28 September 2010

Judicial Misconduct: another round in the saga

A very quick post.

A full bench of the High Court has just released its decision, directing that the Judicial Conduct Commissioner reconsider his decision to recommend a Judicial Conduct Panel be convened to consider the complaints about Justice Wilson's disclosure in the Saxmere litigation:


Let's be clear about what it says and its likely consequences.

First, it's very much a technical decision about how the Commissioner should have framed and referred the complaints for consideration for the Panel.  In a nut-shell, the Commissioner was wrong to refer the whole bundle of complaints.  He should have formed a view on each and every complaint and specified with some particularity which conduct warranted inquiry by the Panel.  As a consequence, some complaints which were trifling were wrongly added into the mix; the main complaint - while sufficient for further investigation - was not framed carefully enough when it was referred; and complaints about the judge's conduct between the two Supreme Court decision were referred without an opinion being specifically reached on whether they justified further investigation for the Panel.

Secondly, on the marquee complaint that the Commissioner relied on to recommend a Panel be convened, the High Court is clear that the Commissioner's vetting process was proper and consistent with the Act.  The Commissioner properly appreciated the standard of conduct that, as a matter of constitutional law, justified removal of a judge from office and justified further investigation. The Commissioner also properly applied this standard when reviewing the factual allegations made. The Court said (at [91]):

"The important point is that the Commissioner considered that deliberate non-disclosure was a sufficiently plausible possibility to warrant further inquiry being made.  We agree with the Commissioner’s conclusion that conduct of that type, if established, might warrant consideration of the removal of the Judge.  We also accept Mr Goddard’s submission that in reaching that view the Commissioner formed the opinion that s 15(1) required of him."

The Court said the Commissioner correctly took the view that evaluation of whether, as a matter of fact, the allegation of deliberate non-disclosure was made out was a matter for the Panel, not the Commissioner. This is important as the allegations remain only that: allegations.  Questions of proof are for the Panel.

The problem was in the way the complaint about the allegation was referred.  The Commissioner needed to "go further and identify the aspects of the Judge's conduct that constituted the matters that were to be the subject of the Panel's inquiry" (at [94]).  A blanket referral of the allegations was not enough; only those parts of the allegations that met the legal and constitutional threshold for further investigation could be referred.

Finally, this decision is undoubtedly not going to halt the process.  The Court has agreed that the marquee complaint justified further investigation by the Panel.  The Commissioner will undoubtedly frame that with the particularity the Court requires.  The trifling or peripheral allegations that do not met the legal and constitutional threshold will fall away.  The only question of substance that remains is whether the marque complaint will be augmented by a further finding and referral of complaints about the judge's conduct between the 2 Supreme Court decisions.  The judge will be called on to respond to very specific allegations about his conduct, rather than a generalised complaint about the entire saga.


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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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