*/
Moving on from intellectual ability (The good judge (1) Counsel October 2022), there has always been at least one additional requirement for being a good judge and this is now encapsulated in s 63 of the Constitutional Reform Act 2005 (CRA). Section 63(3) says that a person must not be selected unless the selecting body is satisfied that they are of good character.
The Judicial Appointments Commission (JAC) provides useful guidance to would-be applicants about how it assesses good character. The principles it adopts are based, it says, on the overriding need to maintain public confidence in the standards of the judiciary and the fact that public confidence will only be maintained if judicial office holders maintain the highest standards of behaviour in their professional, public and private lives.
It is interesting to see how the content of this requirement reflects the modern zeitgeist. Let me give three examples.
The first example is that, as you might expect, conviction of a criminal offence is likely to disqualify you from holding office. Judicial appointments are covered by the Exceptions Order to the Rehabilitation of Offenders Act 19749 so that spent convictions and cautions are not protected from disclosure for these purposes. The JAC takes all criminal convictions and cautions seriously, and you must disclose to the JAC any you have received regardless of whether they are spent or unspent. However, forgiveness is not entirely alien to the selection process. As a general guide, the JAC may consider you suitable for appointment following a period of six years after you have received a caution, or a period of 11 years following a conviction. The JAC will, as one might expect, make each decision on a case-by-case basis.
The attitude towards motoring offences is quite nuanced. In general, the JAC guidance says, any conviction for a motoring offence will be treated in the same way as any other criminal conviction and a conviction for an offence related to driving under the influence of alcohol or drugs is likely to prevent your application from proceeding. Conversely parking tickets or speeding offences dealt with by way of an informal warning, or a speed awareness course do not have to be declared. In between are fixed penalty notices including for moving vehicle offences. Although they do not form part of your criminal record they must be declared if received in the last four years.
The obligation to disclose is a continuing one. This is made very clear in the application form and, unfortunately, became relevant to my own application for appointment to the High Court bench. The only time I have been fined for a moving vehicle offence was a week or so after I submitted my application to join the Chancery Division. I accidentally drove in a bus lane in my increasingly frantic attempts to escape the St Albans one-way system trying to find the Crown Court where I was due to sit as a Recorder. If it had been a criminal offence to be driving a motorised vehicle on a public highway while sobbing I would have to have ‘fessed up to that as well. Fortunately, the panel was in a forgiving mood and my trespass did not result in my judicial career meeting a premature end.
The second aspect of good character stressed by the JAC is the importance of your tax affairs being in order and of complying in a straightforward and transparent way, with your obligations in relation to tax. This, I would suggest, properly reflects the current sense that good citizens (and hence good judges) should pay their taxes.
The third aspect of good character that I would like to focus on here is the changing attitude to rudeness and bullying by judges. Socrates, as I mentioned in Part 1, listed the ability to listen courteously as one of the characteristics of a good judge, but this quality has not invariably been manifest in our courts. The topic has been the subject of a great deal of attention recently. In February 2019 the Bar Council published guidance to barristers about judicial bullying. It defines bullying as offensive, intimidating, malicious or insulting behaviour involving the misuse of power such as can make a person feel vulnerable, upset, humiliated, undermined or threatened. The Bar Council recognises that when bullying by judges occurs, it presents additional challenges because those who are a target may feel unable, or particularly reluctant, to do anything about it, even though the impact may be particularly acute.
I agree with the article written by a senior barrister in New South Wales and included in the Handbook for Judicial Officers in that Australian jurisdiction. It contains this observation:
‘The idea that judicial bullying is a necessary “rite of passage” for junior counsel is outdated, dangerous and wholly unacceptable. Older practitioners relating “war stories” of how they were mistreated by former judges should not be a source of admiration but rather, a sad indictment that this issue has not been addressed earlier. Just because one has suffered the humiliation of judicial bullying and “lived to tell the tale” does not mean that it should be an experience visited upon the newer members of the Bar. Rather, it should be the trigger for right-thinking members of the Bench and Bar to ensure that such behaviour is treated with opprobrium.’
Why has unpleasant behaviour in court fallen so far out of fashion? It is partly, I think, because younger lawyers have been educated in a school and university system that takes bullying seriously and they are, quite rightly, no longer prepared to put up with it.
