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Empowering judges to speak outside the courts

Lawrence McNamara is an ESRC Global Uncertainties research fellow at the University of Reading where he runs the Law, Terrorism and the Right to Know project which includes interviews with several judges.

This piece first appeared in The Guardian.

What should judges be able say outside the courts? One of the most senior judges, Lord Neuberger, has proposed some principles for “extra-judicial” statements. The speech, published this month, is an important one as these principles are likely to shape judicial contributions to public debate for some time to come, but do they go far enough?

The starting point is familiar: it is “quite inappropriate” for politicians to criticise judges or their decisions. There must be “mutual respect” between ministers and the judiciary. If they “slang each other off in public” it undermines the constitution, democracy and the rule of law. While the frankness is welcome, the content is not overly surprising.

But then Neuberger turns to what that means for the judiciary – and here it gets interesting.

Mutual respect means ministers and judges “must respect the other’s turf and not tread on it”. It means judges should not “answer back”. It is “unseemly and more undermining” to do so. However, it does not mean that judges should not speak at all. On the contrary, Neuberger says extra-judicial comments have “more benefits than drawbacks”. While he dictates caution and warns judges not to “seek publicity for its own sake” or to seek it for causes, his seven principles empower judges to speak.

Neuberger is fundamentally right. The individual and collective experience of the judiciary, and their established constitutional role, means they should contribute to public debate about substance and processes of justice. The challenge is how they should do so without compromising the constitutional roles of any branch of the state.

One path is obviously through judgments. This does not mean judicial activism but – this is different – judicial engagement. Judges have made pointed observations about any number of matters such as laws about police interviews, procedures in terrorism trials, or dealing with children who have committed serious crimes. For the public, the problem is many judgments are accessible. There are some excellent open databases of appeal judgments but the vast majority of trial judgments and sentencing remarks are unreported and unavailable to the public. It is time this was changed, especially if one takes the view that extra-judicial statements should be minimal.

An alternative path is through speeches or written pieces. In the week the international criminal court delivered its first verdict, ‘Reflections of a Trial Judge’ by Sir Adrian Fulford, leading judge in the Lubanga case and a high court judge, is an important contribution. Judges can articulate and explain from the horse’s mouth how the judicial role works and what they see as key contemporary issues. The lord chief justice and Neuberger himself are exemplary speakers in this regard. The supreme court’s mission includes promoting “knowledge of the ways in which justice should be rightly administered.” It is right that judges engage outside their judgments.

Of course, judges across the land will not be reading Neuberger’s principles and thinking, “Excellent! At last I have some clear guidance about when I should speak and what I can say.”  In spite of a judicial appearance on Masterchef, judges will inevitably be cautious of any public engagement with audiences outside the legal profession. Most judges will remain cautious and silent, and probably rightly so. At the senior end of the spectrum, though, while they will choose their battles carefully, Neuberger may have laid the ground for some interesting and well-chosen comments in the next couple of years.

Is there a point where judges would go too far? Or what might we be missing if they stop short? The justice and security green paper is a crucial contemporary case in point.

The conventional position is that judges “cannot comment on public policy” but can comment on “the practical consequences of certain policy choices”. We recently heard justice secretary Ken Clarke tell this to the joint committee on human rights in evidence to its inquiry into the green paper proposals for closed proceedings in civil cases.

For Neuberger, however, judges do not seem quite so restricted. Where policy “goes to the heart of the functioning of the judicial branch” then comment is not merely permissible, but there is arguably a judicial duty to comment. It might well be thought that closed proceedings, access to evidence and evaluation of evidence fall into that category. A judicial contribution to the justice and security debate would inform and enhance the process and policy choices that are made.

In England and Wales there could be more use of representative bodies to convey judicial views, especially on contentious issues. This would  avoid it falling to individual judges to give evidence to committees, which rightly concerns Neuberger. By contrast, this week the Judicial Conference of Australia has made a submission on mandatory sentencing that was requested by a parliamentary inquiry into proposed legislative amendments. It may be an approach worth considering more widely that would enhance the judicial contributions and avoid damage to the constitutional framework.

