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Judicial accountability

By Martin Daly

 In the spirit of the season I had intended to write a more light-hearted column, probably one expressing my elation that Silver Stars Steel Orchestra has made its Annual Pan and Parang Saturday evenings even more joyful.

At Silver Stars, the lulls before moving on from one act to the next have been curtailed. The show is crisp and the best value in town.  In fact the showmanship of “Bravo”, the conductor and pan music coordinator, provides an instant return on the blue note entrance fee. However, I must return to the subject of judicial accountability.

Following the decision of the Privy Council in the Ramnarine case, my column was the first to suggest that the Chief Justice should make a statement about delays in the delivery of judgments. Such a statement has now been made in the form of a media release from the protocol department of the Judiciary. It is focused on the Court of Appeal.

Also in the spirit of the season, I will not subject the Judiciary media release to ungenerous scrutiny, but I am bound to point out that it did not account for the status of judgments reserved in the Family Court, an issue which came into the public domain as a result of the Ramnarine decision.

It is that decision that provided a platform for public comment. Before that decision we had only the complaints of individual practitioners whose clients were reportedly awaiting long outstanding judgments. Commentators were constrained by the reluctance of practitioners to “stick their necks out” and provide on the record details.

Despite the media release, I remain of the view that disclosure of the status of reserved judgments in the Family Court is required in order fully to clear the public controversy that arose during the time that no statement was forthcoming. Given the cloistered manner in which judicial appointments and promotions are made, public confidence requires this.

A statement that defends the Court of Appeal only is insufficient.

There has been discussion about what sanctions might be imposed on a judge who fails to deliver judgments on time.  Readers might be interested to know that, in England, two High Court Judges have been publicly rebuked, in one case the rebuke being issued this year concerning our very topical subject of unacceptable delay in handing down a judgment.

Earlier, in 2007, a judge, who had been in unsuccessful negotiations with a firm of lawyers and therefore ought to have recused himself from hearing a particular case before him in which a partner of the firm was involved, did not do so. He went on to behave badly during the trial. The Court of Appeal described his behaviour as intemperate. He too received a public reprimand from the Lord Chief Justice.

In both cases an investigation by the Judicial Conduct Investigations Office (JCIO) (as it is now called) preceded the reprimand.

Reference to the JCIO’s website sets out what can and cannot be the subject matter of complaints to it.  It is made plain that no complaints concerning judicial decisions or judicial case management will be entertained because “the principle of judicial independence means that the JCIO is not able to intervene in, or influence the outcome of, a case or proceedings before the courts. If a complaint is upheld, it will not have any bearing on the progress or outcome of any associated case before the courts”.

It is of course difficult to draw a bright line between complaints about a judge’s behaviour and the management and determination of a case.

I certainly would not recommend any attempt to set up some similar complaints machinery in our Republic for reasons including the small number of available qualified personnel to sit on such bodies and our less than satisfactory track record concerning the use of Service and Integrity Commissions.

The Court has made many statements about how it is setting out to change the legal culture and the legal profession has struggled with heavy express sanctions contained in the Civil Proceedings Rules. I wonder whether there has been sufficient dialogue between the Bench and Bar in a frank and free but respectful atmosphere which recognises that “one hand can’t clap”.

Perhaps the judicial code of conduct should be published so that practitioners might be able to remind a judge who may be having a bad day what is expected of the Court.

The pictures of Prime Minister and Leader of the Opposition together in South Africa on the occasion of the Mandela funeral provided, in the words of an editorial in this newspaper, “an opportunity to show themselves to be bigger than that for which they are normally known”.

This should be a time of peace and goodwill. Perhaps the rancour free Judiciary media release can lead Bench and Bar into a greater area of dialogue than that currently prevailing, all in the public interest.

Seasons Greetings to all my readers.

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