Without Fear or Favour: Judicial Independence, Past, Present and Future

Introduction

Many years ago, my family and I went on a holiday to Brazil. I had just been appointed to the High Court bench and decided to visit the courthouse in a small city in Maranhao. When those there discovered I was an English judge, there was great excitement. The local press was summonsed, and photographs were taken of me shaking hands with the other judges. We shook hands not because we shared a job title but because we were part of a judicial family: sharing values and aspirations and subject to similar pressures.

The judicial path is certainly not one for those who want a quiet life or to be popular, because those pressures can come from all quarters: from the executive branch of the state, from the media, from the general public and from the litigants themselves. Depending on the decision made, we can be excoriated as ‘out of touch’ or attacked as dangerously radical. The internet and social media have been of considerable assistance to those who wish to take public issue with decisions they dislike, and ‘keyboard warriors’ frequently express themselves in very strong terms, which can be picked up and amplified by those with particular agendas to pursue. The information age has led to a proliferation of echo chambers, social media influencers and confirmation bias.

However, judges up and down the land every day of the week make decisions they think are the right ones to make, in the light of the facts they find and the applicable law. Judges give their reasons for what they do, and open justice means this is visible to the litigants and to the public. Judges work under the spotlight. And there is good reason for this: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial”, as Jeremy Bentham put it as long ago as 1790. If judges get it wrong, the appellate system is there to put things right. It is by that means that legal rights or wrongs are decided in this country. Legal disputes are not decided by the court of public opinion. Cases must be decided according to their merits, without regard to the clamouring voices of interest groups.

Sometimes the voices are off stage. Sometimes they can be more direct. In 2023, I heard an appeal against sentence by a woman who had pleaded guilty to administering poison with intent to procure her own miscarriage.  There is no doubt that the case was a controversial one and attracted strong public comments from different sides of the abortion debate. A group of leading medical practitioners and academics wrote to the judge before he passed sentence. They did not believe this aspect of the law on abortion was just. They asked him not to impose a custodial sentence for reasons they considered important and for an opportunity to address the court.

In the judgment, we reduced the sentence and suspended it, but this was for legal reasons. As for the letter sent to the judge, we said the judge was right to say this form of special pleading was inappropriate. We went on to say: “Our democratic society of course allows for the open expression of different views on the merits of any sentence that is passed, and we do not doubt that the authors of the letter have the serious concerns to which they refer; but the duty of the independent judiciary, in accordance with their judicial oath, is to sentence according to the law and to apply the law to the facts of the individual case before them, rather than be swayed by the views of special interest groups, however eminent and well-intentioned they may be.”

Sentencing is rightly a matter of public interest and can attract a great deal of attention and comment. Judges are not robots. The law on sentencing is complex, and sentencing in individual cases can often be a difficult and challenging exercise. It is an art, not a science. The offence we dealt with in the case I just mentioned did not have a sentencing guideline. Many offences do, however. In that context, it is worth mentioning something about the general approach to sentencing in this jurisdiction that is less well understood than it should be.

The Sentencing Council for England and Wales was established by Parliament in 2010 to promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary. It is an independent, non-departmental public body accountable to Parliament. The primary role of the Sentencing Council is to issue guidelines on sentencing, which the courts must follow unless satisfied in a particular case that it would be contrary to the interests of justice to do so. The Council has a statutory responsibility to develop sentencing guidelines and monitor their use; to consider the impact on victims of sentencing decisions; to monitor the application of the guidelines; and, when developing guidelines, to promote understanding of, and public confidence in, sentencing and the criminal justice system.

When developing a new guideline, the Sentencing Council carefully considers the principal factors by which the seriousness of a particular type of offence should be assessed. It publishes a draft in which it sets a range of sentences which appropriately reflect the range of seriousness of individual examples of that offence. It engages in widespread public consultation on that draft, and where appropriate makes amendments in the light of the responses. The definitive guideline which is then brought into effect is published on the Council’s website. That is a transparent process. It provides members of the public with the information which enables them to understand the guidelines issued by the body which Parliament has created for that purpose, and to have confidence in sentencing.

The judicial system is an essential part of a functioning democracy; I have always thought of it as the backbone of the skeleton which supports the body of the state; and judicial independence is central to what judges do. The judicial oath or affirmation that judges take is laid down in statute. Its roots are deep. Bracton recorded that medieval justices were required to swear to do right justice to rich and poor alike. The words “without fear or favour” appeared in English constitutional materials by the 17th century and found their settled home in the Promissory Oaths Act 1868. The language of the oath is suitably archaic, but the meaning and importance of it is clear: “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”.

