Strasbourg, 18 June 2002
CCJE (2002) 34
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of the United Kingdom
Questionnaire on the conduct, ethics and responsibility of judges
1. What are the statutory obligations by which judges are bound?
Very limited. However, on taking office, English judges swear or undertake to “be faithful and bear true allegiance to [the monarch] according to Law” and “well and truly [to] serve [the monarch] in the Office of [for example] a Justice of Her Majesty’s High Court of Justice and [to] do right to all manner of people after the laws and usages of this Realm without fear or favour affection or ill will”. This reflects the basic duty of all judges to administer the law independently and impartially. The Northern Irish equivalent allows for omission of reference to the monarch.
The extent of the obligation to serve is, without doubt, important to those accepting judicial appointment. There are no set hours a day or week or year (and there can be no doubt that the judicial work-load has very substantially increased in the recent past). But the length of the Supreme Court vacations in the case of higher judges, and the number of days work per annum expected in the case of other judges, are defined at the outset1.
2(i). No, not at the present time in any of the three jurisdictions involved (England, Scotland and Northern Ireland). But this may change – see below.
2(ii). The present English position is (typically) informal. It derives from the relatively small size of the judiciary3, on its composition of experienced practititioners, who are familiar with each other and with expected standards, and on the very small number of occasions when problems of behaviour. The Lord Chancellor plays an important role, although the Lord Chief Justice acts as the day to day representative of the active judiciary and is (together with the presidents of the divisions of the Supreme Court) in constant contact and discussion with the Lord Chancellor.
A brief description of the Lord Chancellor’s position is therefore appropriate. He is a unique figure, covering all three pillars of state. He is a political appointment, and as such serves as a Minister of the Crown (and member of the Cabinet). Secondly, as Speaker he chairs the House of Lords in its capacity as upper legislative chamber. Thirdly, he is entitled to sit in and to preside over the highest judicial body in the land, the Judicial Committee of the House of Lords. His multifold roles have been open to comment, although no direct challenge (as yet) in Strasbourg. His activity with respect to judges derives from (a) his pivotal role in relation to their appointment (the Queen acts on his advice in making judicial appointments), (b) after their appointment, his role as the authority ultimately responsible for any steps taken in Parliament or elsewhere to discipline judges as well as responsible for justifying or introducing steps to modify the workings of the legal system in Parliament (he is the nearest equivalent that England has to a Minister of Justice), and finally (c) his status as “head of the judiciary” (a status that has become more formal, as the occasions when the Lord Chancellor does, or can, sit as a judge in the highest court, the House of Lords, become rarer).
Before appointment every judge is told by the Lord Chancellor that certain matters are “expected” of him or her. These include, for example, the “understanding” that appointments to the bench are intended to be for the rest of their working life in the law, and that there are certain occupations which they may not pursue in retirement (and in particular they will not return to practice as a barrister or solicitor). No-one has every directly tested this latter “understanding”! However, it is accepted that retired judges may act as arbitrators, mediators or expert witnesses4. Further, a retired judge may go into the City, e.g. by accepting a full-time or part-time directorship5. The current “Guidelines” are attached.
Once a judge has been appointed, the responsibility for establishing any further or new rules or principles which should govern his conduct may be regarded as less clear. In practice the Lord Chancellor would not act without at least consultation and probably agreement with the Lord Chief Justice. The Lord Chief Justice would in turn consult among members of the judiciary, before agreeing. In case of disagreement, probably no new rule or principle would emerge6.
The Judicial Studies Board (chaired by a Court of Appeal judge) is considering the desirability of a more formal ethical code for judges. It has already published invaluable “Bench Books” on judicial conduct in certain areas – such as Equality, Race and Family law. The attached copy foreward/introductions to the first two show their relevance.
2(iii). The Scottish position is thought to be broadly similar at present. However, the recent devolution of powers to the Scotland has opened the way to changes, and the Scottish Justice Minister announced on 31st May 2002 the establishment of a (non-statutory) Judicial Appointments Board to recommend suitable candidates for the judiciary to the First Minister. It is possible that in due course this may be followed by other changes.
2(iv). The Northern Irish position is at present also similar to the English. However, devolution is again relevant here. Under the draft Justice (Northern Ireland) Bill, there will be established a statutory Judicial Appointments Commission (with five judicial members, one barrister, one solicitor and five non-legal members); and other formal statutory changes will be instituted (see also answer 6 below). A recent review of the Criminal Justice System in Northern Ireland recommended (in its paragraph 6.138) that consideration should be given to the drawing up of a statement of ethics. It is intended that the Judicial Appointments Commission should, once established, consider this recommendation.
