§ SECTION 127 · BSA 2023 · CHAPTER IX — OF WITNESSES

Judges and Magistrates

A shield around the bench. A Judge or Magistrate cannot be compelled to answer about his own conduct in court, or anything he learned in court as such — except on the special order of a superior court. He may, though, be examined about other matters that merely occurred in his presence.

How to read Section 127

A judge cannot be forced to answer about his own judicial conduct or court knowledge — unless a superior court orders it — but he can be asked about other things he merely saw happen.

Protected

No Judge or Magistrate can be compelled to answer about his own conduct in court, or anything that came to his knowledge in court as such.

The exception

Except on the special order of a court to which he is subordinate — a superior court.

Still examinable

He may be examined about other matters that occurred in his presence while he was so acting.

The bare Act

The section in its own words — the rule, and three illustrations.

Section 127 · verbatim

No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations

(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.

(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.

(c) A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.

In short: the section protects the independence of the bench. A Judge or Magistrate cannot be dragged into the witness box and forced to explain his own conduct while sitting, or to reveal what he came to know by presiding — that would expose every judicial act to second-guessing by cross-examination. The protection is against being compelled; it is not absolute — a superior court (one to which he is subordinate) may, by special order, allow him to be questioned. And the shield is narrow: it covers his judicial conduct and court knowledge only. For other matters that merely happened in his presence while he was acting — a collateral event he witnessed like any bystander — he may be examined freely. Illustrations (a) and (b) fall on the protected side (how a deposition was taken; what an accused said before him); (c) falls on the examinable side (an attempted murder committed in his court).

→ This carries forward IEA 1872 § 121 — the protection of Judges and Magistrates from compelled questioning.

Glossary

Judge or Magistrate

A judicial officer presiding over a court.

compelled to answer

Forced, on pain of law, to reply to a question — the section only bars compulsion.

his own conduct in Court as such

How he acted while performing his judicial function.

came to his knowledge in Court

What he learned by virtue of presiding over the proceeding.

special order of some Court to which he is subordinate

Leave granted by a superior court to question him.

other matters in his presence

Collateral events he happened to witness — not his judicial conduct or knowledge.

The picture

Two lanes: judicial conduct and court knowledge are shielded (superior court may lift it); collateral events he witnessed are open.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The ruleThe illustrations

the ruleJudicial conduct & court knowledge are shielded — collateral events are not

In one lineA Judge/Magistrate cannot be compelled to answer about his own conduct or court knowledge as such (unless a superior court so orders), but may be examined about other matters he witnessed.

No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate;no compulsion re judicial conduct/knowledge…he cannot be forced to explain how he acted, or what he learned, as a judge — save on a superior court’s special order.

but he may be examined as to other matters which occurred in his presence whilst he was so acting.→ but examinable on collateral mattersfor things that merely happened in his presence while sitting, he may be examined like any witness.

ExampleA magistrate cannot be compelled to explain why he framed a charge or recorded a statement a certain way — that is his judicial conduct. But if a brawl broke out in his courtroom, he may be examined about what he saw.

✗ Not thisThis is a shield against compulsion, not a total gag. A superior court may lift it by special order, and it never covered collateral events the judge merely witnessed.

illustrationsTwo protected, one examinable — the line drawn in practice

In one line(a) how a deposition was taken and (b) what an accused said before the magistrate are protected; (c) an attempted murder committed in the judge’s court is examinable.

(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.(a) protected: how the deposition was takenthis questions B’s own conduct as magistrate — barred, except on a superior court’s order.

(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.(b) protected: what A said before himthis is knowledge B gained by presiding — barred, except on a superior court’s order.

(c) A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.(c) examinable: a crime committed in his courtthe attempted murder is a collateral event he witnessed, not his judicial act — so B may be examined.

ExampleCompare (b) and (c): what an accused said in evidence before the magistrate is court knowledge (protected); an assault the magistrate saw happen in the dock is a fact he witnessed (examinable).

✗ Not thisThe label ‘it happened in court’ does not decide it. What matters is whether the question probes his judicial conduct/knowledge (protected) or a collateral event he merely observed (open).

Connected provisions

§ 126 · back

IEA 1872, § 121

Carried forward — protection of Judges and Magistrates from compelled questioning.

BSA 2023 § 127 — Judges and Magistrates