QC slams move to make judges more accountable

Auckland QC Grant Illingworth

It would be “idiotic” to subject judges to regular performance reviews, Auckland Queen's counsel Grant Illingworth says.

A review of the kind sought by the mother of a murder victim would compromise judicial independence, he says. 

Mr Illingworth was commenting on concerns raised at the law and order select committee about the accountability of the judiciary.

Leigh Woodman told the committee she wanted an independent authority to conduct an annual review of judges' performance.

"There needs to be more accountability for judges who expose the public to undue risk.

“Every year I have a performance review or appraisal on the job I am doing, as do most people in New Zealand, so why are judges exempt from this?

“A performance review is simply a way of saying that someone can tell a judge whether the judge is doing a good job or a bad job and that there will be consequences as a result of that review."

But her concerns cut no ice with Mr Illingworth, who says her proposal was completely inconsistent with the concept of judicial independence.

The “traditional and acceptable way” of correcting errors on the part of judges is to subject their decisions to the scrutiny of the appeal process.

“There’s also the process of judicial review which, for example, was used in the case of the comedian who was resentenced recently.

“So there are mechanisms in place to correct errors on the part of judges and a performance review is simply an unacceptable way of interfering with the independence of the judiciary.”

Mr Illingworth believes judges are more accountable now than they have ever been in the past.

“We now have the Judicial Conduct and the Judicial Commission Act which enables complaints to go to a Judicial Conduct Commissioner.

“So judges are already subject to a complaints process which can be followed in appropriate cases and even in inappropriate cases.”

All very reassuring perhaps, but the commission, which examines complaints of improper behaviour by judges rather than their decisions, appears to be drowning under a flood of complaints as a result of budgetary constraints.

And the commission cannot deal with whether a judge is good or bad on the job.

Judges whose decisions are consistently successfuly appealed get a hurry up from the chief justice or their head of bench, none of which is done publicly.

And judges, while they can be leant on heavily to take early retirement, can only be sacked by Parliament – and then only if they are guilty of some appallingly bad behaviour.

The commission was itself the defendant in a High Court action late last year when a lawyer complained it had not acted on his complaint about the behaviour of a District Court judge soon enough.

During the hearing, Judicial Conduct Commissioner Sir David Gascoigne apologised for the delay and said he was hampered by the volume and complexity of complaints he was receiving and a lack of resources to deal with them.

“The present level of resources – especially people, but also premises and equipment – is increasingly inadequate for the task in hand.

“This is a serious issue, detrimentally affecting the effectiveness of the office,” he said.

In not upholding the complaint, Justice Tim Brewer said it was clear the legislation which established the commission was not working as intended.

“The purpose of the act is, in part, to enhance public confidence in the judicial system by establishing an office for the receipt and assessment of complaints about the conduct of judges.”

Prompt assessment of those complaints was a critical requirement of the legislation, he said.

Lawyer and former ACT MP Stephen Franks says he predicted the commission would be swamped with complaints.

And he says he sympathises with the victims of crime who are calling for the judiciary to be more accountable.

“They’re stunned when they hear that judges aren’t held to account or punished in any way for substandard performance.

“It’s not surprising because as a community we’ve become much more punitive generally about errors.

But, like Mr Illingworth, Mr Franks says he is concerned about the risk to judicial independence from performance reviews.

“I don’t see any easy solution but, that said, the judiciary have seriously dropped the ball in terms of the quality of the system.

“In my working lifetime the length of trials has blown out and judges don’t see it as their responsibility to apply all the remedies that are available to them.”

Mr Franks believes the judiciary could take a leaf from the book of other organisations in terms of accountability and transparency.

“For example, airline pilots welcome investigations into errors provided the pilot isn’t going to be hung out to dry.

“They accept black boxes in their aircraft, they accept a process of investigation and publicity of causative errors.

“Search and rescue do the same for their own operations and try to learn lessons and, in fact, all sorts of organisations now have systematic investigations and publicity when things go wrong.

‘But I’m not aware of any similar process within the judiciary looking at how they might avoid or reduce the incidence of some of the problems you have when some of the judges are consistently known to be naïve or totally idealistic or not inclined to use the tools that are there.

“I think the judiciary should be responding to the concerns that are coming through or they’ll find there will be knee-jerk things forced on them.

“What is needed is leadership from within the judiciary. They have to clean their own house and do it in ways where they come up with ideas rather than sitting there defensively pretending it’s not their problem and it’s not their fault,” he says.

So could New Zealand learn something from the United States where there is regular evaluation of judicial competence?

