James Farmer


Criticising Judges

Monday, May 07, 2018
Catriona MacLennan is an Auckand barrister and journalist who has distinguished herself for many years now by her perceptive articles in both legal and news media publications.  She has made a name for herself for her authoritative writings on family violence and related issues and is the spokesperson for the Auckland Coalition for the Safety of Women and Children.  She presumably knows quite a lot about the evils of domestic violence.  We need more lawyers like her willing to use the media to draw attention to deficiencies in the legal system and to expose injustice wherever it occurs.

Recently, she wrote vigorously in her condemnation of a District Court Judge who discharged a man without conviction who had been charged with assaulting his wife and daughter quite viciously and also a friend who had exchanged texts with his wife declaring their love for each other.  Of course, one would not have expected the defendant to have learned that last fact with equanimity.  But the Judge went somewhat further and, in discharging him, said this:

Really, this is a situation that does your wife no credit and does [the friend] no credit.  There would be many people who would have done exactly what you did, even though it may be against the law to do so.  I consider that the consequences of a conviction are out of all proportion to what happened on this occasion.

Ms MacLennan’s commented vigorously on this to the NZ Herald, using strong language (“abhorrent”), said that the Judge displayed “a complete lack of understanding of domestic violence” and that such judicial attitudes and the lack of penalty “are part of the reason why women do not come forward to report domestic violence”.  She also said: 

It is inappropriate for [the Judge] to continue sitting on the bench.

That certainly didn’t sound like an unreasonable opinion.  Making gratuitous comments that could be interpreted by many as condonation or even approval of domestic violence if the offender was aggrieved does not seem to possess a judicial character.  Nor does a discharge without conviction – reversed as it turned out on appeal by the Police - in those circumstances appear as a prime illustration of upholding the law.

Others might argue that the impropriety of the Judge’s comments did not warrant his resignation but certainly a good telling off and compulsory re-education on the evils of domestic violence.

So far so good.  Now we venture into fantasy land, a land where freedom of speech and observance of judicial process apparently do not exist.

Following the publication of Ms MacLennan’s comments, the National Standards Committee of the New Zealand Law Society, which Society exercises statutory disciplinary powers (including the power to censure, the power to fine and the power to strike off), initiated of its own motion an investigation into her conduct in making those comments.  It has asked her to address a number of questions upon which they would rule on the papers i.e. without a hearing and, presumably without a right to have counsel address the Committee on her behalf or without the right for her to state in person her position.  Truly.

Those questions included: 

(1) whether she undermined the dignity of the Judiciary? 

(2) whether she failed to comply with a lawyer’s fundamental obligation to uphold the rule of law and facilitate the administration of justice in New Zealand?

In case, you think you may have misread this, these questions were addressed to Ms MacLennan, not to the District Court Judge.

This turn of events has attracted strong condemnation of the National Standards Committee.  First, there was a gutsy letter written to the President of the New Zealand Law Society by a young Auckland barrister, Benedict Tompkins, who is himself the son of a District Court Judge and the grandson of a former High Court Judge and who is currently practising at the English Bar.  He deplored the actions of the Committee, called for the removal of its members by the New Zealand Law Society and then expressly adopted as his own Ms MacLennan’s views. He also referred to a recent instance in England where senior members of the Bar (including Lord Pannick QC) had publicly called for the resignation of a High Court Judge, without facing the wrath of the equivalent of our National Standards Committee.

Mr Tompkins also advised that his letter and, within it, his alignment with Ms MacLennan’s opinion, was being distributed by him to the media, to the legal profession and on social media.  That might be called throwing down the gauntlet.

That has been followed by a letter from the Auckland Women Lawyers’ Association to the President of the New Zealand Law Society along the same lines.  Its letter affirmed Ms MacLennan’s qualifications to make the comments that she did.  It went on to condemn the fact that the Committee had determined that its hearing would be on the papers and characterised this as raising “serious questions in relation to due process and natural justice”.   Indeed.

I was myself more than troubled by all this.  Over the weekend, my troubled mind in fact disturbed my sleep and woke me with a recollection of a case that had occurred in England reported as R. v. Commissioner of Police of the Metropolis ex parte Blackburn (No.2) [1968] 2 QB 150 (CA), which I thought might be instructive to the National Standards Committee.  So I set it out here.

In ex parte Blackburn (No.1), a private citizen had sought an order in the nature of mandamus to compel the Police Commissioner to enforce certain provisions of the Gaming Act against London gaming clubs.  The Commissioner had thought that those provisions (which related to cheating) were so uncertain as to be practically unenforceable and, as a matter of policy, he was not prepared to dedicate police personnel to investigating whether cheating might be occurring in the clubs.  The case went to the Court of Appeal, which thought that the Commissioner was under a legal duty to enforce the law.  No order was made however because the Commissioner undertook to revoke the policy.

A prominent Member of Parliament and Queen’s Counsel, the Rt. Hon. Quintin Hogg, then wrote a very forceful article in Punch which began with the words “The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges” and ended with “It is to be hoped that the courts will remember the golden rule for judges in the matter of obiter dicta.  Silence is always an option.”   

The plaintiff in the original action then moved the Court of Appeal for an order that Mr Hogg was guilty of contempt of court.  The application was heard by what can be called a strong court, consisting of Lord Denning MR and Salmon and Edmund Davies L.JJ.  They dismissed the application, notwithstanding that there were some errors of fact in Mr Hogg’s article.   At the heart of all three Judgments was what Lord Denning said was “freedom of speech itself”:

It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest.   Those who comment can deal faithfully with all that is done in a court of justice.  They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not….

So it comes to this: Mr Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right.  The article contains an error, no doubt, but errors do not make it a contempt of court.  We must uphold his right to the uttermost.

Salmon LJ began his Judgment thus:

The authority and reputation of our courts are not so frail that their judgments are not to be shielded from criticism, even from the criticism of Mr Quintin Hogg….

It is the inalienable right of everyone to comment fairly upon any matter of public importance.  This right is one of the pillars of individual liberty – freedom of speech, which our courts have always unfailing upheld.

And Edmund Davies LJ:

The right to fair criticism is part of the birthright of all subjects of Her Majesty.  Though it has its boundaries, that right covers a wide expanse, and its curtailment must be jealously guarded against.  It applies to the judgments of the courts as to all other topics of public importance.

All three Judges expressed the view that criticism of the Courts’ Judgments should be accurate and fair because Judges normally do not have the ability to respond publicly.  That is the function of the Attorney-General.   Nothing has been said to date by the New Zealand Attorney-General defending the District Court Judge’s comments that maybe the victims deserved what they got.  It can be expected that he at least, unlike the DCJ, does see silence as an option.

It is to be earnestly hoped that the New Zealand Law Society will quickly rein in its National Standards Committee.

7 May 2018

James Farmer QC

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