Judiciary

 New Lord Chief Justice sworn in

Sir Ian Burnett (pictured) became the Lord Chief Justice of England and Wales today and marked the occasion by making a declaration upholding the independence of the judiciary as a pillar of the rule of law: 

 “At times of great change the central role of the judiciary upholding the rule of law remains a constant, as do our impartiality and independence. These features are embedded in the oath I have taken. They are fundamental to our justice system and underpin the effective and smooth functioning of our society. I believe we should be better at explaining our role and the vital importance of our independence and impartiality.”

When tabloids talk about a “top judge” they often mean someone relatively junior. But Sir Ian really is top judge: he’s head of the judiciary of England and Wales under section 7(1) of the Constitutional Reform Act 2005, responsible for representing the views of the judiciary to Parliament and the government, for the welfare, training and guidance of the judiciary, and for their deployment in the courts — in any of which he can, if he wishes, sit. So in theory you could see him sitting in a magistrate’s court: see section 7(4). But he is more likely to sit in the Court of Appeal, Criminal Division, at the Royal Courts of Justice in London, where there is a court (No 4) designated as the Lord Chief Justice’s court. 

New President of Supreme Court sworn in

Baroness Hale of Richmond, formerly Deputy President, was sworn in today as President of the UK Supreme Court, in which she has served since it was opened in 2009, and before that in the Appellate Committee of the House of Lords since 2004. 

She is the first woman to be President of the UK Supreme Court, but in this regard the UK lags behind more progressive common law jurisdictions. There are already women presidents in the Supreme or High Courts of Canada (Beverley McLachlin CJ), New Zealand (Dame Sian Elias CJ), Australia (Susan Kiefel AC) and South Africa (Mandisa Maya AP). 

Lord Mance replaces Lady Hale as Deputy President. Lady Black, Lord Lloyd-Jones and Lord Briggs join the court as new Justices. 

Watch the swearing in on the UKSC YouTube channel. 

Recruitment and diversity

A lovely-looking book entitled Debating Judicial Appointments in an Age of Diversity has been reviewed by Isobel Williams on her Drawing From an Uncomfortable Position blog. The book is edited by Graham Gee and Erika Rackley, who have collected essays by the great and good and their observers to commemorate the tenth anniversary of the Judicial Appointments Commission (JAC). Isobel finds the essays interesting and digs out some handy tips for would-be applicants. She concludes: “If you think you’re hard enough for the bench, then – even without issues of diversity – you’ll be interested in the matters this book raises.”

Her particular interest in the book is also declared: “Uncritically, I would say that the best bit of the book is Appendix IV, which is about how I came to draw the cover illustration. I’m indebted to Christopher Allan, Court and Ceremonial Manager at Ede & Ravenscroft, for giving me a close-up view of the robes in his care, groomed like champion race-horses.”

(Isobel has form for courtly drawing: we reviewed her delightful Bear’s guide to the Supreme Court earlier on this blog.) 

The Lammy Review final report, published last month, has some interesting observations about judicial  diversity and appointments. An infographic on p 23 shows that while 14% of the population identify as BAME (black and minority ethnic), only 7% of the judiciary do. Of course, the judiciary are drawn from the professional middle classes, by and large, so you would need to compare the percentage of them who identify as BAME to get a more accurate comparison. On the other hand, judicial diversity in a more general sense should avoid limiting the pool of talent to the professional middle classes (self identifying as such). 

Chapter 4, which deals with the courts, attributes low judicial diversity to factors other than merit and background: 

Judges are selected on merit – but there is no reason why this principle should count against the many talented BAME barristers and solicitors who want to become judges. The problem is often framed as a question of encouraging more applications from BAME candidates, but the figures in table 4 show that this is not where the problem is. BAME barristers and lawyers are applying to become judges, however, the issue is that they are not getting through the process. As Table 4 shows, in virtually every recent recruitment round, BAME applicants have been recommended for positions at lower rates than they applied. 

The report concludes that “The JAC should also examine the way it carries out selections.” On p 39 there is a handy summary of that judicial selection process. Recommendations 15 and 16 address the problem, with a proposal that the JTC (judicial training college) or JAC should engage in positive talent-spotting, pre-application support and coaching for near-miss candidates to help move towards a more representative judiciary and magistracy. 

Discipline: two cases, fast and slow

The other side of the coin is the way those already appointed as judges are treated by the disciplinary process. Two cases have been highlighted in the last few days, one of which was dealt with openly and quickly, the other has been slow and secretive. 