Mr Illingworth thinks not.

“Our system is very different from what America has where judges are voted in by popular vote.

“There are a lot of things they do which we regard as being antithetical to our values.

“The American system is absolutely not applicable to this country – as soon as you have judges being answerable to the executive you’ve lost the ability for judges to claim that they are free from influence of the executive of government and you’ve lost the concept of the separation of powers.

“We have a great system which means that judges don’t have to fear the consequences other than by way of an appropriate appeal,” he says.

But a paper entitled Judging Judges from the UK-based Foundation for Law, Justice and Society, sees significant merit in the American system of judicial accountability.

Written by Professor Denis Galligan it says European countries have much to learn from the experience of the United States.

“The US has made considerable progress with provision for regular evaluation of judicial competence.

“It includes efficiency in deciding cases, one aspect of which is timelines, another substantive performance.

“It extends to the judge’s handling of the lawyers, the parties and the witnesses, and the ability to conduct proceedings with integrity, treating parties and witnesses according to principles of equality and fairness.

Professor Galligan says judicial competence in the US is assessed in various ways, including each judge’s self-assessment, and observation by and comments of other judges, lawyers and litigants.

“Witnesses, experts and sometimes interest groups are also able to participate in surveys of the judicial performance of individual judges while some benches meet annually to evaluate each other’s performance.”

He concludes by saying that European countries have little to compare with the United States in terms of judicial evaluation.

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15 Comments & Questions

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The problem with the remedy of an appeal process is that it forces additional costs onto the parties which may often be prohibitive. Also the awards of costs to the wronged party are often so limited as to be derisory.

Sometimes appeal courts effectively change the law through their interpretations so the trial judge has not necessarily made an error even though that decision was overturned.

However, I believe that when a decision is overturned on appeal in general the successful party should be compensated properly for the failure of the courts to make a correct determination initially. That penalty should be used to create incentives to get things right asap but with some care to make sure it does not create a disincentive for correcting bad decisions.

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See Alan - you can make a rational contribution to a discussion without emotion or abuse. Well done!

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My patience is limited as to the number and quality of fools I can suffer on any particular subject. However I do try to treat each on its merits.

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"Idiotic" if you have something to hide.

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Corruption = Monopoly & discretion - accountability

without accountability corruption flourishes.

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There obviously should be some way of measuring judicial performance.
This should be followed up by the justice minister.
liberte

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Judges make poor decisions all too often because they have spent most of thier proffessional lives in specialist areas of law usually very competently , when they become a judge they are expected to hear cases in areas of law they know nothing about ,for example town planning or treaty of waitangi specialists becoming High Court judges and than expected to have a good understanding of tax , Trust or criminal Law for example. no wonder we get judges ignoring legal precedent and Act of Parliament and selecting the facts that suit thier particular bias and ignoring what dosent suit. Ask Mr Dotcom . The system brings our Courts into public contempt, a wealthy person or company can always apeal ( Dotcom), but not the average person , they cant aford it , The system does not properly serve its purpose. We need specialisation at the Bar if we are to get quality decisions and outcomes. This is a design fault in the Judical system.Some areas of Law should be inquisitorial (finding the truth than applying the law) as opposed to confrontational (winning at all costs - any trick will do). the system in effect requires proctologists to do brain surgery unacceptable in medical practice 100 years ago.

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It's the first time I've heard it argued that accountability creates a bias, and that non-accountability ensures independence . . . only a lawyer could accomplish that.
The current system isn't working . . . if it was we wouldn't be debating it.

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With due respect to Mr Illingworth QC, he and I took part in litigation last year where even the High Court ruled the Judicial Conduct Commissioner was failing in his obligation to hold Judges accountable, the case citation is

Deliu v Office of the Judicial Conduct Commissioner [2012] NZHC 356, HC Auckland CIV-2011-404-3055 7 March 2012 Brewer J. Readers can find it here: http://jdo.justice.govt.nz/jdo/GetJudgment/?judgmentID=205521

And I quote:

"[48] It is clear to me that the Act is not working as Parliament intended. Indeed, it could be having the opposite effect. The purpose of the Act is, in part, to enhance public confidence in the judicial system by establishing an office for the receipt and assessment of complaints about the conduct of Judges. Parliament recognised that this purpose would not be achieved unless complaints were assessed promptly.

