Judicial discretion.
“The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable.”
Lord Camden in Case of Hindson and Kersey(1680)
For centuries courts and commentators alike have wrestled with the concept of judicial discretion.
The comments of Lord Camden marked a low point in the evolution of the concept of judicial discretion. It was a point when the administration of justice was seen simply as the application of the capricious will of judges.
By the 1800’s things were viewed somewhat differently:
“Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”
Chief Justice John Marshall in Osborn v. Bank of the United States, 22 U. S. 738 (1824)
The judicious use of discretion increases fairness and can help to promote an equitable legal process by allowing the judge to consider individual circumstances in instances when the law is insufficient or silent.
Conversely, because discretion involves situational considerations, its misuse can adversely impact the court’s authority and good reputation, create a feeling of result-oriented decision making and, when abused, lead to gross injustice.
However, Judicial discretion is necessary for the proper discharge of our Constitutional obligations as a separate — and independent — branch of government. Legislatures cannot anticipate every situation that we, as judges, can expect to encounter in the administration of justice.
What is ‘judicial discretion’ and when might it be applied?
A common definition of judicial discretion is
· The act of making a choice in the absence of a fixed rule, i.e. statute, case, regulation, for decision making or
· The choice between two or more legally valid solutions and
· A choice not made arbitrarily or capriciously and
· A choice made with regard to what is fair and equitable under the circumstances and the law.
Consistent with Justice Marshall’s observations, judicial discretion does not provide a licence for a judge to merely act as he or she chooses.
The exercise by a judge of his discretion is ‘individual’. No two judges will think alike and “reasonable minds can differ.” Discretion is not exercised in a vacuum and a judge’s “choice” may well be impacted by any number of external factors including life experience and personal views on legal, social, and moral issues.
If the exercise of a judges discretion is to survive appellate review he/she should consider the following:
· Establish the record: ensure that the relevant and necessary facts are on the record. Make sure your findings are only on the evidence presented. Clearly show your reasoning and the logic in your decision;
· Apply the correct law. While this may seem obvious, there are times that the law may be unclear or unsettled. When that occurs, consider making alternative rulings to support your decision regardless of which of the alterative views of the law was employed;
· Consider different ways to exercise your discretion. You can choose to act quickly and decisively, or you can act slowly and monitor the situation. Every case is different and a one-size-fits-all model for how to respond simply does not work;
· Consider the equities of the situation. When making a decision consider the equities and ask yourself — is it fair? Is it the right thing to do? Let your fairness show through on the record and give each side an adequate opportunity to present their position to the court;
· Take time to think over any decision. You are the judge and the case cannot proceed without you. Do not allow yourself to be unnecessarily rushed. There is nothing wrong with taking the time to step off the bench to ponder a decision or to discuss it with a law clerk or colleague. You can also sleep on many decisions and address them the following day. Be wary of the discretionary decisions that you are asked to make late in the day on short notice. There are not many items which cannot wait until the next day when you have had a chance to fully consider the matter;
· Clearly and logically explain your decision. This applies whether it will be in written or oral form. It is important that those who hear the decision, especially those who will be guided by it, are able to understand both its rationale and its terms. This maximizes the potential that it will be followed and, if necessary, also makes enforcement more effective;
· Do not make a decision just because you can.
Audi Alteram Partem
No defendantshould be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.
In most legal systems audi alteram partem is considered to be a fundamental tenet of justiceor equityand a principle of natural justice. This principle includes the rights of a party or his lawyers to confront the witnessesagainst him, to have a fair opportunity to challenge the evidencepresented by the other party, to summon one’s own witnesses and to present evidence, and to have counsel, if necessary at public expense, in order to make one’s case properly.
Duty of a Judge to Give Reasons
The duty of a judge to give reasons for his/her decisions is a function of due process and therefore justice. Its rationale has two principle aspects.
The first is that fairness surely requires that the parties should be left in no doubt of the bases for the judges’ findings. This is especially so because without a reasoned decision the losing party will not know whether the court has misdirected itself and thus whether he may have an available appeal on the substance of the case. In the absence of reasons it will be impossible to determine whether the judge has made a mistake on the facts or law thus depriving a party of an appeal unless the appeal was itself based on the lack of reasons itself.
The second is that the requirement to give reasons concentrates the mind and the resulting decision is much more likely to be soundly based on the evidence.
Occasionally it may be possible for the judge to give oral reasons alone. However, in most cases a reasoned, written decision or ruling should be given. Transparency is the watchword.