31 Bench and Bar
NOT UNUSUALLY, OR even uniquely for someone practising at the English Bar, where judging involves an assessment of witnesses’ credibility and reliability, I shared a common ambition of becoming a judge; in my case it was qualified by wishing to experience the role of a decision-maker, whether sitting as a magistrate in the lowest court within the criminal jurisdiction, or possibly taking an appointment in a higher civil court.
Over my time, however, I doubted my capacity and ability for the higher reaches of the profession, at least not to espouse it as a fulltime occupation. In the event, with the eccentricity of a barrister sitting as a lay Justice of the Peace, I did manage to scale the upper reaches, at least as a supernumerary. At the end of 1988 I was appointed as an additional judge in the Court of Appeal of Jersey and Guernsey. Quirkishly, the two Channel Islands, with populations of 100,000 and 65,000 respectively, declined to be separately represented, although the personnel were identical and the courts sat for a short time every three months successively in St Helier and St Peter Port respectively. They were established by legislation in 1961 to hear all appellate cases under the Judicial Committee of the Privy Council, a jurisprudence which was rarely excercised, and then too costly. It was the practice for appointments to be made from Queen’s Counsel in England and Scotland. When I reached the age-limit of 70 and had to retire, I persuaded the authorities to replace me for the first time with a leading silk from Northern Ireland. Peter Smith was chosen and sat with great distinction.The judicial experience which I gained provided me with an additional qualification to assess and evaluate the service which the English judiciary supplied. In the early years of my career, the number in the higher judiciary was quite small and, dare I say it, comparative to the population, an elitist class, made up entirely of male members with middle class backgrounds who had been successful practitioners.
Much has changed over 50 years. What I describe is general and contemporary, although there are some allusions to the past, which I experienced as an advocate.Elsewhere in this volume, Lord Denning’s judicial dominance (at least in the eyes of the public) has been separately noted. But it would be a distortion to conclude from one judge’s efforts that other senior judges over the period were to be regarded in a similar mould. Nothing could be further from the truth. The response among the stance of appellate colleagues of Lord Denning was variable - from faint amusement at the idiosyncrasies of their leader in civil justice, to degrees of opposition to his pyrotechnic distortions of the legal system. Few judges at appellate level exhibited forthright dislike of Denning’s forays into his unique formula of law reform, even if they disapproved, but there were occasional outbursts at ostensible deviation from the traditional common law. Lords Justices of Appeal (in 2014, now 37 in number, but far fewer in Denning’s days) never became book-ends in personal terms. If they were to some extent publicly unnoticed, professional rumblings from the Bench bubbled introspectively. For the rest, High Court judges, they watched from their lower status a hobbled but clever maestro; they too admired the craftsman at work, even if they were not in awe of his prodigious output. Assenting and, much less often, dissenting judgments were always permissible. They were - particularly the latter - infrequent, even if judgments were rarely composite.
To assess the quality of judicial service in the second half of the twentieth century calls for a distinction both within the hierarchy and the distribution layers of the judicial hierarchy. First, the criminal law (which was barely touched upon in Lord Denning’s career almost exclusively in civil justice) was operational at two levels - a) the judges who sat regularly with juries as the decision-makers; and b) the changing nature of the criminal appellate court, from 1968 onwards.
