Really interesting study, which should be carefully considered in the Immigration and Asylum Chambers.
…There are clearly dangers to an overly rule-bound judicial approach, as conveyed by Conley and O’Barr’s (1988) description of ‘the proceduralist judge’ whose ‘high priority on maintaining procedural regularity’ (498) ‘may become condescending or sarcastic’ (500) and may present the law as ‘remote and inaccessible’ (502). Yet our findings raise concerns over the inequitable use of procedural discretion when it is afforded to judges. Substantive discretion – that is a judge’s freedom to reason and decide without encumbrance – is a different matter and a central requirement of judicial independence. We have demonstrated, however, that where procedural discretion is allowed then patterns of implementation have developed that do not redress disadvantages in the ways that are intended, but that more often either ignore disadvantage, vary according to extraneous influences or, in the worst cases, disadvantage groups that are already marginalized.
