Sunday, 12 August 2012

Do Judges have a right to freedom of expression (article 10 ECHR)?

This was something considered by the Privy Council when advising HMQ on whether HM should remove the Chief Justice of Gibraltar from office.

Lord Phillips's view is set out below and I agree with it.  Judges' freedom of expression is limited: "So far as any judge is concerned, the proper exercise of judicial office necessarily circumscribes the freedom of expression open to those who do not have to ensure that they are seen to be acting without fear or favour, affection or ill will." 

Article 10 itself says:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary  

I suspect the draftsman had contempt of court in mind, but the highlighted phrase would equally apply to the restriction of a Judge's right to freedom of expression.  Having said that, any restriction on an article 10 right must be proportionate.  Article 10 cannot take away a Judge's right to freedom of expression in its entirety - it can only be restricted to the extent necessary to uphold judicial standards.  That's why you cannot impose a blanket ban on Judicial blogging-  you can only ban judicial blogging which undermines confidence in the blogging judge or the judiciary in general - all other judicial blogging should be permitted, if not encouraged.  Any other policy may be contrary to article 10 and thus unlawful.

Lord Phillips:

30. A summary of the standard of behaviour to be expected from a judge was given by Gonthier J when delivering the judgment of the Supreme Court of Canada in Therrien v Canada (Ministry of Justice) and another [2001] 2 SCR 3:
“The public will therefore demand virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give the appearance of that kind of
conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of them is something far above what is demanded of
their fellow citizens.”

31. While the highest standards are expected of a judge, failure to meet those standards will not of itself be enough to justify removal of a judge. So important is judicial independence that removal of a judge can only be justified where the shortcomings of the  judge are so serious as to destroy confidence in the judge’s ability properly to perform the judicial function. As Gonthier J put it at paragraph 147 of the same case:

“…before making a recommendation that a judge be removed, the question to be asked is whether the conduct for which he or she is blamed is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of his office.”

We will revert to this topic when considering the statutory criteria for removal of a judge under section 64 of the 2006 Order in the concluding section of this advice. There are,however, two matters that call for further comment at this stage.
Freedom of expression
32. Gibraltar is subject to the European Convention on Human Rights. Mr Beloff submitted that the Tribunal had wrongly held the Chief Justice at fault for public statements made by him or his wife that were no more than the exercise by them of the right of freedom of expression that is recognised by article 10 of the Convention. He argued that this freedom of expression could only lawfully be restricted by clear provisions of law that satisfied the requirements of article 10(2) and that none such had been demonstrated. We do not accept this argument. So far as any judge is concerned, the proper exercise of judicial office necessarily circumscribes the freedom of expression open to those who do not have to ensure that they are seen to be acting without fear or favour, affection or ill will. There is an abundance of jurisprudence, to some of which we have already referred, that defines the
requirements of judicial office in this respect.


  1. This Referral to the Privy Council was a complicated but very interesting matter which involved conduct by the Chief Justice and his wife over a lengthy period. One of the reasons why the majority recommended removal from office was their conclusion that the Chief Justice had rendered himself unable to sit on cases involving the Gibraltar government. The case is nevertheless important in the approach taken to the meaning of the word "misbehaviour" which was a ground for removal under the Gibraltar Constitution Order 2006. The Privy Council adopted the reasoning of Lord Scott of Foscote in Lawrence v Attorney-General of Grenada [2007] UKPC 18 and asked four questions:.

    i) Has the Chief Justice’s conduct affected directly his ability to carry out the duties and discharge the functions of his office?

    ii) Has that conduct adversely affected the perception of others as to his ability to carry out those duties and discharge those functions?

    iii) Would it be perceived to be inimical to the due administration of justice in Gibraltar if the Chief Justice
    remains in office?

    iv) Has the office of Chief Justice been brought into disrepute by the Chief Justice’s conduct?

    Power to remove a lay magistrate is to be found in the Courts Act 2003 section 11. Section 11(2)(a) refers to "misbehaviour." The role of a lay magistrate is an important one but it is a far cry from that of a Chief Justice. It seems very difficult to see that responsible blogging by a lay magistrate could amount to misbehaviour as interpreted in the above case.