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Justice, security and secrecy

Law, Terrorism and the Right to Know (LTRK) is an ESRC and AHRC funded project led by Dr Lawrence McNamara in the School of Law. The project explores democratic traditions of open justice, media freedom and the contemporary demands of security. In January 2012, Lawrence and research assistant Sam McIntosh submitted a response to a Government consultation and to a Parliamentary Human Rights Committee inquiry into the Justice and Security Green Paper.

When seven former Guantanamo Bay detainees took legal action against the British Security Services, alleging complicity in their detention and mistreatment abroad, their claim for damages would inevitably involve a very public examination of UK security policy and practices. Relevant material would be disclosed to the claimants and considered in open court.

 The Government asked the court to use special procedures which would allow sensitive evidence to be considered in the absence of the claimants and the public. Disclosure, it was said, would damage national security. Conceding the case would avoid disclosure but would unjustifiably tarnish the security services. When the Court of Appeal held the law did not allow for secret evidence in civil proceedings, the Government settled the actions with payments to the claimants. However, wanting to ensure that it would in future be able use special procedures, the Government took two major steps.

First, it appealed the legal issue to the Supreme Court. In Al Rawi v The Security Service the Court held that the common law did not permit the use of special procedures in ordinary civil claims. Legislation would be required to open up that option.

As such, the second and now more significant path has been to set about legislating. To that end, in late 2011 the Government published a Green Paper on Justice and Security as part of a public consultation on how best to protect sensitive evidence.

The Green Paper proposes the introduction of Closed Material Procedures (CMPs) in all civil proceedings and inquests where sensitive information might arise. CMPs are already well established in some areas. They have been used for a decade in the Special Immigration Appeals Commission (SIAC) which hears matters such as appeals against deportations ordered on security grounds.

Under CMPs, judges and government representatives are security cleared. When sensitive evidence arises, the court goes into ‘closed session’ with the public, press and non-government parties (and their lawyers) excluded from the court. Security-cleared ‘Special Advocates’ are appointed to represent the non-government party’s interests during closed hearings. However, once the Special Advocates have seen the sensitive evidence, they cannot consult with or obtain instructions from those whose interests they represent.

The advantage of CMP is that, in theory, all relevant evidence can be considered by the judge. But there are also significant disadvantages to CMPs. A frequent criticism is that non-government parties are severely disadvantaged because they are unable to see, and therefore properly challenge, closed evidence which goes against their case. That is, while CMPs may mean that more evidence is considered, that evidence is less rigorously tested. Among the fiercest critics of CMPs are the Special Advocates who work within them. However, CMPs also have further very negative implications for the general public’s interest in judicial proceedings being conducted in open court and in accordance with the principles of open justice.

The LTRK response to the Green Paper takes issue with the Green Paper’s failure to adequately explore two key questions. First, the Green Paper seems to simply accept that CMPs are an essentially satisfactory way of ensuring justice between the parties, despite this being at odds with criticisms from Parliament’s Joint Committee on Human Rights and Special Advocates. Secondly, the Green Paper fails to seriously consider the implications that CMPs will have for open justice and ignores the real damage that their introduction could do to what Lord Brown in the Supreme Court has described as “the integrity of the judicial process and the reputation of English justice”.

Recognising that the Government appears determined to make CMP available in civil proceedings, the LTRK response goes on to suggest certain safeguards that may limit its impact on open justice. These focus on procedural checks to ensure that such proceedings are only used in truly exceptional circumstances and counter any trend towards their normalisation. Our response suggests that the criteria for engaging CMP should explicitly include the need to consider the benefits of justice being carried out openly and the harm done to the public interest of closed proceedings. It also suggests, for example, that media interests should be represented when courts consider the use of CMP.

The LTRK project will continue to examine the move towards legislation and the implications of proposals as they develop. Our website has regular updates.

www.reading.ac.uk/LTRK/

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