The 21st Century Judge: Responding to the by Civic Exchange

THE 21ST CENTURY JUDGE: RESPONDING TO THE CHALLENGES OF A CHANGING WORLD

ADDRESS BY HILARY HEILBRON QC TO THE CIVIC EXCHANGE, HONG KONG, DELIVERED ON 21 OCTOBER 2004

The 21st Century Judge: Responding to the Challenges of a Changing World

Growth of the law The Judge’s role is pivotal to the rule of law, but it is a role which cannot be exercised in a vacuum. In upholding the law the Judge reflects the contemporary values of society. These values change over time and so does the law. As Benjamin Cardozo, the distinguished American judge and jurist of the early part of last century, put it:

“Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters for the night is not the journey’s end. The law, like the traveller, must be ready for the morrow. It must have a principle of growth.” The law’s journey to the dawn of this century has been one of continual development to reflect the changing needs of society over the ages. This is true of all democratic and civilised nations. But what of the challenges of today and tomorrow? What are these challenges? How have the courts dealt with them? How will the courts deal with them in the future? Where and how far will they travel? These issues transcend national borders and affect us all.

Sitting here tonight, blackberries to the ready, mobiles vibrating in our pockets, it is hard to comprehend fully the vast changes that have taken place in the world in the last decade alone. The recent technological revolution has given us instant global communication and access to almost limitless information via the worldwide web. In medicine we have seen advances unimaginable only years ago which mean that people are being kept alive when previously they would have died. In the expansion of terrorism, all nations now face the potential threat of the suicide bomber, no respecter of life, not even their own. I address this evening how today’s Judge has sought to meet the challenges thrown up by contemporary society. My emphasis is inevitably on the jurisdiction with which I am most familiar, for although having been a regular visitor to Hong Kong for over 25 years, I am necessarily not as well acquainted with the body of its jurisprudence as with my own. But the challenges are universal and embrace all jurisdictions.

A judge’s role is to uphold the law. In so doing he interprets legislation and the constitution and he develops the common law. He has been described as “the bridge between law and society”1.

Today’s Judge comes into increasing conflict with the state and the executive, particularly with the growth of judicial review. As a consequence he is subject to more sustained and sometimes intensely personal criticism from politicians than was the case in the past. He faces often extremely difficult moral and legal issues making effectively life or death decisions in relation to sick citizens. Moreover, he now is not just a lawmaker, but a manager of cases with pragmatic considerations of cost, speed, and proportionality to consider.

Judicial Independence At the heart of the judicial process, however, is the judge’s independence. Independence from the executive and legislature and also independence from the parties – a judge cannot be judge in his own cause. Judicial independence is part of the separation or balance of powers. It provides a form of reciprocal checks and balances among the three entities.

As Murray Gleeson, Chief Justice Australia said: ”If it were no longer accepted, or assumed, that citizens receive equal treatment before the law when in dispute with governments the consequences for our society would be extremely grave. Although judges are servants of the public, they are not public servants2.” In many countries such as the United States, judicial independence is embedded in a written constitution. In Hong Kong it is enshrined in Articles 19(1), 85, 88 and 89(1) of the Basic Law. In England, we do not have a written constitution, but it has been acknowledged largely unchallenged. The anomalous position of Lord Chancellor has been abolished, although there is now talk of it remaining in a more limited role. Part of his role has been replaced by a Minister for Constitutional Affairs and, more

Aharon Barak – “A Judge on judging: The role of a Supreme Court in a Democracy” Harvard L.R. Vol.116 No 1 November 2002. 2 “The Role of the Judge and Becoming a Judge”. 1998

pertinently, the Constitutional Reform Bill provides for judicial independence from the executive.

Judicial independence is the touchstone of the rule of law.

