I spent a lot of today at the Law Student Colloquium which I mentioned in my previous post; and it was a great deal of fun. The day culminated with the First Annual Brian Lenihan Memorial Address, delivered by former academic and retired judge Bryan McMahon (above left), on the topic of

    Judging.

He told us that a judge has a front row seat in the theatre of life; and, in his characteristically erudite and witty speech (citing all the great legal philosophers, including Groucho Marx, Maurice Chevalier, and Joe Duffy), he gave a wonderful review of the dramas, comedies and tragedies that have played out in his courtrooms. It was, he said, all very different from the jurisprudence of judging with which he was concerned as an academic, and yet he brought all his academic rigour to bear on the analysis of his twelve years on the bench, during which he said he sat in every county in Ireland.

The heart of his discourse was a discussion of judicial attributes. The essential traits include courtesy, patience, knowledge of the law, the ability to listen, the ability to make a decision, and the ability to give reasons for those decisions. Judges, he said, are paid not necessarily to be right but to make decisions. He went straight from practice to the bench without formal judicial training, but he said he received lots of good informal advice from his colleagues. The best, he said, was never to be rushed into a decision. It is the essence of judging to make decisions, and they have to be made with due care and proper speed, but, even so, they must not be rushed. I think that this is sound advice for life, not just for judging. Desirable judicial traits, he said, include wisdom, confidence, humour, and a good knowledge of the law (his emphasis; and he included jurisprudence in his enumeration).

He reminded us that, in every case, there are two sides, so judges’ decisions are never inevitable: there are at least two competing arguments, and often many possible alternative solutions. He welcomed the development of written decisions in High Court cases, but whilst he saw them as extremely helpful, he said that judges have to be careful not to let such submissions narrow their focus to just those two presented solutions.

He also reminded us that judges face different challenges in distinct kinds of case and in disparate areas of law. He gave three examples. First, the kind of discretion which a judge in a civil case has in determining a remedy such as a level of damages is very different from the kind of discretion which a judge in a criminal case has in determining a custodial sentence. Indeed, he said that he found criminal sentencing a profound responsibility and a matter of great difficulty. Second, he said that the judge’s role in jury trials is very different from non-jury trials. In such cases, the judge must be vigilant to maintain integrity of the jury – an onerous and increasingly difficult responsibility – and the judge must charge the jury properly. Third, he said that the skills of judging in family cases are different again. The procedure is often more relaxed, and there are a great many lay litigants. Here, the task of the judge is not one of attributing blame or focusing on the past. Instead, the judge must be mediator, educator persuader and broker as well as decision-maker. The relevant legislation provides a wide range of discretion, which allows the judge to look to both parties and children, and to look to future.

He concluded by calling into question the declaratory theory of judicial decision-making (which says that judges don’t make law, merely find and apply it). He said that judges make law all the time when making decisions on novel points and ambiguities. In open areas, judges are susceptible to three kinds influences. First, there environmental prejudices, reflecting a judge’s environment and background – these are inevitable, and for that reason ought not to be seen as problematic. Second, there are personal prejudices – these are unworthy, and judges seek to put them aside. Third, there are matters of personal intuition and emotion. Intuition, he said, is simply a sort-circuit application of experience. A judge, he said, neither cannot nor should not deny his or her true self, but rather must be self-aware.

He had said at the start of his presentation that subjectivity is not necessarily a bad perspective, and by his conclusion he had not only proved this, he had gone much further and demonstrated that it is a necessary perspective for good judicial decision-making. He argued that the story is everything and everything is a story; and he told us many good stories tonight. He argued that the power of narrative can be compelling; his narrative certainly was. He concluded that literature is unparallelled in providing insight into and experience of the full range of the human condition, and certainly provided a great insight into the full range of a judge’s decision-making.

It was a fitting tribute to Brian Lenihan, and it was an excellent conclusion to a wonderful day.

Two very different stories in the media over the last few days have coalesced in my mind over the weekend. The first story is the announcement by the President of seven appointments to the Council of State. The second is the debate in the US about the recusal of Supreme Court Justices from forthcoming challenges to health care legislation.

The Council of State is established by Article 31 of the Constitution, and its primary role is “to aid and counsel the President”. The first meeting was convened by President Douglas Hyde on 8 January 1940, and a large painting of the event (pictured above left) by Simon Coleman hangs in Áras an Uachtaráin, in a reception room now called the Council of State Room. At the end of last week, the recently-elected President Michael D Higgins announced the appointment of Michael Farrell, Deirdre Heenan, Catherine McGuinness, Ruairí McKiernan, Sally Mulready, Gearóid Ó Tuathaigh, and Gerard Quinn to the Council.

