Taken before the Justice Committee
on Tuesday 26 October 2010
Sir Alan Beith (Chair)
Mr Robert Buckland
Mrs Helen Grant
Mr Elfyn Llwyd
Examination of Witnesses
Witnesses: The Rt Hon Lord Judge, Lord Chief Justice of England and Wales, and The Rt Hon Lord Justice Goldring, Senior Presiding Judge of England and Wales, gave evidence.
Chair: Lord Chief Justice, Lord Justice Goldring, welcome to the first appearance you have made in front of the newly constituted Committee since the last election. I think it is necessary for us first of all to declare any interests we may have around the table.
Mr Buckland: Yes, Chair. I am a practising barrister and I am still in receipt of legal aid fees for work completed prior to the General Election. I am also a Recorder of the Crown Court.
Anna Soubry: I too am a practising criminal barrister, also in receipt of legal aid work. Those fees are still coming in since May.
Chair: I have no interests.
Mr Llwyd: Since April I’ve become a non-practising barrister, but some fees are still trickling in under the legal aid scheme.
Mrs Grant: I am a solicitor but I am not practising. My firm still receives legal aid fees.
Yasmin Qureshi: I am a barrister and I was practising. I am still receiving some of the legal aid money for work I carried out prior to being elected.
Chair: Perhaps I should say that at last week’s session with the Minister I waived the sub judice rule because the delivery of an important public service was involved. I have not waived the rule for this session, not least because it would be inappropriate to ask judges about cases which might still be live if an appeal takes place. That does not stop us from looking at some general questions about legal aid at some point in the session.
Lord Judge: Yes, of course.
Chair: Perhaps I should also say, because it is the first meeting with the new Committee, that we recognise that the Lord Chief Justice cannot be expected to comment in ways which might in any way appear to prejudice the independence of the judiciary from politics and the political system. But at the same time, of course, the changes made in recent years have greatly added to your responsibilities and have made you the spokesman of the judiciary, taking over some of those responsibilities from what Lord Chancellors previously did.
Lord Judge: Yes.
Chair: There is a balance to be struck, and we understand and recognise that. You have now extensive administrative, disciplinary and budgeting responsibilities, as well as sitting in court. Is the balance right and has your office been able to adapt to that role over the last couple of years?
Lord Judge: The balance is about right. The weekends get shorter and the evenings get longer, but that’s true for most people with a job.
Chair: Tell us.
Lord Judge: The way in which it works is that I have people to whom I can delegate the main burden of the responsibility, who then come back to me and tell me what’s going on. The system works because a number of different judges have willingly taken on these additional responsibilities at all levels. The Senior Presiding Judge is an obvious case, but we have Presiding Judges, Resident Judges, Designated Civil and Family Judges and so on. Some of my responsibilities percolate down. That is in relation to the running of the court system itself.
In relation to the discussions that have to go on between me and the Lord Chancellor for a more efficient running of the system, then I tend to take the lead in that with the Senior Presiding Judge and the Heads of Division. In relation to complaints, I have an office that deals with that. I have judges who take the first steps in dealing with them, but largely and effectively I think the system is working. There are still bits of it that we have to iron out. The most important of those is the transactions that have to go on while we establish the budget for the running of Her Majesty’s Courts Service. That is an answer in itself and I am quite happy to develop it if you would like, Chairman, now or at some stage when you want to develop it.
Chair: This might be the moment. We will look at one or two specific examples in the course of today’s proceedings, but as a process, bearing in mind that from the start it was envisaged that the judiciary would be involved in decisions about the budget of the Courts Service but wouldn’t have the autonomy which the courts have, for example, in Scotland or in Ireland, how is it working, particularly when under the sort of pressure that it would have been under with the massive spending review taking place?
Lord Judge: It works in this way. Her Majesty’s Courts Service includes three judges, including the Senior Presiding Judge, as members of the Board. The constitutional arrangements are very clear. Every member of the Board is answerable equally to the Lord Chancellor and the Lord Chief Justice. In the ultimate analysis, if there is a disagreement in HMCS, that has to be resolved by the Lord Chancellor and the Lord Chief Justice. So far, it has not been particularly problematic. The real concern I had was when the Ministry of Justice/Lord Chancellor took over responsibility for the Prison Service and various other bits of the Home Office portfolio. My concern then was, and it remains, that Her Majesty’s Courts Service should not be disadvantaged by any new arrangements that might have to be made in relation to the extended role of the Ministry of Justice. For example, I would be very unhappy if I thought the Courts Service was being denuded of funds because the Government decided that some aspect of the prison system needed further funding, so they were robbing Peter to pay Paul. That is something I have to watch for.
The current budget has worked perfectly well. The negotiations for next year’s budget—that is, 2011–2012—are still way back because of the various financial problems which the country faces. We won’t be discussing those until, I suspect, the end of this year—not this financial year, but 2010—with a view to agreeing a budget for next year. That’s obviously a hard negotiation. I do not sign up to a Concordat agreement, as it is called, unless I am satisfied that the administration of justice can be carried out.