“I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”

I last saw the oath taken a few days ago when I attended the swearing in of the newest member of the Supreme Court. Before the ceremony Lord Reed reminded those present that the judicial oath was etched above the door of the court, and of its two essential components: judicial impartiality and judicial independence. These concepts are connected.

“The reason why judicial independence is of such public importance is that a free society exists only so long as it is governed by the rule of law. The rule which binds the governors and the governed, administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought. However vaguely it may be perceived, however unarticulated the thought, there is an aspiration in the hearts of all men and women for the rule of law. That aspiration depends for its fulfilment on the competent and impartial application of the law by judges. In order to discharge that responsibility, it is essential that judges be, and be seen to be, independent.”

These words were spoken by the Chief Justice of Australia 30 years ago and they have a special significance over and above their admirable qualities as prose. They are cited in the commentary to the Bangalore Principles of Judicial Conduct of 2003 – one of a number of international resolutions addressed to the issue of judicial independence, judicial ethics and judicial integrity, intended to complement the UN’s Basic Principles on the Independence of the Judiciary. Some of the key principles they contain are derived from the milestones along the path to judicial independence in this jurisdiction.

Magna Carta pronounced that even kings are subject to the law. Another great milestone in our legal history was the Act of Settlement in 1701. This laid down for the first time what is still a fundamental feature of judicial independence, that judges should have security of tenure: they should hold office during good behaviour and could only be removed by address of both Houses of Parliament. The Act of Settlement was passed not for the benefit of the judges but in the public interest. The Bill of Rights of 1689 was another important constitutional enactment in the development of the rule of law. It was well understood by the committee that drafted it that those rights were of no value unless the judges who enforced the law were protected from intimidation and victimisation.

The history of English judicial independence is, in large part, a history of separation: of the slow separation of adjudication from administration; of law from prerogative; and of court from council. It is also a history of money. Early judges were poorly paid, and corruption was a real concern. In 1346, judges were required to swear that they would not accept gifts or rewards from parties before them.

Returning to the present, judges are inevitably targets, often attracting the enmity of the people they encounter. But if their independence is to be preserved, they must be protected from external pressure to decide cases for reasons which have nothing to do with the merits. It is not merely because of the risk that some might succumb – there is also the risk that in the ever-increasing din of complaints encouraged by the notion that they might have some effect, something precious will be lost. When people rise when judges come into court and bow, that is not a personal matter. It is a visible demonstration of the respect that everyone must pay to the law. Diminishing respect for the law and those whom society entrusts to dispense it is a dangerous and slippery path, ultimately corrosive to the rule of law and the protection it affords to democracy and the freedoms it is our privilege to take for granted.

Sydney Kentridge KC put the matter precisely in my view: “There are some aspects of the rule of law on which, among ourselves, we take different views…But one aspect of the rule of law on which we would certainly agree is the independence of the judiciary. It is secured in part by laws which give the judges security of tenure and in part by ensuring that as far as possible they are persons of integrity, appointed on merit rather than by reason of political connection. Independence here means more than independence from government direction. It means also that judges in making their decisions should as far as humanly possible not be influenced by public opinion, or by any sense of obligation to the government or to any individual, party, or pressure group.”

Lord Atkin’s famous observation that justice is not a cloistered virtue remains as true now as when it was uttered and no sensible judge seeks immunity from criticism. Open justice invites scrutiny. Appellate review invites correction. Academic commentary can improve the law. The press performs a vital constitutional function in explaining and criticising what courts do. But there is an important distinction between criticism and abuse; between disagreement with a decision and an attack on the integrity or motives of the judge.

Lord Hodge made that distinction in his 2018 lecture on judicial independence. As Lord Hodge pointed out, the Divisional Court’s decision in Miller No 1 concerned a legal question about the relationship between prerogative power and statute. The reaction in some quarters was not confined to criticism of the court’s reasoning. It included personal attacks on the judges and suggestions that they were acting politically. Attacks on judges are nothing new. In the anxious present, it is important to keep a sense of perspective.

However, the modern environment has changed the scale, speed and texture of the public conversation. A misunderstanding can be repeated many thousands of times before the judgment has been read. A false allegation can acquire authority by velocity. A judge who cannot answer back can become a convenient screen onto which anger may be projected. Social media compresses the space between criticism and intimidation, and rewards heat rather than accuracy. It allows anonymous hostility to appear as public opinion. And where online campaigns are conducted to put pressure on judges trying cases and which target judges by name, photograph, address, family, ethnicity, religion or gender, the problem ceases to be merely reputational. It becomes a problem of personal security and a threat to the administration of justice.

