Judiciary silenced out of court

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Created on Friday, 17 August 2012 00:00

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Judiciary silenced out of court

Judges and magistrates have been banned from blogging about their jobs. This is not helpful

Lucy Reed

Legal Cheek reports that Judges [are] Threatened With Disciplinary Action For Blogging About Their Day Job – Even If They Do So Anonymously. You can read the original story on magistrate Trevor Coultart's blog. The magistrate behind the well-known Magistrate's Blog has yet to formulate a plan, although there are masses of comments suggesting firstly that there are a good few blogging magistrates out there, and secondly a good deal of irritation at this pronouncement.

In essence, guidance has been issued to all judicial office holders (not just magistrates), clearly warning them off blogging (although it says it's not a ban, IMHO this is a bit of a figleaf). The guidance is brief so I'll set it out here in full:

This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.

Definitions

A "blog" (derived from the term "web log") is a personal journal published on the internet.

"Blogging" describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.

Guidance

Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.

Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people's blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.

Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.

Now. I have some issues with this. I don't hold judicial office, and if I did I would be extremely careful about what I published generally and in particular anything concerning my judicial role (whether that be online or otherwise). BUT – I can think of at least one commenter on Pink Tape who makes valuable contributions from time to time but does so anonymously in order not to compromise his/her judicial impartiality, and at least one commenter on Pink Tape who does so quite openly, drawing on judicial experience to back up opinion. Both hold strong views, and both are unerringly measured and balanced and thoughtful in what they say. I think their comments enrich the blog. There are of course a number of other judicial office holders who read but do not comment.

I acknowledge that there could be a valid purpose in issuing guidance on this topic – social media is a fast moving environment and it is easy to slip up, or for the inexperienced or thoughtless to create an unintended bad impression or disastrous chain reaction by messing with the magick of the interwebs. But sadly, this guidance is not the sort of guidance which embraces the transformative potential of social media and aims only to help a new generation of judicial office holders avoid pitfalls along the way (for example the Law Society have produced a detailed guidance note for solicitors along these lines, which explains in words of one syllable how social media works). This is something else. We select judges for being thoughtful, careful people and it follows that those who dip a toe in the waters of blogging are likely to do so with appropriate caution and forethought (and in my experience they do so). We pay them to think before they open their mouths. So why not trust their judgment?

I had thought that we were entering an era of increased transparency in the judicial system (think the supreme court's Twitter account and routine issue of press summaries, publication of judgments from family proceedings) and that legal blogging and legal related blogging was a part of that movement, and a vital component of an ever more essential public legal education movement. This guidance appears to be in tension with that. I knew from the moment that a spelt out explanation of what a "web log" IS that we were not dealing with judging 2.0. It is a little depressing to note from the comments on the Magistrate's Blog post on the topic that this comes at the same time that Pink Tape is being recommended to magistrates by their own magazine.

There are of course very good reasons for quite significant constraint on public pronouncements by holders of judicial office. But if in other types of public statement we are prepared to rely upon the good judgment of the judge herself why should twitter or blogging be any different? As A Barrister In London points out, we permit our judges to make all sorts of public statements, and as has been discussed on Pink Tape some judges are quite outspoken, to the point of upsetting people (try Googling The Marriage Foundation). But this guidance doesn't tackle that. And it doesn't tell us why blogging is any more perilous than any other form of inappropriate public or political comment.

Look, I think the aim of this guidance is fine. But it needs some work:

It is quite right to point out that anonymity cannot be guaranteed and must not be relied on as a cloak (this is why I decided from the outset not to bother blogging anonymously), but why not simply make plain that holders of judicial office should never blog anything that would be inappropriate or would breach confidentiality if their identity were to become known?

"Officer holders who blog (or who post comments on other people's blogs) must not identify themselves as members of the judiciary." This is a blanket provision without justification. There are comments on my blog from judges which are wholly appropriate, which serve to help the public understand the judicial process, and to elucidate the difficulties for the court of dealing with litigants in person. They would be less meaningful were it not plain that the author of them had first hand judicial experience. I accept that judicial office holders must not use their judicial status improperly, and should not, by identifying themselves as a judge inadvertently identify an individual case. But this is too broad by far.

The guidance could be quite properly boiled down to this one sentence: "Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary." I would simply add that this includes any online presence.

"They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general." Well, this already applies to all kinds of methods of expressing opinions. It is the substance not the mechanism which is in issue.

