IBA Annual Conference Miami 2022

30 Oct - 4 Nov 2022

Room 233, Level 2

Session information

Judicial mistakes and accountability: can the judiciary breach the rule of law and, if so, what are the consequences?
Room 233, Level 2 View location
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IBA Diversity & Inclusion Council (Lead)
Diversity and Equality Law Committee
IBA's Human Rights Institute


DiversityInclusionHumanRightsRuleOfLawIn 1857, in the case of Dred Scott v Sandford 60 US 393, a majority of the United States Supreme Court delivered one of the clearest examples of a judiciary breaching the rule of law.  In this notorious case, it was held that coloured people were property and, as chattels, were not entitled to citizenship of the United States and the protection of its Constitution.  A bloody civil war followed this decision, which ultimately led to an end of slavery in the United States.  However, progress towards any form of racial equality was hindered by the United States Supreme Court.  In Plessy v Ferguson 163 US 537 (1896) a majority of the court held that racial segregation did not breach the equal protection clause of the Constitution, bringing about the infamous doctrine of “separate but equal”.  Racial segregation did not end until 1954, when a unanimous Supreme Court held in Brown v Board of Education 347 US 483 that the equal protection clause applied to everyone, regardless of race. 
On the other side of the Atlantic, a majority of the Judicial Committee of the Privy Council – comprised of judges also sitting at the Supreme Court of the UK – held, in Boyce v the Queen [2004] UKPC 32, that colonial laws dating from the time of the British Empire, regardless of their being “inhumane or degrading”, cannot be held to be inconsistent with the declaration of fundamental rights and freedoms of the written constitution.  Immunity was said to be “complete”, i.e. absolute in perpetuity. Such interpretation of a codified declaration of fundamental rights and freedoms obviously feels wrong and may be argued to as defying any basic sense of human dignity or understanding of what the rule of law means.  The implications are profound and broad-ranging.  The decision’s precedential value has consequences beyond the case in which it was decided in that many Caribbean laws that discriminate against LGBTI people, or even still criminalise consensual sexual intercourse between two adults of the same sex, are also untouchable colonial laws as a result. 
The Diversity and Inclusion Council along with [x] call for a special panel discussion to consider the implications of wrong judicial decisions what mechanisms can be employed to mitigate against such eventualities (e.g. such as not representing governments that wish to perpetuate errors of law) and if there are means to hold the judiciary to account for clearly erroneous decisions. 

Session / Workshop Chair(s)

Baroness Helena Kennedy KC IBA Human Rights Institute, London, England


Sara Louise Carnegie International Bar Association, London, England; Member, IBA Diversity & Inclusion Council
Roberta Clarke IACHR, Washington, District of Columbia, USA
Judge José Igreja Matos International Association of Judges, Lisbon, Portugal
Alex Potts KC Conyers Dill & Pearman, Grand Cayman, Cayman Islands
David J Sachar National Center for State Court, Little Rock, Arkansas, USA