“Social media compresses the space between criticism and intimidation, and rewards heat rather than accuracy.”

The problem is not confined to these shores. The European Network of Councils for the Judiciary conducted a survey last year. It found that judges in many jurisdictions feel inappropriate pressure from media and social media at the individual case level, and many do not feel their independence is respected on social media. The survey also considered intimidation, threats and attacks on judges. In half of the judiciaries surveyed more than 10 per cent of judges had experienced intimidation or threats. These concerns are not confined to what is said on social media or anonymous online abuse. In 2025, the Attorney General described political attacks on judges as “dangerous” and as “a huge threat to the rule of law and the independence of the judiciary”, after criticism of judges moved from social media onto the floor of the House of Commons. The Lady Chief Justice has expressed her concern about these matters in her evidence to the Constitution Committee and the Justice Select Committee.

This brings me to another point which is sometimes misunderstood: judicial independence is not the opposite of accountability. It is a particular form of accountability. Judges are accountable through open hearings, reasoned judgments given in public, appellate review, ethical rules, disciplinary processes and public scrutiny. Senior judges appear before parliamentary committees. Annual reports are published. Proceedings of the Supreme Court and the Court of Appeal can be broadcast. The public can see more of what courts do than at any time in our history. But accountability in this respect does not mean control. There is a constitutional difference between requiring a judge to explain a decision and requiring a judge to answer politically or personally for the result.

Judicial independence is often discussed as if it were concerned only with the individual judge: security of tenure, freedom from improper influence and the duty to decide according to law. Those things are fundamental. But they are not enough. Constitutional principles do not live by doctrine alone. They depend upon institutions, conventions and, sometimes, money.

The warning by Sir Sydney Kentridge against any measure which undermines judicial independence, included “appointments to the Bench for political reasons”. Diversity, he said, is of real value, and merit may often be a matter of opinion, but the aim should be to make merit the sole criterion for judicial appointment. “A succession of political appointments”, he warned, “undermines the respect for the judiciary as an institution.” That warning is not theoretical. In a number of jurisdictions, the capture of the courts has begun, not with soldiers at the courtroom door, but with changes to the way judges were appointed, promoted, disciplined, retired or replaced. Court-packing, forced retirement, politically controlled judicial councils, and appointments made on the basis of loyalty rather than merit are familiar methods by which constitutional democracy is weakened from within.

The creation of the Judicial Appointments Commission was one of the most significant changes effected by the Constitutional Reform Act. The Act requires the Judicial Appointments Commission to select candidates solely on merit; to select only people of good character; and to have regard to the need to encourage diversity in the range of persons available for judicial selection. The Judicial Appointments Commission is not a piece of constitutional machinery; it is a safeguard to all those concerned in the administration of justice. Appointment on merit does not mean a narrow reproduction of the familiar or appointing only those who look, sound, think and practise like judges of an earlier generation. It means identifying those who possess the intellectual and personal qualities required to be a judge: independence, integrity, legal ability, fairness, courtesy and courage.

The Future

So, what of judicial independence in the future? There are some interesting issues or risks on the horizon, or perhaps they are already here. One, inevitably, is the use of AI. Such issues may seem of a second order of significance when we are dealing with a judicial system which is significantly under-resourced. However, developments in AI and Big Tech raise potentially existential questions about the proper functioning of justice systems in their current model and of the role of judges within them.

It is useful to begin with the technology itself. Modern large language models do not reason as lawyers or as judges reason. They convert text into tokens; represent those tokens mathematically as embeddings; and use transformer architectures to weigh the relationships between words or sub-words in context. They are trained on immense datasets to predict the next token or sequence of tokens most statistically likely to follow. The result can be astonishingly and beguilingly fluent, but false. Fluency is not truth and coherence is not judgment. There are two ways of looking at the problem: internal and external.

Starting with internal use, that is by the judges and by the system, the first risk is conceptual. A judge who treats AI as a source of ‘judicial reasoning’ rather than a useful tool risks outsourcing part of the judicial function. Summarising material, translating text, locating authorities already known to exist or managing large quantities of documents may be legitimate uses, provided confidentiality, accuracy and responsibility are preserved. But there is a qualitative difference between assistance and influence. The danger is not merely that an AI system will make a crude mistake. It is that it will produce an attractive formulation which subtly narrows the judge’s own analysis.

Nor are AI systems value neutral. The datasets selected, the material excluded, the categories used in annotation, the reinforcement signals chosen, the safety policies imposed, the retrieval sources connected and the commercial incentives of the provider affect outputs. A model trained on historic legal material may reproduce historic inequities. A model optimised for speed and settlement may undervalue the need for a public hearing. A model procured by the executive may, without impropriety, reflect executive priorities.