It enables judges to

uphold the law without fear of threats or other interference or repercussions from those over whom they pass judgment, be they the executive or other litigants. One has seen over the ages, in different parts of the world, how brave judges adhering to the basic tenets of their judicial oaths have stood firm against repressive and tyrannical governments. Often they have been the only glimmer of light on an otherwise dark political horizon. But even today and even in great democracies such independence can be sorely tested. Such pressures must be resisted if the rule of law is to prevail.

Judicial Impartiality Equally important to the role of the judge is judicial impartiality. The judicial oath provides not only that the judge shall act according to the law without fear, but also without favour. No litigant is entitled to preferential treatment – all are equal before the law. The Judge must not have any actual or perceived bias in favour of one party over another. As Lord Bingham explained in a recent case:

“He must be free of any influence which could prevent the bringing of an objective judgment to bear or which could distort [his] judgment, and must appear to be so.” In 1998 General Pinochet, the former dictator of Chile, was in England receiving medical treatment when a Spanish judge issued an international warrant for his arrest to face charges in Spain relating to crimes against humanity. A warrant for his arrest was issued in England and extradition sought. The case reached the House of Lords. The issue was whether General Pinochet was protected by sovereign immunity. By a majority the House of Lords did not support the sovereign immunity argument. It then emerged that one of the majority, Lord Hoffman, had failed to disclose in public that he was the chair of the charitable wing of Amnesty International – the intervening party in the case - and that his wife was employed full time by that same human rights organisation.

A petition for re-hearing was successful on the basis of perceived bias, the House of Lords concluding that as the ultimate court of appeal the court had inherent jurisdiction to correct any injustice caused by being subjected to an unfair procedure. The case was then re-heard by a different seven judge panel with the same result.

Lord Hutton said: “public confidence in the integrity of the administration of justice would be shaken if the decision stood.3” The Pinochet case was, on the one hand, a low-water mark in our judicial annals. But, on the other hand, it was a high water-mark for judicial independence and integrity, for it shows that however difficult the decision, our judges will not shirk their responsibility of upholding the integrity of the judicial process, even if it means policing their brother judges4.

Independence and impartiality are the foundations of the judicial process. So too are fairness and the right to be heard. The Judge still has, however, to apply and develop the law.

Judge’s role in creating the law There has been a seismic shift in recent years away from formal legalism and the view that judges only apply or declare the law to a modern recognition that judges create and change the law.

It is now recognised that as new and difficult issues face the courts, the answers to issues of public policy and legal principle cannot always be found exclusively in the law reports. Judges have to extract legal meanings from words, discern the legislative purpose of a statute or constitution. Sometimes these meanings are clear, sometimes they are obscure and ambiguous.

Sometimes they were intended for another

generation and have to be interpreted to make them compatible with contemporary

Reg v Bow Street Magistrate, Ex p. Pinochet (No 2) [1999] 2 WLR 272. In a more recent case, the House of Lords held that there was a risk of apparent bias which vitiated the court’s decision when a judge, Lord Hardie, was called upon to rule judicially, in this case in Scotland, on the effect of a piece of legislation that he had drafted or promoted during the parliamentary process when he had been Lord Advocate. Davidson (AP) v Scottish Ministers [2004] UKHL34.

society’s values.

Judges have to recognise that the law they lay down may have

implications not just for the case before them but for other cases in the future.

As Lord Browne Wilkinson explained:

“The whole of the common law is judge-made and only by judicial changes in the law is the common law kept relevant in a changed world.” Choices This means, as Justice Kirby of the High Court of Australia explained in his recent Hamlyn Lecture :

“In finding the applicable rule of the common law or of equity, in choosing the preferable meaning of a contested statutory text and, above all, in construing the words of a constitutional document, judges have choices5”. Such choices have to be made or discretion exercised anchored in legal principle and authority. A judge cannot go out on a whim of his own or promote his or her own personal preference or idiosyncrasies.

