This is a little off topic, but it is an issue that would affect Nearly Legal and some of its readers. It is also an issue that affects legal blogging more generally.

The Senior Presiding Judge and the Senior President of Tribunals have issued guidance on blogging to judicial office holders. It says:

Blogging by Judicial Office Holders

Introduction
This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.

Definitions
A “blog” (derived from the term “web log”) is a personal journal published on the internet. “Blogging” describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.

Guidance
Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.

Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.

Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.

So, office holders must not identify themselves as such, but even if they don’t confess themselves openly, must not express an opinion which could damage public confidence in their impartiality assuming that anyone knew they were a judicial office holder. In short, don’t identify yourself as judiciary and don’t say anything vaguely contentious anyway. And further, somehow, retrospectively undo anything that might conflict with guidance that might have been done in the past.

Given that there is no corresponding ban on anyone writing as a judicial office holder or being identified as such in the print media, this seems very odd. My view – which I can safely express as a non judicial office holder (but would no doubt be expected to retrospectively erase, should I ever become one) – is that this is short-sighted and will have a damaging effect on public understanding of the legal system and transparency. One obvious potential casualty of this guidance is the widely respected Magistrate’s Blog.

Lucy Reed at Pink Tape has an excellent post on the issue. I concur with every word. Nearly Legal has also benefited from commentors from time to time who are members of the judiciary, either declaring this or not.

Why should a commenter not be allowed to identify as a judicial office holder, on a site like this one? Is any post or comment about judicial experience, no matter how responsible, suitable to be banned? Would expressing a view here on a judgment or operation of statute run the risk of ‘damaging public confidence in impartiality?

It is hard to square the guidance with Lord Neuberger’s view, in his 2011 speech ‘Open Justice Unbound’, that the Judiciary should

foster the already developing community of active informed court reporting on the internet through blogs, and tweeting; we should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education. The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.

Lucy’s conclusion is that the guidance should simply be boiled down to:

“Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary”,  making clear that this applied to on-line media.

If someone is responsible enough to hold judicial office, this should surely be more than sufficient.

We can only hope that the guidance is re-considered and revised. In its current form, it appears to be both unnecessarily draconian and, in its retrospective demands, unworkable. Still, it was nice that they provided the etymology of ‘blog’, for anyone wondering.