Fighting for Justice

Common Law and Civil Law Judges: Threats and Challenges

Elizabeth Gibson-Morgan, Elizabeth Gibson-Morgan

• Publisher: University of Wales Press
• Year: 2021
• ISBN:
  9781786837486
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

This is a time when the rule of law is seriously challenged, when governments threaten deliberately to break the law, and the independence of justice is jeopardised by unrelenting pressure from both the executive and the media. This book aims at contributing to restoring trust in judges as custodians of the law and justice, through a comparison between Civil and Common Law countries. It offers a rare opportunity to gather the expertise of eminent judges and legal authorities from five different countries, providing a unique insight into their work and the way they deliver justice based on their respective professional experience and practise of the law. Far from being a highly technical debate between experts, however, the book is accessible to students and the general public, and raises important contemporary legal issues that involve them both as citizens, with justice as a shared aspiration, and a common attachment to the rule of law.

PART I

Judicial Independence

1

Reflections on Judges in Civil Law and Common Law Countries

Lord Judge

We have different systems for the administration of justice. Although we can always learn from each other, neither is a better or worse system than the other. They are just, well, different. I have little doubt that both systems need to be alert to the possibility of greater efficiency, and in particular should look to welcome new technology. After all, our ancestors worked by candlelight: electricity was once new technology; so was the telephone. We embraced them; so with today’s technology. However, we need greater care when looking at systems which are not our own, and liking bits of another system, and transplanting them into our own. Indeed, a plant that flourishes in the Sahara desert is unlikely to do very well in the wet misty fogs of England. Our systems are different because our national histories are different, and although you can reinterpret history, you cannot change it. We are where we are because of where we have come from. So we must listen to each other and respectfully exchange views and knowledge. New fresh insights will enable us to improve our own systems.

What we do share, however, is that, in the public interest and for the benefit of the communities we as judges serve (and however independent we must be, we are servants of the community), our systems should be directed to two major objectives, indeed immutable objectives. The first is that our systems must provide for justice to be done according to the law; that surely is immutable. The second is that the men and women vested with responsibility for achieving justice according to law must be highly intelligent, modest and humble, without airs and graces, aware of our human fallibility but nonetheless decisive, that is willing to make uncomfortable decisions, expert in the law, alive to the needs and developments of the society in which we live, fair-minded and independent of mind.

Without those two principles the administration of justice, such a necessity in every society, cannot succeed.

So when I describe some aspects of the system in England and Wales I am not, emphatically not, suggesting that our system is better than the French system. I am simply seeking to identify features of our system, which strives to achieve the same objectives, but does so differently.

Perhaps the first, stemming from our Anglo-Saxon past, is the deep involvement of non-lawyers. At home you cannot be convicted of a serious crime unless twelve citizens are convinced by the evidence that you are guilty of it. In a serious criminal trial the judge, although directing those twelve citizens about the relevant law, has no part to play in their discussions or their decisions. When they are considering their verdict, the judge is not there. They organise themselves. They choose their own foreman. They deliver the verdict. No one can challenge a verdict of ‘Not Guilty’. And if the verdict is ‘Guilty’, the defendant can challenge it if the judge has interfered too much. This process is a direct link and involvement of the citizen in his or her own judicial processes. You cannot avoid jury service, although you may ask for it to be postponed if it would be inconvenient for some good reason, like, for example, that you have a hospital operation. What is more, we also have what you may regard as a fairly quixotic sentiment about the jury system. Many judges who try criminal cases will tell you that they sense (sense just because they are not themselves in the jury room) that juries will sometimes acquit in the face of apparently clear evidence if it would lead to injustice, as they see it. For example an individual who has revealed evidence of ministerial wrongdoing, which the government of the day wished to keep hidden, might be acquitted of a charge of contravening Official Secrets provisions. Maybe it is quixotic. We like to think that juries will not convict of what they themselves would regard as unjust laws, for example, making it a criminal offence to have red hair, and whether that is right or wrong, in its turn even the perception that it might be true is a discouragement to the executive to pass laws which are in conflict with the conscience of the nation.

