject to preserving judicial impartiality and the dignity of the judicial office. It is now accepted that judges have a wider responsibility to dispel misconceptions and to promote access to justice and inform the public on legal matters of general public interest. An educative role introduces a form of social accountability without compromising judicial independence. In turn, this helps the wider community to discuss, endorse, criticise or applaud the conduct of their courts on an informed basis. This also contributes to shaping public support, which depends, in part, upon public perception, and which is a condition of judicial independence – it is easier to resist an assault on judicial independence with public support than in a context of public apathy. The boundaries for these extra-judicial comments, however, are difficult to draw, and it seems that there is no better substitute for the word ‘circumspection’.

Type
Chapter
Information
Judges on Trial
The Independence and Accountability of the English Judiciary
, pp. 357 - 418
Publisher: Cambridge University Press
Print publication year: 2013

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References

Doyle, J., ‘The Well-Tuned Cymbal’, in Cunningham, H. (ed.), Fragile Bastion. Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales, 2000), pp. 40–1Google Scholar
Judge, I., ‘The Judiciary and the Media’, speech delivered at the Lionel Cohen memorial lecture, Jerusalem (28 March 2011)
Bradley, A.W., ‘Press Freedom, Governmental Constraints and the Privy Council’ [1990] PL 453
Bacon, F., ‘Essays: Of Judicature’, in Spedding, J., Ellis, R. and Heath, D. (eds.), Works of Francis Bacon, vol. VI (New York: Hurd and Houghton, 1861 reprint), p. 3.Google Scholar
Bradley, A. W., ‘Judges and the Media – the Kilmuir Rules’ [1986] PL 383, 384.
Widgery, , The Times, 7 August 1972
Denning, A., The Sunday Times, 17 and 24 June 1973
Lane, B., ‘The Role of the Judiciary in a Modern Democracy’, Second Annual Symposium of the Judicial Conference of Australia, Sydney (8–9 November 1997)
Reid, , ‘The Judge as Lawmaker’ (1972) 12 Journal of the Society of Public Teachers of Law22.Google Scholar
Bingham, T., ‘Judicial Ethics’, in Cranston, R. (ed.), Legal Ethics and Professional Responsibility (Oxford: Clarendon Press, 1995), p. 35Google Scholar
Bingham, T., The Business of Judging. Selected Essays and Speeches (Oxford University Press, 2000), p. 69.CrossRefGoogle Scholar
Mackay, , Mackay, , The Administration of Justice (London: Stevens & Sons/Sweet & Maxwell, 1994), p. 26.Google Scholar
McKay, , ‘The Judiciary and Non-judicial Activities’ (1970) 35 Law and Contemporary Problems9, 21.CrossRefGoogle Scholar
Hope, , ‘What Happens When a Judge Speaks Out?’, Holdsworth Club Presidential Address (19 February 2010), p. 11.
Irvine, , Hansard, vol. 572, cols. 1259–60, 5 June 1996.
Woolf, , Hansard, HL, col. 882 (21 May 2003)
Woolf, , ‘Should the Media and the Judiciary be on Speaking Terms?’, Eighth RTÉ/UCD Law Faculty Lecture, Dublin (22 October 2003), in Campbell-Holt, C. (ed.), The Pursuit of Justice (Oxford University Press, 2008), p. 149Google Scholar
Irvine, , ‘“Reporting the Courts”: The Media's Rights and Responsibilities’, 4th RTÉ\UCD Lecture, UCD, Dublin (14 April 1999)
Hoffman, L., ‘Tax Avoidance’ (2005) 2 British Tax Review197Google Scholar
Hammond, G., ‘Free Speech and Judges in New Zealand’, in Lee, H.P. (ed.), Judiciaries in Comparative Perspective (Cambridge University Press, 2011), p. 195.CrossRefGoogle Scholar
Bingham, T., The Rule of Law (London: Penguin, 2010).Google Scholar
Hope, , ‘Torture’ (2004) 53 ICLQ 803, 807.
Pickles, J., Straight from the Bench: Is Justice Just? (London: Phoenix House, 1987)Google Scholar
Woodhouse, D., The Office of the Lord Chancellor (Oxford University Press, 2001), p. 28.Google Scholar
