Judicial blogging: How judges get around the official ban on writing or contributing to ‘web logs’

Paul Magrath Columnists 1 Comment

The ban on blogging

In the popular imagination, the judiciary are perpetually at odds with modernity. It is always a ‘top judge’ who finds himself (it has to be a him, too, doesn’t it?), asking in the face of some baffling evidence, ‘what IS a lunchbox?’ or ‘who or what is One Direction?’

In the same way, crusty old judges are supposedly out of touch with technology. And for some of us, that is no bad thing. We quite like the idea that judges are there to defend traditional notions of fairness and justice, unswayed by the fads and fashions of social media and the internet. For all the talk of AI and legal tech, most of us would rather be tried by a Rumpole than a robot.

Yet those who think of the judiciary in that way are themselves out of date. These days the judiciary use mobile phones and laptops as a matter of course, and the massive courts reform programme currently under way will make them masters of video conferencing and digital case management as well.

Yet for some reason, judges cannot blog, let alone tweet. Why?

The ban stems from an internal direction given in the official Guide to Judicial Conduct (published in March 2013, but amended in July 2016) on the subject of what it rather prissily calls ‘web logs’. While not strictly prohibiting blogging (or tweeting) outright, it makes clear that judges cannot do so either under their judicial names or anonymously – which doesn’t really leave much of an option:

‘Blogging by members of the judiciary is not prohibited. However, judicial office-holders who blog …  must not identify themselves as members of the judiciary. …  The above guidance also applies to blogs which purport to be anonymous.’

 

Getting a handle on Twitter

Last summer a clutch of new Twitter accounts with names like Mr Justice Serious and Ms Justice Prevailed began to appear, in the wake of court staff pseudonyms like Brenda the Usher and Mandy in Listing. Their tweets were affectionately cheeky about life in court and the lawyers they dealt with, and for a while there seemed genuine uncertainty as to whether they were real personnel hiding behind fake names, or just some lawyers, or even a chambers marketing team, having a bit of a laugh. I wrote about it in more detail in a post on the ICLR blog, Judges on Twitter: lowering the bar or shattering the mystique?

Lawyers have no problems writing blogs and being on Twitter. But from time to time there’ll be a tweet congratulating a well-known barrister, identified by their twitter handle, on their appointment to the Bench. Before long, the thread of congratulation turns to regret that another distinctive ‘voice’ has been lost to Twitter. Here was someone who took part in discussions of the day, sometimes on obscure points of law, sometimes on something as frivolous as what they had for breakfast, or the frustrations of a cancelled train. Officialdom has silenced this voice. Why? What harm could it do for a judge occasionally to remark on a legal issue on which they are not currently engaged in deciding a case? They could write about it in a book or essay, or in a letter to The Guardian. So why not in a blog?

A blog in all but name

Even if the ban on twitter is understandable (it’s a rowdy and impatient forum that doesn’t encourage nuance or discretion), the ban on blogging is much harder to fathom. Yet in spite of the ban, many judges do write blogs. Or rather, they write content that would sit comfortably in a blog post and is little different from the sort of things any other person might blog about. They just have to call it something different.

To take an example close to home: Sir James Munby, President of the Family Division, has been accustomed since his appointment back in 2013 to issue periodical updates on what he’s been up to and the things he’s thinking about. He calls them his ‘Views from the President’s Chambers’, but he could just as easily call it ‘The President’s Blog’. They are chatty and, although chiefly concerned with policy and administrative matters, they are not judgments or speeches:

‘I know that much of this programme of reform causes concern to some of the most thoughtful and conscientious family justice professionals,’ he notes in the first of them, at [2013] Fam Law 548. ‘We have to realise that public finances remain in a dire state and that asking for more money, more judges, more this, more that, is simply crying for the moon.’ 

His fellow judge, HHJ Wildblood QC, who is based in Bristol, has not only helped set up a brilliant local family court information website, but regularly updates readers via his own newsletter posted on the site. How is that not a blog? The latest notes the problems with recent floods:

‘For me the flood had two particular benefits. I gained a new nickname – Scuba Steve and also was forced to buy an expensive new suit – £45 from Primark with a £2 tie to go with it.’ He goes on, ‘We have some fairly chunky events lined up for the New Year and I would be grateful for any support that you can give to them.’

In another life, perhaps Scuba Steve could have been a trendy vicar. A somewhat less fluffy family judge, Mostyn J, is not a man to mince his words. But if his judgments sometime include observations of a more general nature, might he not have put them into a blog?

‘In my judgment the time has come when the law-makers in this country, whether they are legislators or judges, must stop saying something must be done and actually do something. …  

Two and a half years later nothing has happened and these wasteful and inefficient practices persist. Perhaps the culture is just too ingrained to be reformed.’
(J v J [2014] EWHC 3654 (Fam).)

Does putting ‘In my judgment’ in front of something stop it being a bit of a rant? In my judgment, it’s also a bit of a blog.

Baggage delayed is baggage denied

But for proper ranting (judicial irritation with executive inaction being nothing new, especially in the Family Division), we need to head over to the Chancery Division where, before his early retirement, Peter Smith J had a problem with his luggage. He was flying with British Airways at the time, but somehow his bags were left off the plane.

By chance, BA appeared as a party to a case in his court soon after. He took the opportunity to ask them what happened to his luggage. BA’s counsel responded by suggesting he recuse himself from the case, on grounds of apparent bias.

Instead of the brief acknowledgement and concession that would have sufficed, Peter Smith J issued a long judgment detailing the whole sorry saga, at the end of which he finally, and regretfully, recused himself: see Emerald Supplies Ltd v British Airways [2015] EWHC 2201 (Ch) .

If only he could have written a blog, he could have got the whole thing off his chest without taking up valuable court time airing his grievances. But perhaps that’s not what the framers of the judicial guidance had in mind.

I hope to bring you more colourful tales of judges on social media in further instalments of this blog.

 

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. He is one of three authors of Transparency in the Family Courts: Publicity and Privacy in Practice

Comments 1

  1. Pingback: Judicial blogging: Sir Henry Brooke’s Musings, Memories and Miscellanea

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