In one case, the judge whose decision to spare a female student from the career-blight of a prison sentence after she stabbed her boyfriend with a breadknife was reported to the Judicial Conduct Investigations Office (JCIO). In fact Judge Pringle QC gave Lavindia Woodward a 10-month prison sentence but it was suspended for 18 months. As the Secret Barrister blog explained in an update on the case, sentence was deferred in response to impressive mitigation and the hope of rehabilitation, and when carried out was done so in an entirely appropriate manner in accordance with the sentencing guidelines. The respite from immediate incarceration was not just because she was posh or clever, as the tabloid hue and cry suggested: 

It’s not just a rich white girl getting a let-off; it’s also a victim of domestic violence with severe mental health and substance misuse problems being given a chance to rebuild her life. 

Despite this, the case seems to have prompted three complaints about the judge to the JCIO, which, however, “can only consider complaints about misconduct; it cannot deal with complaints about the outcome of a case.” (JCIO 2016-2017 Annual Report, p 2.) As the Evening Standard reported, the complaints were accordingly rejected — and swiftly. Something for which the JCIO was praised, because the last thing a good judge doing their job properly needs is to be under the shadow of a disciplinary investigation. 

The same cannot be said of another case, that of Mr Justice Peter Smith, who, as Joshua Rozenberg explains in the Law Society Gazette, has been suspended on full pay since May last year, pending an investigation into allegations of misconduct, full details of which have not been published, by a panel whose members have not been identified. Joshua’s complaint is not about the misconduct (though he admits he has been calling for Sir Peter’s resignation for a decade) but

“about the failure of the statutory disciplinary process to deal with those allegations in a timely and transparent manner”.

Courts

Flexible operating hours

The aims and scope of the FOH pilot were described by the CEO of HMCTS, Susan Ackland-Hood, in a blog back in July, entitled Ensuring our justice system fits the needs of those it serves. 

The general idea was to make better use of court buildings and facilities (the ones that haven’t been closed and sold off) to provide a justice service outside traditional court hours. However, there has been widespread opposition to the FOH pilot, from a variety of potential participants (particularly those with young children), as summarised in a recent blog from the Law Society. 

These concerns have not been assuaged by a letter from the Judge in Charge of Reform, Sir Adrian Fulford. But it’s hard to see what else he can do; without the pilot, any impact assessment will be largely speculative. Sir Adrian is not the only person to have engaged with the critics. Many of the lawyers and commentators on Twitter have been impressed by Susan’s willingness as CEO of HMCTS to respond to their tweets. 

Proof of that engagement, and willingness to listen, has been the decision, announced by Susan in a  fresh blog dated 21 September, that the FOH pilot is being postponed: We’re pausing court hours pilots to get evaluation and other changes right

In it, she recognises that: 

“the issue has been controversial with many in the legal profession, and I understand why. The strong views expressed reinforce the need for us to proceed on a clear evidence base. It’s for that reason that, today, we have agreed to delay the start of these pilots until we are satisfied that we have a robust, independent evaluation system in place; and until we have taken more time to engage and discuss the pilots, picking up on comments made on how they could be improved.

This seems a sensible approach and is welcome evidence that, however things may have been done in the past, the HMCTS Reform programme is trying to adopt a holistic, responsive and collaborative approach to the massive task of court modernisation. It is only by engaging with and earning the support of the legal professions that the programme will work. 

Partly in response to the pilot, the Bar Council issued a Court Sitting Hours Protocol http://www.barcouncil.org.uk/media/571291/sitting_hours_protocol_-_final.pdf 

Other commentary includes: 

On the subject of HMCTS Reform more generally, see my recent article in Internet Newsletter for Lawyers:  A justice system fit for the future

Access to justice

Bach Report

The final report of the Bach Commission on Access to Justice was published on 22 September 2017. 

Andrew Langdon QC, Chair of the Bar, welcomed the report, saying it was “part of a shift in how legal aid is being discussed”, and a recognition that “the rule of law is not merely a slogan”: 

Lord Bach makes the important point that the rule of law and legal rights do not mean much unless citizens are able, through the legal system, to have them upheld, and that cuts to legal aid have made that impossible for many, especially the most vulnerable in society. 

Sir Henry Brooke, who sat on the commission, has written extensively about its work and the report on his blog, including this executive summary of the report. 

See also the Young Legal Aid Lawyers’ response: YLAL Response to Report of the Bach Commission on Access to Justice.pdf

Read the report: Fabian Society, the Right to Justice (links to full report PDF). 

Legislation

Birthday of the Human Rights Act 1998

Today, 2 October, is the birthday of the coming to force of the Human Rights Act 1998 on 2 October 2000. 

Some parts of the Act were already in force, but the majority came into force on this day, implementing into British law the provisions (scheduled to the Act) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950. 

Video of the Week

Strictly legal: a courtly Charleston performed by Susan Calman and  Kevin Clifton from this weekend’s BBC Strictly Come Dancing 2017. Wigs, “bundles”, pink tape – but not a gavel in sight. Bliss!

That’s it for now. Our thanks to all who flagged up stories, via Twitter or their blogs.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter.