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14 June, 2007  
Honest judges running a corrupt system

A recent poll in the UK found that 39 percent of respondents thought the judiciary and the legal system to be “corrupt”. Tulkinghorn gets to grips with the issue

imageBribery, favouritism and nepotism are elementary forms of judicial “corruption”. Thankfully, bribery (the paper bags of cash variety) is non-existent in Australia. But the applause has to stop there.

Some judicial favouritism is unavoidable. Money and status count, and instances of judges and lawyers getting favoured treatment from the law are not unusual.

Judicial nepotism was common until the media got hold of it in 1999. In Queensland there were about 15 judges at Supreme and District Court levels (including the CJ) whose children had ended up with judges’ associate jobs. Regardless of how able they might have been there were no selection panels and no competitive exams.

A “protocol” on such appointments was introduced but partially ignored. Eventually the AG said it all had to stop.

Transparency International is an organisation that produces a Global Corruption Barometer.

Table 6 of the “barometer” for 2006 sets out responses (on a scale of 1-5) in various countries to the question, “to what extent do you perceive the following sectors … to be affected by corruption?” One of the sectors listed is legal system/judiciary.

African and Latin American countries tend to score around four or worse. Asian countries score between three and four with a few achieving below three.

Scandinavian countries do very well, with Denmark on 1.7, Finland on 2.1, Sweden on 2.2 and Norway on 2.3. Germany scored 2.5. The Netherlands 2.7.

Unfortunately, Australia is not on the list but the UK is. Its score is 3.2, which is better than that of the US at 3.6. In fact, the US is on a par with Greece.

A different report from TI came out on May 24, The Global Corruption Report 2007, which examined corruption within the judiciary.

In relation to the UK legal system/judiciary it said:

“Over the summer of 2006, 1,025 people were asked whether they thought there was corruption in the ‘judiciary/legal system’. Thirty-nine per cent responded that the system was corrupt, placing the UK below Italy and France.”

And below 18 other countries. The report went on to say:

“This was a surprising result, which has perhaps been influenced by concerns about the wider justice system rather than judges specifically.”

That is the key. Once bribery and nepotism are under control, and judicial favouritism is at least curbed a bit by the media, then the focus shifts off the judges, to the system.

In countries like the UK and Australia the core complaint becomes the adversarial system itself. It is a “lawyer run” system rather than a “judge run” one. In such a system the judges are not responsible for finding out the truth.

When judges lock up the wrong people, or deliver wrong civil verdicts, or let guilty criminals go, it is not permissible to start pointing accusing fingers at them.

A judge can say the lawyers should have told me this or that, and the lawyers can say it is all right to hide stuff from the judge (codes of “legal ethics” say this in roundabout ways) and judges are allowed to hide relevant stuff from themselves.

Investigating the evidence is properly a judicial job, not a lawyer one, but in the adversarial system that work is allocated to the parties (and that often means the lawyers). They perform well (or not) depending on how much they are paid. Litigants have to bribe their lawyers, rather than the judges.

imageThis is not a great improvement. The lawyers are greedier. On May 22 in The Times (UK) former High Court judge Sir Hugh Laddie (pic) reported:

“Recently, the European Patent Office gathered information on the relative costs of litigation across Europe. It disclosed that to litigate a small to medium-sized patent case in England costs between three and ten times as much as the same case in Germany or the Netherlands.”

Our judges are forever asking for more “judicial independence”, which is often doublespeak for reduced “judicial accountability”, which can lead to more corruption.

They also want more “administrative” independence. With their track record on nepotism, I’m not sure that’s a very good idea.

Of particular concern is the practice of CJs allocating which judges get which cases. This is fraught with ethical risk, according to TI.

Back in 2001 the Queensland CJ said …

“control over administration of the court, prevents, among other things, the other branches of government from influencing the allocation of judges to hear particular cases.”

imageSo the CJ is going to do it better? What’s wrong with random computer generated allocation? Federal Court Justice Susan Kiefel (pic) said in 1998 that in Germany:

“Our [Australian] methods of case allocation would be regarded with horror.”

Should a litigant object once a judge has been allocated our system lets that judge decide whether he or she will be, or will look, biased. Honest judges will disqualify themselves. Dishonest ones won’t.

Do judges have to play politics to get appointed and, if so, is that corrupt? What did Susan Kiefel do to her chances of High Court appointment by so honestly criticising the system? Dyson Heydon got the nod over her in 2002 after speechifying how conservative he would be. Susan Crennan got the nod in 2005. She’s not rocking the boat either.

Earlier this month retired Queensland Court of Appeal judge Bill Pincus divided High Court cases into four categories for a three-year period ending in February 2007. He said:

“During this period Michael McHugh (a solid dissenter in favour of the little guy) retired and was replaced by Susan Crennan, who delivered judgements only during the last of the three years. Her Honour gave no dissenting votes in favour of the little guy in that period in any of the four categories.”

imageDo some judges play politics after appointment and is that corrupt? Justice Harry Blackmun (pic) of the US Supreme Court once said:

“If one’s in the doghouse with the Chief, he gets the crud. He gets the tax cases and some of the Indian cases, which I like, but I’ve had a lot of them.”

Much simpler to keep the CJ happy, one might think.

My favourite example of legal system corruption is the practice of fining people according to the offence and not the offender. This practice is hallowed by Magna Carta, and implemented by hundreds of judges every day in our courts.

Whacking a financially struggling teenager with much the same level of fine as a multi-millionaire is obscene, yet few judges would see it in that light.

Indeed, after listening to the millionaire’s expensive counsel (the counsel who scared the millionaire into hiring a lawyer) they would probably fine the millionaire less, while counsel would walk out of the court overloaded with cash.

No wonder the Finns give their system a 2.1 rating. They grab the offender’s tax return and fine according to income. A few years ago Anssi Vanjoki, executive vice president of Nokia Phones, was fined $A200,000 for travelling on a motorbike at 75-kph in a 50-kph zone.

OK, so he got it slashed 95 percent in 2002 due to a drop in income, but the principle is accepted. The new record holder is Jussi Salonoja, caught driving at 80-kmh in a 40-kph zone. His fine? $A283,419. Next in line was internet millionaire Jaakko Rytsola who was fined $A131,000.

I suspect that quite a few of our judges and lawyers (being on pretty good incomes) would strongly object to the Finnish system.

Imagine what the bill would be for someone who picked up lots of traffic tickets and/or lied about them. Not that we (or they) have got any judges (or lawyers) like that.


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