Andrew L. Urban
June 15, 1215, was a Monday, the start of a new week and the beginning of a new era in Anglo-American history, when England’s King John led his entourage to the meadow at Runnymede (some 30kms South West of London, near the site of today’s Heathrow Airport), to seal a deal with rebellious barons – a deal we know as the Magna Carta. The best deal ever made.
The ideas of due process, a fair trial and equality before the law can all be traced back to the themes that were present in the Magna Carta. The King would no longer be above the law. Nor would anyone else. (The Magna Carta also promised protection of church rights and limitations on feudal payments.)
For example, Clause 28 & 29:
28 No bailiff is henceforth to put any man on his open law or on oath simply by virtue of his spoken word, without reliable witnesses being produced for the same.
29 No free man is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice.
Today’s Windsor Castle Royal Estate is not far from the site where King John put his seal to the deal. Also nearby is a Burger King, as if mocking the unpopular King John of the time.
OK, so the Monarch is subject to the law, as are all citizens. But what about judges, say? I ask because …
“It is our view that the appeal court in Bromley has fundamentally failed to pay due regard to the rule of law and to the well-established principles governing criminal appeals. The appellate function is to review the conduct of the trial to determine if appealable error has occurred. If it has, the proper procedure is to set aside the conviction, and in appropriate cases, allow for a retrial. Not to conduct that retrial before the appeal court.”
There have been no consequences for this alleged breach of the law. Are judges somehow immune to the spirit of the Magna Carta?
The appeal court in question is the Court of Criminal Appeal in South Australia and the Bromley in question is Derek Bromley, convicted of murder in 1984. It was said that he assaulted a person and drowned him in the river in Adelaide. He spent 40 years in prison before he was released on parole in March 2024.
In Australia, judicial removals for misconduct or law-breaking are extremely rare due to strong constitutional protections emphasizing judicial independence. Judges (especially superior court ones) can generally only be removed by parliamentary address for “proved misbehaviour or incapacity,” making accountability processes deliberate and infrequent. In other words, judges are a protected species … and should always act with due responsibility.
If we’re talking about the kind of law breaking alleged in the Bromley appeal, there is no history of any consequences. But in 1989, Angelo Vasta of the Queensland Supreme Court became the only superior court judge in modern Australia removed by parliament. A commission of inquiry (linked to the Fitzgerald Inquiry into police corruption) found he gave false evidence in court and falsified financial transactions/tax deductions. Parliament voted for removal; the Governor cancelled his commission. No criminal conviction mentioned; it concerned off-bench conduct undermining judicial integrity. He denied the allegations but was removed.
Four years earlier, Murray Farquhar, Chief Stipendiary Magistrate in NSW in 1985, was convicted of attempting to pervert the course of justice by trying to influence another magistrate in a fraud case involving associates (linked to organized crime figures). He was sentenced to four years’ imprisonment. This was a notable lower-level judicial officer case exposed partly through media investigation.
A generous observer might consider that the SA appeal court judges in Bromley’s appeal acted not criminally but incompetently. Not sure how much solace that provides Derek Bromley though … it cost him a further six years in prison, before gaining parole – not exoneration. Judicial incompetence is, sadly, not against the law. But it does insult the rule of law.
PS The meadow’s position on the Thames at Runnymede provided practical access for both sides while minimising the risk of surprise attacks.