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The crumbling citadel: absolute judicial immunity de-rationalised

Published online by Cambridge University Press:  02 January 2018

Abimbola A. Olowofoyeku
Abimbola A. Olowofoyeku*
Affiliation:
University of Keele
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Extract

A Turk is fined and recommended for deportation by a magistrate for breach of the Aliens Order 1953. The magistrate recommends that he not be detained in custody pending the Home Office’ decision on the recommendation for deportation. The Turk appeals to the Crown Court against the recommendation for his deportation. The judge rules that he has no jurisidiction to hear the appeal and dismisses it. On seeing the erstwhile appellant about to leave the court premises the judge cries ‘stop him’, on which the appellant Turk is arrested by the police and detained in custody. The Divisional Court of the Queens Bench issues an order of habeas corpus for the release of the Turk on the ground that the judge in the Crown Court had been functus officio before be began to consider whether the Turk should be detained or not. The Turk consequently brings an action against the Crown Court judge and the police, claiming damages for assault and false imprisonment. It is decided that the judge is immune from liability because he had acted in his capacity as a judge.

Type
Research Article
Information
Legal Studies , Volume 10 , Issue 3 , December 1990 , pp. 271 - 292
Copyright
Copyright © Society of Legal Scholars 1990

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References

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8 Sirros v Moore; Stump v Sparkman; Egbe v Adefarasin; supra, notes 1, 2 and 3 respectively.

9 Holdsworth, , A History of English Law, vol 6, p 239; Buckley LJ in Sirros v Moore (1975) QB at 139 –140; Irikefe J (as he then was) in Boyo v Atake (1970) MWS NLR at 204. Contrast Thompson, ‘Judicial Immunity and the Protection of Justices’ (1958) 21 MLR 517 at 523.Google Scholar

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15 Section 45(2), Justices Protection Act 1979; Hammond v Howell (1677) 86 ER 1035; Re Marshalsea (1613) 77 ER 1027; De Grey CJ in Miller v Scare (1777) 96 ER at 674–675; Erle J in Taylor v Nesfield (1854) 118 ER at 1314.

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35 See Jennings, , op cit, at 272. For a concise formulation, see Douglas J in Pierson v Ray (at 301) —‘it would be unfair to require a judge to exercise his independent judgment and then to punish him for having exercised it in a manner which, in retrospect, was erroneous. See also Fry LJ in Munster v Lamb (1883) 11 QBD 588 at 607.Google Scholar

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41 See Jennings, supra, n 32, at p 272; Douglas J in Pierson v Ray, supra, n 16.

42 [1979) AC at 399.

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56 [1980) AC 198.

57 Compare Lord Diplock in Saif Ali v Mitchell at 220. Ian Hunter QC did highlight the problems being faced by the legal, medical and other professions (both in the USA and in England) because of malpractice suits. See Hunter, ‘Professional Malpractice Claims and Indemnity Insurance: Time to Limit Liability?’ (Counsel, vol 1, no 3, Easter Term 1986), p 38 et seq. The problems range from the risk of ‘personal ruin’ for some ‘relatively minor act of negligence’ or error of judgment, to difficulties in obtaining professional indemnity cover. Two things are clear from this article: first, the predicament of these professionals is as a result of a rule comparable to absolute liability being applicable to them. Secondly, and more relevant in this particular context, although there was indication that some people might be inhibited in the performance of their duties because of the threat of liability, there was no suggestion that responsible people were abandoning, or reluctant to join, these professions.

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91 See supra, notes 61–63 and accompanying texts.

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94 On self-protection by judges of superior courts and their apparent lack of consideration for inferior court judges, see Sirros v Moore (1974) 3 All ER 776. Lord Denning MR at 783 said —‘But the superior courts were never so strict against one of themselves’; Ormrod LJ at 795 —‘The cases concerning judges of superior courts are replete with statements of policy; the cases involving inferior courts seem to be silent on policy and preoccupied with questions of jurisdiction.’

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