Novel cases in particular require evaluative choices: a balancing of various competing interests and values, often conflicting and sometimes controversial. One example is the balancing of different individual’s human rights against each other, one person’s rights may be limited by another’s or by state interests such as national security. Each case will be different and ultimately often turn on the application of its own facts to legal principles. Sometimes facts may weigh heavily in favour of one course of action and against another. On other occasions the matter may be more evenly balanced. Sometimes the legal principle itself is new and evolving.

The eminent American jurist, Roscoe Pound, encapsulated the issue when he said:

“Justice, which is the end of the law, is the ideal compromise between the activities of each and the activities of all in a crowded world.”

“Judicial Activism” The Hon. Justice Michael Kirby AC CMG –The Fifty Fifth Hamlyn Annual Lecture.

The traditional ties to precedent and certainty have thus loosened in recent years in favour of an approach which inevitably leads in some cases, such as cases involving public policy, to an element of unpredictability. Lord Bingham in a recent case in acknowledging that fairness was paramount commented pithily: “Precedent should act as a guide not a cage.”6

But if the golden thread in the judicial process remains justice and fairness, then it is the price we should pay for less predictability and certainty.

Part of this inherent unpredictability derives from the fact that different judges may reach different conclusions in achieving justice. This applies at all levels of the judiciary. Majority appellate decisions, sometimes decided by one vote, can turn on the make up of the panel. Sometimes cases are won by a majority in the final court of appeal when the total tally of the judges hearing the case through the various levels of the judicial hierarchy came to the opposite conclusion. This has always been the case even at a time when the courts adhered strictly to the doctrine of precedent. There was always the maverick judge, the progressive judge and the reactionary judge. These characteristics are no more than a reflection of the human population. Unless we replace judges with robots this is inevitable.

Composition of the Judiciary It is, therefore, important that our judiciary do, as far as possible, represent current society. There is little doubt that the composition of the judiciary is changing to make it more representative of society. Women now make up an increasing percentage of the judiciary and minorities too are becoming judges7. In England the judiciary is likely to become more representative with the imminent introduction of a Judicial Appointments Commission with lay representation. A similar system is provided for here in Hong Kong under Article 88 of the Basic Law.

Challenges 6

R v Inland Revenue Comrs, Ex p Unilever plc [1996] STC 681. In England the Government has recently published a consultation paper entitled: “Increasing Diversity in the Judiciary.” 7

So what of the challenges facing this modern judge?

The first challenge judges face, in my view, is to themselves. The judges are now far more exposed to public scrutiny in all common law countries than they have been in the recent past8.

Judges have, in recent years, come under ever increasing attack, sometimes intensely personal, from politicians.

The media similarly are openly critical of judicial

decisions. This is a result partly of judges becoming more involved in cases and issues which are seen as political. In England, the introduction of the Human Rights Act in particular has moved the judges into a realm where they have become more exposed to such trenchant criticism. In Hong Kong the Judiciary have similarly been criticised about their decisions, notably in respect of the right of abode cases. Intemperate language has been used to attack judges in many other jurisdictions too.

In England asylum issues have been particularly controversial prompting direct and vocal criticisms of judicial decisions by the Home Secretary, David Blunkett.

Similar exchanges have taken place over sentencing policy and the setting of tariffs, both when Michael Howard was Home Secretary and now with David Blunkett. Both times the judiciary have sought to resist inroads into their discretion and independence to decide sentences in individual cases.

Judges are frequently called upon to hold inquiries over highly charged political issues such as the Hutton inquiry into the death of David Kelly last year or the Bloody Sunday Inquiry into the shootings in Northern Ireland chaired by Lord Saville. Whenever there is a hot political issue or a catastrophe or some alleged cover-up, the clamour is for an independent judicial inquiry. The reason: because the public has trust in the integrity of judges.

Although judicial criticism is not entirely new. Chief Justice Marshall of the US was severely criticised for his landmark decision of Marbury v Madison 1803 making the Supreme Court the final arbiter of the meaning of the US Constitution and giving it the power to declare acts of Congress, and by implication acts of the President, unconstitutional.

