Date: 17 November 2023 (Friday) Time: 7 pm Venue: Philip K.H. Wong Theatre, 2/F Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong
The past decade has seen a rise of populist political movements in many Western democracies with associated threats to the independence of the judiciary and, thus, the rule of law.
In October 2022 the former President of the UK Supreme Court, Lady Hale, delivered a lecture in the University of Toronto entitled “The Independence of the Judiciary and some of its Enemies” in which she cited numerous examples of statements by senior Conservative politicians including Prime Minister Boris Johnson himself, which suggested that His Majesty’s Government were among the enemies of judicial independence. In the USA, trust in the judicial branch of government and the Supreme Court in particular has fallen to a historic low with the obvious ideological divide between the conservative majority and liberal minority Justices undermining confidence in judicial independence. Two EU States, Poland and Hungary, have both experienced major changes in the structure and power of their judiciaries over the past two decades. Independence and judicial review have both been substantially reduced by the Hungarian Fidesz Party and the ironically named Polish Law and Justice Party which has in turn reduced the separation of powers in each government. In Spain, another EU member, a survey in 2022 revealed that almost half of Spanish judges insisted that the government as well as Parliament have failed to respect their independence in the past three years largely as a result of the main political parties clashing over judicial appointments over many years. In Israel, the legitimacy of the Supreme Court is under direct attack by the coalition government led by PM Benjamin Netanyahu on the basis that the Judges are themselves anti-democratic leading to a list of radical reforms designed to strip them of their current range of powers.
Populist assaults on judicial independence create particular risks for the legitimacy of the criminal justice system, the integrity of which depends upon a fair and public hearing by an independent and impartial tribunal as well as a prosecuting authority which is immune to Executive pressure and influence. This is particularly important in legal systems where Judges are authorised to sit without juries to determine both fact and law and where the requirements of national security may cause departures from the ordinary requirements of procedural fairness (as is the case in most countries).
In this annual HKU-Boase Cohen & Collins Criminal Law Lecture, Tim Owen KC discusses these growing threats to judicial independence and the rule of law with particular focus on the administration of criminal justice. He identifies the key requirements necessary to uphold the rule of law in the area where tension between the right of the individual citizen to a fair trial and the popular desire to convict the guilty demands public confidence in the impartiality of the Judges who preside at trial and on appeal in order that a fair balance is maintained.
About the speaker:
Co-founder of Matrix Chambers in London, Tim Owen KC is one of the leading barristers in England & Wales, a Deputy High Court Judge (Administrative Court) and an Acting Judge of the Grand Court of the Cayman Islands. He has appeared in many of the most significant public law and human rights cases over the past four decades, covering the fields of criminal law, national security, prisons, terrorism and political protests. He has regularly acted in high-profile cases in Hong Kong. He co-hosts Double Jeopardy: The Law and Politics Podcast with former DPP Lord Ken Macdonald KC.
‘One of the biggest legal brains at the criminal Bar’ – Chambers & Partners
‘A powerhouse of knowledge and experience’ – Legal 500