Report No. 104
English Law as to the Protection of Judges
Position in England-View in 19th Century as to Superior Courts.-English law as to the protection of Judges has had an interesting history. Originally, in England, a distinction was (by case law) made between superior and inferior courts in this context. For example, the view taken in the 19th century, in a case in which there was an unsuccessful action against Mr. Justice Blackburn, was that1-
"This is a principle of our law that no action would he against a judge of one of the superior courts2 for a judicial act though it be alleged to have done maliciously and corruptly."
Inferior Courts.-In the case of inferior courts, however, there were decided as which held the presiding officers liable where a wrong was committed in excess of jurisdiction.3 For example, judges were in such cases-i.e. in matters beyond their jurisdiction held personally liable for damages for false imprisonment and assault even where they had acted in good faith; and officers executing their judgments were similarly liable4. In 1848, the Justices Protection Act, was passed, protecting justices acting within their jurisdiction unless the plaintiff proved malice and want of reasonable and probable cause5. This statute, to some extent, brought the position of the justices nearer to the position of the Judges of the superior courts. As to acts of Justices without jurisdiction, however, the statute of 1848 gave no protection6. Position upto 1975.-Until 1975, the position in England appears to have been as under7:-
(a) No action lies against any judge of a superior court in respect of anything done or said by him in the exercise of his duties, no matter how malicious or wrongful8, or (probably) even if he is acting outside his jurisdiction.
(b) Judges of other courts (inferior courts) are liable for acts outside jurisdiction. The authorities stated (so far, of course, only in relation to judges of inferior courts), that a judge was liable for exceeding his jurisdiction.9
(c) By virtue of the Justices Protection Act, 1948, a magistrate is liable-(i) for acts done outside his jurisdiction, and (ii) for acts done within the jurisdiction which are carried out maliciously or without reasonable and probable cause. The burden of providing malice and want of reasonable and probable cause is on the plaintiff10.
Decision of 1975.-In 1975, there came an important judgment of the Court of Appeal. The distinction between superior and inferior courts seems to have been over-ruled by that decision of the Court of Appeal, 1975. According to the judgment of Lord Denning M.R. in that case11-
"Every judge of the courts of this land-from the highest to the lowest12-should be protected to the same degree., and liable to the same degree What he does may be outside his jurisdiction-in fact or in law-but so long as he honestly believes it to be within his jurisdiction, he should not be liable."
According to this view, every judge, whether of a superior court or of an inferior court (including a Magistrate), is immune in respect of judicial acts done in an honest belief that the acts are within his jurisdiction. Although the judgments of members of the Court of Appeal give different reasons for the conclusion reached the Court of Appeal seems to have been unanimous on the question of treating all judges alike.
There seemed no logic in leaning more heavily on magistrates or circuit judges. Duckly, L.J. was satisfied that the authorities established that there was no distinction made in principle13-14. This seems to be the better view, although some writers are cautious enough to state that inferior Judges are liable for all acts done in excess of jurisdiction15. Act of 1979.-At the same time, it should be mentioned that by section 45 of the Justices of Peace Act, 1979, an action is allowed against Justices for an act done without jurisdiction, where the conviction or order of the Justices has been quashed by the High Court.
1. Fray v. Blackburn, (1863) B&S 576 (578): 122 ER 217 (Crompton, J).
2. Emphasis added.
3. O'Connor v. Issac, (1956) 1 All ER 513.
4. Wade Administrative Law, (1977), pp. 640-641.
5. Section 1, Justices' Protection Act, 1848. See now section 44, Protection of Justices Act, 1979.
6. Section 2, Justices' Protection Act, 1848.
7. See (a) L.A. Sheddan Protection of Justices, (1961) 14 Modem Law Review 267.
(b) D. Thompson Judicial Immunity and the Protection of Justices, (1958) 21 MLR 517.
8. Anderson v. Carrie, (1895) 1 QB 668 (CA).
9. Colder v. Halket, (1840) 3 Moo PC 28: 13 ER 12 (PC): (1835-1842) All ER Rep 306; Palmer v. Crone, (1927) 1 KB 804; Sammy-Joe v. G.P. Mount Pleasant Post Office, (1966)3 All ER 924.
10. O'Connor v. Issac, (1956) 1 All ER 513-527.
11. Sirross v. Moore, 1975 QBD 118: (1974) 3 All ER 776 (785) (CA).
12. Emphasis added.
13. Sirross v. Moore, 1975 QBD 118: (1974) 3 All ER 776 (787, 788) (CA).
14. Brazier Judicial Immunity, (1976) Public Law 397, 408.
15. E.g. Salmond Torts, (1981), p. 387.