This leads to what may be called system capture. If courts become dependent on a small number of proprietary systems, updated invisibly and controlled externally, the practical independence of judicial reasoning may be compromised. The danger is not a dramatic coup by machine. It is of a gradual drift: standardised prompts, standardised summaries, standardised risk scores, and eventually standardised dispositions. A court system may appear formally independent while its informational architecture has been captured by technology it cannot inspect, challenge or control.

We must be candid about the pressures on the justice system. The Crown Court open caseload reached 80,203 cases at the end of December 2025, more than double the 2019 figure; 21,002 cases had been open for a year or more; and median waiting times in jury cases remain at an unacceptable level. Delay is not merely administrative inconvenience; it undermines justice. The Ministry of Justice (MoJ) is an unprotected department, and the figures tell their own story. The House of Lords Constitution Committee put the point starkly: in 2019–20, MoJ funding for HM Courts & Tribunals Service (HMCTS) was 21 per cent lower in real terms than in 2010–11.

Judicial independence requires practical support, and in that context, it would be irresponsible not to use AI. Used responsibly, AI may release judicial time for genuinely judicial work. The danger arises when AI is presented not as support for justice, but as a substitute for the public investment justice requires and which the Lord Chancellor, by his or her oath or affirmation, promises to provide. HMCTS has recently stated that AI should support people, not replace final judicial determinations, and that responsible AI in the justice system must be lawful, proportionate, fair, reliable, secure, explainable, transparent, accountable and contestable.

The second way of looking at the problem is external, in other words, the use of AI by those who use the courts: litigants, witnesses, legal advisors and so on. AI can certainly improve access to justice by helping people understand their rights, in drafting documents and navigating unfamiliar procedures. Every jurisdiction, however, is experiencing a boom in lengthy applications from litigants in person, or sometimes less than well qualified legal advisors. Each of those applications requires careful judicial appraisal, and many are rather less than legally sound. All of this puts a strain on a system that is already under-resourced.

The courts are grappling too with the associated problem of false legal material. There are now many cases involving actual or suspected use of AI-generated legal arguments, false citations, false quotations and authorities that do not exist. Dealing with such material is resource intensive. More importantly such material is capable of misleading opposing litigants and the court, thereby corroding trust in the administration of justice. The evidential risks are still more troubling. The courts are accustomed to testing evidence. They examine provenance, disclosure, metadata, expert evidence and consider inherent probabilities. But AI changes both scale and cost. As synthetic evidence becomes more familiar, genuine evidence may be dismissed as fake. Improperly used, AI can create false evidence, and unchecked or unregulated, it can destabilise confidence in the entire process of judicial adjudication.

“The danger arises when AI is presented not as support for justice, but as a substitute…”

There are already important safeguards in place. The judiciary has issued guidance on AI for judicial office holders, for example. At governmental level, the United Kingdom’s AI regulatory approach identifies principles of safety, transparency, fairness, accountability, governance, contestability and redress. Internationally, the Council of Europe Framework Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law is an important development. More will be needed. The world, and not merely the judicial world, is playing catch up with an accelerating technology.

Conclusion

I have spoken about AI at some length because it will be that which will determine the future. Jensen Huang, the CEO of Nvidia, said the other day that AI will not take your job, but your job will be taken by someone who uses AI.

The future of judicial independence will depend as much on such practical matters as on constitutional declarations; on what is done rather than what is said. Nevertheless, it needs constant explanation. In schools. In Parliament. In the press. Online. By the legal profession. By academics. By responsible journalists. And, where appropriate, by judges. A judiciary that cannot explain its constitutional role risks that role being defined by others. But explanation must be disciplined. Judges must not become political actors or enter the partisan arena. But we can explain why reasons matter, and why personal attacks on judges harm the public interest, not the judge alone. Judicial independence is, as Sir Henry Brooke described it many years ago, a fragile bastion; and one that it is in everyone’s interests to protect.

‘Without fear or favour’ is a promise to the public that the case will be decided by law, by an independent and impartial judge. Challenges to it are nothing new. That independence is continually tested. Our answer must be constitutional steadiness. To judge without fear or favour is not to stand above society. It is to serve society in the particular way the constitution requires: by doing right according to law. That task remains difficult but indispensable.

The Rt Hon Dame Victoria Sharp
President of the King’s Bench Division 2019–October 2026

For the full lecture and video recording:
nrtm.pl/withoutfear