Judicial qualities: illustrations from past lives

AuthorEvan Bell
PositionMaster, Queen's Bench and Matrimonial, Supreme Court of Judicature for Northern Ireland
Judicial Studies Institute Journal [2008:2
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
* 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.
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
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
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
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.

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