Woolf, , ‘The Rule of Law and a Change in the Constitution’ (2004) 63 CLJ 317, 320.
Dyzenhaus, D., Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford: Clarendon Press, 1991)Google Scholar
Turenne, S., Le juge face à la désobéissance civile. Etude en droits américains et français comparés (Paris: Librairie Générale de Jurisprudence, Paris, 2007)Google Scholar
Moses, LJ, ‘The Mask and the Judge’, Margaret Howard Lecture Speech (15 May 2006)
Rozenberg, J., Standpoint, October 2010.
Phillips, , ‘The Supreme Court and Other Constitutional Changes in the UK’, Address to Members of the Royal Court, The Jersey Law Society and Members of the States of Jersey, Jersey (2 May 2008), p. 7.
Irvine, , Hansard, HC, vol. 572, cols. 1259–60, 5 June 1996
Irvine, , Hansard, HC, vol. 572, cols. 1259–60, 5 June 1996
Bentham, J., Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscript, ed. Mill, J.S. (London: Hunt and Clarke, 1827).Google Scholar
Salmon, LJ, ‘Report of the Interdepartmental Committee on the Law of Contempt as it affects Tribunals of Enquiry’, Cmnd 4078 (London: HMSO, 1969), p. 15.
Hailsham, , ‘Presidential Address’ (1971) 27 The Magistrate185, 186.Google Scholar
Denning, , Address before the High Court Journalists Association, The Times, 3 December 1964
Potter, LJ, ‘Do the Media Influence the Judiciary’, The Foundation for Law, Justice and Society in Affiliation with the Centre for Socio-Legal Studies, University of Oxford (2011), p. 7.
Durran, S.W.. The Lawyer, Our-Old-Man-of-the-Sea (London: Kegan Paul & Co., 1913), p. 225.Google Scholar
Cecil, H., Tipping the Scales (London: Hutchinson, 1964), pp. 179–80Google Scholar
Blom-Cooper, L., ‘The Judiciary in an Era of Law Reform37 Political Quarterly378 (1966).CrossRefGoogle Scholar
Griffith, J., ‘Conspiracy and the Judges’, New Statesman, 17 October 1971, p. 854.
Yallop, D., To Encourage Others (London: W.H. Allen, 1972)Google Scholar
Grimshaw, E. and Jones, G., Lord Goddard: His Career and Cases (London: Allan Wingate, 1958), pp. 40–60, 129–50.Google Scholar
Sedley, S., ‘Foreword’, in Cram, I. (ed.), Borrie and Lowe: the Law of Contempt, 4th edn (London: LexisNexis Butterworths, 2010), p. viii.Google Scholar
Bingham, T., ‘The Human Rights Act’ (2010) EHRLR 568, 570.
Lester, A., ‘Judges and Ministers’, 18 LRB, vol. 18, n. 8, 18 April 1996, p. 10.
Neuberger, , ‘Open Justice Unbound’, Judicial Studies Board Annual Lecture (16 March 2011), para. 14.
Sunstein, C., ‘If People Would Be Outraged by Their Rulings, Should Judges Care?’ (2007) 60 Stanford Law Review155.Google Scholar
Radzinowicz, L., ‘Sir James Fitzjames Stephen’, Selden Society Lecture 1957, p. 41
Eady, J, ‘Privacy and the Press: Where Are We Now?’, Judiciary of England and Wales Justice Conference (1 December 2009), p. 4.
Blunkett, D., The Blunkett Tapes: My Life in the Bear Pit (London: Bloomsbury, 2006), p. 267.Google Scholar
Chesterman, M., ‘Contempt: in the Common Law, but not the Civil Law’ (1997) 46 ICLQ 521
Barendt, E., Freedom of Speech, 2nd edn (Oxford University Press, 2007), p. 224.CrossRefGoogle Scholar
Miller, C.J., Contempt of Court, 2nd edn (Oxford University Press, 2000), ch. 12Google Scholar
Sackville, R., ‘How Fragile Are the Courts? Freedom of Speech and Criticism of the Judiciary’, 13th Lucinda Lecture, Monash University (29 August 2005), pp. 5–6.
Robertson, G. and Nicol, A., Media Law, 5th edn (London: Sweet and Maxwell, 2007), paras. 7-054–7-055.Google Scholar
Leveson, LJ, ‘An Inquiry into the Culture, Practices and Ethics of the Press Report’, HC 780-I (2012)
Danos, C.P., ‘Responding to the Unwarranted Criticism of Judges’, National Center for State Courts (19 May 1997, revised March 2003)
Schulz, P.D., Courts and Judges on Trial, Analysing and Managing the Discourses of Disapproval (Berlin: Lit Verlag, 2010)Google Scholar

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