The Gazette 1971

Let Judges be Judged SAYS UNPUBLISHED LAWYERS' REPORT

Judges' lodgings far from home, however, are seen to be unconducive to justice. "We doubt whether any benefit can or should accrue from removing a judge from his ordinary family and social contacts at the time when he embarks on what is in many respects a new and in every respect a vital career." Accordingly, every- thing possible should be done to minimise time away from home. Judges would also he helped, the committee argues, if they had secretaries, on the model of the law clerks to American judges. This would remove some extran- eous burdens from them and reduce the pressures of work. All in all, too much now tends to be demanded of the judge, says the report. "He is to be less than human in that he is required to rid himself of prejudice; he is to be more than human in that he is (formally) required to be always right. We are advised that both these requirements, being unreal, can affect the behaviour and even the judgment, particularly of a psychologi- cally vulnerable personality." The "oppressive effect" of these requirements could in the committee's view be reduced "if fewer oppor- tunities were given to the judge to shelter behind the judicial trappings, if he were to be given more time in which to exercise his judgment, and more opportunities to lead a normal social life." The committee believes that machinery should he established for complaining about judges' behaviour, on the grounds that this would increase confidence in them, lead to improvements in their standards, and "might provide a remedy in specific cases of injustice to individuals". It asserts that the problem is not yet a grave one. But there are, it claims, "behavioural defects, mainly occurring amongst the lower judiciary". Such a judge was defined by one witness as seizing "every available opportunity to make public statements whose purpose is at best marginally utilitarian and at worst pompous and egotistical." Barristers or solicitors might want to complain about a judge's treatment of them. Witnesses or litigants may have a case for objecting to the judge's discourtesy or haste. A section of the public "may have a grievance against a particular judge—e.g. that he is exhibiting particular prejudices." The present appeals system is, the report says, of only limited use in these situations. Existing channels of complaint, either to the Lord Chancellor, or via the Law Society or Bar Council, are also ineffective. The committee concludes that some sort of Judicial Commission should be set up, independent of both Parliament and the Government, which would sit in private and would not publish its findings, and to which a judge might be answerable only after a certain number of complaints had been made against him. There should also be a method of removing judges from office "for proved incapacity, mental or physical" and for dealing with "the occasional appointment which turns out to be a disastrous error, the more so because the judge concerned remains obstinately fit in mind and body." The committee concludes that re- moving a judge for sheer incompetence would not be possible, but that incapacity should be subject to an elaborate series of scrutinies and appeals ending with the Judicial Committee of the Privy Council.

Measures to reform the appointment and retirement of judges and to provide for public complaints against their conduct are proposed in a report prepared by a committee of Justice, the British section of the Inter- national Commission of Jurists. The report, which is likely to provoke surprise in and out of the legal profession, has already divided Justice, whose Council, led by the chairman Lord Shawcross, has ordered it not to be published. The report now stands "in abeyance", according to the secretary of Justice, Mr. Tom Sargant, and it is clear that a number of influential members are determined that that is where it will permanently remain. If it were accepted by Justice and published under its imprint the report would carry considerable weight. It is written in moderate terms and offers no evidence of specific judicial malpractice, but it proposes a radical programme of reform. It recommends that appointment of judges, which rests exclusively with the Lord Chancellor, should be made by a committee, to include all branches of the profession and also "highly-trained and experienced personnel officers". The Lord Chancellor would retain ultimate control, but he would he obliged to consult this body. It would cover High Court judges, hut also "cure the informality which has often attended e.g., the appoint- ment of deputy chairmen of quarter sessions; some of our witnesses maintained that the only qualifications possessed by many of these appointees was the recom- mendation of the chairman . . . others suspect that appointment to the ranks of Junior Prosecuting Coun- sel at the Old Bailey carries with it an automatic reversion either at that court or at one of the London Quarter Sessions." The committee believes that the social background and narrow experience of judges "produce difficulties of communication and understanding between them and members of the working classes who appear before them". This leads judges to make unfair comments about witnesses' conduct and to expect "unrealistic" standards of behaviour from people whose social back- ground differs from their own. The answer, the report says, is not necessarily the appointment of more working-class judges—we "have not noticed that working-class magistrates show any especial sympathy for defendants from similar or poorer backgrounds". 1 Judges should be given time off to keep up with advances "particularly in actuarial, sociological and psychological fields". New judges should be trained for three to six months before starting work, by sitting in a variety of courts, visiting prisons, and consulting crim- inologists, welfare officers and other specialists. All this should be conducted, the report says, from a new Judicial Staff College, which would also provide sentencing seminars, and training for magistrates, court officials and chairmen of the 2,000 administrative tribunals. The Justice committee is particularly concerned about the circumstantial features of a judge's life. The writers favour reducing ritual "to a minimum", although they support wigging and robing in criminal courts.

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