But this is the most concerning bit:

"Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action."

A diktat with retrospective effect? Yarp. And not only that but one which is quite impossible to comply with. Of course it completely misunderestimates the way in which the internet works – such things cannot be undone. For example I am not minded if asked (which I have not been) to trawl through my comments deleting entirely appropriate comments from judges, anonymous, suspected or "out" and so there will be those who cannot comply – and whose comments were entirely appropriate when made, even if they now fall the wrong side of this guidance.

This document needs a rethink. For instance, Linkedin profiles of judicial office holders are likely to state their judicial appointment as you would on any CV, particularly if they are volunteers or part time and still potentially "in the market" for work or career development. But LinkedIn is social media. One can send status updates from Linkedin, much like tweets or Facebook, and indeed those status updates can be sent directly to twitter. Is it the intention of the policy to stop judicial office holders from identifying their job on Linkedin and / or from using LinkedIn to tweet / to post a status update? Must (former) judicial office holders who wish to market themselves or their business refrain from mentioning their experience? What about Peter Singer, former high court judge, now vigorously marketing his family arbitration website / product, at least partially off the back of his judicial experience?

Many deputy district judges will be employees or partners in firms of solicitors or members of the bar. Many, many solicitors' websites incorporate blogs these days, and many firms tweet on social media. It is commonplace for part time judges (both solicitors and barristers) to list their judicial appointments on their CV and on their profile on their chambers or firm website. A quick shuftie at my twitter followers reveals at least one barrister whose Twitter profile states he is a part time judge (I think it is unobjectionable to give a thumbnail sketch of who you are), several more who I know to be part time judges but who don't say so, including a couple who do not mention a recordership but where it is a mere few clicks to arrive at a chambers website with CV profile listing said appointment. And why not? None of these people tweet directly about the cases they deal with qua judges, or cross any line which might take them into the territory of bringing either their profession or their office into disrepute. Does this guidance intend that those who tweet without reference to their judicial office should not link back to their chambers/ firm website? Presumably not, but if not it begs the question as to where the line should be drawn and whether one can sensibly distinguish between blogging / social media and other forms of publication of information. Would it be okay to send a CV listing judicial experience by post or fax? Why should different media be treated differently?

I wonder what the impact upon applications for part time judicial appointment might be if office holders are barred from mentioning their position – it's reasonable to guess that many applicants think it will give them some kudos to boost their main career. It is a nonsense to try and draw a distinction between mentioning one's office on a firm / chambers website, printed CV or on social media – and such a prohibition plainly cannot apply across the board (if I told you I was a judge I'd have to kill you). And for magistrates, who carry out a thankless task for no pay, to be told that they have to stop tweeting or blogging about even the most mundane aspects of their role as volunteers may be a bit much. There are a number of comments on the blogs linked to above from rather upset magistrates who do not like this at all (although some seem to think this guidance is aimed at just magistrates – it is not).

Judicial Office holders do not hand in their right to free speech when they take the judicial oath (as pointed out by the Of Interest to Lawyers blog), although of course there are limits on just how outspoken they may be in order to maintain confidence in the impartiality of the judicial system. They are not required to be devoid of opinion or even to avoid entirely public life. The senior judiciary is said to be increasingly political (I am thinking here of recent discussions about what has been seen as quasi-political public remarks made by justices of the supreme court). The high court judiciary has long been outspoken in pockets (Marriage Foundation is not the only example). Legal blogs and blogs about law are at worst harmless and at best valuable in terms of public perception of the judicial system, the transparency agenda, public legal education and in terms of shaping the politico-legal agenda in years to come. Any judge or magistrate who opened her mouth before engaging her brain on Twitter, on a blog on the radio or in a newspaper or elsewhere ought rightly to be the subject of complaint and due process. It does not require a heavy handed guidance document about web logging for that to happen.

One suspects that there may be some jitters in the office from whence this guidance issued, about blogs which have been drawn to their attention which may be either uncomfortable or inappropriate. If the former – so be it. If the latter – well, I have yet to see it – but if inappropriate material has been published, action should be taken. Surely those who discipline judges do not need to rely upon any authority conferred by this guidance in order to take appropriate action? And even more surely this particular guidance will not help judicial office holders navigate social media without hiccup or catastrophe. I suggest that judges should look to the Law Society guidance and adapt that (PS: Hurry up Bar Council and issue one for the bar, please).

Source: The Guardian UK, 14 August 2012