To my mind this whole issue is much more significant than just being a way of protecting barristers from having a bad day at the office – important though that is. If lay clients sitting in court see the judge being rude and impatient with their counsel or with the witnesses on their side, they will feel strongly that they have not had a fair hearing. Their dissatisfaction will not be only with the judge, but also, however unfairly, with their counsel and with the overall process of adjudication. This becomes vicious circle because an advocate will rarely give his or her best for the client, or the cause, or for the court, when subjected to undue pressure.
The importance of what is said as well as what is done by the judge in court is also reflected in an interesting statistic about the categories of complaints about judicial conduct made to the Judicial Conduct Investigations Office. The JCIO’s annual report for 2020-2021 states that 232 complaints – about 19% of the total – were about inappropriate behaviour by the judge. The Report states that most of these complaints are found to be unsubstantiated or, even if true, insufficiently serious to require disciplinary action to be taken. But the fact that 232 people took the trouble to lodge a complaint with the JCIO about behaviour in court is a salutary reminder to any serving or would be judge that people are listening and watching and holding us to a high standard as regards our behaviour.
At the other end of the spectrum, does a judge need to have a sense of humour? That New South Wales Judicial Conduct Handbook contains a delightful article by Judge Kyrou of the Court of Appeal, Supreme Court of Victoria. He discusses some of the key personal attributes of a good judge, in which he includes not only independence, impartiality and communication skills, but also patience, cultural awareness and tolerance, people skills, a sense of perspective and a sense of humour. He says:
‘The administration of justice is a serious business, with important obligations and responsibilities. Court cases involve tremendous stress for court users and therefore the courtroom is not the place for judges to try their hand at being comedians. That does not mean, however, that judges must be perennially uptight and unhappy. A balanced lifestyle, interests outside the law, a down-to-earth personality and a good sense of humour can increase a judge’s enjoyment of the judicial role. This can assist in ensuring that the mood in the courtroom is positive which, in turn, can ensure that the hearing is conducted in an efficient and harmonious manner.’
One can contrast this with the comment of Lord Judge in that 2013 lecture I referred to in The good judge (1). He also lists the qualities that he considers the modern judge must have. These include the ability to make decisions that are profoundly unpleasant and have very serious consequences. ‘This is not a fun job,’ he said, ‘and you have to do it.’ I would say that that is true, of course, but that the job is sometimes a fun job and if you are going to get through the difficult and tense times, it can be helpful to be able to lighten the mood when that is appropriate.
That said, judges have sometimes got into trouble for flippancy or inappropriate remarks. Every judge must also bear in mind that you do not get a genuine reaction from those in court. So, the fact that everyone in court roars with laughter at some little quip you make at the end of the day, should not encourage a judge to give up the day job and start working the circuit as a stand-up comedian. Your audience might well be rolling their eyes as soon as you leave court.
No article – or at least no article by me – about what makes a good judge is complete without some mention of diversity. This is also dealt with in s 63 of the CRA. Following on from the provision that appointment must be ‘solely’ on merit, sub-s (4) qualifies this by providing that the use of the word ‘solely’ there does not prevent the selecting body, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within the group of persons who hold office for which there is selection under that Act.
Critics of this provision have commented that this appears to embrace the view that diversity is something different from merit and as if there has to be a choice made between the two ideas – or a balance of them, treating them as competing goals. Another way to look at it is to recognise that for many centuries the selection of judges has not truly been on merit – or rather it has been limited to comparing the merits of only a very narrow group of people. This does not seem to have troubled those who have been selected under that system and who are sometimes heard to complain about the unfairness of this tie-breaker provision. By contrast, it might be said that by the time a woman or a person from an ethnic minority community gets to the position where sub-s (4) might be triggered, they must already have overcome such challenges of conscious and unconscious bias that they may well be of greater merit than their rival.