It was therefore ironic, but probably not unexpected, to compare the very favourable press given to Lord Hutton at the start of his inquiry last year lavishing encomiums of praise as to his fairness and impartiality, as was the case, with the very different and highly critical press he got, when he strongly criticised the BBC and largely exonerated the government.

Challenge to judicial independence The principle challenge to the role of the judge from his increasing involvement in what one might term pseudo-political cases is to judicial independence. These cases, of course, are not political in the real sense, because judges do not decide political issues, but the undercurrent of the legal decision has clear political overtones. Moreover, judges have no control over the cases they decide and can only mould the law as and when individual cases randomly reach their courts.

No one relishes the prospect of criticism by politicians or in the media, but judges have to be resolute in their retention of independence.

Meeting this challenge should not be confined to the judiciary. It is the responsibility of all lawyers throughout the world. It is pleasing therefore to note that the Human Rights Institute of the International Bar Association is holding a session at their meeting in Auckland next week entitled â&#x20AC;&#x153;Politicisation of the Judiciary.â&#x20AC;?

We must also ensure that appointments to the judiciary continue to be made on the basis of merit and not political leaning, a tradition in the US which is not an example to emulate. We have all seen the interrogations to which new appointees to the Supreme Court are subjected. One wonders, for example, if Bush v Gore would have been decided differently and Al Gore become the President of the US if the Supreme Court had been differently composed.

Transparency Judges inter-face with the public through their judgments. Their judgments provide a degree of accountability and transparency to otherwise unelected positions. It is vital that the public retain confidence in their judiciary. A judiciary which has the public

confidence is able to withstand political pressures to its independence more easily. Judges today attract a high degree of confidence in their integrity and independence.

The primary means by which their judgments become known to the public is through the media. People tend to believe what they read in the papers. Unfortunately, one frequently reads a summary of the decision which bears little resemblance to the actual decision. Sometimes this is because it makes a good story. Sometimes because it forms part of the spin used by politicians to air their views. Other times, it is because journalists are not lawyers and they do not fully understand the decision.

A part of the problem, I believe, and this is a purely personal view, is the length and complexity of some judgments. In the final courts of appeal there are often five different judgments reaching the same or different results and in some jurisdictions such as Australia, each of these is inordinately lengthy and detailed. While this divergence of views provides the foundation on which the law grows in future cases, it is nonetheless difficult for lawyers to decipher, let alone the proverbial man on the Clapham omnibus or the Hong Kong ferry or the average journalist or politician.

I wonder therefore, if I may be so bold as to make one suggestion to ensure greater transparency and comprehension of decisions.

I believe that if judges were

encouraged more frequently to provide a summary or synopsis of their decisions with basic reasoning in appropriate cases, particularly where the matter is highly controversial or has wide political overtones and implications, or where the reasoning is highly complex, it would, perhaps not remove â&#x20AC;&#x201C; but at least reduce - the likelihood that the decision would be misrepresented. That is not to say it should happen in every case â&#x20AC;&#x201C; it would be far too burdensome.

There have been precedents in England, such as a very lengthy commercial case where the judgment ran to over 800 pages9 and a recent case involving difficult issues as to whether to allow artificial prolongation of life10. I noticed too that the Final Court of Appeal provided a very helpful summary in the recent case brought by the 9

Sphere Drake Insurance Ltd v Euro International Underwriting Ltd & Ors [2003] EWHC 1636. A good recent example of a summary is Munby J in R (on the application of Oliver Leslie Burke) v General Medical Council & (1) The Disability Rights Commission (Interested Party) (2) The Official Solicitor to the Supreme Court (Intervenor) 2004. 10

Society for the Protection of the Harbour against the Town Planning Board relating to the Protection of Harbour Ordinance which Ordinance was initiated, of course, by Christine Loh11.