3. What inconsistencies are there between the duties of a judge and other functions or professions?
This has been covered under answer 2(ii) above. In practice, UK judges devote themselves professionally to judging and associated activities which they may be asked to undertake. It would thus be impossible for an English judge to supplement their income by acting as an arbitrator (as is possible in some other European countries, e.g. Germany) or by lecturing. Legal writing and editing are the only exceptions (and in practice usually involve more burden than income, however intellectually stimulating!).
4. In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordance with the law or case-law?
The position throughout the UK is that established by the European Court of Human Rights in Strasbourg jurisprudence. The necessary (minor) adjustments were made in the English Court of Appeal in In re Medicaments and Related Classes of Goods (No. 2)  1 WLR 700. The court should ask itself whether a fair-minded observer would, in all the circumstances, consider that a real danger existed that the judge in question would be unable to make an objective and impartial appraisal of the evidence and submissions.
Can judges incur criminal or civil liability for acts committed in the performance of their duties? If so,
5.1 In what circumstances?
5.2 What is the procedure involved?
5.3 What is the competent institution or authority?
5.4 What disciplinary sanctions can be imposed?
A distinction has traditionally been drawn in England between superior courts (including the Supreme Court and Crown Court) and inferior courts (such as magistrates courts). Recent authority questions its justification7, and suggests that the distinction simply derives from the fact that superior courts have general, and inferior courts limited, jurisdiction.
The Human Rights Act 1998, which incorporates into the legal systems of the UK the European Convention on Human Rights, provides that, although courts are as a “public authority obliged to comply with the provisions of the Convention, the only recourse is basically by appeal or application for judicial review. Further, damages may not be awarded (otherwise than to compensate for wrongful arrest or detention contrary to article 5(5) of the Convention) in respect of any judicial act done in good faith – and, even when they may be awarded, they can only be awarded against the Crown (and then only after the judge whose conduct is under challenge has also been joined as a party to the proceedings).
Inferior court judges, having more limited jurisdiction, are more exposed to suggestions that they have exceeded their jurisdiction. There are many authorities holding judges in inferior courts (in particular magistrates) responsible in certain circumstances for acts done outside their jurisdiction, but the majority of the court of appeal in Sirros v. Moore12 suggested that even inferior judges benefit by common law immunity if they act in good faith although without actual jurisdiction. There are however some statutory provisions imposing liability for excess of jurisdiction, provided that any relevant resulting conviction has first been quashed (i.e. set aside), but subject to a right to indemnity out of local funds if they acted reasonably and in good faith13.
Within the three jurisdictions which make up the UK, it is clear that there are some moves which may favour the development of a formal code of ethics. If so, considerable assistance may be obtained from a study of prior attempts at developing such codes, in particular the Canadian Judicial Council’s Ethical Principles for Judges (November 1998), the Bangalore draft of A Code of Judicial Conduct (April 2000 and February 2001) and the work of the Commonwealth Magistrates and Judges Association.
The authors and the sphere of application of any such code - and its differentiation from any disciplinary code or procedures - are important matters for consideration. In the United Kingdom, one might also ask whether the perceived advantages (in terms of transparency and the encouragement of professionalism) outweigh the possible resulting rigidity and loss of flexibility, and the risk that the press and even judges will focus excessively on compliance with the letter of any code, rather than on the underlying principles. So long as any code is, however, in terms of general principles (as those cited in the previous paragraph largely are), this latter point may not carry much weight.
EQUALITY – BENCH BOOK
BY THE LORD CHIEF JUSTICE
The judicial oath requires all those who sit in judgment on others "to do right by all manner of people. . . without fear or favour, affection or ill-will".
The cardinal priniciple which underlies the oath is that of equality before the law. In deciding guilt or innocence, or in weighing the merits of claims between private individuals or between individuals and the state, judges must have reference only to the facts (so far as they can be established), the merits of each party's position and the relevant law.
But this does not mean that judges should ignore factors such as ethnic origin, gender, or disability. On the contrary, justice requires that judges must understand all the factors relevant to the factual situation they are considering, including those which may affect the way those present in the courtroom behave, or perceive the trial process.
This Bench Book is intended to provide practical guidance to judges in all courts and tribunals on a variety of topics which may lead litigants, victims, witnesses, or legal representatives to feel that they may be disadvantaged in dealing with our legal system. It has been produced by the Equal Treatment Advisory Committee of the Judicial Studies Board, drawing upon the experience of its own membership, the expertise of leading academics and of voluntary organisations. I hope it will prove to be a sturdy and reliable companion to judges over many years.
Lord Bingham of Cornhill
"Judges shall discharge their duties objectively and impartially so that they may earn the trust and affection of the people."
