Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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Blogging judged

16 August 2012

There has been much comment in the last week about the new guidance on Judicial Office Holders blogging. See Lucy Reed, Nearly Legal and Adam Wagner.

I agree that the guidance is poor, and have only a few things to add.

First, I wonder to what extent those who wrote the guidance and we legal bloggers are simply talking past each other. The guidance describes a blog as ‘a personal journal published on the internet’. Very few legal blogs match that definition. They’re not personal and they’re not journals. Really they’re collections of articles by a particular author or group of authors published on the internet.

I think of a blog as ‘a website published using a particular type of publishing software’. Saying ‘X is a blog’, applying this definition, tells you no more about the content than ‘Y is a paperback’. Blogging, in my view, is a method of publication, rather than a type of content. But, the guidance doesn’t take this approach. It defines blogging by reference to the content of the site – not the software.

Given this, I suspect that the guidance is intended to apply more narrowly than people are tending to read it. ‘Judges must not identify themselves as judges when writing personal journals online’, is not at all the same as ‘Judges must not identify themselves as judges when writing online’. If I’m right, of course, that means that the guidance is badly drafted, confusing and should be clarified.

But that also leaves the question of whether judges should be able to identify themselves as judges when writing a personal journal online. Like most other commentators, I don’t see why not. People write personal journals about all sorts of things and in all sorts of ways. Some of them would be inappropriate for a Judge, some of them wouldn’t. Some might be entirely safe – it’s hard to see how a Judge writing about her triathlon training could go very wrong, for example. Others, such as writing about the experience of being a judge, would require more care.

This brings me to my final point. The closest thing I read to a judicial personal journal is The Magistrate’s Blog. Far from decreasing my confidence in the judiciary, it has increased it.

When I left Bar School, I was young and opinionated. Based on no personal experience and little knowledge I felt that magistrates were probably pretty amateurish and should be phased out to be replaced with a professional judiciary.1

At about the same time, I began reading Bystander, who writes eloquently about his experience as a magistrate. It’s plain that he takes a difficult job extremely seriously. And that he has a number of judicial virtues, such as intelligence, common sense and kindness.

As a result of his writing, my view of magistrates and their work is a good deal more positive than it once was – not to mention slightly better informed.

  1. In my defence, I’d been reading a great deal of US academic research into juries, which is likely to put anyone off lay involvement in the justice system.

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