In defence of our judges: why silence cannot be their only shield

Samira Taghavi

I have been thinking about writing this piece for some time.

In the past I have written about the importance of kindness from the judiciary and the value of compassion in our courtrooms.

But recent trends – particularly the increasingly hostile commentary in the media and online – have convinced me that it is time to write something more direct: our judges are being unfairly targeted, misrepresented, and left defenceless.

This is not just unfortunate. It is dangerous.

Judges hold a public role, but long-followed convention requires them to endure criticism while remaining silent. Whether the criticism is grounded in misunderstanding, misinformation, political opportunism or personal frustration, judges cannot enter the public arena and answer back.

They cannot go on talkback radio, write op-eds or respond on social media. They must carry the burden in silence and still return to court the next morning to do it all again.

Those of us who appear in court every day see their work, their limitations, their dedication and their humanity. Because they cannot defend themselves, it falls to us – particularly the legal profession – to defend them where fairness and the rule of law require it.

 

Profession cannot speak

Judges are perhaps the only professionals in New Zealand whose ethical duties require them, in effect, to suffer in silence.

They are permitted to speak only through their judgments – but not thereafter to rebut the incoming attacks. Those judgments are typically deliberate and carefully reasoned. They weigh the applicable legislation, relevant case law, particular facts, aggravating and mitigating factors, human circumstances and the submissions placed before the court.

None of that fits neatly into a headline.

Public debate, however, does not operate at the level of nuanced, structured analysis.

It thrives on short, emotive statements such as: “Judge lets offender off lightly.” “Judge ignores victims.” “Judge soft on crime.” These are easy to write, easy to share and impossible for a judge to answer. The result is that the public often sees only the outrage, not the reasoning.

A recent example shows how serious the consequences of inaccuracy can be.

OneNews began the evening broadcast with a piece on delays arising from forensic psychiatric reports, including a statement implying that victims were effectively required to appear in court monthly during those delays and that defendants were repeatedly “hauled” into court as well.

Anyone familiar with the day-to-day operation of the criminal courts knew that this was simply a wild misstatement of the truth. It risked deterring complainants from coming forward out of fear they would be dragged back to court again and again.

I immediately made a formal complaint. After consideration, the broadcaster’s complaints committee upheld my complaint, finding the report had breached the accuracy principle and did not accurately articulate court attendance requirements. The broadcaster amended both the written article and the embedded video to remove the misleading statements.

A judge could not have lodged that complaint. A judge could not have insisted on that correction. The judiciary would have had to tolerate the misrepresentation and carry the resulting harm to public confidence in silence.

That example illustrates a broader truth: judges cannot push back against inaccurate reporting. We can.

 

The human cost behind the robe

It is too easy to speak about “the judiciary” as though it were a faceless institution.

In reality, judges are people – with families, histories, health issues and limits. They read what is said about them. Their partners and children read it too.

I will never forget one particular sentencing of a very young man on extremely serious charges.

The matter unexpectedly came before a judge who had not previously been involved in the case, but the registry asked her to take it on and accommodate it within her already full sentencing list.

It was clear to everyone legally qualified in the courtroom that, given the maximum penalties, the aggravating features and the structure of the Sentencing Act, imprisonment was inevitable. There was no magical discount that could change that.

It was a Friday. The courtroom was full of the young man’s family. The judge delayed the sentencing until the afternoon to ensure she had sufficient time to read the file properly. During the lunch break, she stayed in the courtroom, visibly unwell, coughing and working through the material while everyone else left. She did not take a break.

At around 2.30pm she asked for the defendant to be brought up. She delivered a careful, compassionate, yet firm judgment. The family wept. The young man was taken into custody. When they all left, the judge stayed at the bench in silence for several minutes. Her expression said everything: this was not just a line of text in a judgment; it was a decision about a real life with real consequences.

No cameras recorded that moment of quiet anguish. No headline would ever say, “Judge quietly heartbroken after having no option but to imprison young man.” Yet that is the reality: these decisions can weigh on them long after the courtroom empties.

 

Impossible balancing act

In a busy list court, a judge may have only minutes to make decisions about a person’s liberty. He or she must weigh:

• the presumption of innocence;
• the strength of the Crown case;
• risk to victims and the wider public;
• mental health and addiction issues;
• prior convictions and bail history;
• community support and stability;
• the interests of victims; and
• the broader interests of justice

Judges must do this 20, 30 times sometimes in the course of a day. If they grant bail and something goes wrong, they are condemned. If they decline bail and the person loses employment or housing, they may also be criticised.

Humans inevitably make mistakes. But when judges get it wrong, the consequences are amplified and usually permanent.

And unlike others, they cannot publicly say, “I am sorry, I misjudged this.” They must live with it while still returning to court, still making decisions and still carrying the responsibility that goes with their oath.

 

When lawyers join the chorus

It is worrying enough when media commentary strips away context and nuance. It is much more troubling when members of our own profession add their voices to that chorus.

Recently, an opinion piece in a national newspaper strongly attacked a District Court judge for deciding on a “finely balanced” margin not to place a particular offender on the Child Sex Offender Register.

The article described the outcome as “self-evidently” wrong, suggested the answer under the legislation was obvious, dismissed the judge’s reasoning as “gut reaction parading as judgment” and asserted that the criminal justice system remains “Dickensian”.

