QC slams move to make judges more accountable
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.
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.