I would love to think that we can afford a Rolls-Royce, but I know that a car that is not a Rolls-Royce can get from London to Nottingham or London to Birmingham and so a smaller car will do. What I can’t have is a car that is going to break down. Now, how can the car break down? The sort of thing that will be of interest, I am sure, to you and the Committee is, if, for example, we start running into a situation where custody time limits are constantly expiring, so that people charged with and kept in custody on very serious crimes have to be released. That is a breakdown. Another breakdown is if the time that it takes for cases involving the future of children to be sorted out becomes longer and longer and longer, when we all bear in mind that what they really need is the earliest possible solution. That would be a car breaking down. As long as the car works efficiently—it may be a little slower and it may be a little less comfortable—a Rolls-Royce is not needed, but it has to be a working vehicle.
Chair: Would you now, in the light of experience, want to make any changes in the Framework document itself, which governs the relationship of the judiciary and the Executive?
Lord Judge: There are some small changes. It is being re-examined, and was always going to be, for April 2011. It is having to be re-examined anyway—and I am paraphrasing a much more complicated process—because the tribunal system is going to become part of Her Majesty’s court and tribunal service. The tribunal system has its own particular features which have to be accounted for within the Framework agreement. Beyond that, I think the changes that are proposed—the drafts are going backwards and forwards—are not of any major significance and I wouldn’t have thought they would be of trouble to your Committee. I will just have a word, if I may, with Lord Justice Goldring about that. John?
Lord Justice Goldring: I entirely agree with that. We have a draft of the proposed new Framework document, which, in its essentials, is similar to the present with, I think, some slight improvements to meet both the courts and the tribunals service needs. I think from our point of view it is essentially the same.
Chair: We will be coming back to some of the points you have touched on. I am going to ask Helen Grant to start in the civil courts.
Mrs Grant: In your review in February you indicated that the civil courts may well have been neglected. Can you just explain to us what the impact of that neglect might be for those civil courts?
Lord Judge: Civil justice has always been the poor relation of the administration of justice. We all understand that crime has to be dealt with, innocent people must be acquitted and children’s futures must be sorted. Somehow, civil justice doesn’t quite pick up all these slightly emotive issues. I think the first thing to say is that civil justice is remarkable: it pays for itself. This should cause eyebrows to be raised as in a Bateman cartoon. I will say it again: civil justice pays for itself. The fees that are charged pay for the civil justice system. Indeed part of what they pay for includes the family system. But in the end, my view of civil justice is this: it would be so easy to get somebody to throw bricks through a window if you felt that they owed you some money, if the court system didn’t provide the solution that you are entitled to, and that includes actually getting the redress as well as the judgment.
My strong impression is that the civil justice system works pretty well—not perfectly, any more than any other part of the system. I think the more problematic area for the civil justice system is the actual cost to the litigant. The costs are prohibitively high. You can test it in this way. I am not asking Members of Parliament or judges for that matter to deal with it, but ask any reasonably well paid public servant, “Could you afford to litigate for three days?” and the answer would be, “No.” The advice you would receive from your lawyer would be, “You’d be much wiser to settle. Take half of what you think, or whatever it may be. Don’t run the risk of being involved in civil litigation.”
I’m sorry I am going on a bit, but I have to tell you this. There is a wonderful Chinese curse. It’s nothing to do with interesting times, which I don’t think is a curse at all—I think that’s terrific. The curse is, “May you be involved in litigation”—well, that’s fine, but here’s the crunch—“when you are in the right.”
My general view is that with civil justice we have to re-examine the entire way the costs structure works. The Jackson review was set up by judges at the behest of Lord Clarke, who was then Master of the Rolls, to examine all the issues relating to civil justice. I am not going to invite you to read it all—it’s huge. I regret to say I have not read it all, but you have there a comprehensive analysis of the civil justice system, why it costs so much, why it should cost less and how it should cost less. I know the Government has not accepted this, but my own view is that Lord Justice Jackson has examined all the pros and cons. He has taken all the pressure groups’ views into account. Where he thinks there is an argument one way or another, he sets it out. His recommendations, if implemented, would make for a much more efficient civil justice system.
Mrs Grant: That is a very helpful explanation. Thank you for that. I have two more supplementaries on this. The first one is: what are the implications—and it is maybe a little bit too early to tell—for the spending cuts on the civil courts as far as you see them? The second question is: is the Administrative Court still pressurised?
Lord Judge: As to the first, I think it will depend on where the arrangements for reducing legal aid come into force. I have quite a lot I could say about legal aid generally, but I think that is the important question. As I say, we have to face the fact that civil justice pays. We have to face the fact there has to be a system for people recovering. But beyond that, for the moment, I don’t think I should go.
For the Administrative Court, yes, that is very pressurised. Just let me check some figures which I think may be of interest to you. The court was overloaded and it is still largely overloaded, although it is coming under control. In round figures, we had 12,000 new cases for the year ended March 2008, and, for the year ended March 2010, in round figures, 17,000 cases. So that is an increase of, give or take, 40%, largely fuelled by—forgive me, I am now being technical—reconsideration decisions. They are section 103A of the Nationality, Immigration and Asylum Act 2002.
We made big inroads into that, partly by inviting judges who were not High Court judges to act as deputy High Court judges. There was a long, long period when it was thought that the Administrative Court decisions could only be made by High Court judges because it was a challenge to the Government or to a large institution of state, but some of the decisions that have to be made do not really raise major constitutional questions and there’s no reason why trained judges with the ability and interest should not do that, so we are using deputies.
