The principle of open justice: a comparative perspective



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THE PRINCIPLE OF OPEN JUSTICE: A COMPARATIVE PERSPECTIVE*


THE HONOURABLE JJ SPIGELMAN AC**

I INTRODUCTION

In Anglo-Australian discourse the principle of open justice is most frequently expressed in the form of an aphorism attributed to Lord Chief Justice Hewart from his Lordship’s judgment in R v Sussex Justices; Ex parte Macarthy:

It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.1

The aphorism is not well known in the United States, although it was referred to indirectly by Justice Frankfurter and directly by Justice Kennedy.2 Lord Hewart’s pithy aphorism about the principle of open justice encapsulated a proposition that had been long known and often expressed in different ways. Another articulation was that of Lord Atkin who once said: ‘Justice is not a cloistered virtue’.3 And Lord Bowen once said: ‘Judges, like Caesar’s wife, should be above suspicion’.4

Lord Hewart was the Solicitor General in Lloyd George’s government and, when F. E. Smith became Lord Chancellor, was promoted to Attorney General. The then British practice was that an Attorney General had a right to be appointed Lord Chief Justice of England, if the office fell vacant during his term of office. When that occurred in 1921, Lloyd George refused to dispense with Hewart’s services, or at least refused to risk a by-election. He promised to appoint Hewart as soon as he could. Accordingly, a High Court Judge aged 78 was appointed in his stead. Lloyd George protected his colleague by obtaining an undated, signed letter of resignation. The very next year that new Lord Chief Justice was astonished to read of his own resignation in The Times. Hewart was Lord Chief Justice from 1922 to 1940.

These days Lord Hewart is probably best remembered for his publication The New Despotism, a series of newspaper articles published as a book in 1929. This was an attack on the rising power of the bureaucracy expressed in intemperate and politically charged language and advancing a ridiculous conspiratorial thesis. Such conduct was unprecedented by a senior English judge and has never been imitated since. However, the basic themes continue to resonate today, as Lord Bingham indicated in his lecture entitled The Old Despotism, whilst distancing himself from the partisan vitriol of his predecessor.5

Must we attribute the open justice aphorism to Lord Hewart? If we do, the proposition that ‘justice must be seen to be done’, could hardly have a less auspicious provenance. Even the English Dictionary of National Biography, which usually confines its entries to the bland list of facts customarily found in a Who’s Who, could not contain itself in the case of Lord Hewart. It described him as: ‘Brilliant advocate; less successful as judge through tendency to forget he was no longer an advocate’.6 Professor R M Jackson, in his book The Machinery of Justice in England, referred to the system by which an Attorney General had a right of appointment as Lord Chief Justice in the following way:

In 1922 this system landed the country with Lord Hewart as Lord Chief Justice, who proved to be a judge so biased and incompetent that he seems to have caused a reaction against it.7

In the seventh edition of his book published in 1977, Professor Jackson had referred to Hewart as ‘the worst English judge within living memory’.8 This reference was deleted from the eighth edition of 1989. Perhaps, in the intervening decade, other contenders had emerged for the title. Lord Devlin, however, displayed no doubt when he wrote in 1985:

Hewart … has been called the worst Chief Justice since Scroggs and Jeffries in the seventeenth century. I do not think that this is quite fair. When one considers the enormous improvement in judicial standards between the seventeenth and twentieth centuries, I should say that, comparatively speaking, he was the worst Chief Justice ever.9

Lord Hewart may very well have presided over the worst conducted defamation trial in legal history: one Hobbs suing the Nottingham Journal.10 Of the litany of misconduct found by the Court of Appeal to have been committed by Lord Hewart during the course of this trial, it is sufficient to note the following:


  • Rulings were made against the Plaintiff without calling for submissions from Counsel for the Plaintiff.

  • His Lordship accused the Plaintiff, in front of the jury, of fraudulently concealing documents and failed to withdraw the accusation when informed that the document had in fact been disclosed.

  • He permitted two days of cross-examination on matters of bad reputation, including allegations of criminal conduct which had never been particularised.

  • His Lordship received communications from the jury which were not disclosed to counsel.

  • He failed to give the jury any summing up or any directions as to the limited use they could make of cross-examination of the plaintiffs.

  • He failed to leave critical issues to the jury.

  • When the jury indicated a tentative view in favour of the Defendant, his Lordship orchestrated an early end to the trial, before they changed their minds.

  • He then refused to permit an adjournment of a second defamation trial against the same Defendant – suggesting the same jury should hear the second case immediately.

He thereupon entered judgment for the Defendant in the absence of counsel for the Plaintiff.

The reputed author of the aphorism ‘justice must be seen to be done’ never indicated to the jury that they were entitled to ignore his Lordship’s numerous expressions of opinion on the facts or his adverse comments about the veracity of the Plaintiff, upon which grounds of appeal the Court of Appeal found it unnecessary to rule, being content with the observation of Lord Justice Scrutton, in accordance with the demure standards of the time, that: ‘I regret that, with much better grounds available, it was thought right to insist on them’.11 Many would wish that appellate courts were still so reticent.

Again I ask, must we continue to attribute the important aphorism about open justice to such a judge?

The last word from the Nottingham Journal Case belongs to Lord Sankey. In his judgment, his Lordship said, with reference to the false accusation of fraudulent non-disclosure of documents, that it was ‘unfortunate that the Lord Chief Justice did not appreciate’ the correctness of certain submissions made to him. Lord Sankey concluded:

The Bar is just as important as the Bench in the administration of justice, and misunderstandings between the Bar and the Bench are regrettable, for they prevent the attainment of that which all of us desire – namely, that justice should not only be done, but should appear to have been done.12

His Lordship cited no authority for this proposition. Perhaps he was indulging in a little whimsy. Alternatively, perhaps Lord Sankey, who six years earlier had merely concurred with Lord Hewart’s judgment in R v Sussex Justices, was giving us a hint as to the true origins of the aphorism. For myself, I am content for the future to quote Lord Sankey.




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