Freedom Of Information: Names of misbehaving judges are too rarely made public

Of thousands of complaints made each year about the behaviour of judges and magistrates, hardly any are proven. Public confidence would be better served by naming the guilty few, argues Robert Verkaik, Law Editor
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Judges are human and as capable of making mistakes in their professional and private lives as the rest of us. Mr Justice Peter Smith, a judicial office holder of the High Court, is already known for his famous Da Vinci Code judgment in which he hid his own secret message in the text. Mr Justice Smith was reprimanded in April for misconduct in the way he had handled another case. Although the supporting facts behind the reprimand were never published, it related to a hearing for which he had already been criticised by the Court of Appeal for implying an "improper motive" to the application he was hearing.

Last year, two more judges and 26 magistrates were reprimanded or removed from office by the Lord Chief Justice, Lord Phillips, in consultation with the Lord Chancellor, Jack Straw.

Despite formal requests to name the misbehaving judicial office holders, their identities have mostly remained secret. Last year a request was made under the Freedom of Information Act to discover who these other judges might be and what they had done to attract a reprimand or, in the cases of some magistrates, actually lose their jobs. The Ministry of Justice's response shows that there is real sensitivity surrounding the disclosure of this information.

In a letter sent to the requester in May, the Office for Judicial Complaints (OJC) set out its objections to releasing any names. It said: "Once a finding has been made with regard to an investigation, decisions as to the publicity to be given to those findings will depend on a number of factors, including, vitally, the need to guarantee the independence and integrity of the judiciary, in the interests of maintaining public confidence in the judiciary and consequently in the administration of justice and rule and of law. In some circumstances, that will require a clear public response to a specific finding. In others, such a course of action would be entirely inappropriate."

It is the latter course of action that the OJC follows in just about every case that is not already in the public domain. The officials refused disclosure under Section 36 (2)(c) of the Act because they believed that releasing the information might prejudice effective conduct of public affairs.

The reply stated: "It is extremely important for the effective working of the judicial complaints system that all its participants have confidence in the system. Those charged with investigating complaints need space in which to discuss aspects of an individual's suitability to judicial office, free from external scrutiny and pressure, in order to ensure that all aspects regarding an individual's fitness are considered fully and properly. . . Disclosure in direct opposition to the assurances of confidentiality that were given to all participants prior to their involvement, would inevitably lead to members of the judiciary and magistracy being increasingly reluctant to play an active role in such processes."

But this does not help to understand why the name of the judge and the nature of the inappropriate behaviour may not be disclosed. The same protection is not afforded to police officers and senior civil service office holders. It is, of course, vital that judges have the confidence of the members of public who come before them. But wouldn't we have more confidence in our judiciary if we treated them as human rather than as judicial gods whose occasional slips must be covered up at all costs?