Whether it forms part of the decision or does not as in the Harbour case, would be a matter for the judges. A crib, or do adopt the buzz word - skeleton argument - which the Press – and for that matter – politicians could use would, I am sure, be beneficial. Judges are no longer immune from fair and informed criticism in the media and elsewhere, - nor in a free democracy should they be - but criticism based on an illinformed and inaccurate understanding of judicial decisions is deleterious to the judicial process.

Global terrorism Another challenge for today’s judge are the legal implications of global terrorism. When we se on our television screen the horrors of 9/11, the carnage of the Madrid bombings and, more recently, the unspeakable slaughter of innocent children at Beslan, one can understand the impetus for revenge. Whatever the provocation, for people to take the law into their own hands can only descend into anarchy. The bereaved, are, as everyone, subject to the law. What of the suspects? Are they entitled to the law’s protection? The President of the US did not think so.

By Presidential decree he issued an order providing for the trial by military commissions of persons accused of violations of the laws of war and some 660 prisoners have for over two years been imprisoned first at Camp X-Ray and then Camp Delta at Guantanamo Bay.

The clamour for justice for these individuals, some quite young, was strongest from the lawyers, but until the recent majority decisions of the Supreme Court in Hamdi v Rumsfeld and Rasul v Bush, they were not allowed to challenge the legitimacy of their executive detention and apply for habeas corpus or have access to a lawyer.

Town Planning Board v Society for the Protection of the Harbour Limited FACV000014/2003.

In the former case an American citizen wished to challenge his enemy combatant status. The court balanced the competing interests of the President in his assertion that the applicant’s potentially indefinite detention was necessary for national security, with the constitutional right of the individual to his liberty. In the latter case, brought by two Australians and twelve Kuwaitis, the court found that habeas corpus did extend to foreign nationals wishing to challenge their detention12.

In acknowledging such jurisdiction in Hamdi Justice O’Connor speaking for the majority said:

“Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during the most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested: and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad”. The judicial check on the executive’s actions ruled, at least in these cases. The Supreme Court met the challenge. Without access to the courts, these prisoners faced indefinite detention without the opportunity of challenging their enemy combatant status.

But there is a wider issue here. If the Supreme Court had not decided as they did – I ask rhetorically what signal would it have given to the executive?

This type of challenge to the rule of law in Guantanamo Bay is not new: it may be a new century and the nature of the war different but, as Lord Steyn said recently in his F.A.Mann lecture13:

It also rejected the rather spurious argument of the executive that habeas corpus did not have extraterritorial reach on the grounds that the US only had plenary and exclusive jurisdiction, but not ultimate sovereignty over Guantanamo Bay Naval Base which sovereignty rested with Cuba from whom it was leased.

“Guantanamo Bay – the legal black hole.”

“It is a recurring theme in history that in times of war, armed conflict, or perceived national danger, even liberal democracies adopt measures infringing human rights that are wholly disproportionate to the crisis.” He continued: “But there is a caution that unchecked abuse of power begets ever greater abuse of power. And judges do have the duty, even in times of crisis, to guard against an unprincipled and exorbitant executive response.” As I speak a panel of nine Law Lords is deliberating on whether a number of foreign nationals should continue to be detained at Belmarsh prison on suspicion of terrorism under the Ant-Terrorism, Crime and Security Act14.

Some jurisdictions go further in determining what is justiciable by the courts than others. The Israeli Supreme Court, no doubt because of their long history of subjection to terrorism, has taken a more activist view and rejected the concept of non-justiciablity.

President Aharon Barak, in a case where the Supreme Court held that violent interrogation of a suspected terrorist was unlawful, even if doing so may save human life by preventing impending terrorist acts stated:

“We are aware that this decision does not make it easier to deal with that reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.” If courts cannot fulfil their role in times of terrorism and war, then it will be difficult for them to do so in times of peace and security.

The challenges from the executive in peacetime So what are the challenges in peacetime? They are to ensure that the executive acts within the law, that it does not act without authority i.e. exceeds or abuses its powers or acts irrationally or for the wrong reasons, or additionally in the UK in the context of the European law and the Convention on Human Rights, that it acts proportionally. 14

This provided for opting out of Article 5 of the ECHR.