We have had a huge effort this summer by the High Court judges to attack the backlog of paper applications. Last September, in round figures, there were 1,000 still outstanding; this year the figure has come down to 350 still outstanding. That will of course generate more work, because leave will have been given in some of those cases, and that will create burdens on the court itself. But taking all that in the round, if we can get rid of what we describe as “reconsiderations”, I think we will be well on the way.
The other feature of the Administrative Court which I think is very important is the fact that it is working very well out of London. The Administrative Court now runs in Birmingham, Manchester, Leeds and Cardiff and perhaps—I think “probably” is putting it too high in view of the financial constraints—in Bristol. That does not mean that they only take cases from London. They will generate work of their own, but about 10% of the Administrative Court work is now done out of London. I hope that is an answer to your question about the Administrative Court. It is pressed and pressurised, but we are coping.
Mrs Grant: Good. Thank you very much.
Chair: In your Mansion House speech, turning to something you’ve already mentioned which is family law, you asked this question: “Does our traditional, adversarial system continue to provide the best means of enabling judges to decide those desperately sensitive cases involving the future of children?” Would you have asked that question if the answer had been, “Yes, of course it does”?
Lord Judge: I was intending to stimulate a debate about these issues. I think that in children cases there are two separate limbs. There is the case where there is an allegation that the child is being abused one way or another, in some way, and, if so, by whom. It is tantamount to saying that mother or father or carer is committing a crime—being violent to a child or sexually interfering with it. I think those have to have, if you like, something of the rigour of the adversarial system. There is a serious allegation which undoubtedly implies that mother or father or whoever is doing something awful to the child.
My real concern, or what my intention was directed to when I made the remarks I did, is this. Let’s go to the ordinary private law case—the case where the parents are no longer happy together, they decide to split up for whatever reason and they can’t quite agree about the future of the children and what’s best for the children. Some of those cases are cases where two people in the best of good faith simply disagree about what is best for their child or children. I cannot think that the adversarial system improves their relationship with each other and their relationship as mother and father of these children, who are going to have to cope with the fact that their parents are splitting up anyway. There, I think the adversarial system leaves a great deal to be desired because the adversarial system means winning, and actually there is no winner in the context of a child case.
Then there are the cases where the parents are not acting in good faith, or not both of them are, and one or other parent is using the child as a weapon to get back at the other partner. Those cases have to be resolved as quickly as possible because children simply cannot be treated in this way. There again, the adversarial system gives the parent who is using the child as a weapon a better opportunity to use the child as a weapon. Actually, the answer to my own question is that in cases involving the care and future of children, I have the most serious reservations about whether the adversarial system is in any way to the advantage of the child.
Chair: Is there some way in which these concerns are being relayed into the Family Law Review on behalf of the judiciary?
Lord Judge: Yes, they are. I can’t jump ahead and guess what the recommendations will be, but I would be disappointed if at the end of all this we ended up adhering to the adversarial system in what I have described as the private law cases.
Mrs Grant: Can I just come back very quickly on that one? That is really interesting and I agree with you wholeheartedly about trying to keep these cases out of court, but what is the alternative to the adversarial system? Do you have any thoughts on how these matters might be resolved in the alternative?
Lord Judge: I am sorry to do this. I can remember when I started at the Bar—and I will probably say this a few times—I acted for a mother and my opponent was acting for a father, and they couldn’t agree about a particular handover arrangement. I’ve never forgotten it. My opponent was then a very experienced practitioner. He said, “You know, what we need is a road map.” I said, “I’ve got one in my car.” I went back to my car. We got a road map, we went into the judge and said, “Here’s the road system. Mother lives here. Father lives here. We think a sensible meeting point might be here.” I am not saying the judge had a magic wand and said, “There,” but he looked at it and he said to the mother, “If I say here, can you get from there to there?” to which the mother said, “It will take me about so long.” Then he said to the father, “Can you get from here to here and how?” That is how I would like these cases to be dealt with.
It is not mediation as such, but it is standing back and everybody trying to take a sensible view. It is not victory; this is not what this is about. There are no winners—just what suits the interests of the child best.
Chair: It is an active role for the judiciary though, isn’t it?
Lord Judge: Yes; it is.
Chair: It is not unlike that which operates sometimes, say, in the small claims court?
Lord Judge: Exactly.
Chair: The Committee once asked a judge in a case they had observed how long proceedings would have taken if the parties had not been represented, to which his answer was, “Approximately half the time.” It is really applying the same principles, presumably, isn’t it?
Lord Judge: Yes. I am actually quite sure the judges who deal with these cases are very proactive—much more so. For a start they are private hearings. But that is how I would like it to happen. Now, you may say this is idealistic and wonderful, but actually it shouldn’t be too difficult to achieve.
Anna Soubry: Can I just ask a quick supplementary? There is that other sort of public family case where you have, arguably, inadequate parents and the court is struggling to determine whether or not these children are going to be removed from their parents and ultimately taken into adoption. Would you like to see an end of the adversarial system in relation to those sorts of cases? Is there an alternative, because they tend to be very long-winded as well, don’t they?