Further, treating the ability of a candidate to bring a fresh perspective from a different life experience as being something not embraced by the term ‘merit’ seems to me unfortunate. This was put very well by Sir Sydney Kentridge when he gave the second Sir David Williams Lecture at Cambridge University in May 2002. The topic of his lecture The Highest Court: Selecting the Judges was prompted by the coming into force of the Human Rights Act 1998. This Act, Sir Sydney said, permits and requires hitherto unknown judicial interventions not only into the sphere of executive action but also in the sphere of legislation. Did this, he asked, mean that we should look for different qualities in our top judges? Sensitivity to social issues and an appreciation of the importance of individual rights would be desirable qualities – if only, he says, there were some ways of discerning them.
Sir Sydney compared the at that time entirely White male middle class members of the House of Lords with the South African Constitutional Court on which Sir Sydney sat as an acting justice. Of the 11 judges on that Constitutional Court, there were six White men, three Black men, one Black woman and one White woman. Five had been High Court judges, some had come directly from the Bar and at least four had at some point been academics as well as having worked in private practice either as advocates or attorneys. One had been a political exile. Sir Sydney writes: ‘They were all good lawyers, but what I found overwhelming was the depth and variety of their experience of law and of life.’ This diversity, he said, illuminated their discussions when he was sitting, especially when competing interests, individual, governmental and social had to be weighed. ‘I have no doubt,’ he said, ‘that this diversity gave the court as a whole a maturity of judgment it would not otherwise have had’.
That brings me to another quality required of judges. The Framework of Judicial Abilities and Qualities published by the Judicial Studies Board lists compassion as one of the qualities included under the umbrella of ‘Community and authority’ along with ‘firmness without arrogance’ and ‘sensitivity’. This quality is discussed by Robert J Sharpe, a judge of the Court of Appeal of Ontario in his book Good Judgment: making judicial decisions. He notes that our most respected judges are often described as compassionate.
But what exactly does it mean to judge with compassion? The law is the law and must be applied with an even and consistent hand and cannot be modified on grounds of sympathy or emotion. Indeed, I would add in parenthesis, another of the qualities in the Judicial Studies Board’s Framework is ‘remains detached and manages one’s reactions and emotions’.
Judge Sharpe’s answer is that judging is not an abstract or mechanical process – it is an intensely human process. The judge is engaged in unravelling and resolving disputes that often have had a profound effect on the lives of the litigants. A judge who is able to see all sides of a problem has a better chance of making a decision that is both fair and just and seen to be fair and just. He quotes Canadian Chief Justice Brian Dickson as saying that a judge must be guided by an ever-present awareness and concern for the plight of others and the human condition – compassion is not some extra-legal factor magnanimously acknowledged by a benevolent legal decision-maker. Rather, compassion is part and parcel of the nature and content of that which we call ‘law’.
That is certainly something that accords with my own experience and is true whatever area of the law you specialise in as a judge. One thing that struck me during my time as a judge in the Chancery Division is how often what appears on the face of it to be a rather dry case exploring some arcane provision of the Companies Act or the Insolvency Act in fact arises from a very human dispute between the litigants. The parties use the courts to resolve their own feelings of upset or betrayal about some business partnership that went wrong or ambitious commercial venture that unhappily foundered, throwing their lives into turmoil. So, as a trial judge, being able to feel compassion or being able to empathise with the parties and the predicament they find themselves in is often an essential part of being able to decide which of the parties is giving the more accurate account of what happened when you come to make the findings of fact that are going to form the bedrock of your application of the law.
Following on from that thought, let me conclude by sharing some advice I give to judges just starting out – and which indeed I regularly give to myself and which I find very helpful in my desire to be a good judge. Bear this in mind. For every case that you preside over, there comes a point a day or so before the hearing when the lawyers involved in the case find out from the listing office that you are going to be the judge hearing their case. They ring up the client and say, we’ve just heard that we have Mrs Justice Rose or Mr Justice X. Inevitably the client asks: ‘Is that good or bad? What is she or he like?’ If you want to be a good judge, try to think of how you would like the lawyer to respond to that question from the client… and then – in all the different aspects of your conduct in and out of court – try to behave so as to bring that about.
© Lady Rose of Colmworth, 2022. Lady Rose would like to thank her judicial assistant Jake Thorold for his help in preparing the Gresham College lecture, ‘What makes a good judge?’, 16 June 2022, on which this two-part series is based. Part 1 appeared in the October 2022 issue of Counsel. Lady Rose’s lecture can be viewed at: www.gresham.ac.uk/watch-now/good-judge
Moving on from intellectual ability (The good judge (1) Counsel October 2022), there has always been at least one additional requirement for being a good judge and this is now encapsulated in s 63 of the Constitutional Reform Act 2005 (CRA). Section 63(3) says that a person must not be selected unless the selecting body is satisfied that they are of good character.