Crime touched the justice system at trial level alone until 1907, and was confined to judicial control of trial proceedings, with judges never being decision-makers, except in the sentencing of offenders. Criminal law was thus a Cinderella among legal practitioners, and then only peripheral to a form of jurisprudence within the courtroom. A few notable judges had pronounced the principles of the common law in curricular and non-curricular capacities. And until the middle of the nineteenth century, Parliament had barely invaded the statute book. Astonishingly, even today, the law of murder (supposedly the most serious crime on the calendar) is defined by the English common law, constructed single-handedly by Sir Edward Coke 400 years ago. Parliament consistently ignores the calls for statutory reform of the substantive law, despite over the years since 1965, and more particularly by the Law Commission in 2006, clamours for sensible updating of the law of homicide. On sentencing, the legislature has been forever tinkering with the system and has consistently ratcheted up the level of imprisonment.From the establishment of a criminal appellate system in 1907 (and until 1968) the Court of Criminal Appeal exercised a restricted avenue of appeal against the guilty verdicts of 12 good men (and, since 1928, women) and true. It produced a branch of judicial function, overseen by the Lord Chief Justice and the puisne judges of the day. Selected Lords Justices who manned the civil appellate system for the first time joined in forming a criminal division of the Court of Appeal. Even then the criminal law marginally began to fashion a modern system juridically of criminal justice. I recall, around the time of the change, a distinguished practitioner from the list of Treasury Counsel at the London Bar declaring with conspicuous honesty that there was ‘only a court of no criminal appeal’. Times have changed. The change post-1968 (with single Lords Justices presiding) displayed a welcome development, even though the criminal appellate system still remained an inferior brand of justice.
That was - and is - the result of trial by jury, since the capacity to overturn a jury decision occurs only if the verdict is ‘unsafe’, and that means that normally a jury trial, if properly conducted and adequately summed-up on the facts, is inviolate. If directed properly, their verdict is always confirmed. Recent problems have been created by influences outside the courtroom - the increase in informational technology by way of the internet is beginning to impact on safe verdicts.It is a nice question whether the Anglo-Saxon devotion to trial by jury (in England, strictly speaking, trial by judge and jury) can last the course. Professionalism in approach to problems of justice will inevitably creep in to change the system: trial by judge alone for serious fraud cases is an ever- important demand. But it will not come about for some time. The economics of jury trial will ultimately effect some, if not complete, reform.
During my lifetime of practice, I have watched a growing professionalism of the criminal law, but that has been because the subject attracted academic analysis of the law. For 50 years now, the criminal law and procedure has been graced by a trilogy (at least) of outstanding university teachers: Professors Glanville Williams, John Smith and John Spencer have conferred upon the criminal law an expertise and wisdom that has profoundly affected the law in action
- academia at its very best. Each of them (and others) became highly respected by the higher judiciary. The law reports are punctuated by reference to their academic writings. Their respective pens have advanced a modern system of law, through judicial acknowledgment of their valuable contribution. A handful of judges took up the cudgels of criminal law - Lord Lane, the Lord Chief Justice from 1971-82, Lord Justice Lawton, a judge from 1951 until his retirement as a Lord Justice in 1986, and, miraculously (because he had been a civil practitioner both as a barrister and judge), Lord Bingham when he was inspirationally appointed as Lord Chief Justice, from 1996-2000.
The criminal law at appellate level, however, was rooted at the stage of first appeal. The House of Lords was not given an appellate function (other than very exceptionally) until 1960, when leave to appeal became no longer the prerogative of the Attorney-General. And when they did utter their final thought, it was hardly in tune with modern thinking about crime and justice.Their limited role on criminal matters meant that the Appellate Committee of the House of Lords was hardly ever composed of Law Lords with comparable experience of criminal law principles and practice. Even with a burgeoning involvement in criminal justice legislation - after 1963 a statute was passed every sixteen months
- the criminal law in the courts was rarely accorded any systematic and principled system. Professor Spencer spoke feelingly when he wrote in 2009 that the
academic lawyer... gets the feeling that the barbarians [the legislators of yesteryear] are at the gates - and prays, though perhaps with little hope, that the new Supreme Court [the successor in 2009 in its composition to the judicial House of Lords] will be strong enough to keep them at bay.
The practitioner can only endorse that sentiment. We have yet as a modern democracy to produce a codification of the criminal law, a venture launched by the Law Commission 40 years ago, but abandoned half-way through the excellent labours of John Smith and his collaborators. Our legislators decline to accommodate a nascent desire of the legal profession and others to produce the basic tool of a modern system of criminal law.
