On 10/08/2012 I concluded my post with the following, “Until judges as a group speak openly about the ever worsening situation in the magistrates` courts I fear that the decline in efficiency will continue.” Well, the Senior Presiding Judge has spoken but not about those increasing problems in the lower courts. Firstly he has back tracked on his guidance recently published concerning the requirement of J.P.s who were intending to stand as candidates for the post of Police and Crime Commissioner to resign. His revision was stated thus:- “Provided a magistrate undertakes not to sit from the time of his/her selection as a candidate, and to resign if elected, he/she may resume sitting if not elected. In other words, in respect of the present elections, it will not be necessary to resign upon announcing an intention to stand. No doubt those magistrates seeking election will conduct themselves in such a fashion as not to compromise their ability to return to their Bench as an independent and impartial member of the judiciary.” One wonders why such simple advice was not offered initially. After all everything was originally agreed with the assent of a shadowy committee known as the Magistrates` Liaison Group. The magistrates who were on this so called group are currently anonymous. The Magistrates` Association website is not helpful on this detail. Either the revision was considered and rejected or it was not even on the agenda. However the change in tune occurred, it is welcome.
The content and tone of the guidance on blogging by magistrates is of an entirely different order of magnitude. It is unknown whether the aforementioned Magistrates` Liaison Group was associated with this further guidance also.
It specifically refers to “magistrates” although the advice is ostensibly not so limited referring as it does to “judicial office holders” or “members of the judiciary”. It differentiates also between blogs which refer incidentally to the writer`s office and blogs written anonymously by magistrates. As far as I am aware there is no legal blog written by an anonymous judge. The same cannot be said for letters to the press, books, media interviews etc by named judges commenting on matters legal or more worldly. Thus in my simplistic opinion this directive, for that is what it is, is directed against magistrates and magistrates alone every single one of whom has been sent a copy. There are fewer than three or four of my colleagues I know of who publish a blog directly concerned with the legal system as viewed through their insightful eyes.
The wording of the directive patronising as it is deserves some scrutiny. The opening paragraph is itself an example:- “Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary”. It continues, “ They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.” My interpretation of this statement is that it seeks to curb my right of free speech to express opinions which might or might not be those of the official organs involved. I have for example frequently criticised the Crown Prosecution Service amongst others within the judicial system. I have used actual incidents carefully camouflaged and edited to preserve total and complete anonymity of all parties concerned. Is such knowledge made public a possible cause of damage to public confidence in my or my colleagues` impartiality or the judiciary in general? I would answer that it is not. By seeking to eliminate a view of a real working day in a magistrates` court by an experienced and objective observer within the system as opposed to bland statistics and/or statements published by the organisations involved and political point scoring from K.Clarke and E. Milliband downwards this directive appears to want to put a lid on unfavourable comment. And what star chamber is to be judge and jury on the conduct of a blogger whose writing is considered in breach of the guideline? As with eg the General Medical Council would there be a preliminary investigation to determine if there were indeed a breach? I think not. It would be justice conducted behind closed doors. Indeed the quality of justice dispensed by the Bar Standards Board to members of the Bar itself has been roundly criticised as being subject to allegations of conflicts of interest, lack of transparency and poor management. Reading press releases from the Office for Judicial Complaints one is not immediately overwhelmed by the wealth of detail in such pronouncements.
The conclusion of this misguided guidance states, “ Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action”. So this guidance is compulsory upon pain of disciplinary action. The last time I checked the definition of “guidance” in my 1982 copy of “The Oxford Combined Dictionary of Current English and Modern English Usage” it stated thus:-“directing principle”. Microsoft Word offers “leadership, direction, supervision, management, control, regulation”. It seems control and regulation are the Senior Presiding Judge`s interpretation.
Unpaid and voluntary, Magistrates are not beholden to anybody except their employers or themselves to pay their mortgages and/or maintain their standard of living. They are however a very British hybrid: they are generally well versed in their own specialities from taxi driving to taxidermy. The vast majority within a relatively short time have shown their ability in adopting to a distinctly new function well policed by regulators. They are independent people who cannot be disciplined by threats based upon their financial well being. Thus the only disciplinary sanction available to the Office for Judicial Complaints the body through which any discipline would have to be applied would be removal from office. It is a moot point for those much more learned than I whether such a course would be lawful based on this guidance. I suppose time will tell.
According to a spokesman for the Judicial Office,
“The guidance was agreed by the Magistrates Liaison Group: chaired by the Deputy Senior Presiding Judge (Lord Justice Gross) and attended by the Chief Magistrate, the Magistrates Association and the National Bench Chairs Forum.”