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Assume there is a criminal trial, where somehow defence proves the judge to being a criminal. In this scenario, does the judge leaves the bench and his authority over the case is removed? Based on your country, how would the case be reframed and how would the case be dealt?

Here is a scenario:

Alex is accused of killing Alicia's husband John. Miller is presiding over as judge. Miller and John have a fight at John's home. Miller kills him and leaves away. Alex comes to visit and finds John dead but Alicia comes sometime later seeing knife in the hand of Alex. The judge is ruling the case and somewhat later, the lawyer of Alex proves the judge as criminal. Will judge remain in power, new judge appoints or what?

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    The defence is not a judge (or jury). Presumption of innocence - Wikipedia: The legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact (a judge or a jury). Jan 14 at 12:11
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    A criminal of it's own (lets say it's a murder trial and the judge was found to have evaded taxes with no connection to the trial) or is the judge implicated in the trial they have?
    – nvoigt
    Jan 14 at 12:18
  • @nvoigt a criminal offense. This means the judge is the killer himself while presiding over the case. Jan 14 at 12:18
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    Lots of people are downvoting this question, but it has proved interesting enough to attract three well received answers. Such a question deserves upvotes, not downvotes.
    – phoog
    Jan 14 at 21:32
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    @phoog Just because a question attracts answers doesn't mean that everyone finds it a good question.
    – Joe W
    Jan 15 at 3:18

3 Answers 3

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While the circumstances of the judge's misconduct would be very unusual, there is a well-established path for dealing with situations when a judge is biased for some reason.

As background, murder trials take place exclusively in the High Court of Justiciary, where our putative bad judge would be Lord Miller, one of many available judges hopefully not all murderous.

A judge is not meant to preside over a case where he or she has a real or apparent conflict of interest. Recusal ("declinature of jurisdiction") can take place either on the judge's own initiative, or as the result of a motion from one of the parties to the case. If the judge refuses that motion then this can be appealed to the Court by means of a "bill of advocation". That is also the mechanism for objecting to instances of bias or prejudice which emerge during the trial. The bill of advocation will be considered by a panel of at least three judges, together with any opposing submissions by the other party.

If there are other unusual problems with the handling of the case - which we could imagine if the guilty judge is craftily manipulating proceedings - then Alex's counsel could raise a "petition to the nobile officium". This is an appeal to the extraordinary supervisory jurisdiction of the Court, by which it can deal with any oddity or injustice for which there is not an existing mechanism. This ends up before a multi-judge bench in the same way.

Among the possible remedies are that the case be "deserted simpliciter", which means that it stops right now because it would inevitably be unfair if it continued (HMA v Fleming 2005 JC 291 at 35). In the circumstances as described, this bars future prosecutions of Alex for the same offence.

In the event that Alex did not have proof in hand that Lord Miller actually did the murder instead of him, but only something like "Miller was personally acquainted with Alicia", the High Court might instead order that Alex's trial be "deserted pro loco et tempore". This lets the prosecutor issue another indictment and try again with a different judge. Ordinarily, desertion pro loco is only available at an early stage of the trial.

The prosecution is also able to halt an ongoing trial at any stage before sentencing. (A judge cannot pronounce a sentence unless the prosecutor has made a motion for him to do so; and see e.g. Noon v HMA 1960 JC 52, "it has always been part of our procedure that, even after the guilt of an accused has been established, the prosecutor should have the opportunity, if he thinks fit, to withdraw the case and allow the accused to go free".) If Alex has evidence that he did not do the murder, and/or that Miller did, then sharing this with the prosecutors would hopefully be effective in halting the trial, even in the face of a reluctant judge.

If all of this emerges after conviction, then Alex could appeal, either directly or via the Scottish Criminal Cases Review Commission. An appeal is the normal way. The SCCRC is an additional line of defence for when the avenues of appeal have been exhausted.

As to Lord Miller himself, he would be prosecuted just like anybody else. He would also be removed from judicial office, though the process is a bit involved. The First Minister has to convene a special tribunal, and lay their report before the Scottish Parliament. They can then authorize the First Minister to recommend the judge's removal to the King.

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Judges are supposed to be impartial, and part of that impartiality is that a judge should not preside over a trial where they have a connection to one of the parties. Ideally the chief judge, who assigns cases to judges, should pick up on the potential for bias and assign the case to someone else. But that's not always possible, so a party (in this case, presumably the defense attorney) can move to ask the judge to recuse themselves.

The standard for recusal is relatively low, especially for a serious case such as murder; it's enough to have extra-judicial knowledge of one of the parties, or any of the disputed facts. It would be very unusual for a criminal investigation to proceed anywhere near the point of "proving" that the judge was the killer without turning up evidence of bias somewhere along the way, so the judge should have been removed from the earlier case well before getting their own day in court.

A judge is typically the one who decides whether they recuse or not. However, the judge's decision can be examined on appeal, and if the appellate court feels that the judge was biased, they can remand the case to another judge to be re-tried.

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For the judge to be proved guilty, the prosecution would have had to brought a charge and had the judge convicted in a separate trial.

You say that the judge has been proved to be a criminal, so I assume such a prosecution has completed and resulted in a conviction, as this is the only way to make sense of your scenario.

If this happened, the judge would almost surely be removed from the judiciary by whatever political means exist in their system (impeachment, in the US; or removal by the Governor in Council in Canada; or some analogous process elsewhere).

That judge's criminal caseload would have to be reassigned to other judges, and trials that were in process would have to restart from the beginning.

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    The OP states that the 'defence proves the judge to being a criminal.', so no prosecution or conviction. Jan 14 at 13:45

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