[51] I find that the delay in dealing with the plaintiff's complaint of 14 May 2010 is a failure by the first defendant to carry out his functions under the Act. He has not dealt with the plaintiff's complaint as soon as practicable after receiving it. I accept, of course, that the plaintiff amended the complaint on 19 October 2010 (but that was really an additional complaint) and “finalised” it on 5 July 2011. But it is clear from the first defendant's letter of 12 July 2011 and from his affidavit that the plaintiff's complaint of 14 May 2010 has simply not yet got to the top of the pile; in other words, the first defendant has not yet begun to deal with it to any real extent.

[56]...(a) There is an Act of Parliament, the Act, which is not being given effect as Parliament intended.

(b) The application brought by the plaintiff, coupled with the affidavit of the first defendant, demonstrates that there is both a backlog of complaints and that delays are systemic and constitute a failure by the first defendant to fulfil his functions.

[60] I direct that a copy of this judgment be sent to the Attorney-General and the Minister of Justice."

When a Judge says he is not being held properly accountable you must believe it to be correct. The Attorney and Minister have done nothing to alleviate the situation since writing me pro forma to make clear they will not.

With due respect, as a practicing barrister I see many problems with the judicial branch of government that the JCC does not properly address. His office is in my humble opinion window dressing. The only reason Justice Wilson was held accountable was because it reached the media. The Saxmere issue had been present and Mr Gascoigne had done nothing serious until the Honourable Ted Thomas involvement became public.

I have been investigated and prosecuted for years simply for complaining about Justice Harrison whom I alleged was acting improperly towards counsel. When his brother Justice Randerson intervened against me I complained against his Honour and this has led to years more of investigations and prosecutions. The New Zealand Law Society instead of protecting me as a lawyer has persecuted those who speak out against certain members of the judiciary. I am not the only one and a quick perusal of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal website will find cases such as Comeskey, Dorbu and Orlov as others who have been attacked by judicial branch vis-a-vis NZLS. This, with due respect, is something more becoming of a third world country.

The public are unaware of how deep the problems are and any form of further (real) judicial accountability cannot be anything but a positive step forward. New Zealand is very much backwards compared to Australia, Canada, England and the United States in this area and the small and incestuous size of the legal community only makes matters worse. Those who fight for change are attacked. More accountability is a must if New Zealand is to continue being internationally perceived as a transparent Western democracy.

Whistleblowing by lawyers is perhaps the only hope to improve this dire situation.

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Totally agree, the fact the Wilson did not see and continued to deny a conflict of interest is pima facia evidence of judicial incompetence or a severe lack of common sense and the fact that no real sanction was applied smacks of collusion/corruption at the highest level as do the leaked e-mails.

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Of course judges should come under some sort of review process as do most employees which is what they are. Far too many of them make "soft" or in some cases stupid decisions and yet they are untouchable by those who pay their salaries. If they have nothing to worry about then what is wrong with some accountability.

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Self-regulation has failed in numerous professions and is failing in this one too. Illingworth is saying that judges should continue to judge each other, but they are an old boys club and can't be trusted to, as is proven every day by inadequate sentencing and appeal court decisions backing those mistakes to protect their own kind. Judicial independence is OK if sentencing is governed by the view of the people, which it is not.
I vote for proper accountability, like everyone else has in their jobs.

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My wife and I were involved in a 2-year protracted gagging order battle in NZ's Family court. We eventually won the cases thus maintaining our freedom of speech. However the process was so corrupt that we fled the country in fear. The Family court is New Zealand's Guantanamo Bay where, cloaked in secrecy, the State does it's dirty deeds beyond the contraints of the law and the rule of law. In our experiences, 6 out of the 8 principles that comprises the rule of law as identified by Lord Bingham, were seriously violated. Even though my wife and I were innocent and we won our cases, witnessing the violations of the law and the rule of law inside the courtroom terrified us to such as entent that we packed up and fled NZ taking our high-tech business with us.
Alan Wilkinson, I really like your ideas on compensation.

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Interesting that a lawyer can't see any issues with the existing process. Of course an appeals process is great, because it creates lots more revenue for his ilk, at the cost of everyone else. The Police are in the eyes of the media day in day out, subject to a ton of scrutiny as they should be. What about the judiciary? Lawyers as well?

The sins of both the judiciary and more particularly lawyers in NZ (who are self-policed) could benefit from being exposed to a bit of sunlight...

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It comes down to a simple case of economics. those who can afford Justice get it ( eventually ) those who cant afford it don't

the reality is that Judges are over loaded and look for short cuts to get matters out of court , evidence does not play a part but the reliance on the word of a lawyer who may not be being honest does .

Lawyers take on cases to win at all costs and forget about their obligations to section 4 of the lawyers and conveyancers act .

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