A vast body of jurisprudence has developed in relation to administrative law over recent years on this topic. Ministers in England even have a pamphlet entitled “The Judge over your shoulder.” Tonight is not the time for a law lecture.

Mr Justice Nolan, as he then was, put it succinctly when he explained:

“The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the court as to what its lawful province is.15” The range of cases in which the courts will intervene is enormous. In England: from cases involving international considerations 16 to a host of asylum cases to cases involving local authorities and other government entities.

There may be a big difference between the will of parliament as expressed in legislation and the policy of the executive government from time to time. Judges do not substitute their personal views for that of the original decision-maker. Their role is to see whether the executive acted within the law be it legislation or a constitution or acted reasonably from an objective point of view.

In Hong Kong the judiciary inter-acts with the state principally at three levels. First, in their interpretation of the Basic Law and the allocation of interpretive rights as between the Final Court of Appeal and the Standing Committee of the National People’s Congress under Article 158, the subject of a series of right of abode cases17. Secondly, in their ability to strike down as unconstitutional legislative acts contrary to the Basic Law; and thirdly, more generally under ordinary judicial review principles ranging from issues of fundamental rights and compliance with the Basic Law to a host of other matters.

M v The Home Office. Such as when the Court of Appeal declared unlawful the decision of the Secretary of State for Foreign and Commonwealth Affairs to grant financial aid for the funding of the Malaysian Pergau Dam on the grounds that it was so economically unsound as not amount to development potential within the relevant statute: R v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd (1994). 17 Ng Ka Ling & Ors v The Director of Immigration FACV000014-16/1998;FACV000016A/1998; Chan Kam Nga & ors v The Director of Immigration FACV000013/1998; Lau Kong Yung & Ors v The Director of Immigration FACV000011/1999;The Director of Immigration v Master Chong FungYeun FACV000026/2000. 16

There is little doubt in England, and in other countries too, that some judges take a more activist view of the extent to which and the basis on which they can intervene than others, particularly where fundamental rights are concerned. Judges tread a delicate path between restraint and activism tempered at all times by the need to found decisions on legal authority and principle. Inevitably, as I mentioned earlier, this brings the judges increasingly into conflict with the executive and the state.

Public policy Another challenge for the modern judiciary is in the realm of public policy including moral and ethical issues. Judges have frequently had to decide such issues. In the early 1960s, the majority of the House of Lords18 affirmed the existence of a common law offence of conspiracy to corrupt public morals in relation to the publisher of a booklet, the Ladies Directory, which set out the names, addresses and telephone numbers of prostitutes.

Lord Simmonds explained that in the sphere of criminal law particularly where the issue was a novel one there remained a residual power to:

â&#x20AC;&#x153;enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State.â&#x20AC;?

Moral standards and public policy change with the times19. For example homosexual relations between consenting adults is no longer a criminal offence. Moral issues arise in other contexts too. There have been several recent and tragic cases involving the right to die and the right to live where the medical profession has understandably sought guidance from the courts to avert the risk of committing criminal offences. These life and death decisions are now left to the judiciary who have to evolve legal principles such as what is in the best interests of the patient and exceptions to the sanctity of life to the unusual and different facts of such cases.

Shaw v Director of Public Prosecutions 1962 A.C. 223. The relationship of religion, morality and the law prompted partly by this case and contemporaneous legislation spurned the famous Hart/Devlin controversy, a series of essays written by the late Professor Hart, Professor of Jurisprudence at Oxford and the late Lord Devlin.

They include such cases as to whether to turn off life-saving equipment given to someone in a vegetative state20; to determining when artificial feeding and hydration could be withdrawn from a competent patient21; to refusing to exculpate in advance a husband of a dying woman if he assisted in her suicide22; to sanctioning the separation of Siamese twins against the wishes of the parents where the operation would inevitably lead to the death of one of the twins, but was likely to save the life of the other, who would otherwise die, and who could thereafter lead a relatively normal life23.