Among the specific functions ascribed to the Council by the Constitution, Article 26.1.1 provides that the President may, after consultation with the Council of State, refer a Bill to the Supreme Court to determine whether the Bill is constitutional or not. This power is by far the most common reason why Presidents have summoned the Council. For example, the first meeting was called so that the Council could advise the President on whether to refer the Offences against the State (Amendment) Bill, 1940 to the Supreme Court. The President decided to do so; the Court upheld the constitutionality of the Bill; and it was duly enacted as the Offences Against the State (Amendment) Act, 1940. Indeed, there were reports over the weekend that Government ministers have discussed the possibility of President Higgins referring legislation concerning an EU fiscal treaty to the Supreme Court.

The President’s appointments to the Council made me think again about the procedures under Article 26. Since Article 31.2 provides that the Chief Justice is an ex officio member of the Council of State, this means that the Chief Justice is a member of the body which advises the President as to whether a Bill should be referred to the Supreme Court. However, as Article 34.4.2 provides that the Chief Justice is the President of the Supreme Court (and thus head of the judiciary), it is natural that the Chief Justice would sit on any reference to the Supreme Court pursuant to Article 26. Indeed, there have been 15 such references to date; and, not only did the Chief Justice of the time sit in all 15 references, he gave the judgment of the Court in every case! The question which has arisen in my mind is whether it is appropriate for the Chief Justice to participate in both stages of this process. The Constitution plainly allows for this, and it has happened in every case so far, but my question is whether this practice should continue. Read the rest of this entry »

Earlier this evening, I did an interview on The Last Word with Matt Cooper on Today fm concerning next Thursday’s referendum to amend the Constitution to add a mechanism to allow judges’ salaries to be reduced. The arguments in favour of the principle are very strong: as a matter of fairness and balance, when other public servants are suffering pay reductions, there is no good reason why judges should not do so too. But that is not the only principle at stake here: the independence of the judiciary is an important aspect of the rule of law. Any implementation of the principle of reduction in judicial salaries in line with other public servants ought to be done without doing violence to the principle of the independence of the judiciary. As I said on The Last Word with Matt Cooper this evening, I do not believe that the proposed amendment manages to maintain this balance.

The amendment proposes that “provision may … made by law to make proportionate reductions to the remuneration of judges” in certain circumstances. Leaving aside those circumstances, this simply allows the reduction of judicial salaries to be effected by legislation, which in the ordinary way is proposed by Government. This gives the executive significant power vis-à-vis the judiciary, and represents a significant inroad into the delicate balance of powers between the executive and the legislature on the one hand, and the judiciary on the other. Read the rest of this entry »

Growing up, I loved the comic 2000AD, and one of its leading characters was Judge Dredd (pictured left). We never saw underneath his helmet’s visor because – with his catchphrase “I am the law” (echoed by Lord Thurlow LC in The Madness of King George) – he represents the impartiality and facelessness of justice. This is why more traditional representations of lady justice show her wearing a blindfold – as in the statute overlooking upper castle yard in Dublin Castle: the blindfold represents objectivity and impartiality. Hence, under Article 34.5.1 of the Constitution, judges make a declaration that they will execute their functions “without fear or favour, affection or ill-will towards any man”. This judicial impartiality, abjuring both preference and malice, is the cornerstone of the rule of law – it requires and allows both that questions of legal right and liability to be resolved by application of the law and not by the exercise of discretion, and that the laws of the land should apply equally to all: be you never so high, the law is above you. But, as the text of judicial oath expresses, to be able to decide without favour, judges must be free to decide without fear – that is, without the dread in the title to this post. In particular, they must be free to decide against other arms of government without fear of retaliation.

Executive retaliation can be overt: John Bradshaw presided over the trial of Charles I in 1649; he died in 1659; but Charles II had his body exhumed for posthumous execution in 1661. Less dramatically, but more insidiously, Stuart monarchs frequently sought to dismiss judges who took decisions of which they disapproved. US President Thomas Jefferson, alarmed at the growth of judicial review of executive action, sought to have Justice Samuel Chase removed from the Supreme Court in 1805, but the impeachment failed in the Senate, and the strong US commitment to judicial review and judicial independence were secured. Colombia, Zimbabwe and Pakistan provide more recent instances of intimidation of judges.

Executive retaliation can be far more covert. US President Franklin Delano Roosevelt, alarmed at the striking down of key legislative elements of the New Deal by the Supreme Court, sought to change the way the Court functioned, especially by adding more amenable judges, but the Bill failed in the Senate. More subtly still, a government can seek to control a recalcitrant Court by pulling the purse-strings: earlier this year, the President of the UK Supreme Court complained that existing funding arrangements for the Court do not adequately guarantee its independence.

As a consequence, Article 35.2 of the Constitution provides that “judges shall be independent in the exercise of their judicial functions”. Read the rest of this entry »

An article in today’s Daily Telegraph raises important issues relating to the retention of the DNA of innocent persons by the police in both the UK and Ireland. It also raises profound questions as to the effect of decisions of the European Court of Human Rights in domestic law.