The second feature, this time stemming from our Plantagenet kings, and every single one of our Plantagenet kings was descended from Eleanor of Aquitaine, as she is known to us, arguably the most remarkable woman of medieval Europe, is our form of magistrates, Justices of the Peace. Sitting in benches of three, men and women who are not lawyers, but volunteers, contributing in different ways to the community, for example, as a local trade union official, or nurse or doctor or farmer, provided with legal advice by a qualified clerk, decide the overwhelming majority of criminal cases, with power to impose short sentences of imprisonment. Again, this is community involvement in the administration of criminal justice, and the maintenance of the peace, that most precious gift that is the fervent wish of every citizen in every country.

In summary, for us any ordinary adult citizen may be called upon to administer justice. We like that and it has served us well, not perfectly of course, but no human system yet devised is perfect. As we shall see it has consequences for our judicial system.

In direct contrast to the French legal system, the British system is adversarial. Whether in a criminal or civil or family law case, we try and achieve justice on the basis that in each case, whether criminal or civil, we try to establish the truth and achieve justice by leaving it to each side to offer the evidence and arguments which will sustain its own case and demonstrate the weakness of the other side’s case. This is not an inquisitorial process at all. Dealing with it broadly, a judge or magistrate only becomes involved when both sides are ready to present their evidence, or, where one side is holding up the process for its own reasons, the other side asks the judge to intervene, not to investigate the case, but to put a rocket behind the slow party. The judge can interfere to order the parties to be ready, and give them the date for the hearing, but that is the extent of it. Evidence gathering is not a judicial responsibility. Decisions whether to prosecute or not are made by the independent Crown Prosecution Service, without any judicial involvement. If Social Services are concerned about the welfare of a child, they bring all the evidence to the judge for decision, but they are responsible for submitting the evidence, and answering the evidence put forward by the other side.

This has a number of consequences, or if not direct consequences, certainly linked features. The professional integrity of the advocates is an essential ingredient of our processes. There are times when the professional duty of the advocate may require him or her to act in a way which the client would find disagreeable. For example, if the argument is about a principle of law, and you know of a legal decision which contradicts you, if your opponent has not relied on it or drawn it to the attention of the judge, it is your duty to do so. When doing so, of course, you can argue that it is not strictly relevant, or that your case is different in some way, but you cannot keep it hidden. Your client will not like it, but nevertheless it would be professional misconduct to do so. So the day-to-day working relationship between the judicial bench and the advocates, who are, of course, independent of the judge and of each other, must involve mutual trust.

And that leads to this further feature, of specific interest to this book. Our judges are appointed from those who have had practice as lawyers, usually something like twenty to twenty-five years in practice. No one joins the judiciary soon after leaving university, and indeed, once you have been appointed as a judge, the expectation is that you will never return to practice as a lawyer. Once a judge you remain a judge until you retire. Just because our processes are not inquisitorial, and of civilian involvement in the judicial process, we do not need the numbers of judges needed by an inquisitorial system. And however much you would like to be appointed as a judge, our general approach is that you should only ascend the judicial bench as a man or woman of proved experience in the law and in the operation of the system, with time to have demonstrated that you are possessed of essential judicial qualities. So there is no judicial career path, and very few are appointed as full-time judges until their late forties or early fifties.

Before appointment as a full-time judge, a candidate is expected to sit as a part-time judge for a few weeks every year, whether in criminal or civil or family cases, but continuing in ordinary practice as a barrister or solicitor. In other words, before full-time appointment as a judge, the process is that you should understand the true nature of judicial responsibilities, and the burdens of judicial office, and how they should be approached and handled by sitting as a judge. This process enables a number of men and women who are thought to be of the requisite quality to realise that the judicial life will not suit them. Not every lawyer, however brilliant, is temperamentally suited to judicial office. There is a separate purpose, of course, which is that the process helps to reveal whether the particular individual has true judicial quality. Is the candidate too impatient? Does the candidate have that crucial judicial quality, the ability to give a decision, and with appropriate speed, and with sound, understandable reasons?

I should like to claim that the system is infallible. Of course it is not. But it certainly helps the appointment process. So, in essence, those appointed to full-time judicial office are mature lawyers with many years of practical experience. But now, instead of advancing the case for one side or the other, they are committed to holding the balance between the two sides in the adversarial process, and ready to give an appropriate judgment or summarise the law and direct the jury accordingly.