Only a couple of weeks ago, in another tragic case involving a small baby, the difficult decisions facing judges were encapsulated in a newspaper headline which read: “Today a judge must make a choice between parents, doctors and a baby’s life.24”

These cases raise issues of medical law and ethics which could potentially affect all of us. Our human rights, our right to dignity as a human being, are now ultimately in the hands of the courts if we are not capable of taking the decision ourselves. The courts have taken on the semblance of the deity in this regard. The Medical Capacity Bill25, if passed, would advance these principles, but the cases would still have to be resolved by the courts.

Public policy issues abound in other areas too. There is increasing concern in the UK, echoed by politicians and judges alike that we are importing from the US an unhealthy compensation culture society, when every misfortune is the fault of someone else and citizens fail to take responsibility for their own actions. This compensation culture is not limited to personal injury cases, but in its commercial guise extends to those who sue parties with deep pockets.

Airedale N.H.S.Trust v Bland [1993] A.C. 789. R (on the application of Oliver Leslie Burke) v General Medical Council & (1) The Disability Rights Commission (Interested Party) (2) The Official Solicitor to the Supreme Court (Intervenor) 2004. 22 R v Director of Public Prosecutions ex parte Dianne Pretty (Appellant) & Secretary of State for the Home department (Interested Party). 23 In re A (Children) (Conjoined twins: Surgical Separation). 24 The Times 30 September 2004. 25 There is also a private members’ Terminally Ill Bill being brought in the House of Lords which would provide for a form of euthanasia if passed. 21

The courts have therefore had to lay down some guidelines in the law of negligence. Although the basic cause of action is clear, in borderline cases the judges have to evaluate the choices they make by reference to considerations of legal policy. Considerations such as whether the duty of care in the circumstances would impose indeterminate liability on an indeterminate class, the potential exposure of people unreasonably to liability to others, whether it will give rise to intolerable economic burdens; whether it will have adverse implications for the availability of liability insurance etc. are all relevant.

Thus, for example, in a claim for negligence against accountant auditors brought by shareholders who had purchased shares in reliance on the company’s accounts, the House of Lords held that the auditors did not owe a duty to potential investors26.

At the other end of the spectrum a 27 year old man who dived when recklessly drunk into a swimming pool while on holiday in Cyprus was held to be the author of his own misfortune and could not claim damages from the holiday company27. Similarly the House of Lords recently found that a defendant local authority did not owe a duty of care to paint a marking on the surface of the road or to erect signs warning the Claimant to slow down as she approached the crest of the road where her accident occurred28. Lord Steyn explained the dilemma facing the courts thus:

“This [ i.e. the law of negligence and statutory duties and powers] is a subject of great complexity and very much an evolving area of the law. …on the one hand the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy. On the other hand, there are cases where the courts must recognise on principled grounds the compelling demands of corrective justice or what has been called “the rule of public policy which has first claim on the loyalty of the law: that wrongs should be remedied…. Sometimes cases may not obviously fall in one category or another.”

Carparo Plc v Dickman [1990] 2 WLR 358 Balram Singh v Libra Holidays Ltd (2003)EWHK 276 (QB). So too in another swimming pool accident when a visitor fell down her neighbours steps turning as entering the pool, her claim failed: Jane Olive Ingram v (1) George Davison-Lungley (2) Danica Davison-Lungley (unreported 2000). 28 Denise Gorringe (By her litigation friend June Elizabeth Todd) v Calderdale Metropolitan Borough Council [2004] UKHL 15. 27

Privacy and breach of confidence cases have also provided fertile grounds for issues of public policy, the courts frequently having to balance the right to privacy with the freedom of expression29.

Public policy, of course, can also permeate commercial cases and potentially render contracts unenforceable or even void.