Contrary to popular belief, I never entered a criminal courtroom until I took silk in 1970. Up until then my extracurricular activities focused on criminological studies and penal affairs, about which more ado elsewhere. On my arrival at the front bench of barristers, my clerk (the first female senior clerk in the Temple) identified me as a leading counsel who was ‘not a high flier’ - off to the Old Bailey was her prescription.
And so for half a dozen years my daily fare was as defence counsel in criminal trials. I should add that, in those palmy days in criminal practice, certificates of legal aid for accused offenders were like confetti - plentiful and profitable. The daily fare was variable and not uninteresting although I discovered that the practitioners who regularly prosecuted on behalf of the Crown, and many defence lawyers, did not relish legal practice: they were quintessentially and demonstrably able advocates: they were involved in fact-finding and had little or no time for case law other than that to be found in Archbold’s Criminal Practice (then in its 20th edition or so). There was an early occasion that sticks in the memory, when I appeared in an eleven-handed defence in a trial which was for an affray between rival mini-cab gangs in a shoot-up on Romford High Street. I appeared for a marginal defendant who was alleged to have spirited away one of the two villains in hiding. My client was simply charged with a conspiracy to pervert the course of justice. At half-time I made a submission of ‘no case to answer’, based on decisions of what needed to be proved in cases of protecting an offender who was a fugitive from justice. I like to think that my submission was legally respectable. It certainly was professionally treated by one of the more distinguished, regular judges at the Central Criminal Court. He was Judge Hines, whom I later got to know (and like) as members of the Home Secretary’s Advisory Council on the Penal System (1966-78). He rejected my submission, with sound reasoning. At that point my opponent, sitting immediately in front of me in the front row, a Mr Desmond Vowden QC, later to become a circuit judge in Swindon, turned round and said in a loud and not too friendly voice: ‘Why don’t you go back to Lincoln’s Inn, where you belong?’ I treated it as an impolite warning to take my law books to the chancery and common law courts in the Strand. His intervention was typical of the attitude of his fellow practitioners - with one or two outstanding exceptions. One of them was Stephen Mitchell, who became a High Court judge and edited Archbold. The others were Dai Tudor Evans and David Calvert-Smith, who both subsequently graced the High Court Bench. The last-named retired early in 2012 to become part-time chairman of the Parole Board, where my daughter, Martha, was one of the two full-time directors. The other outstanding practitioner was Michael Worsley, with whom I had two interesting encounters during his lengthy service as a prosecutor and defender at the Old Bailey.Trial work in the Crown Court is carried out by the circuit judge, of whom I have no knowledge professionally. From observation and conversation they present a mixed lot. Some are excellent in managing criminal trials, and are courteous and sensitive to all participants. Others, I am told, are not so good; some frankly are failed practitioners and provide a variable quality of justice.
CIVIL APPEALS
The picture of the system and practice of the civil jurisdiction is altogether vastly different, if only for the reason that our common law system has a long history of adherence to the rule of law. But I speak only from experience of 50 years practising and surveying the forensic scene. It was not an auspicious start to my career on 1 July 1952. The Treasurer for that year was Lord Jowitt, recently retired Lord Chancellor in the Labour Government of 1945-51. He was a towering figure in the legal profession at the time, noted nowadays as a ferocious opponent in Cabinet in 1950 to this country’s signing of the European Convention on Human Rights; Jowitt is remembered for little else of jurisprudential significance and politically had changed allegiance from the Liberals to Labour. I recall nothing of that momentous day other than shaking hands with the Treasurer on my being called to the English Bar. My espousal of the Convention in advocating its acceptance in the 1970s and onwards, long before incorporation into UK law in 2000, was rare but not unique. I had little success - particularly in front of Lord Denning - but retained great hopes for future litigants. The contemporary controversy over the Human Rights Act 1998 is depressingly espoused by those propagating right-wing policies of a bygone age. The issues deserve separate treatment hereafter.
