A JUDGE SHOULD BE BEYOND REPROACH
The sixth principle I would suggest is that a judge should in his own character be beyond reproach, or at any rate should have so disciplined himself that he is not himself a breaker of the law. Time and time again he has to pronounce judgment on those who have offended against the law. He has to rebuke the evil and support the good. He cannot well do this-he cannot without hypocrisy do it-if he himself has been found guilty of an offence against the law. I refer not to administrative offences like exceeding the speed limit but to grave offences which carry reproach in the eyes of the people, like being drunk in charge of a car. If a judge should be found guilty of such an offence, whilst holding office, most people would say he should resign but a very difficult question may arise if a man should have been found guilty some years ago and then afterwards be considered for appointment as a judge.
Should the previous offence be a bar to his appointment? If he is appointed, will he not himself take a lenient view of those guilty of the like offence? Or else take a harsh view, so as to show that he is not affected by his past guilt? This raises a serious moral issue. It may be said that, if the offence is not known to the public generally, then the man can properly be made a judge. But is this a proper attitude to take? Even if it is not known to the many, it is known to the few and it can at any time be made known to all the country through the medium of the newspapers. It could hardly be a contempt of court to make a true statement about it. The moral question seems to be the same whether the offence is publicly known or not. And upon the moral issue I would go back to Plato for he discussed this very matter over two thousand years ago in the third book of The Republic. He recognises that it is a good thing for a physician to have some personal experience of illness so that he can know better the feelings of his patients. Likewise it is good for an army officer to know what it is to carry a pack so that he can
know what the men have to go through. But Plato says that it is not right for a judge to have personal experience of evil-doing. If you are appointing men to a police force you will not act on the motto “set a thief to catch a thief.” So also if you are appointing a judge you will not, says Plato, appoint a man who has committed the whole catalogue of crimes on the theory that he knows best what crime is. You will appoint a good man whose knowledge should be his guide, not his personal experience. The reason he gives is because vice cannot know virtue but a virtuous nature, educated by time, will acquire a knowledge of both virtue and vice. The answer would seem to be therefore that a man should not be appointed a judge if he has been found guilty of a grave offence against the law even though it is not generally known. And when it is publicly known it is worse because the people will then point a finger of scorn as they did long ago saying:
“Who made the ruler and a judge over us.” Such scornful remarks destroy the confidence which people should have in the judges.
No one would doubt these principles: but the difficulty is to apply them to particular cases. Who is to say whether an offence is a grave offence which carries reproach in the eyes of the people? That is the responsibility of those who make the appointments. Much depends on their good discharge of it.
To end this discourse may I remind you of the importance of these principles by quoting the words of Sydney Smith over a hundred years ago: “Nations fall when judges are unjust, because there is nothing which the multitude think worth defending; but nations do not fall which are treated as we are treated……… Any why? Because this country is a country of the law; because a judge is a judge for peasant as well as for the palace; because every man’s happiness is safeguarded by fixed rules from tyranny or caprice……. The Christian patience you may witness, the impartiality of the judgment-seat, the disrespect of persons, the disregard of consequences.” These are the qualities which have bred in us our regard for the law and our respect for the judges who administer it.
Excerpts from “THE ROAD TO JUSTICE” by The Right Hon’ble Sir Alfred Denning, (Lord Denning) then Lord Justice of Court of Appeal. Hamlyn Lecture – delivered in September 1955