The Arthashastra, a Hindu political treatise, circa 1st century BC
"A judge must bear in mind that when he tries a case he is himself on trial."
Philo, Special Laws, 1st century AD
"It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done."
Lord Hewart C.J., R. v. Sussex Justices, ex parte McCarthy  1 K.B. 256
"I do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second ... and I will do right to all manner of people after the laws and usages of this Realm without fear or favour affection or ill will."
All these texts go to the very essence of the judge’s craft. Judges must of course perform their duties in a way that is technically correct. But they must also be seen to be acting fairly, through the eyes of every fair-minded person who may be watching them in court or reading what they have said.
A multifaith, multicultural, multiracial society makes special demands on its judges. It poses challenges in court that require an immediate, well-informed response as soon as they arise. With its complex and ever-changing mosaics, however, it also requires of its judges a much deeper understanding of the characteristics of the different people who come before the courts, of their aspirations and their anxieties, than was ever thought to be necessary when the people of this country were drawn largely from the same cultural, racial and religious background.
This Bench Book has been compiled as a means of helping the judiciary of England and Wales to meet these demands. It is based on the belief that judges need relevant information about different aspects of society:
· in order to improve the quality of the justice they administer in court;
· because it will help them to avoid projecting an impression, or reinforcing any perceptions that already exist, that people in their court are being treated in any way differently because of their race or ethnic origin;
· because it will help them to recognise more clearly the evolving challenges and opportunities that exist within society today, and the implications these challenges and opportunities present to those who have the job of administering justice;
· because it will help them to appreciate that cases involving people from ethnic minorities require a particularly well-informed and sensitive understanding both of the kind of people they are, and of the special features that need to be taken into account when hearing such cases.
This Bench Book has not been written simply to identify the traps that must be avoided. It has a much more positive aim. The social reality of England and Wales – and indeed of the whole of the United Kingdom –- today is of a rich cultural, racial and religious diversity. This new scene provides everyone with the opportunity of enriching themselves with the experience of living in such a society, both in their private lives, and, for judges and others, in their working lives as well. In this new landscape those who administer justice must recognise the existence of these differences. They must also consider what their implications may be, if they are to achieve their purpose – and duty – of promoting confidence in the justice they are charged to administer.
This chapter began with a choice of texts drawn from the literature of the last two thousand years. They come from cultures that were widely different. In all of them, judges were deciding cases within wider social and political contexts in which heterogeneous communities provided the backdrop to the work they were doing. Today, as we enter the twenty-first century, the increasing movement of people around the world is leading to a diaspora of ethnic and cultural communities. This is merely one aspect of globalisation. In a UK context, it means that people who were once described as immigrants have now produced second and third generations of their families who rightly see themselves not as temporary sojourners but as citizens of the United Kingdom with rights and responsibilities no different from those of any other citizen.
The emergence more generally of diverse communities on the continent of Europe means that familiar racial and ethnic stereotypes of what it means to be European are no longer valid, if indeed they ever were. With the coming into force of the impending Human Rights Act 1998, and the obligation it imposes on the courts in many cases to take into account the provisions of the European Convention on Human Rights, there will be the likelihood of legal challenges based around the right to equality of treatment. It will then be even more essential for judges to understand the experiences of minorities, whether racial, ethnic, cultural or religious, and whether those experiences are actual or perceived, in their interaction with the institutions in this country. These institutions include, of course, the justice system itself.
The Judicial Studies Board’s first Handbook on Ethnic Minority Issues was published in June 1994, and much of the content of the present Bench Book is based on this earlier material. The Board’s Ethnic Minorities Advisory Committee ("EMAC"), whose first chairman was Mr Justice Brooke (as he then was), had been created three years earlier, in June 1991. The first Handbook brought together in one place a number of papers that had been prepared and published during the first three years of the committee’s existence, in response to requests made by judges at the Board’s seminars.
In November 1993 the Board embarked on a programme of 36 residential one-day seminars on ethnic minority issues for the entire full-time and part-time Crown Court judiciary, and the Handbook was published when the early pilot seminars in this programme were over. The main programme was completed in 1996, although it was subsequently enlarged to include district judges and stipendiary magistrates.
Since that time the Board has enlarged the remit of its specialist advisory committee, in order to include within its scope all the other forms of inequality that need to be considered within any definition of equal treatment. It has also renamed the committee "ETAC" – the Equal Treatment Advisory Committee. It took this step because it realised that judges also needed help and advice over a much wider compass of equal treatment issues, but it recognised that ethnic minority issues would continue to constitute a major part of the new committee’s interests and activities. This Bench Book therefore will be expanded to cover all equal treatment issues.