Lord Judge: They do, but there you are then dealing with something quite different. You are then dealing with family autonomy: the autonomy of the parents, the autonomy of the children, and the allegations that they are, for one reason or another, not suitable to have their children. That is quite a finding to make about a man or woman, “You are not a suitable father.” I may disagree with your disciplinary process and all that, but that is not this. That is saying, “You are not fit to be a mother or father caring for your children.” That is something that I think has to be examined in the closest depth before you make such a finding. I don’t see that as part of my “Let’s sort this out.” That has to be established.
Mr Llwyd: Some of us are of the vintage that we were in practice prior to the 1989 Children Act and things did rapidly improve after that Act. However, practitioners now are telling me that things are winding backwards instead of forwards, with delays and costs involved. Practitioners and court users are complaining about various reasons why delays are happening. If I tell the court that last August I did a contested residence application which went part-heard in August and was not completed until January of this year, that gives some idea of the pressure on North Wales courts. With the best will in the world, the judges are doing their level best, but they are hamstrung at this moment in time. There is a great deal of concern about delays in the family system. I am sure both you gentlemen will have heard it before, but I don’t know whether you have any thoughts on how this could be allayed in some way?
Lord Judge: I am rather shocked at what you have told us. I just think that is inconsistent with the interests of children. It is not acceptable. I am not doubting what you said.
Mr Llwyd: Oh no.
Lord Judge: But I think that is a shocking piece of information. The answer is that I think we’ve really got to wait for this Family Justice Review. These issues have to be examined in depth. If I were to give an off-the-cuff answer, apart from expressing, as I have, my reaction to what you have told me, I think that would be unwise.
Mr Llwyd: May I ask one final point on this? I am told, for example, that in Canada there is a compulsory mediation requirement. Does that have any possible resonance here? I am just kicking the ball up into the air really.
Lord Judge: No, well thank you. I may be revealing something of my own thinking, which of course I shouldn’t, but I do dislike the word “compulsion” in these situations. Parties may want to mediate; that’s fine. It may be a very good idea for them to be advised to mediate; that’s fine. It certainly used to be the obligation of a solicitor dealing with parents whose marriage was breaking down and so on to advise them about this and that—all the social consequences—and I hope that still continues. I would need some persuasion about compulsory mediation, simply because I think the element of compulsion is not our way.
Mr Llwyd: I know that both of you have concerns about the current court closures. I am just wondering whether you could inform the Committee of the way in which you approach the whole issue of court closures and the possible effect on access to justice?
Lord Judge: We have to face the fact—it may not be fashionable to say so, or maybe it is now but I was saying it before it was—that the country is bust. We have to examine, therefore, how our court system works. There are courts that are in places where they are no longer needed. They should close. There are courts in places where a careful analysis would reveal that you could use the same building for a magistrates’ court, a tribunal court and a county court perhaps one week a month each, or two days and one day and two days. All that needs to be examined.
My real concern is that in the proposal list, some of them are demonstrated. To take one from your area, I think Flint magistrates’ court is hard to justify. It meets one day a week and five miles down the road there is a court in Mold. That court seems to me not one that should stay open. On the other hand, I do know very well there is a court not so far away from you at Pwllheli which is going to be closed, and I know that getting from Nefyn to Caernarfon is a very different journey on public transport than it is getting to Pwllheli. I know that. We have to have a system which acknowledges, particularly in the wider country areas—and some of you represent wider country areas—that it’s very easy to look at a map and say, “Oh well, that’s 40 miles. That should be covered in an hour,” but you also have to look at what public bus service there is. It’s not like London buses. In some areas one bus comes and then you don’t see any for a very long time.
What I’ve tried to do, and this information was provided for me and I looked at it, is to identify the courts which should be closed, to identify the courts which we say should not be closed, and to identify the courts—and there are a lot of them—where further thought should be given as to how the system will operate. There may then be a perfectly good case for closing the court, or for not closing a particular court without recognising that another court can take on the work. There are other courts where a lot of money has been spent and one needs to question whether they should be closed.
All in all, what I’ve tried to do is to say that we’ve got to have a system for people to be able to get to court who do not have cars. Although many, many people in the country have cars, not everybody does. We then have to have a system which recognises that if there’s been a punch-up in a small village—it doesn’t matter where—you might very well, if there are no cars, have the witness and the alleged victim on board the same bus. These are questions which have to be addressed. As I say, in the end the decision is for the Lord Chancellor. Our job is to point out where we think there may be problems with access to justice. That is what we have tried to do.
Mr Llwyd: I think members of the Committee were somewhat surprised, Lord Chief Justice, that you knew precisely which area I represented. We met at a conference three weeks ago, and I horrified the Lord Chief Justice when I told him that I was his Member of Parliament. Anyway, back to the script.
I presume you do have a leading role as senior judiciary in the whole issue of the review of legal aid and the implications of the reductions to the budget on, again, access to justice and possibly the make-up of the professions?
Lord Judge: Yes. We don’t have anything to do with the way legal aid is granted or not granted. We have nothing to do with the way in which legal aid for the lawyers is assessed, but we do have a great interest in legal aid.
