Wednesday, 18 May 2016 14:52

Yes, New Zealand Judges are Above Criticism

But their Judgments are Not

Napier, MSCNewsWire, Wednesday 18 May 2016 - In the entire sphere of jurisprudence in New Zealand nothing is quite so obscured or subject to so much ambivalence, tautology or sheer confusion as the matter of the right of citizens to censure members of the judiciary who in this matter give the impression of being as bemused on the topic as the public at large.

In the English speaking world the problem appears peculiar to New Zealand in the same way that otherwise learned and cultivated people describe here a collective of females as a group of “woman.”

The very simplicity seems to render it beyond any comprehensible analysis and thus definition.

This confusion visibly vexed Law Lord Leslie Scarman who, at a conference here, said, and we quote....

“I am going to speak to this only one more time.....It is this........You may criticise the judgment. But you many not criticise the judge.”

This succinct appraisal by Lord Scarman (pictured at the time of his visit to New Zealand) evidently fell on deaf years. So we will now paraphrase the rest of Lord Scarman’s discourse as his audience insisted on further clarification on this issue which has now entered such a fevered phase.....................

Judge John Doe, as we will call him, delivered a mild custodial sentence to an individual who painstakingly plotted the death of an innocent person going about their daily business. The individual thus sentenced, it transpired, had a criminal past and in the eyes of reasonable persons might sensibly be regarded as presenting an enduring menace to society.

Following their release after their relatively brief time in prison the individual in fact became a lethal menace to society.

A reasonable person might now reasonably cause to say or to be published words to the effect that the judgment was wrong , and misguided, and might be deemed to have even caused the death of an innocent person.

So far so good. The judgment is being criticised. Not the judge.

What cannot be said or caused to be published is that Judge John Doe came to the judgment because he, Judge John Doe, was:-
    * A drunkard
    * Of impaired mental powers
    * Knew or was otherwise acquainted with the accused

This type of criticism of a trial judge technically triggers extremely severe repercussions on those who utter them or cause them to be otherwise broadcast or published.

In New Zealand though such commentaries have been allowed to pass by, especially the one centred on the trial judge having some sympathy with the accused through acquaintance or some other common interest.

The current and demonstrable confusion on this matter and exhibited all levels of society including the judiciary itself must now be clarified and done so using the concise definition provided by Lord Scarman.