Today it is not supererogatory to claim that in terms of adherence to the finest tradition of independence and impartiality we have as good a judiciary as a modern liberal democracy can expect to adopt. But in some respects judges (not the judiciary as a whole but the individual) think otherwise. Outside and outwith the courtroom, judges treat themselves as a cut above the rest of the population. They do so because we put them on a permanent pedestal. They respond alike.
I constantly remind myself about retrospective judgments, that time (for the historian, but perhaps not the scientist) goes only in one direction, and that judgments about affairs today are not exempt from that assessment. I recall specifically the wise words of Felix Frankfurter, much favoured by President Franklin Roosevelt, who nominated that outstanding academic lawyer to the US Supreme Court. On the occasion of an assessment two weeks after Roosevelt’s death - the occasion was a retrospective assessment of a great man, but is applicable (at the right moment) to any notable public figure - Frankfurter said that fluctuations of historic judgment are the lot of great men: ‘If the judgment of the time must be corrected by that of posterity, it is no less true that the judgment of posterity must be corrected by that of the time’. English judges of the past have rightly earned civilised praise internationally, and no doubt that can be sustained today. But judges until the Second World War, with their instinctive abstention from constitutional affairs, were treated deferentially, aloof and professionally elitist; as such they kept themselves remote from political (at least partisan) affairs, as well as the general citizenry. They responded to their image.
With national developments that brought the judiciary increasingly into open contact with politicians, in and out of governmental power, the relationship palpably altered. Where once the senior judiciary behaved grandly and considered itself, both on and off the Bench, as a class above the rest of us, that judicial attitude receded markedly, but not entirely. There is still an atmosphere among some of the judicial brethren - a display of superiority that is justified as an acceptable mode of independence (not exclusively a legal posture) and impartiality. As and when, within a decade or so, we select (elect satisfactorily) our judges from a more diverse section of the populace, judges should be regarded as our respected public servants, performing of course a judicial function of adjudication in full public view from the courtroom. Away from the arduous task of judging, they wear no exceptional garments that would distinguish them from the publicly respected among the hoi polloi, especially as court hearings have only recently been subjected to televisual broadcast. Mr Justice Snodgrass, away from judicial duties, is Mr Snodgrass (must he automatically be knighted, a mark of inequality which is served up with the rations?).
It all added up to a verdict that by the twenty-first century, England had a legal system that not only proclaimed a high standard of judicial quality, but evinced a good reputation from the rest of the civilised world. The historical insistence on independence and impartiality was justly endorsed in the adherence by government to it - statutorily, under the Constitutional Reform Act 2005. Complacency is not totally absent in the watchfulness of its advocacy. Vigilance demands constant comment and advancement of traditional values. What are the manifestations of the high regard for Bench and Bar: what are the factors that pertain to an independent practitioner in the courts, distinguishing him from the same individual exhibiting those valuable practices when translated careerly to judicial life, unlike the legally trained students pitchforked from the start to life on the Bench?