There are a number of different facets to this. I have been saying for a long time now, and I still say it, that I don't think that our legal aid system in the criminal justice world and the family justice world, which are the big drains on the system, recognises efficiency. We pay more if a case takes longer. It may be that a case should take as long as it does—that is not a quarrel—but just because a case takes longer does not seem to me to merit more money. I would much rather have a system in which we recognise the level of responsibility, the difficulty of decision, the consequences to the defendant, the consequences to the Crown if the case isn’t proven, and so on and so forth, and have a system which says that if you get what is regarded as a five-day case done in three days, that merits being better paid.
Is this completely outrageous? It seems elementary to me. We should pay more for the responsibility and for the work done well. Somehow or other, we have lost that knack in the system of paying for legal aid work. That is my first point.
My other point is that we do need to look at the way in which we decide how legal aid should be paid. I am now confining myself to criminal cases for obvious reasons. Should the advocate who acts for a defendant in a case that is heard in the magistrates’ court which is triable either way but which the magistrates think they could perfectly well deal with—it’s not outwith their general jurisdiction—be paid less than the case going to the Crown court where so many of them in the end collapse as cracked trials? Quite apart from the possible increase in the cost to the legal aid fund, think of the number of police officers who won’t go to the Crown court for the cracked trial, the number of witnesses who are taken to the Crown court and so on. The magistrates on the whole deal with these cases much, much more quickly than the Crown court.
I want the legal aid system to be working in tandem with an overall more efficient administration of justice. Where the Government may decide that cuts should be applied to legal aid, I really can’t make a contribution to that. That is outwith my jurisdiction. But I want it to be geared up to making the criminal justice and the family justice system more efficient than it is.
Chair: In your Mansion House speech you said: “In the Crown Court, time continues to be treated as an unlimited resource. This simply cannot continue.”
Lord Judge: I agree. Well, I would agree with myself, wouldn’t I?
Chair: I am relieved to hear that.
Lord Judge: The really significant point there is that, perhaps in consequence of what I said, the Criminal Procedure Rule Committee has introduced a rule—I have signed off the rule so it is now part of the rules—giving the Crown Court judges express power, with effect from the beginning of this month, to lay down timetables for the cases in the Crown Court. This is anathema—the idea that the judge, who is supposed to be the calm referee, is actually interfering in a criminal trial and saying, “You must do it this way. You must do it that way.”—but it is time we faced up to the realities that I identified in my Mansion House speech. A judge is perfectly well able to say to counsel, “I think that this case should take three days,” and, “I think you should have so long to open the case” to the Crown. This involves the judge, of course, familiarising himself in very close detail with the case. “What is the issue in the case? Are we arguing about the identity of the man who committed this offence of rape, or are we arguing whether sexual intercourse took place and whether it was rape or not? Why do you need to cross-examine for four hours? Why can’t you conduct your cross-examination in two?”
I am not suggesting this is a revolution, but it is a new way of doing the work which it will take time for the judiciary and the professions to grasp. But when this was introduced in the Commercial Court 20 or so years ago, everybody stood back and said, “Good Lord, no. How can you limit it?” Well, it was limited. It never crosses anybody’s mind in the Commercial Court that justice isn’t done and that justice isn’t seen to be done when the judge lays down a timetable for the conduct of the case.
Now, no timetable can be fixed. It is not a train timetable. Obviously a witness may turn up with, for example, a stutter. A witness may turn up who, although apparently adult—the judge should have been told in advance, but it doesn’t always happen—has difficulties with concentration. All this you build in and you allow flexibility for. But I am very keen for judges in the Crown Court and the advocates appearing in the Crown Court to understand that there has to be a timetable for many cases.
Chair: Isn’t part of the problem the Crown Prosecution Service and adjournments?
Lord Judge: That is another problem. I should add to this that I don’t think we are helped by the legislative process. We’ve just had to take account of the new Coroners and Justice Act “loss of control”—what used to be called provocation. I am just going to show the members of the Committee this. This is the direction consequent on the changes to the law which the judge has to give. May I read out something to you from it? I want to make a point about legislation. I have said all sorts of things about legislation, but here it is my chance to ask you to consider the process that you require us to go through.
Chair: In some cases you are preaching to the converted, but a sermon does no harm.
Lord Judge: There is a wider audience, isn’t there? Sexual infidelity is no longer a trigger for loss of control. So the judge has to direct the jury in a case where a woman comes home and finds her husband with not much on and his girlfriend with not much on. It’s the first she knows about this affair. “The Act of Parliament which created this defence provides very explicitly that the jury must pay no attention to sexual infidelity as a possible trigger for the loss of control. It is not to be treated as a qualifying trigger.”
Then, omitting some words, there is, however, “one respect in which you can take the sexually charged circumstances into account. Denise”—the defendant—“told you that Victor’s”—the husband who is killed—“reaction to being caught red-handed in their own home was not embarrassment or sorrow or regret, but aggression. ‘Eff off you slag. What the eff are you doing here? I’ll get you.’ If you accept that these or similar words were [or might have been] used by Victor you might conclude that he was … rubbing [his wife’s] nose in it. In other words, this was yet another gravely more hurtful expression of his wish to control her as he thought fit. That is a legitimate way of treating the circumstances even though the sexual act itself is to be left out of account.”
I have looked at all of you, and I can imagine how any jury will be looking in every Crown Court in the country. That is, forgive me saying so, the legislative process.