Such issues also arise in relation to constitutional issues. A constitution is a living instrument and has to be interpreted in accordance with the current times. For example the Supreme Court of the US by a majority struck down as contrary to the Equal Protection and Due Process clauses of The Eighth and Fourteenth Amendments the provisions of a Texas law criminalising adult, consensual, private homosexual conduct30.

All these cases call for difficult judgments applying the principles to the facts of the case. But they also show how the judges continue to mould the law to reflect the changing needs and views of contemporary society together with the changes in the law, particularly, in the English context, the Convention on Human Rights.

Procedural Reforms Finally, let me consider briefly the challenge facing judges in relation to the court process itself.

In many jurisdictions attempts have been made in recent years to slim down the court process, to reduce costs, speed things up and make access to justice more available. In the UK we have had the Woolf Reforms. Here in Hong Kong you are about to implement the final report of the Chief Justiceâ&#x20AC;&#x2122;s Working Party on Civil Justice Reform. The reforms around the globe have a common theme, although with variances. The common theme is case management: taking control of the process out of the hands of the litigant and placing it in the hands of the judge.

For example: Theakston v MGN Limited [2002] EWCH 137 (QB); B & C v A [2002] EWCA Civ .337; (1) Michael Douglas (2) Catherin Zeta-Jones and anr v (1) Hello! Ltd & ors [2003]EWHC 786; Campbell v MGN Ltd [2004] 2 WLR 1232. 30 Lawrence v Texas 71 U.S.L.W. 4574 (2003).

Our reforms have overall been beneficial, despite the front loading of costs. In particular: Part 36 offers, offers in advance by parties to try to resolve disputes which if they ultimately turn out to be better than the result at trial empowers the court to impose swinging costs orders; pre-trial disclosure to try to resolve the case in advance is proving beneficial; reverse summary judgment against Claimants; summary assessment of costs is another useful innovation and certainly concentrates minds; and the encouragement of mediation with appropriate sanctions for unreasonable refusal to participate. Many of these reforms, with appropriate tweaks, will be implemented in due course here. You have not adopted the overriding obligations and instead sought to refer to underlying objectives, giving a different emphasis to what is sought to be achieved. You have rejected the idea of a complete new set of rules, something with which I, having been brought up on the old rules, sympathise. Fundamentally you have adopted many of our reforms adjusted to the needs of Hong Kong.

These changes have brought new challenges for the Judges: much more is now read in advance, judges are more interventionist in trying to shorten matters and reduce costs and have become managers as well as lawmakers and adjudicators. Managerial judging enlarges the discretion of the judge and diminishes the control of the appellate judges.

The Woolf reforms together with mediation’s high success rate and attractiveness to litigants with its speed, cost effectiveness, saving of managerial time and privacy have had a considerable impact in England.

Recent figures from the Department of

Constitutional Affairs indicate a 500% drop in the number of claims started in the Queen’s Bench Division between 1998 and 2002. While there are various reasons for this drop, mediation has been one of the key reasons. This certainly also seems to be the case for the reduced cases going to trial in the US31.

In a recent Article published by ABA “The Vanishing Trial” the statistics show that between 1985 and 2002 the number of trials in the federal district courts has dropped by more than 60% and the proportion of cases which are disposed of by trial i.e. did not settle before trial from 4.7% to 1.8%. In the state courts there is a similar decline over the same period: civil jury trials fell from 1.8% to o.6% and bench trials from 34.2% to 15.2%. The decline in filings is modest by comparison. The principal reasons again appears to be ADR – both mediation and arbitration.

But despite this reduction in court cases, one thing is certain and that is that the judge will never become redundant.

I have this evening made only a selective trawl through the many difficult challenges facing the modern judge. These challenges are mirrored throughout the world. New challenges will lie ahead. The judges in England, in Hong Kong and elsewhere in other jurisdictions have responded to the challenges and will continue to do so, for the judiciary is the guardian of the rule of law, of our fundamental rights and liberties and ultimately of justice for our citizens.