The Judicial Appointments Commission (JAC) provides useful guidance to would-be applicants about how it assesses good character. The principles it adopts are based, it says, on the overriding need to maintain public confidence in the standards of the judiciary and the fact that public confidence will only be maintained if judicial office holders maintain the highest standards of behaviour in their professional, public and private lives.
It is interesting to see how the content of this requirement reflects the modern zeitgeist. Let me give three examples.
The first example is that, as you might expect, conviction of a criminal offence is likely to disqualify you from holding office. Judicial appointments are covered by the Exceptions Order to the Rehabilitation of Offenders Act 19749 so that spent convictions and cautions are not protected from disclosure for these purposes. The JAC takes all criminal convictions and cautions seriously, and you must disclose to the JAC any you have received regardless of whether they are spent or unspent. However, forgiveness is not entirely alien to the selection process. As a general guide, the JAC may consider you suitable for appointment following a period of six years after you have received a caution, or a period of 11 years following a conviction. The JAC will, as one might expect, make each decision on a case-by-case basis.
The attitude towards motoring offences is quite nuanced. In general, the JAC guidance says, any conviction for a motoring offence will be treated in the same way as any other criminal conviction and a conviction for an offence related to driving under the influence of alcohol or drugs is likely to prevent your application from proceeding. Conversely parking tickets or speeding offences dealt with by way of an informal warning, or a speed awareness course do not have to be declared. In between are fixed penalty notices including for moving vehicle offences. Although they do not form part of your criminal record they must be declared if received in the last four years.
The obligation to disclose is a continuing one. This is made very clear in the application form and, unfortunately, became relevant to my own application for appointment to the High Court bench. The only time I have been fined for a moving vehicle offence was a week or so after I submitted my application to join the Chancery Division. I accidentally drove in a bus lane in my increasingly frantic attempts to escape the St Albans one-way system trying to find the Crown Court where I was due to sit as a Recorder. If it had been a criminal offence to be driving a motorised vehicle on a public highway while sobbing I would have to have ‘fessed up to that as well. Fortunately, the panel was in a forgiving mood and my trespass did not result in my judicial career meeting a premature end.
The second aspect of good character stressed by the JAC is the importance of your tax affairs being in order and of complying in a straightforward and transparent way, with your obligations in relation to tax. This, I would suggest, properly reflects the current sense that good citizens (and hence good judges) should pay their taxes.
The third aspect of good character that I would like to focus on here is the changing attitude to rudeness and bullying by judges. Socrates, as I mentioned in Part 1, listed the ability to listen courteously as one of the characteristics of a good judge, but this quality has not invariably been manifest in our courts. The topic has been the subject of a great deal of attention recently. In February 2019 the Bar Council published guidance to barristers about judicial bullying. It defines bullying as offensive, intimidating, malicious or insulting behaviour involving the misuse of power such as can make a person feel vulnerable, upset, humiliated, undermined or threatened. The Bar Council recognises that when bullying by judges occurs, it presents additional challenges because those who are a target may feel unable, or particularly reluctant, to do anything about it, even though the impact may be particularly acute.
I agree with the article written by a senior barrister in New South Wales and included in the Handbook for Judicial Officers in that Australian jurisdiction. It contains this observation:
‘The idea that judicial bullying is a necessary “rite of passage” for junior counsel is outdated, dangerous and wholly unacceptable. Older practitioners relating “war stories” of how they were mistreated by former judges should not be a source of admiration but rather, a sad indictment that this issue has not been addressed earlier. Just because one has suffered the humiliation of judicial bullying and “lived to tell the tale” does not mean that it should be an experience visited upon the newer members of the Bar. Rather, it should be the trigger for right-thinking members of the Bench and Bar to ensure that such behaviour is treated with opprobrium.’
Why has unpleasant behaviour in court fallen so far out of fashion? It is partly, I think, because younger lawyers have been educated in a school and university system that takes bullying seriously and they are, quite rightly, no longer prepared to put up with it.
