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Let Judges be Judged
SAYS UNPUBLISHED LAWYERS' REPORT
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has ordered it not to be published.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".
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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.
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.
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