Chair: Some of us remember the rather anguished debates on it.
Yasmin Qureshi: I entirely agree with what you have said. I don’t know if you’ve noticed but I’ve been nodding my head at most of what you’ve mentioned.
Lord Judge: I would always be wary of judges who nodded their head. There was one who nodded, nodded and nodded when he was turning you down on every point. What he meant was, “I’ve got the point and it’s a bad one.”
Yasmin Qureshi: Before I ask my next question, can I just make a declaration because the question I am going to ask is going to touch on something that Sir Alan just mentioned as well? Many years ago I used to work for the Crown Prosecution Service and I still have a family member who works for the Crown Prosecution Service.
You talked about the need to control the timetable for a case, its progression and the days set aside. I think a lot of people here would agree with that. We talked about the legal aid issue. The DPP, Keir Starmer, said a few days ago that in about 50% of cases coming to the Crown Court guilty pleas were being entered at the last stage, just before the trial, and that was causing a lot of waste of time. There has been a suggestion that one of the reasons that’s happening—going back to the point you made about legal aid earlier—is that, because of the change in the rules, if you plead at the first instance it’s only maybe £400, but if you plead at the point of the trial it’s about £1,800. Do you think that has an element to play in it and maybe if you had the system of payment that there used to be, where the amount of hours you did, the amount of work and the complexity of the case, the papers, the numbers of bundles and the expertise were taken into account, things might be expedited a bit quicker?
Lord Judge: I think we have to face the reality that there are some defendants who will simply not face up to it until the last moment. There is nothing any lawyer can do about that at all. We do have to remember that the guilty defendant is the person in court who does not want justice to be done. They are not actually wanting it to happen.
But I spoke, and I chose my word quite carefully, of “incentives”. When we are examining the system for payment for the legal profession we have to incentivise efficiency. One way of incentivising efficiency is to recognise that actually to do the work, to be in a position to give your client robust advice, to persuade your client to take robust advice and so on and so forth is demanding. If we are going to get the early plea so that we know perfectly well there is not going to be a trial, we have to incentivise that part of the system rather than say, “Well, wait until the day of trial and then somehow or other the pay will be better.” I feel very strongly that we have to operate the legal aid system in a way which incentivises efficiency.
Yasmin Qureshi: Leading on to a question about the CPS, it has been suggested that maybe part of the problem might be the request for a CPS adjournment. I am not defending the CPS, but in the light of what you said about the bad piece of legislation, there have been a lot of new pieces of legislation in the criminal justice system where people have to draft so many applications now to get a case progressing. I know it is a big topic as to whether those pieces of legislation should be passed, but is that more the sort of thing you are talking about—too many things brought in which are not helping the system?
Lord Judge: Yes, it has got very much more complicated. I am not unsympathetic to the CPS. A lot of the people who work there work very hard, but all our processes have got more complicated. I don’t merely mean in the criminal justice field or the family or civil field. I think with any part of any system that you know about, you will look back at and think how much more complicated it’s got, how much more complicated it’s got—to become a volunteer helping in a school, what’s the school got to do about it? We have made life much more complicated and the legal system has not been immune from that.
Chair: I am going to come back to this situation when we get on to some other issues, but there are a couple of supplementary points on this from Anna Soubry first and then Robert Buckland.
Anna Soubry: Yes, just on the Crown Prosecution Service. I think most of us will know the comments from the Director of Public Prosecutions at the weekend about the increasing number of cracked trials. I was told this weekend that at Nottingham Crown Court it was a record month in September for cracked trials. I was told in no uncertain terms that the reason for that was that the Crown Prosecution Service the week before, when a review is heard, is offering no evidence. One of the main reasons for that is a lack of preparation. There is also an argument that perhaps, because the CPS now uses so many in-house advocates, we are not having the sort of rigour that was provided by the independent Bar. Are you at all concerned about the growth of in-house advocates at the Crown Prosecution Service and the delivery of justice accordingly?
Lord Judge: I am alarmed to hear that cases collapse because the Crown Prosecution Service, for one reason or another, isn’t ready. I think the issue of advocates is a very delicate one. From my point of view and the point of view of every judge, what we want is good-quality advocates. Whether they come from in-house CPS, independent practice at the Bar, or solicitors, we have to be realistic, that doesn’t matter if we have good quality. I can also say that we have astonishingly high quality from each of those three groups. There are some very fine in-house advocates with the CPS; there are some very fine members of the Bar; there are some very fine solicitor advocates. Equally, there are some pretty poor ones. I can’t say that it is confined to any one group.
There are various problems. One could spend quite a long time on this and I won’t, but for the barrister the sanction is simple: he or she won’t be briefed and that’s it. You don’t get briefed and unfortunately you then have to give up your chosen profession although you’ve worked rather hard to get at it.
For the solicitor advocate there are different considerations, and one of the things that I think lies ahead for us—it is some years away but it does lie ahead for us—is how the advocacy profession, as between solicitors and barristers, is going to run; whether there will be a system for entry into a profession as an advocate; whether on the other hand we may have what happens in Australia, where most people will join solicitors’ firms and do the advocacy and see whether they want to then come across to the Bar. These are very complicated problems.