There are three main reasons why it is now time to publish a new edition of the original Handbook. The first is that the papers collected in the Handbook represented only the first fruits of what was realised at the time would be a continuing and developing programme of judicial education in this field. Although in those early years a "slot" was reserved for EMAC in every single seminar organised by the Board’s main committees, there was a tendency to concentrate on matters which arose in the criminal courts once the residential programme got underway. Between 1994 and 1999 EMAC/ETAC’s activities have uncovered a wider range of issues in which they can be of help to those administering justice in civil and family courts and also in a wide range of tribunals.
The second reason is linked with the first. In its early years, EMAC concentrated chiefly on providing factual information in written form, and on using the many "slots" it was given in the Board’s seminars to illustrate the way in which judges could use that factual information to advantage in their work in court. Since that time there have been a number of important developments – as well as a reduction in the time provided in the Board’s refresher seminars for equal treatment issues. This highlights the need for the Bench Book to be more practice-based, and to provide a sharper focus on the dilemmas which present themselves to judges within a courtroom context.
The third reason is that legislative and policy initiatives since 1994 have seen major changes within the landscape, which have implications for the delivery of justice in a diverse society. These initiatives have included the enactment of the Human Rights Act 1998 and the implementation in April 1999 of Lord Woolf’s "Access to Justice" proposals. They have also included the explicit creation of racially aggravated offences in the Crime and Disorder Act 1998 and the publication in February 1999 of the Report of the Stephen Lawrence Inquiry. This report not only provided a recognition of the way in which the lives of British citizens and their families can be marred by racial violence, it also showed vividly the perceptions – justified by experience – of an inadequate response by the institutions of the state when such violence occurs to blight a family’s life.
The main focus of this second edition is directed towards helping judges to respond to practical issues that present themselves every day because people in their court – whether claimants, witnesses, victims or defendants – may have different assumptions and experiences from those with which the judge is familiar because of their race, ethnic origin, culture or religion. It also aims to provide background information and to explore issues that will be of relevance to judges when they seek to discharge their wider responsibility of promoting confidence in the justice they are administering. It will enable them to develop an enhanced sensitivity to issues that may not be apparent at first sight.
The Bench Book is also designed to be used with the equal treatment sessions or themes contained in the Board’s seminars.
A copy of the Bench Book will be sent to every full-time and part-time judge, whether he or she exercises criminal, civil or family law jurisdiction. It will also be published on the Board’s website (www.jsboard.co.uk) so that everyone who accesses that site may read it - whether as legal practitioners or as members of the wider community who have an interest in seeing the kind of information now being provided by the Board to help judges do their daily job in today’s diverse society.
When he opened the Board’s programme of residential seminars in November 1993 the Lord Chancellor (Lord Mackay) said:
"In my view we ought to be taking whatever steps are practicable to enable every judge to feel confident when they are handling cases involving Hindus and Sikhs or Muslims, for example, or black Africans or black Caribbeans, that they are not causing offence through ignorance, that they are not causing injustice through misunderstandings and that they are not treating black people differently from the way they treat white people, perhaps without being aware of it."
The Lord Chief Justice (Lord Taylor) took up this theme when he spoke at the same seminar:
"I am quite sure that all judges would wish to treat everyone who comes before them, in whatever capacity, on equal terms. But I suspect there is a perception by judges, just as by others, that to treat ethnic minorities fairly needs no more than good manners and patience. In fact, there is a great deal more to understanding the feelings and concerns of ethnic minorities than simply being polite and patient."
A fortnight later Mr Justice Brooke ended his seminal Kapila lecture on "the Administration of Justice in a Multi-Cultural Society" with these words:
"When I and my EMAC colleagues, and the others who are now helping us, black and white alike, go to training events for judges and magistrates, to take part in talks and discussions and workshops in small groups working on prepared case material, we go in a sprit of optimism as equal partners in an educational venture, the like of which has perhaps never been attempted in this country before."
The same spirit of optimism infuses this new Bench Book. It is hoped that judges will read it carefully and find it of value to them in their work.
RACE – BENCH BOOK
RACE AND THE COURTS - A short practical guide for judges
Foreword by the Honourable Mr Justice Keene, Chairman of the Equal Treatment Advisory Committee.
All of us who sit in a judicial capacity, whether full-time or part-time, are operating today in a society which is one of great diversity in race, culture and religion. Gone are the days when a judge or magistrate could assume that an innate sense of fairness, together with a knowledge of the law, was all that was required to carry out his or her function successfully. We need in addition an understanding of the customs of all those who appear in the civil and criminal courts in whatever capacity, and most of us need some help in obtaining that understanding. This booklet, produced by the Equal Treatment Advisory Committee on behalf of the Judicial Studies Board, has that object in mind.
