Judging Judges – Is there a need for greater judicial scrutiny?

I attended Cheryl Thomas‘ inaugural lecture at the Judicial Institute at UCL last Wednesday where she talked about judicial studies and in particular, the study of judges and juries. I’d never really thought about judicial studies until I was trying to find empirical evidence of the behaviour of juries in criminal trials for a paper I was writing. All I found was a study from the early 1990s – The Crown Court Study, by Professor Michael Zander and Paul Henderson, so I used this slightly outdated evidence, feeling a little disheartened about my research skills. At the lecture I found out that this paper was in fact one of the few empirical studies of juries in the UK. Thomas described the study of juries in the UK as a as a “black hole” with academics remaining cautious about conducting research in the area, for fear of breaching Section 8 of the Contempt of Court Act.

Royal Courts of Justice Photo courtesy of Gareth Davies

However it is not only the study of juries that is largely neglected in the UK, but perhaps more surprisingly, the study of judges is also neglected even though this wouldn’t be limited by the Contempt of Court Act. This paucity of research could be due to a number of factors, most notably the commonly held belief that the judiciary should not be interfered with. In 1955 Lord Kilmuir famously claimed that there is a need for ignorance to “protect” the judiciary from scrutiny, establishing the so-called Kilmuir rules. This changed in the 1980s when these rules were revoked. In March, the current master of the rolls, Lord Neuberger, stated in a speech to the Student Law Society at Birmingham University:

“it seems to me only proper that judges, with their wisdom and experience, should be free to comment extra-judicially on a wide range of issues. In doing so they play an educative role. In areas such as constitutional principles, the role and independence of the judiciary, the functioning of the legal system, and access to justice, and even important issues of law, this role cannot be underestimated.”

His assertion that members of the judiciary should be able to make extra-judicial comments as well as having a public profile also came with a warning that judges must be cautious about what they say publicly.

In the US the area of judicial studies has greatly evolved since the 1950s with prominent academics such as Theodore L. Becker making it a well respected field of study. In the UK there has been little attempt to study the work of judges, the book by JAG Griffith on politics of the judiciary is based on very little empirical evidence and has failed to encourage further study. This also means that assertions made by those who write or comment on behaviour of the judiciary, as well as assumptions or sweeping statements, often go unchallenged regardless of their accuracy.

Thomas claimed that academics in England and Wales lack curiosity in relation to the judiciary, but she also stated that while they are not in opposition with judges, they do not have a great deal of contact with one another. It appears to her that academics have lost touch and no longer have the appropriate skills to study the judiciary.

The key problem in the judiciary of England and Wales lies with judicial appointments and the failure to improve diversity. While there is some progress being made in relation to the number of women appointed in the judiciary, the number of black, Asian and minority ethnic (BAME) candidates remains very low. The current appointments to the judiciary of England and Wales are significantly unrepresentative of society, this is not only regarding gender and ethnicity but also taking into account socio-economic background.

The judiciary of England and Wales is often cited as being one of “the best” legal systems in the world. Although there is no international study to confirm or reject such an assumption, there is evidence to suggest that it fares very well in comparison to other states in terms of corruption and speed. Nevertheless it’s reputation is tainted by its poor diversity statistics, the public debate on the issue of diversity has become sterile and unproductive as a result of progress being so slow.

Establishing judicial studies as a respectable and rigorous academic field could not only increase public understanding and interest in the judiciary, but it could also serve to improve the quality and openness of our legal system.

Amnesty and Human Rights – Is Forgetting Justifiable?

The case of Baltasar Garzón has started a debate not only regarding judicial activism and the role of judges, but also around the recognition of amnesty for alleged war criminals.

Baltasar Garzón, a magistrate in Spain’s national court, was previously responsible for the arrest and attempted extradition of Chilean ex dictator and war criminal, Augusto Pinochet, from London in 1998. The British courts agreed due to the nature of the case, which related to the alleged torture of Spanish citizens under Pinochet, that the public international law principle of universal jurisdiction could be applied. However, the then home secretary, Jack Straw, turned down the extradition application on health grounds, due to the former dictator’s age and illness. Despite this, the arrest of General Pinochet encouraged the Chilean judicial system to prosecute past abuses.

Garzón was recently suspended after opening a formal court investigation into human rights abuses committed by Spain’s former dictatorship. He was seeking to investigate the deaths of 114,000 opponents of the Franco regime between 1936 and 1975. Garzón is now facing charges for abuse of power in his trial that opened in the Supreme Court in Madrid yesterday.

Baltasar Garzón

His judicial activism has been widely criticised and condemned by other judges, who claim he is harming the legitimacy of the judicial system. He has also been accused, by both high profile opponents and the media, of vanity and being motivated by his own interests. Nevertheless, Garzón maintains that opening the investigation was based on the same principles used to order the arrest of Chile’s Augusto Pinochet.

In 1977, during the transition to a democratic system in Spain, an amnesty was put in place to cover all crimes of a “political nature” committed during the regime. Mr Garzón argued that the amnesty law does not apply to crimes against humanity and that he was applying the same principles to the Franco regime as to that of Pinochet. However, a Supreme Court judge stated that his actions amounted to a breach of his duties as a judge and that his arguments had no basis under international law.

Under international law, the criminal prosecution of individuals responsible for human rights abuses is an essential part of a victim’s right to justice. The granting of an amnesty is not uncommon in certain situations following conflict; where violations of international humanitarian law have occurred on a massive scale, often involving a large section of the population. However, there is also a need to balance the victim’s rights to justice with the need of the State to promote reconciliation in dealing with past atrocities without provoking further conflict. Where States like Spain have enacted amnesties in periods of transition, it’s necessary to consider whether such amnesties should be recognised internationally.

So the question arises, should international principles apply to a (domestic or international) court’s decision on whether to recognise amnesties covering war crimes? When there is a threat to peace, there may be need for an amnesty, and other accountability measures, to deal with those responsible. This would of course not be the case in Spain, which almost half a century after the death of Francisco Franco, is a stable and democratic country.

It appears that the basis for trying Baltasar Garzón is not in fact relating to a  breach of the 1977 amnesty law, but rather a fear of his judicial activism.  Spanish courts have been criticised for trying to bury the past, failing to investigate or seek accountability for atrocities committed during the Franco regime, and during the Spanish Civil War. Why is there such a reluctance to address the crimes of the past? In 2009, the European Court of Human Rights held that an amnesty law is generally incompatible with the duty of a state to investigate acts of torture or barbarity.

Why has Garzón’s role in seeking to investigate human rights abuses landed him on trial? It appears that the judiciary does not want to recognise its role in examining the validity and relevance of this law. Its decision to criminalise questions regarding the regime seems both disproportionate and confused. Rather than trying Garzón for his actions as an individual, the judicary could be working together as a body to take an investigative role, and come to terms with its violent history dating back to the Spanish civil war.

Here is a short clip about Baltasar Garzón on the Guardian website.