A brief history of (controversial) extrajudicial communication

This chapter presents a historical survey of controversial extrajudicial discourse in the area in which it arguably comes under greatest scrutiny, namely, discourse that relates to the political views, activities, and affiliation of judges. The chapter focuses on six judges who held office between the early modern period and the present day - Ellesmere, Coke, Hardwicke, Diplock, Denning, and Dilhorne - all of whom were active in extra-judicial discourse on politically sensitive or contested issues. It uses published and unpublished records of their activity to analyse how and why they engaged extrajudicially on controversial matters. I suggest that their extrajudicial communication falls into three broad types of activity which I term lobbying, evangelising, and problem-solving. The chapter concludes by arguing that the nature of the judicial role in the UK makes extrajudicial communication inevitable, including on controversial matters. History demonstrates that while this can raise genuine concerns, it can also be fundamental to the effective development of the legal system. The task for law is to manage the tensions created by the judiciary’s extrajudicial role, rather than seeking to avoid it altogether.