The essence of the barrister or advocate is the fundamental duty to the client. Subject to an overriding duty to the court, he or she is the mouthpiece of the client. What the client instructs is the essence (even detail) of his or her case, and cannot properly be diverted by the advocate’s unexpressed precondition or, more popularly, prejudices (not to be confused with bias, if any). The advocate learns to sublimate his own views for those of the person he represents. Short of issues of fraud, the word of the witness before the court always prevails. If such a criterion of an independent profession, seeking to ensure justice is done (and seen to be done) why is that not carried out when fulfilling the function of decision-maker on the Bench? The theoretical answer is that the judge is instantly stripped of his practitioner’s duty to a client. Suddenly, there is no client to whom a duty, constitutional and moral, is owed. The judge’s duty lies in the oath - to do justice to all without fear or favour and to serve the sovereignty of the State. Therein the member of the judiciary acquires among the country’s citizenry a status that, if admired, calls for behaviour that is demonstrably wise and fair. It implicitly calls for a high standard of publicly inspired activity that undoubtedly sets the judge’s task as unique. But how differently must the judge behave from any other persons performing public duties? The undeniable response, unless acknowledged and counteracted appropriately, is that the judicial culture gives way to a public sense that the task of official judging imposes upon its actors a level of class that sets him or her on some kind of pedestal, entitling them to an exalted status. There is a tendency, stronger in some than in others, to give rise to a treatment not accorded to lower folk. Yet, in reality, they are public servants, no better than the senior civil servants. The obvious example in today’s society is the use to which the government uses judges to undertake public duties away from the Bench. It is acceptably normal that those judicially qualified are asked to conduct public inquiries to unravel the reasons for some public scandal or disaster. As such, they act as Commissioners of Inquiry. They perform the fact-finding exercise as a person with skills of testing the credibility and reliability of witnesses, but they do not do so as judges dealing with rival disputants and ordering a result. They do so at the behest of a Minister who asks for such assistance, without doing more than expressing gratitude to the judge for performing a political (with a small ‘p’) task.
There are undoubtedly traits that espouse the widespread view of the judge. The wearing of a wig (now only a gown, when sitting magisterially in a court of law) does not change the individual, or remove him from the same humanity as anyone else who is operating professionally under the eyes and ears of the public, or regulated civil servants. It is their own acceptance of disavowing equality that is desired. Judges must treat fairly all those affected by issues in and out of court. Nothing less will do in a modern society.
What precise status does the judge have in a modern democracy? Does the public really think that judges are wise, the rest of us otherwise? Clearly, in performing his judicial duties he has a special status adjudicating on disputes, but does his conduct otherwise, both on and off the Bench, preclude him from behaving differently in kind from his fellow citizen? What are the limits of a member of an independent judiciary? Or, to put it more clearly, does the ordinary citizen expect that the judge is set apart publicly from others? It often seems as if the judge is notionally on a pedestal erected by the society of judges in its daily affairs. The status should be otherwise: the pedestal is for statues and for prize-giving on sports day. The Consultation Unit at University College, London, recently (January 2014) issued a background paper on the changing nature of an independent judiciary. In that illuminating document, it posed the question whether the judiciary needs to isolate itself so much, or ought to increase its efforts to engage in public affairs.
The status of the judge is primarily dictated by the scope of his function. Ever since the Act of Settlement, the Crown’s judges have been appointed for life, and so it was until the Pensions Act 1959 that a judge was irremovable so long as he acted with good faith. None in modern times has undergone parliamentary action, save for abortive motions by private members. The age-limit of 75 applied thereafter, until March 1995, when it was lowered to the age of 70 in conformity with public employment restrictions applied to public servants. An attempt in the House of Lords in 2012 to raise the limit back to 75, at least for appellate judges, was rejected by the Government, and it seems unlikely that there will be another attempt at reform. Thus, in employment terms, a member of the judiciary is treated like any other citizen in public service. But is there more to the judge’s status than his work as a judge? Has an age-limit equated the judge with a commensurate pay for public servants? The incantation or mantra of an independent judiciary is that it implies something more than just the separate function of a judge from the other two arms of government. Should the judges be subject to some form of appraisal in order to maintain quality assurance in the legal process? These are contemporary issues that focus on judicial standards. Are there special reasons why the judiciary is to be treated as a class apart? I think not. As judges, they exercise a specialist function, adjudicating on issues within the framework of the established legal system, conducted almost invariably in open forum. Off the Bench, judges are publicly senior civil servants and entitled to their private lives when not engaged in public service. As Lord Bingham observed in a foreword to the third edition of Judicial Review by Supperstone, Goudie and Walker,[277] one should bear constantly in mind that Thomas Fuller’s great injunction - ‘Be you never so high, the law is above you’ - applies to judges no less than ministers.