Judicial qualities: illustrations from past lives

• Author: Evan Bell
• Position: Master, Queen's Bench and Matrimonial, Supreme Court of Judicature for Northern Ireland
• Pages: 18-57

Judicial Studies Institute Journal [2008:2

18

JUDICIAL QUALITIES:

ILLUSTRATIONS FROM PAST LIVES

EVAN BELL*

INTRODUCTION

Judicial obituaries are neither penetrating studies nor full

length biographies. They are, at best, brief biographical sketches.

Nevertheless an examination of them can cast light on the

qualities which are desirable in the exercise of the judicial

functions. Judicial obituaries provide not only summaries of the

public facts of lives, but glimpses of the uniqueness of

individuals, and appraisals of character in memorable lives.

This article seeks to examine what qualities have been admired in

judges by distilling such traits from obituaries published in

national newspapers in recent years. In the public mind judges

inevitably tend to be defined by their more controversial

decisions, and hence obituaries may focus on notorious cases

rather than notable qualities. Nevertheless, a particular case may

demonstrate the significant qualities possessed by an individual,

and have come to define the individual’s approach to their work.

However, in the minds of legal practitioners, it is the qualities,

personalities and working methods, rather than individual cases,

that are significant.

Some comments about the source material for this article

are important. The tenor and focus of judicial obituaries may vary

considerably between different newspapers.1 I have chosen to use

obituaries from across a range of jurisdictions and for some

obituary writers, particularly in the United States, judges may be

judicial heroes because of their legal philosophy. However, for

the purpose of this article, judicial philosophy is irrelevant; it is

the generic judicial qualities which are at issue. Although few

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* Master, Queen’s Bench and Matrimonial, Supreme Court of Judicature for

Northern Ireland.

1 Compare for example “Sir William Mars-Jones: Obituary”, The Times, 11

January 1999 with “Against Secrets and Lies; Obituary: Sir William Mars-

Jones”, The Guardian, 12 January 1999.

2008] Judicial Qualities: Illustrations from Past Lives 19

obituaries are entirely complimentary, they usually tend not to be

highly critical. Judges are of course flawed human beings, and

simply because a judge is noted as having been admired for one

quality does not mean that all the individual’s qualities were

admirable. He or she may have had significant flaws also.

Obituaries are appraisals that represent “the first verdicts of

history”.2 They are therefore unlikely to be completely thorough

and objective, but will nevertheless attempt an assessment of a

life. Obituaries are also prepared for an audience without

specialist legal knowledge, but are expected to be of particular

interest to those with such knowledge. Inevitably judges who

preside in appeal courts or supreme courts attract more attention

from obituary writers. Such limitations on the source material

inevitably have an impact on the conclusions which may be

drawn from it.

I. INDEPENDENCE

Judicial independence is the constitutional doctrine that

judges are independent of the executive and the legislature, and

that decisions by judges should be impartial and not be subject to

influence from the other branches of government or from private

or political interests. However, in addition to being a

constitutional doctrine, judicial independence is fundamentally a

state of mind. Lord Ackner was described as “a fiercely

independent judge, never afraid to speak his mind”.3

Judge Ioannou of the European Court of Justice was admired for

his “real independence and impartiality of mind”.4

Judicial independence is at its most visible in terms of

independence from government, and particularly in instances

where the State invokes national security considerations.

Mr. Justice Mars-Jones’ handling of the 1978 trial of Crispin

Aubrey and Duncan Campbell, both journalists, and John Berry,

an ex-soldier, for offences contrary to the Official Secrets Act

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2 Starck, “Posthumous reflections: the obituary as the first verdict of history”,

[2004] Journalism and History 1.

3 “Obituary of Lord Ackner, Law Lord whose ruling in the Spycatcher case

strained relations with the press”, The Daily Telegraph, 23 March 2006.

4 “Obituary: Judge Krateros Ioannou”, The Independent, 2 April 1999.

Judicial Studies Institute Journal [2008:2

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1911, has been viewed as demonstrating this quality.

The prosecution resulted from a meeting of the three to discuss

the subject of electronic surveillance and Berry’s service in a

GCHQ signals regiment in Cyprus. The proceedings were

perceived as being desired by the Security Service so as to jail

Duncan Campbell, who kept breaching D-notices. Towards the

end of the prosecution evidence, Mr. Justice Mars-Jones

announced he was “extremely unhappy” about this “oppressive

prosecution”, commenting that section 1 of the 1911 Act was

designed for use against spies, and asking why was it being used

against freedom of speech. The prosecutor responded that the

proceedings had been authorised by the Attorney General.

Mr. Justice Mars-Jones replied “[i]f the Attorney-General can

authorise the prosecution, then he can unauthorise it”, and the

following day the Attorney General did just that. The defendants

were subsequently convicted by the jury of offences under section

2 of the 1911 Act, and many were surprised by the sentences

imposed by the judge: Aubrey and Campbell were given

conditional discharges, and Barry received a short suspended

sentence. Mars-Jones’ conduct of the trial “has often been cited as

an example of how judges can be trusted to protect fundamental

liberties when press and Parliament fail to do so and as an

important assertion of the judicial role as a check on state power”.

Indeed, his handling of it was said to both “exemplify and justify

the independence of the judiciary”.5

A notable US example of judicial independence was that of

Judge John Sirica who, as Chief Judge of the Washington DC

Federal Court, presided over the trial of the burglars who broke

into the Democratic Party National Committee headquarters in

the Watergate Hotel in Washington in 1972 on behalf of the

Committee to Reelect the President.6 Sirica granted a subpoena

duces tecum directing President Nixon to produce to the special

prosecutor, for use in criminal proceedings, tape recordings of

conversations in the White House between the President and his

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5 “Against Secrets and Lies; Obituary: Sir William Mars-Jones”,

The Guardian, 12 January 1999 and “Obituary: Sir William Mars-Jones”,

The Independent, 25 January 1999. A fuller account of the trial may be found

in Robertson, The Justice Game (1999), ch. 5.

6 “Obituary: Judge John Sirica”, The Independent, 20 August 1992.