To my mind this whole issue is much more significant than just being a way of protecting barristers from having a bad day at the office – important though that is. If lay clients sitting in court see the judge being rude and impatient with their counsel or with the witnesses on their side, they will feel strongly that they have not had a fair hearing. Their dissatisfaction will not be only with the judge, but also, however unfairly, with their counsel and with the overall process of adjudication. This becomes vicious circle because an advocate will rarely give his or her best for the client, or the cause, or for the court, when subjected to undue pressure.
The importance of what is said as well as what is done by the judge in court is also reflected in an interesting statistic about the categories of complaints about judicial conduct made to the Judicial Conduct Investigations Office. The JCIO’s annual report for 2020-2021 states that 232 complaints – about 19% of the total – were about inappropriate behaviour by the judge. The Report states that most of these complaints are found to be unsubstantiated or, even if true, insufficiently serious to require disciplinary action to be taken. But the fact that 232 people took the trouble to lodge a complaint with the JCIO about behaviour in court is a salutary reminder to any serving or would be judge that people are listening and watching and holding us to a high standard as regards our behaviour.
At the other end of the spectrum, does a judge need to have a sense of humour? That New South Wales Judicial Conduct Handbook contains a delightful article by Judge Kyrou of the Court of Appeal, Supreme Court of Victoria. He discusses some of the key personal attributes of a good judge, in which he includes not only independence, impartiality and communication skills, but also patience, cultural awareness and tolerance, people skills, a sense of perspective and a sense of humour. He says:
‘The administration of justice is a serious business, with important obligations and responsibilities. Court cases involve tremendous stress for court users and therefore the courtroom is not the place for judges to try their hand at being comedians. That does not mean, however, that judges must be perennially uptight and unhappy. A balanced lifestyle, interests outside the law, a down-to-earth personality and a good sense of humour can increase a judge’s enjoyment of the judicial role. This can assist in ensuring that the mood in the courtroom is positive which, in turn, can ensure that the hearing is conducted in an efficient and harmonious manner.’
One can contrast this with the comment of Lord Judge in that 2013 lecture I referred to in The good judge (1). He also lists the qualities that he considers the modern judge must have. These include the ability to make decisions that are profoundly unpleasant and have very serious consequences. ‘This is not a fun job,’ he said, ‘and you have to do it.’ I would say that that is true, of course, but that the job is sometimes a fun job and if you are going to get through the difficult and tense times, it can be helpful to be able to lighten the mood when that is appropriate.
That said, judges have sometimes got into trouble for flippancy or inappropriate remarks. Every judge must also bear in mind that you do not get a genuine reaction from those in court. So, the fact that everyone in court roars with laughter at some little quip you make at the end of the day, should not encourage a judge to give up the day job and start working the circuit as a stand-up comedian. Your audience might well be rolling their eyes as soon as you leave court.
No article – or at least no article by me – about what makes a good judge is complete without some mention of diversity. This is also dealt with in s 63 of the CRA. Following on from the provision that appointment must be ‘solely’ on merit, sub-s (4) qualifies this by providing that the use of the word ‘solely’ there does not prevent the selecting body, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within the group of persons who hold office for which there is selection under that Act.
Critics of this provision have commented that this appears to embrace the view that diversity is something different from merit and as if there has to be a choice made between the two ideas – or a balance of them, treating them as competing goals. Another way to look at it is to recognise that for many centuries the selection of judges has not truly been on merit – or rather it has been limited to comparing the merits of only a very narrow group of people. This does not seem to have troubled those who have been selected under that system and who are sometimes heard to complain about the unfairness of this tie-breaker provision. By contrast, it might be said that by the time a woman or a person from an ethnic minority community gets to the position where sub-s (4) might be triggered, they must already have overcome such challenges of conscious and unconscious bias that they may well be of greater merit than their rival.
Further, treating the ability of a candidate to bring a fresh perspective from a different life experience as being something not embraced by the term ‘merit’ seems to me unfortunate. This was put very well by Sir Sydney Kentridge when he gave the second Sir David Williams Lecture at Cambridge University in May 2002. The topic of his lecture The Highest Court: Selecting the Judges was prompted by the coming into force of the Human Rights Act 1998. This Act, Sir Sydney said, permits and requires hitherto unknown judicial interventions not only into the sphere of executive action but also in the sphere of legislation. Did this, he asked, mean that we should look for different qualities in our top judges? Sensitivity to social issues and an appreciation of the importance of individual rights would be desirable qualities – if only, he says, there were some ways of discerning them.
