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’.