Judicial Immunity and the Protection of Justices

AuthorD. Thompson
DOIhttp://doi.org/10.1111/j.1468-2230.1958.tb00491.x
Date01 September 1958
Published date01 September 1958
JUDICIAL IMMUNITY AND
THE
PROTECTION
OF
JUSTICES
CIVIL
actions against justices of the peace for acts done
in
their
judicial capacity are not frequently encountered nowadays, but two
cases
of
this kind have recently occupied the attention of the Court
of Appeal. In the first of these,
O’Connor
v.
Zsaacs,‘
there was
much discussion, at first instance especially, of the meaning
of
the
notoriously difficult sections
1
and
2
of the Justices’ Protection
Act,
1898.
In the second,
Boaks
v.
Reece,=
the main question
involved was whether the defendant had acted within his jurisdic-
tion, which was purely
a
matter of statutory interpretation. The
main problem arising from the Justices’ Protection Act,
1848,
is
still with us: that is whether, and
if
so,
when, a justice of the pence
may be linble in an action
on
the case if he abuses his judicial
authority by acting maliciously and without reasonable cause. This
depends
on
the meaning of section
1
of that Act,3 but the interpreta-
tion of that section depends in turn
on
a complicated interplay of the
rulcs which govern judicial immunity generally.
It
is impossible
properly to construe the section independently of the common law
background, and
it
is
considered that there is
no
a
priori
reason at
common law why the liability of justices as judicial officers is
something different from the liability
of
judicial officers generally.
It
is therefore the purpose of this article to examine the rules
which govern judicial immunity, and
in
the light of those rules
to
consider the statutory provisions which govern the liability
of
justices.
The treatment of judicial immunity by text-writers
is
in the
main
a
clear and confident exposition
of
n
general principle that
no
action
lies against
a
judge for any act done or words spoken, maliciously
or
otherwise, as long
as
he has not exceeded his jurisdiction.‘
Some writers assume that
for
this purpose
‘‘
judge
means
any
person who exercises judicial functions in
a
public capacityY5 whilst
others distinguish judges according
to
their position in the judicial
system.&
There are, then,
two
propositions which require careful examina-
tion: (a) that the protection in respect of acts done is identical
1
[1956] 2 Q.B.
288
(Diplock
J.
and
C.A.).
2
[1957] 1
Q.B.
219
(C.A.);
leave to appeal was refused by the House of
Lords:
3
This
is
set out at p.
529,
infra.
4
e.g.,
Winfield
on
Tort
(6th
ed.) pp.
108-112;
Wade
&
Phillipa,
Constitutional
Law
(5th ed.), pp.
250-251.
5
Winfield,
Abuse of
Legal
Procedure,
pp.
20E211.
6
Salmond
on
Torts
(11th
ed.), pp.
732
et seq.;
Street,
Law
of
Torts,
pp.
98-
102.
517
The Times,
February
14,
1957.
518
THE
MODERN
LAW REVIEW
VOL.
21
with that for words spoken; (b) that all judicial ofiiccrs acting
within their jurisdiction are protected even when they act
maliciously. Those writers who subscribe to these two propositions
recognise the uncertainty surrounding the position of justices and
therefore consider justices' protection as something separate, which
may amount to
an
exception to the general principle.
THE
REL~TION
BETWEEN
TEE
DEFENCES
OF
JUDICIAL
Am
AND
ABSOLUTE
PBIVILEGE
IN
DEFAMATION
An
act done by
a
judge is usually alleged
to
give rise to liability
in
tort
on
the ground that the judge has exceeded his jurisdiction.
Less
frequently, indeed very seldom except in the case of justices,
has an allegation of malice been made
to
support an action in tort
where the judge was admittedly acting within
his
jurisdiction.
Very rarely hss
it
been alleged that a judge who utters defamatory
remarks is acting outside his juri~diction,~ and the usual attack in
actions of defamation is
to
allege that the words were spoken
maliciously. When malice has not been alleged or considered by
the courts in
actions
against judges for torts other than defamation
the courts have used
a
variety of terms
to
indicate why
no
action
lies against
a
judge acting within his jurisdiction. The sum total
of
these decisions
is
that
no
action lies against any judge who has
kept within his Usually malice is not mentioned in
cases
of
this
kind. There
is
even strong authority that any person
entrusted with judicial functions
in
institutions
far
removed from
courts
is
protected,' but here the courts have usually insisted that
the protection
is
dependent
on
good faith.lO
In
a
few
cases
the judges have either decided
or
discussed
obiter
the question of acts committed maliciously, and there are strikingly
more precise statements of the law
in
such cases.
On
the other
hand,
there
are several cases
in
which the courts have been dealing
with actions for words
spoken
and have assumed
obiter
that
immunity
in
respect
of
acts
is
the same as that for words.'l Not
surprisingly, writers who wcept this cite such cases as authority.12
However,
in
the cases where
a
tort other than defamation is alleged,
But
Bee
Law
v.
Llewclfyn
[lSOS]
1
K.B.
487
(C.A.).
8
See,
e.g.,
IIammond
v.
Howell
(1677)
2
Mod.Rep.
218;
Kemp
v.
Neoille
(1861) 10
C.B.(N.S.)
623;
Halsbury,
op.
cit.,
Vol.
26,
p.
271,
note (a), assumes
that judicial immunity
is
abeolute within the jurisdiction and states at p.
273
that the immunity applies
to
inferior
courts
not
of
record,
i.e.,
all
courts.
No
case cited in support bears out this proposition.
9
c:g.,
Tozer
v.
Child
(1867)
7
E.
&
B.
377
(churchwardens deciding voting
nghts);
Partridge
v.
.General
Council
of
Medical
Education
and
Registration
(1890) 26
Q.B.D.
90
(C.A.)
(statutory body exercising disciplinary
powers
over
doctors and dentiots);
Eoerett
v.
Orifitha
[1921]
1
A.C.
361
(H.L.)
(equivalcnt
of
justices' jurisdiction in lunwy).
10
The
cases cited in n.
9
811 contain
obiter
dicta
to
this effect.
11
e.g.,
Smtt
v.
Stanafield
(1868)
L.R.
8
Exch.
220;
Thomas
V.
Churton
(1862)
12
See
Winfield,
op.
cit.,
nn.
4
and
6,
aupra;
Ralmond,
op.
eit.,
p.
451,
note (i).
2
B.
It
8.
476.

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