Before about 1980 it was thought that your years of legal practice provided a sufficient level of training for the office. When such training was first proposed, many serving judges were deeply suspicious of the introduction of a system which looked as though it might give the executive power to influence the judicial process. That concern was addressed by the creation of a body to run judicial training which was itself led by judges. Serving as I did on the Judicial Studies Board, I know that it very quickly became possible to assert, without the slightest contradiction, that this was indeed a process designed to assist judges to do their jobs, and that there was no executive interference or involvement in the process.

So now, before you sit even as a part-time judge, you must have attended an appropriate seminar: you must visit a prison, and see how non-custodial sentences like community service or probation actually work. Once you have become a full-time judge you are required to attend on a regular basis, and there are, in addition, specialist courses, for example for judges who are required to try serious sexual crime, or in the use of language, which if deployed insensitively, can cause offence to individuals of a particular faith or colour or sexual orientation. It is not enough just to be polite. You need to know, for example, that for some individuals it would be disrespectful to look someone in authority, like a judge, directly in the eye. That does not mean that they are being shifty or untruthful. It is just their culture. Your attention is drawn to things you are unlikely to know. I still remember the shock, indeed horror, of a judicial seminar some twenty-five years ago, as we listened to a respectable citizen, who happened to be black-skinned, telling us that at thirty-eight years old he had been stopped by the police while driving his car no less than thirty-seven times. That was his life experience. We needed to appreciate it.

The change in my professional lifetime is remarkable. Judges want continuous training. They want to be updated. Our legislature never seems to stop enacting new provisions. You could say that we are deluged with them. Judges have to keep up, and a man or woman who does not, has ceased to understand what is required of him or her. But in the meantime the process continues to be, in our words, ‘judge-led’. Although, of course, the Ministry of Justice has to provide the funds, the courses are organised by senior judges. As well as participating themselves, they choose the academic experts to speak and the topics which must be addressed. The ready acceptance of continuing training by the judiciary is one of the great successes of my time.

That leads me to perhaps the final question. How are judges appointed? It is bound to be a different system from the French one. Our system has to cater not for the post-university young man or woman who has been good enough to pass the examination, but rather for selection among – dare I say it? – middle-aged men and women with many years of practice behind them as lawyers, who are willing to give up professional practice and assume judicial responsibilities.

The appointment system used to be the ultimate responsibility of the Lord Chancellor, one of our ancient historic offices, who to everyone’s surprise except our own was a member of the cabinet and a member of the legislature, in the House of Lords, and a judge and indeed head of the judiciary. So he embodied a negation of the principle of the separation of powers. But in the present context he was the head of a department which was responsible for finding men and women of the appropriate quality, so that they could be offered a judicial appointment. That has all changed.

We now have an independent Judicial Appointments Commission in which neither the Lord Chancellor nor any minister or politician is represented. At present there are fifteen members, seven non-judges and seven judges from all levels, with a non-judge chairman. If you wish to be considered for appointment, you make a formal application to this body, and after sifting through all the appointments, making the inquiries that are thought necessary, taking account of the evidence with which the Commission is provided, including what may have been revealed during your years of practice of the presence or absence of judicial qualities, and an interview process in which at least one member (usually two) of the three-person panel, is not a judge, they recommend or do not recommend your appointment. The two features to highlight are that you nowadays apply, whereas before you waited to be invited, and the second is that there is no actual or apparent political involvement in the process. I should perhaps add that in my professional lifetime I do not know of any appointment in which political considerations were thought to play any part. But as I am sure you already appreciate, perception, even if completely wrong, is itself a fact, and no fact can be ignored. So we have got rid of the perception of possible political interference or influence in the process.

Our real problem at home is a different one. The attraction of judicial office has diminished. For a variety of reasons, many of our very best lawyers, apparently well qualified for judicial appointment, are no longer interested in making this huge change in their lives.

Perhaps I should end by underlining one simple message. No country, no society can do without men and women who are prepared to take on these responsibilities. Those who are thinking of it, or are about to enter the judicial arm of the administration of justice are going one day to be absolutely critical to the maintenance of the rule of law: that is quite a responsibility, but it is simultaneously a fantastic challenge both as a lawyer and as a human being.

2

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