For the in-house advocate who is not up to scratch, I would very much hope that the responsible Crown Prosecution Service senior representative will simply say, “I’m not briefing him or her any more,” because the not briefing is just as important for the in-house advocate as it is for the member of the independent Bar.
Chair: I must give Mr Buckland a chance.
Mr Buckland: I want to develop this and I want to be a little contentious, Lord Judge. Sir Alan referred to your speech to the Mansion House about time in the Crown Court being treated as an “unlimited resource”. Surely it is your experience as well as mine that good counsel, good advocates, have always used time very carefully and have constrained themselves so that, for example, when a child witness comes to give evidence over the link they don’t waste hours and hours, upsetting the child; they make their points and then move on. Aren’t you penalising the good counsel, the good advocates, by imposing these sort of artificial timetables?
Lord Judge: No, but they are not artificial. They are only artificial if you assume that time is unlimited. Of course if the judge says you’ve got five minutes in which to cross-examine in a case where, on any reasonable view, you are likely to need an hour, you will be able to appeal and say, “My client didn’t get justice,” won’t you? My concern is that more and more cases take longer and longer and longer. Very recently I had to read a transcript of a trial in 1966. From start to finish: the defendant is put in the dock, pleads not guilty and the jury goes out at five o’clock and has a verdict at 5.30. It was a very important case to the defendant, who was a policeman charged with theft and the issue was identity. That is inconceivable now, with the most efficient advocates.
If I may say so, I think you are not taking on board what I’m saying. I think the efficient advocate should be paid for his efficiency. Of course there are cases that are very well conducted. I am perfectly well aware of it. I suspect that a judge in a Crown Court in the country, who will know his advocates well, may very well say, “I know Miss so-and-so and Mr such-and-such. There’s absolutely no point in me interfering and laying down a timetable here. I know they will conduct this case as efficiently as it’s possible to conduct it.” I realise that, and I think there is a great advantage out of London in having a Bar which the judges all know about. They also know that Bloggs is not quite as good, and so for Bloggs they may say, “I’ve really got to tell Bloggs that actually he can have an hour. He can address the jury for this long.” I am not driving at the efficient. I am driving at the inefficient. I don’t think you’ve been contentious at all.
Mr Buckland: Your point about the Commercial Courts was this, though: the parties bear their costs. How is this timetable going to be enforced if there isn’t some underpinning costs element to it? Have you given consideration to that?
Lord Judge: I don’t see there is a connect between the decision made by a judge to impose a timetable and cost, save and except that I hope the timetable he imposes will be shorter than the parties say they need. But he’s a judge—he’s got to be open-minded about this. His first view may be wrong. He may be persuaded. My only link to that in relation to cost is that I would like that case to be better paid than the same case taking longer. That is what I’m driving at.
Chair: I am imposing a timetable and there are no costs involved. Mr Elfyn Llwyd had another point.
Mr Llwyd: I have just one final point on the whole question of expanding technology. The Parliamentary Under-Secretary is strongly of the view that we could expand technology within the civil and the criminal courts. Have you been consulted about that?
Lord Judge: We’ve been hoping to get better technology in different ways for years, and we have some technology which we use. There is no doubt that we have to face the reality. If the technology is available, our system has to adapt to the technology. But it becomes available at a cost. I do not think that the story of the provision of technology in the courts is one of absolutely—I must be very careful how I put that. I will rephrase it. It is not all a triumph.
Mr Llwyd: As indeed the translation equipment at Caernarfon Crown Court a fortnight ago?
Lord Judge: Yes, but that is the translation. To take a small and obvious example that those of you who practise will be familiar with, children’s evidence is usually given following video interview through the system. We ought to make much more use of the video system for the purposes of getting witnesses who are a long way away who don’t actually add much to the case. Lord Justice Goldring is looking into the question of, in effect, virtual courts. Yes, we will use technology if it is available and if it works. There is no antipathy to it. I have a point that you’ve probably all heard me make and I won’t make again about the consequences of technology on our entire system of having trial by jury in criminal cases, but that is a separate question. But I would ask, if you don’t mind, Lord Justice Goldring to deal with the visual court.
Lord Justice Goldring: I think the Minister referred, didn’t he, to the Medway and Camberwell Green experiment in the magistrates, which has had some problems? It is now effectively being relaunched and we are trying to see whether it can work better than it has so far. There were difficulties with timing. There was an overconcentration on bail cases. I think there is a future but it needs very careful control. I think effectively we’ve now got another six months to see if we can get it to work better.
Chair: Yasmin Qureshi, moving on to the public bodies and how the recent cull of quangos has had its impact on the Ministry of Justice’s quangos.
Yasmin Qureshi: That’s right. Can you tell us when and how you were consulted, and at what stage, when the review of the public bodies involved in judicial administration was done?
Lord Judge: I can’t tell you when. I can’t remember when. The Judicial Appointments Commission, from my point of view, is the most important of these bodies. I was aware of Baroness Neuberger’s investigation. I was very closely involved in that. Then, I was involved in discussions with the Lord Chancellor, and we still have a Judicial Appointments Commission.
