the judge acts like an umpire in a trial.justify
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The topic of judicial ethics is one which has been comparatively little studied and discussed in academic and judicial circles in the United Kingdom, at least until recently. Of course, the odd case, normally to do with judicial recusal, arose from time to time, but it tended to be dealt with on a one-off basis. However, in a world which is increasingly concerned with openness, regulation and propriety, an increasing concern about the topic is inevitable. Thus, the number of cases concerned with judicial bias (almost always apparent rather than actual bias, I am glad to say) has increased in the past twenty years in the UK. And it is quite right that judges should consider and discuss judicial ethics, and that they should do so not merely among themselves, but with legal and other academics and also with practitioners. One of the most important functions of a judge is to ensure that individuals are dealt with properly by the state, and we judges should therefore be prepared, indeed eager, for the judiciary to be held at least to the same high standards as, and I would suggest higher standards than, the executive.
2. So I welcome this seminar, congratulate the Chief Justice on arranging it, and am delighted to take part in it. In this, my initial contribution, I will concentrate on the nature of the judge’s function in a common law system, and discuss some of the ethical issues which can be said to be inherent in that function, while avoiding topics which are specifically to be dealt with by the other panel members.
3. The traditional role of a common law judge is very much that of umpire in a contest, not the seeker after truth. As Lord Wilberforce put it in the 1983 House of Lords Air Canada case in 1983,
“In a contest purely between one litigant and another, … the task of the court is to do, and be seen to be doing, justice between the parties … . There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and the law, justice will have been fairly done”.
4. Another former Law Lord, Lord Devlin made the same point in a talk in 1970: “Provided that he has been given a fair trial and that the judge has been seen to be careful and impartial, a plaintiff who has been wrongly disbelieved, painful though it may be, ought not to feel that he has been the victim of injustice”. A former Lord Chancellor, Viscount Kilmuir put the point very pithily in a 1960 article, when he wrote “justice comes before truth”.
5. This approach is emblematic of the common law system, sometimes characterised as accusatorial, with two (or sometimes more than two) parties battling it out like two football teams or two tennis players, and the judge acting as a disinterested, detached referee or umpire, only getting involved for two purposes – (i) in order to resolve procedural disputes before or during the trial, and (ii) in order to decide who wins on the basis of an assessment of the evidence which has been adduced and the legal arguments which have been advanced. In criminal cases, the civilian system is very different, with the judge, as a juge d’instruction, in many ways leading the investigation, and therefore being much more of a searcher after truth, a sort of independent player as much as a referee or umpire. And even in civil cases, the civilian judge applies a code, which in an idealistic way is meant to provide the right answer, rather than following and developing judge-made law as in the common law system.
6. In this connection, I have been interested and (I must admit) gratified to learn that the common law accusatorial system has been gaining ground internationally. Over the past year, I have learned6 that three Latin American countries, Mexico, Colombia and Peru, are moving from the inquisitorial to the accusatorial system. I understand that this is said to be justified, at least in part, by the perceived advantage of having a judge who is uninvolved, and is therefore is seen to be impartial. Indeed, since 1988, Italy has been embarking, somewhat hesitantly, on a move away from the inquisitorial system to the accusatorial system.
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The topic of judicial ethics is one which has been comparatively little studied and discussed in academic and judicial circles in the United Kingdom, at least until recently. Of course, the odd case, normally to do with judicial recusal, arose from time to time, but it tended to be dealt with on a one-off basis. However, in a world which is increasingly concerned with openness, regulation and propriety, an increasing concern about the topic is inevitable. Thus, the number of cases concerned with judicial bias (almost always apparent rather than actual bias, I am glad to say) has increased in the past twenty years in the UK. And it is quite right that judges should consider and discuss judicial ethics, and that they should do so not merely among themselves, but with legal and other academics and also with practitioners. One of the most important functions of a judge is to ensure that individuals are dealt with properly by the state, and we judges should therefore be prepared, indeed eager, for the judiciary to be held at least to the same high standards as, and I would suggest higher standards than, the executive.
2. So I welcome this seminar, congratulate the Chief Justice on arranging it, and am delighted to take part in it. In this, my initial contribution, I will concentrate on the nature of the judge’s function in a common law system, and discuss some of the ethical issues which can be said to be inherent in that function, while avoiding topics which are specifically to be dealt with by the other panel members.
3. The traditional role of a common law judge is very much that of umpire in a contest, not the seeker after truth. As Lord Wilberforce put it in the 1983 House of Lords Air Canada case in 1983,
“In a contest purely between one litigant and another, … the task of the court is to do, and be seen to be doing, justice between the parties … . There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and the law, justice will have been fairly done”.
4. Another former Law Lord, Lord Devlin made the same point in a talk in 1970: “Provided that he has been given a fair trial and that the judge has been seen to be careful and impartial, a plaintiff who has been wrongly disbelieved, painful though it may be, ought not to feel that he has been the victim of injustice”. A former Lord Chancellor, Viscount Kilmuir put the point very pithily in a 1960 article, when he wrote “justice comes before truth”.
5. This approach is emblematic of the common law system, sometimes characterised as accusatorial, with two (or sometimes more than two) parties battling it out like two football teams or two tennis players, and the judge acting as a disinterested, detached referee or umpire, only getting involved for two purposes – (i) in order to resolve procedural disputes before or during the trial, and (ii) in order to decide who wins on the basis of an assessment of the evidence which has been adduced and the legal arguments which have been advanced. In criminal cases, the civilian system is very different, with the judge, as a juge d’instruction, in many ways leading the investigation, and therefore being much more of a searcher after truth, a sort of independent player as much as a referee or umpire. And even in civil cases, the civilian judge applies a code, which in an idealistic way is meant to provide the right answer, rather than following and developing judge-made law as in the common law system.
6. In this connection, I have been interested and (I must admit) gratified to learn that the common law accusatorial system has been gaining ground internationally. Over the past year, I have learned6 that three Latin American countries, Mexico, Colombia and Peru, are moving from the inquisitorial to the accusatorial system. I understand that this is said to be justified, at least in part, by the perceived advantage of having a judge who is uninvolved, and is therefore is seen to be impartial. Indeed, since 1988, Italy has been embarking, somewhat hesitantly, on a move away from the inquisitorial system to the accusatorial system.
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The judge, like an umpire in a game, needs to conduct a trial impartially and in an open court. The judge, after hearing all the witnesses and the evidences, decides whether the accused person is guilty or innocent on the basis of the evidences and in accordance with the law. If the accused is found guilty, the judge may give him the suitable punishment according to the law.
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