It treated the case as if there could be only one rational answer and that the judge simply failed to understand the law, the science and common sense.

This kind of commentary is deeply problematic, especially when it comes from someone with legal training and there can be a cascade of unhappy outcomes.

First, it assumes knowledge the commentator simply does not have. Unless one has read every page of the file, every report, every risk assessment and the full written reasons of the judge, one does not – and cannot – know exactly what was taken into account.

Media reports rarely reproduce the judgment in full. They summarise. They omit. They emphasise certain facts over others. Lawyers, of all people, should understand the danger of criticising a decision on the basis of an incomplete record.

Second, it conflates disagreement with error. Reasonable judges can differ on how to exercise a statutory discretion. The fact that one person – even a lawyer – would have exercised the discretion differently does not mean the decision was unlawful or irrational.

That is why we have appellate courts. If a decision is truly outside the proper bounds of discretion, there is a structured mechanism for review. Bypassing that process and attacking the judge in the court of public opinion, undermines the very system upon which we rely.

Third, it oversimplifies complex risk assessment. The op-ed in question invoked “science” and research on recidivism as though these materials led to a single inevitable conclusion: an order of sex offender registration.

In reality, risk assessment and management are complex. They involve weighing actuarial tools, clinical judgment, the specifics of the offending, treatment engagement and the statutory test.

To suggest there is only one permissible outcome – and that failing to reach it is a kind of judicial negligence – is both inaccurate and unfair.

Fourth, and most importantly, lawyers have professional obligations that non-lawyers do not. We are officers of the court. The Lawyers and Conveyancers Act requires us to uphold the rule of law and to maintain public confidence in the administration of justice.

That does not mean we must agree with every decision, or that we cannot engage in principled critique of legal reasoning. Appellate advocacy and academic commentary depend upon it. But publicly attacking individual judges, with emotive language, on incomplete facts and in a way that invites public outrage against them personally crosses a line. It blurs the distinction between robust legal debate and populist denunciation.

However, it is entirely legitimate to discuss, for example, whether the Child Sex Offender Register is achieving its intended aims, whether the statutory tests are appropriately drafted or whether the research on risk is being adequately considered by our courts.

Those are systemic questions. They can and should be debated.

What is not legitimate is to use a single case – presented to the public through a narrow lens – as a vehicle for portraying a particular judge as incompetent, indifferent to victims or dangerously naïve. That is not legal analysis. It is a form of public shaming.

For lawyers, joining in misreporting or one-sided commentary about a specific decision is particularly troubling because we know better.

We know how much is invisible to the public. We know that judges are constrained by the law Parliament has enacted. We know that sentencing notes and risk reports often contain sensitive material that cannot simply be placed on a news website. We know that there is always more to the story.

That knowledge should make us more cautious, not less.

 

Political pressure and the undermining of judicial independence

Alongside media commentary sits another powerful source of pressure: political criticism.

Statements suggesting that New Zealand has a “soft” judiciary or that judges are “too lenient” are not merely rhetorical flourishes. They sow mistrust. They create an environment in which any sentence short of the maximum is portrayed as a failure.

The legislative capping of sentencing discounts is one example of this politicisation. It is presented as a necessary corrective to supposedly indulgent judges.

In reality, it undermines judicial discretion, ignores the nuanced reasons why discounts are applied and sends a message that Parliament does not trust judges to balance the many factors required by the Sentencing Act.

When politicians – who have full access to the media – criticise judges who have no such voice, it is not a fair contest. It risks eroding confidence in the very institution that stands between citizens and the arbitrary exercise of power.

 

The role of the legal profession

Given all of this, the legal profession has a crucial responsibility.

We cannot control every headline or social media post, but we can:

• correct inaccurate reporting when we see it;
• educate the public about how sentencing and risk assessment actually work;
• emphasise that judges must apply the law Parliament gives them;
• resist the temptation to use individual cases as platforms for emotive criticism; and
• encourage colleagues to pursue concerns through proper channels – appeals, submissions, policy work and political lobbying – rather than public denunciation.

Most importantly, we can remind ourselves that we do not always know the full story and that publicly criticising a judge’s decision without that knowledge is not only unhelpful, but inconsistent with our professional obligations.

 

Why this matters

Public confidence in the judiciary is not an abstract idea. Every victim who comes to court, every defendant seeking a fair hearing, every member of the public who expects the law to protect them relies on the belief that judges are independent, competent and acting in good faith.

When judges are relentlessly attacked in the media and online – and when lawyers join that criticism – that confidence is chipped away. The damage is not limited to a single judge or a single case. It spreads across the whole system.

Judges defend the rule of law for all of us. They make some of the hardest decisions in human affairs, often in the least forgiving circumstances and they carry the emotional and moral weight of those decisions long after the files are closed.

They do this without the luxury of defending themselves in public.

For that reason, if we truly care about justice, we must be willing to defend them. Not blindly, not uncritically, but fairly, accurately and with an awareness that there is almost always more to a decision than can ever be captured in a single article or headline.

They cannot speak for themselves.
We can.
And we should.

 

Samira Taghavi is a barrister and Practice Manager at Active Legal Solutions Ltd, a member of The Law Association’s (TLANZ) Council, convenor of TLANZ Public & Administrative Committee and a member of TLANZ Criminal Law Committee