Should Judges Take Criticism and Shut Up?

Not everyone has a high opinion of our justice system, and many believe that judges are ‘too soft’ on offenders and ‘out of touch’ with community expectations.

But that view is inconsistent with studies showing that, when presented with all of the facts, members of the public will normally impose ‘softer’ penalties on offenders than judges do.

Despite being subjected to daily criticism in one way or another, tradition dictates that judges and magistrates should remain tight-lipped when it comes to expressing their own views.

Unlike police forces that spend millions on taxpayer dollars every year on PR, members of the judiciary normally refrain from self-promotion or media engagement; making them easy targets for criticism and blame.

Why Don’t Judges Speak Out?

A paper by Judge Margaret McMurdo asks the question: Should Judges Speak out or Shut up?

McMurdo points out that the tradition of judges keeping their views to themselves stems from the belief that publicising personal and political views can impact negatively upon public perceptions of judicial impartiality.

A famous speech given in 1955 by the UK Lord Chancellor Kilmuir sums up this reasoning as follows:

“So long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable; but every utterance which he makes in public, except in the course of actual performance f his judicial duties, must necessarily bring him within the focus of criticism… My colleagues and I, therefore, are agreed that as a general rule, it is undesirable for members of the Judiciary to broadcast on the wireless or to appear on television.”

The text of his speech would later become known as the ‘Kilmuir rules.’

Sir Daryl Dawson, a former Justice of the High Court of Australia, also disapproved of judges being interviewed saying that:

“it is… the function of a judge to judge cases. That he does in open court and when he makes his decisions he gives his reasons for them publicly. Everything is there for public scrutiny and there is no real point to be served by any further explication… The judicial method, court dress and court procedure are all aimed at fostering an objective rather than subjective approach to the administration of justice, whereas the inevitable tendency of the media is to personalise issues in a way which is inimical to this aim.”

So the tradition is clear – give your judgements in court; then shut up, take your criticism, and don’t defend yourself.

But if judges are not supposed to defend themselves, who will?

Who Defends the Judiciary?

Traditionally, the job of sticking up for the judiciary was one undertaken by Australian Attorneys-General (AGs) – but in recent years, AGs have been unwilling to do this for fear of being criticised by the media themselves.

One former Federal Attorney General, Daryl Williams, even publicly stated that he would not defend judges, declaring:

“it would seem to me more in keeping with the independence of the judiciary from the executive arm of government that the judiciary should not ordinarily rely on the Attorney-General to represent or defend it in public.”

Although not all Attorneys- General have adopt that view, it seems that they are becoming increasingly reluctant to stand up for judges who are unfairly attacked by some media commentators – especially loudmouthed yet ignorant radio show hosts.

Perhaps, as one criminal barrister, Queensland QC Walter Sofronoff suggests, it is now up to lawyers to stand up for a judges who are subjected to unfair criticism.

Should Judges Speak Out?

Last year, controversial former Queensland Judge Tim Carmody held a press conference alongside the man who appointed him, former QLD Premier Campbell Newman – a move that attracted much criticism.

Like many others, Mr Sofronoff expressed the view that this was highly inappropriate, stating that:

“The calling of a press conference by a judge, for example, to put forward a political argument as a public defence of the judge’s personal position demeans that judge’s office… In some cases it would be capable of amounting to misconduct justifying removal from office.”

Many believe that judges must be careful not to stray beyond their judicial function and into political territory, as this can threaten the separation of powers and potentially undermine the perceived impartiality of the courts.

On the other hand, judges have opinions like the rest of us, and some argue that silencing them is tantamount to an unfair deprival of free speech. They argue that judges should be allowed to defend themselves against personal attacks, to correct unfair or misleading reporting of their decisions, to educate the public about their role, and to connect with the community – as long as they are careful not to wander into the realm of politics.

One judge who believes that members of the judiciary should speak out more is NSW Chief Justice Tom Bathurst, who states that:

“Judges can and should speak out more: to correct misinformation, raise awareness of the role of the courts and to explain the processes such as sentencing to the public. This would also contribute to dismantling the common misconception that the judiciary is somehow isolated from and out of touch with the real world.”

Either way, judges who choose to hold press conferences or otherwise engage with the media must be careful about how they present themselves, as well as what they say, so as not to damage the judiciary as a whole.