Judicial Methods

TOWARDS A DEFINITION OF - JUDICIAL METHODS

Jurisprudence, as opposed to jurisdiction is the base of judicial methods, and where, when carrying out the processes involved in the anatomy of a judgment following a Hearing, be it on paper, or following parole evidence, the judge imports reasons from a previous decision of the same court, the end result would be wrong.

This premise holds good in common law jurisdictions. The judicial methods in common law jurisdictions more often than not, accommodate discrepancies, disparities or dichotomies, on the face of the record of a previous hearing. Sadly, judges do not go behind or beyond a previous hearing, to find out the base or root of the decision made earlier. They should.

In Andre John-Salakov v. Her Majesty's Attorney General (CO3761/1999), Application to set aside All Civil Proceedings Order, in that Application the Judiciary was invited to go beyond the proceedings in the Lord Chief Justice court on November 18 1999, to around mid-1980s.

Section 42 of the Supreme Court Act 1981, is first and foremost, a piece of law that could be described as "a Judges' law" (no offence intended). The subject matter of Section 42 has remained, since the days of ALEXANDER CHAFFERS, within the competency of the Judicial Methods.

But no one can be tagged under the English Legal Jurisprudence with a string of vexatious litigation unless; the Judiciary formed the view at a point in time that such a person had instituted vexatious proceedings, habitually and persistently. In other words, sporadic or spasmodic appearances before the Courts would normally trigger a Section 42 Application

In the instant case, habitually and persistently, fall within the non sequitur doctrine. Four proceedings within a period of 40 years could not, by any stretch of any imagination qualify for habitually and persistently, within the meaning of Section 42 of the 1981 Act.

Distinguishing theory from practice

In theory, the proceedings on November 18 1999 were initiated by the Attorney General of the day, pursuant to the then Order 94 r.15 (1) of the Rules of the Supreme Court, to the following extent:

Application under section 42, Supreme Court Act 1981 (O.94, r.15) 94/15/1 Restriction of vexatious legal proceedings - Section 42 of the Supreme Court Act 1981 empowers the High Court, on the application of the Attorney General, to make an order preventing a person who has habitually and persistently instituted vexatious legal proceedings

94/15 15 (1) Every application to the High Court by the Attorney General under Section 42 of the Supreme Court Act 1981 shall be heard and determined by a Divisional Court

(2) The application must be made by originating motion, notice of which, together with an affidavit in support, shall be filed in the Crown Office and served on the person against whom the order is sought

In practice however, the Attorney General of the day had no hands whatsoever in those proceedings. Two police officers, DS Neil Smith and DS Jim Hawkins, and a Lord Chancellor's Department civil servant, Stephen Wilcox, drugged up to their eyeballs with malice, made the application, quite improperly, in the name of the Attorney General.

Two other civil servants, who took part, one from the Treasury Solicitor Department, and the other from the Attorney General's Chamber, were simply put on a wheelbarrow and towed to the High Court, by Stephen Wilcox and the police officers, to lend some sort of juridical credibility to their mischief.

Definition
Judicial Method means__
The competency of a Judge to:
(a) Hear, try, or read, the evidence relating to an application or case assigned to him or her; with an open mind;
(b) Make up his/her mind on the evidence;
(c) Pronounce his judgment or reduce it to writing and cause the same to be served by officials, on the Parties;
(d) Make an allowance for the Parties to take the matter to another Tribunal, in the event that either one or both of the Parties cannot be persuaded that justice has been done
(e) Reserve the costs, especially, in light of (d) above;
(a) above is by far the most difficult of the Judicial Methods, because the notion of an "open mind" is syntactically and syllogistically impossible when juxtaposed alongside legal forensics or semantics.
(b) a previous decision in any given case or matter can be expected to impair or influence subsequent rulings. This problem is peculiarly idiosyncratic of common law jurisdictions. The Judicial Methods under common law jurisdictions do not accommodate the theology of "open mind"

To reverse this process, a Judge handling a case or an application, would have to be ready, able, and willing to go beyond the date(s) of the evidential materials before the Court. In other words, the Judge would have to find out by judicial means why the previous hearing or case took place, and what were the circumstances leading up to the original application to the Court? This is where the "open mind" concept comes in or falls out of the window.

(i) Put succinctly, the Judicial Methods in common law jurisdictions do not provide for "open mind" doctrine;
(ii) Furthermore, there is an unwritten code of ethics that says that one member of the judiciary shall not ruffle the feathers of another judge, with the concomitant result that, once a judgment or order is made by one judge, it takes a great deal of courage for another judge to downgrade its impact.

Oath to do Justice
Yet on taking office, members take an Oath "I _____ swear that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the Office of a Justice of Her Majesty's High Court --- and do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will"
Judges are human beings, too. Notwithstanding the oath, the existence of stare decisis will always impact adversely on their anatomy of judgment, unless a judge is ready, able and willing to go beyond an earlier application and to treat the application before him at this moment in time as a fresh application.

Civil Jurisdiction In many civil jurisdictions, Judicial Methods focus heavily on the production of evidential materials and in the absence of any such materials, the system is not fatally wounded, but it simply goes into hibernation; in the hope or belief that the Parties would find a solution to their problems or just go away!

ANDRE JOHN-SALAKOV
30th March 2008