Jack Oakley, Clifford Chance, is publishing Banter from the Bench: The Use of Humour in the Exercise of Judicial Functions in volume 41 of the Australian Bar Review (2016). Here is the abstract.
Australians are often said to have a sense of humour that is dry, irreverent and ironic. In such a culture, one might expect those who exercise judicial power to feel at liberty to unleash their wit. Yet most judicial officers in Australia today exercise caution and restraint in using humour in courtrooms and judgments. This stringent attitude is reflected in the paucity of Australian examples of judicial humour, especially in written decisions. However, this conventional view deserves to be challenged. This article assesses whether there is an appropriate role for humour in the exercise of judicial functions in hearing and determining cases. This article considers the primary stakeholders in legal proceedings — litigants, judges, advocates and society-at-large — and examines how their different interests are affected by the use of judicial humour. The article then discusses four arguments in support of judicial humour, namely, that humour is a quintessentially human quality we should expect judges to display; promotes open justice by demystifying the language and rituals of the courtroom; oils the wheels of justice by easing courtroom tensions and aiding digestion of complex written reasons; and serves as a social corrective by allowing judges to gently admonish. Balanced against these considerations is the concern that excessive use of humour may conflict with a judge’s ethical duty to acquit his or her role with independence, integrity, propriety and diligence. In extreme cases, a judge’s use of humour might give rise to an apprehension of bias in discharging judicial functions. The use of humour also has to avoid claims of judicial misconduct. While it is fanciful to suggest that even an egregious use of humour could amount to misconduct that warrants removal from office, it could form the basis of a complaint against a judicial officer, and has done so on occasion. Despite these legitimate constraints on judicial behaviour, the article concludes that humour has a place in the curial process. From time to time the use of humour by judges may be called in question, but judges are chosen for their capacity to judge. Extreme cases aside, we should let humour lie within the sound discretion of the court.Download the article from SSRN at the link.