Sir Sydney compared the at that time entirely White male middle class members of the House of Lords with the South African Constitutional Court on which Sir Sydney sat as an acting justice. Of the 11 judges on that Constitutional Court, there were six White men, three Black men, one Black woman and one White woman. Five had been High Court judges, some had come directly from the Bar and at least four had at some point been academics as well as having worked in private practice either as advocates or attorneys. One had been a political exile. Sir Sydney writes: ‘They were all good lawyers, but what I found overwhelming was the depth and variety of their experience of law and of life.’ This diversity, he said, illuminated their discussions when he was sitting, especially when competing interests, individual, governmental and social had to be weighed. ‘I have no doubt,’ he said, ‘that this diversity gave the court as a whole a maturity of judgment it would not otherwise have had’.
That brings me to another quality required of judges. The Framework of Judicial Abilities and Qualities published by the Judicial Studies Board lists compassion as one of the qualities included under the umbrella of ‘Community and authority’ along with ‘firmness without arrogance’ and ‘sensitivity’. This quality is discussed by Robert J Sharpe, a judge of the Court of Appeal of Ontario in his book Good Judgment: making judicial decisions. He notes that our most respected judges are often described as compassionate.
But what exactly does it mean to judge with compassion? The law is the law and must be applied with an even and consistent hand and cannot be modified on grounds of sympathy or emotion. Indeed, I would add in parenthesis, another of the qualities in the Judicial Studies Board’s Framework is ‘remains detached and manages one’s reactions and emotions’.
Judge Sharpe’s answer is that judging is not an abstract or mechanical process – it is an intensely human process. The judge is engaged in unravelling and resolving disputes that often have had a profound effect on the lives of the litigants. A judge who is able to see all sides of a problem has a better chance of making a decision that is both fair and just and seen to be fair and just. He quotes Canadian Chief Justice Brian Dickson as saying that a judge must be guided by an ever-present awareness and concern for the plight of others and the human condition – compassion is not some extra-legal factor magnanimously acknowledged by a benevolent legal decision-maker. Rather, compassion is part and parcel of the nature and content of that which we call ‘law’.
That is certainly something that accords with my own experience and is true whatever area of the law you specialise in as a judge. One thing that struck me during my time as a judge in the Chancery Division is how often what appears on the face of it to be a rather dry case exploring some arcane provision of the Companies Act or the Insolvency Act in fact arises from a very human dispute between the litigants. The parties use the courts to resolve their own feelings of upset or betrayal about some business partnership that went wrong or ambitious commercial venture that unhappily foundered, throwing their lives into turmoil. So, as a trial judge, being able to feel compassion or being able to empathise with the parties and the predicament they find themselves in is often an essential part of being able to decide which of the parties is giving the more accurate account of what happened when you come to make the findings of fact that are going to form the bedrock of your application of the law.
Following on from that thought, let me conclude by sharing some advice I give to judges just starting out – and which indeed I regularly give to myself and which I find very helpful in my desire to be a good judge. Bear this in mind. For every case that you preside over, there comes a point a day or so before the hearing when the lawyers involved in the case find out from the listing office that you are going to be the judge hearing their case. They ring up the client and say, we’ve just heard that we have Mrs Justice Rose or Mr Justice X. Inevitably the client asks: ‘Is that good or bad? What is she or he like?’ If you want to be a good judge, try to think of how you would like the lawyer to respond to that question from the client… and then – in all the different aspects of your conduct in and out of court – try to behave so as to bring that about.
© Lady Rose of Colmworth, 2022. Lady Rose would like to thank her judicial assistant Jake Thorold for his help in preparing the Gresham College lecture, ‘What makes a good judge?’, 16 June 2022, on which this two-part series is based. Part 1 appeared in the October 2022 issue of Counsel. Lady Rose’s lecture can be viewed at: www.gresham.ac.uk/watch-now/good-judge
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