It is intended as an easy-to-use companion to the revised section of the Equal Treatment Bench Book dealing with racial matters. It is no substitute for that Bench Book, which provides the detailed material and which avoids the over-simplification inevitable in a brief publication such as this. Nonetheless, used in conjunction with the Bench Book, this booklet is designed to be a practical working guide in an area where the judiciary is under greater public scrutiny than ever before. I hope that you will find it of value on these vitally important matters.
Although, like all judges, I speak only for myself, it can safely be assumed that the judiciary are implacably opposed to racism and that no one who harbours racist views is fit to be a judge.
Lord Justice Rose, Chairman, Criminal Justice Consultative Council,
14 July 1999
Justice in a modern and diverse society must be ‘colour conscious’, not ‘colour blind.’
This means that those who administer justice must be aware of, and responsive to, the differences among people who come to court in any capacity, while remaining fair, independent and impartial.
How can judges meet this challenge?
This short guide offers some pointers. It complements the Judicial Studies Board’s Equal Treatment Bench Book and is intended to be used as a quick, practical reference rather than as an alternative to it.
Why does this matter?
It is fundamental to the stability of society that everyone should have confidence and trust in the institutions and agencies of justice. The judicial oath itself embodies the concept of equal treatment "without fear or favour, affection or ill will". However, there is evidence of a widespread lack of confidence in the justice system, particularly among the Black and Asian communities. The task of ensuring that in terms of rights, remedies and treatment, courts and tribunals are perceived as fair, presents the judiciary and those who work in the administration of justice with a major challenge.
Crime and fear of crime became a major public preoccupation. Did this fear of crime help to demonise certain groups in the public mind? We are all familiar with the image of the uncontrollable pre-teens stealing car after car on deprived estates; we are all familiar with the portrayal of ‘muggers’ as being, on the whole, young black men; we are familiar with the derogatory terminology of ‘rat boys’, the barely concealed message of ‘bogus asylum seekers’. These messages help us identify people to blame instead of making us look for solutions.
Lord Navnit Dholakia OBE
Chair, National Association for the Care and Resettlement of Offenders
What does this mean in practice?
If people believe that justice and fair treatment are not "on offer" for them, this may influence their attitudes and approach to the institutions of justice. They will not expect to see figures of authority from their own communities, in particular black or Asian judges. They may also expect to encounter ignorance about their own cultures and backgrounds or stereotypical assumptions, for example that they represent the "problem" rather than possibly being a victim of it. If they have also experienced social and economic disadvantage, their sense of alienation and distrust will be more acute. Sullenness, aggression or posturing in court might be a mark of disrespect for the tribunal, but it might equally be an outward display of these fears and expectations.
There is a striking and inescapable need to demonstrate fairness, not just by police services, but across the criminal justice system as a whole, in order to generate trust and confidence within minority ethnic communities, who undoubtedly perceive themselves to be discriminated against by ‘the system’. Just as justice needs to be ‘seen to be done’ so fairness must be ‘seen to be demonstrated’ in order to generate trust.
Stephen Lawrence Inquiry Report, para 46.30
SOME BASIC PRINCIPLES
What therefore can judges do to demonstrate fairness and build confidence? The basic principles can be expressed in a short list of dos and don’ts:
· Treat everyone who comes to court with dignity and respect - ‘do as you would be done by.’
· Everyone has prejudices. Recognise and guard against your own.
· Be well-informed - being independent and impartial does not mean being isolated from issues which affect people from minority communities.
· Don’t assume that treating everyone in the same way is the same thing as treating everyone fairly. It would not be fair to treat a wheelchair user in the same way as someone who is able to walk, for example expecting him or her to climb stairs to reach a courtroom.
· Be ‘colour conscious’, not ‘colour blind’. Fair treatment involves taking account of difference.
· Don’t make assumptions: all white people are not the same. Nor are all black, or Asian, or Chinese or Middle Eastern people.
· Don’t project cultural stereotypes: for example that all young black people avoid eye contact. Most young black and Asian people are second and third generation British born citizens and may be no different from any other teenager when faced with authority figures.
· Don’t perceive people from ethnic minority communities as ‘the problem’ - the problem may lie in the working methods and traditions of some institutions which may put some groups, such as women, people with disabilities or people from racial minorities, at an unfair disadvantage.
· If in doubt - ask. A polite and well-intentioned inquiry about how to pronounce a name or about a particular religious belief or a language requirement will not be offensive when prompted by a genuine desire to get it right.