According to the Telegraph:

The [UK's] Coalition Government has pledged to dramatically reduce the time period that police can retain samples of people who were not charged or convicted of offences. It follows a ruling by the European Court of Human Rights in 2008 that a blanket policy of retaining such profiles indefinitely was illegal.

However, no new laws have yet been introduced and the Supreme Court will today hear a test case that such samples should be deleted now. If the country’s top court agrees it could result in police forces having to remove the samples immediately regardless of when new legislation is introduced.

The case is R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent) (UKSC 2010/0186) Read the rest of this entry »

Dr Johnson defined gallimaufry as

1. A hoch-poch …
2. Any inconsistent or ridiculous medley. …

Here’s a hoch-poch, or hotch-potch (though, of course, not a hotchpot) of links relevant to the themes of this blog that have caught my eye over the last while:

First, an Article 10 Right of Reply? considers the various routes to a legally enforceable right to reply to inaccurate information in the same medium where the original statements were published. In this post, Andrea Martin argued that such a development is neither necessary nor desirable, but that a voluntary scheme operated by broadcast media would have a lot to recommend it.

Second, the Irish judiciary has signalled support for setting up a judicial council, a development anticipated by the ICCL in 2007 which I welcomed at the time.

Third, Slate recently published No More Bullet Points, No More Clip Art (h/t Oisín, offline) arguing that “PowerPoint isn’t evil if you learn how to use it”. But so many people fail to learn how to use it that I have no doubt that my antipathy will continue.

Fourth, a story in the Independent on Plagiarism and PhDs: how to deal with copying says that it “may seem counter-intuitive but postgraduates are more likely to commit plagiarism than undergraduates”. Whether postgrads or undergrads – or of that matter, postdocs, lecturers or professors – we must all be on our guard against plagiarism in the academy.

Fifth, I have long been a strong supporter of open access to academic information, so I am heartened to learn that over 20% of the world’s scholarly journals now open access! (Kudos to DOAJ)

Sixth, Thinspiration: Still legal in the U.S.! picks up the proposed French legislation which I discussed in my post on incitement to anoxeria.

Seventh, the online challenge to traditional third-level education gathers pace: U of California Considers Online Classes, or Even Degrees the University of California “hope to put $5-million to $6-million into a pilot project that could clear the way for the system to offer online undergraduate degrees and push distance learning further into the mainstream …”

Eighth, a woman jailed by a Chicago judge for 2 days for wearing an offensive T-shirt to court recalls my post If t-shirts could talk …, discussing a similar Irish case and a more serious US example (there’s also an earlier Illinois example). Cohen v California 403 US 15 (1971) anyone?

The Hon. Mr. Chief Justice Balakrishnan, Chief Justice of India, will deliver a Guest Lecture at the School of Law, TCD:

Judicial Activism Under the Indian Constitution

It will be held on Wednesday, 14 October 2009, at 6:00 pm in the JM Synge Theatre, Room 2039, Arts Building, Trinity College Dublin (map).

If you would like to attend, please contact the Law School, by email, by mail to School of Law, House 39, Trinity College, Dublin 2; by phone to (01) 896 2367 or by fax to (01) 677 0449.

It promises to be an interesting evening. The label “judicial activism” is often used loosely, sometimes to describe the judicial process, sometimes to castigate judges as failing to confine themselves to reasonable interpretations of laws, and instead substitute their own political opinions for the applicable law. I particularly reocmmend the posts on Balkinization. The issue, a long-time staple of constituitonal jurisprudence, came to the fore again during the confirmation hearings for US Supreme Court justice Sonia Sotomayor. But the debate is not confined to the US: rather, it arises where-ever there are Courts – so judges in Canada, Australia, the European Court of Justice, and Ireland are all routinely praised and criticised accordingly. The perspective from another court and another country will be fascinating indeed.

No, not the Irish Supreme Court, but the new UK Supreme Court. There’s quite a lot of coverage in the UK media and blawgopshere today about the new Court at the apex of UK’s judicial system, which opens for business today, on time and on budget, in a refurbished former criminal court, after a difficult gestation. David Pannick argues in the Times today that, however unhappy its origins, the opening of a new Supreme Court is an important commitment to the rule of law. Much of the media interest turns on the fact that the Court will be televised. For example, one of the pieces in the Times is headlined that TV coverage means justice really will be seen to be done:

The reform has taken a number of steps over 20 years: a Bar Council report chaired by Jonathan Caplan, QC, in 1989, the filming of parts of the Shipman inquiry and the Hutton inquiry and the 2004 pilot project in the Court of Appeal all moved the issue of cameras in court forward. … The footage will be filmed and recorded by the court and made available by a feed to broadcasters, … [and] can be used only for news, current affairs and educational and legal training programmes.

Read the rest of this entry »