Thursday, 20 September 2012

Personal morality, lawyers and the law

Lots of civil Barristers spend lots of their time as very junior members of Chambers seeking the eviction of people from their homes on behalf of landlords and mortgagees.  Occasionally one would come across a case where you were asked to make a single parent and a collection of young children homeless because of local authority housing benefit maladministration.  It is at that point that the cab rank rule, professionalism and your trust in the law would overtake your personal moral feelings and you would do your job according to the Code of Conduct of the Bar of England and Wales.  Personal moral feelings, religious convictions and other unprofessional notions have nothing to do with the practice of the law nor have they anything to do with the administration of the law by Judges.

Lady Cosgrove,  the Scottish judge, was accused of bias against a Palestinian asylum seeker because she was a member of International Association of Jewish Lawyers and Jurists.  The House of Lords rejected that submission, because she had not said or done anything to betray her bias and because she was required to set aside her personal views when deciding cases according to her judicial oath to do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will.

As the late Lord Roger said:

In assessing the position, the observer would take into account the fact that Lady Cosgrove was a professional judge. Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience. Like jurors, they swear an oath to decide impartially. While these factors do not, of course, guarantee impartiality, they are undoubtedly relevant when considering whether there is a real possibility that the decision of a professional judge was biased. Taking all these matters into account, I am satisfied that the fair-minded observer would not consider that there had been any real possibility of bias in Lady Cosgrove’s case.
Cooke J may be judged by the C of A on some later occasion to have strayed from this path by making remarks in sentencing a woman who procured the abortion of her own child which appear to betray his personal opinion about how abortion is administered in this country (Obiter J has further and better particulars here):

"There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners."

Whatever your personal view you hold as a Judge, they should not appear in your judgments or sentencing remarks.  Cooke J's allegation that doctors are routinely unlawfully carrying out abortions has no place in these sentencing remarks.

I will leave the length of the sentence to the Court of Appeal (Criminal Division) save to recall that I once sat in Court to watch a High Court Judge sentence a set of parents guilty of gross negligence manslaughter in permitting their children and children from another family to play on a live railway line during a picnic, to a suspended term of imprisonment, because he held that they had been sentenced to a life term of watching those children die before their very eyes as a result of their gross stupidity.  Sarah Catt will probably live under a similar life sentence, something I do not see taken into consideration in this case.

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