Yasmin Qureshi: I think the reason for asking how and when was really to ascertain whether you felt that you were properly consulted and whether you had a chance to make a full representation about your views and the judiciary’s view about this. That is what I am asking. It is the how and when and not so much—
Lord Judge: The answer is that I can’t at the moment remember feeling miffed about not being consulted. If I had felt miffed, I would have made clear that I was feeling miffed. My answer is a slightly nebulous one. I don’t think that I have had occasion to be concerned about it.
Yasmin Qureshi: Do you feel that, in light of the fact that your office is now going to be dealing with a lot more issues, because there has been this “bonfire of the quangos”, your office has the capacity to take on the additional functions now allocated to you?
Lord Judge: So far, so good. I am not one of those who believe that civil servants don’t work hard. The evidence before my eyes is that the people who work for us in my office are very, very assiduous and hard working. I sometimes get concerned that, particularly with young families, they don’t get home earlier. But if, for example, and this is a good example, the Office for Judicial Complaints really ought to be in the construct that we now have as part of the Lord Chief Justice’s responsibility—that is something that is being proposed and I think will happen—we will have to have more people to do that.
The Chief Coroner’s role changed. I did say to you I wasn’t miffed about the consultation process, but the abolition of the Chief Coroner has led to a number of different suggestions, including that some of the responsibilities that he would have had should now be in the hands of the Lord Chancellor or the Lord Chief Justice. Fine. First of all in principle, consistently with the constitutional changes, those parts of his function which were judicial functions have got to be part of the responsibility of the Lord Chief Justice. That is the whole point of the constitutional change. If that happens, the likelihood is that my team will have to grow.
These are concerns for me. In the end, we are judges. We are not administrators. Most of our job is supposed to be sitting in court trying cases, deciding them and so on and so forth. There is a limit to how much administration we can do consistently with our responsibilities for the decision making in court. That is something I have to watch very closely. As I said at the very beginning, it only works because there are a large number of people who are prepared to take on these extra responsibilities in the interests of the administration of justice.
Yasmin Qureshi: Linked with this, of course, there has been the abolition of the Courts Boards. Are you satisfied that the system currently will allow or that some other organisation can swallow the function of the Courts Boards to ensure that there is effective administration of justice?
Lord Judge: I did not regret the disappearance of the Courts Boards. There was an awful lot of time spent not advancing the administration of justice very much. I think at one time, as with every other part of society, we just suddenly had everybody looking into everything. I don’t think the disappearance of the Courts Boards is going to cause any damage to the administration of justice.
Yasmin Qureshi: The Supreme Court was included in a draft list of the recent public body reforms as “still to be decided—options being considered”. Are you aware of the explanation for its inclusion in this list, and does it hint at further funding cuts for the court, do you think?
Lord Judge: If the Chairman will allow me to give the gossip I have picked up, I will give it to you. There undoubtedly was—I am aware of this; this isn’t gossip—a proposal that the administration of the Supreme Court should be amalgamated into Her Majesty’s Courts Service. I think what happened when the list was published in the newspaper in which it was published—I am not arguing about the source and I am not arguing about the accuracy—is that when it said “The Supreme Court” it was simply referring to the administrative arm of The Supreme Court. I don’t think it was anticipated that The Supreme Court would be abolished. One of the things it is not is it is not a quango.
Yasmin Qureshi: No, absolutely.
Chair: Presumably at that point, somebody in Scotland may have noticed that that would constitute a proposal to administer the United Kingdom court as part of the English courts system?
Lord Judge: In the end that hasn’t happened. But that’s what I know did happen. There was thought given to it and somehow the typing didn’t actually say “administrative section”.
Mr Buckland: I wonder, Chairman, if I can move matters on somewhat, first of all to a general concern that some of us have about the ability of the judiciary to communicate with the wider public when, for example, there is a controversial sentencing decision or a particular case that involves a very sensitive area of public policy, for example, control orders. You have a media unit, I know, and trained judges who go out there to deliver a message. I don’t want to start using the language of spin when it comes to the judiciary, but are you satisfied that as a judiciary you are getting a message out there which the public can understand, or are you in danger of remaining as a rather remote oligarchy?
Lord Judge: I don’t accept that we are an oligarchy and I don’t accept that we are remote. I think that we need to be terribly careful about this. The reasons why a judge makes the decision that he or she makes should be there in the words that he or she chooses to use. I think judges are very much more alert to the fact that in cases of sensitivity—and there are a lot of cases of sensitivity—your reasons have to be explained very clearly.
You hope that the newspapers or the media generally will do the judge the courtesy of reading all his reasons. Sometimes they do; sometimes some of them don’t. But we can’t, I think, have a system in which we have a sort of judicial defender. We have to assume that in a country with the media that we have, on the whole the reporting will be reasonable. Sometimes the decision is controversial. The judge’s reasons may be entirely appropriate for the case but, actually, half the population totally disagrees with it. That is part of a free society. They are allowed to disagree with it. They are allowed to disagree with it in strong terms. I don’t want people going to defend the judge’s decision. He or she has reflected the law as they believe it to be and they’ve produced the decision.
Where I think there are occasions where it is useful for a judge to be available to explain something about a case is, for example, where the post-decision publicity reveals that there is an ignorance of what it was the judge had to do—so an ignorance that the statute required the judge to do this or did not allow him to do that. My view is that the media judges we have have proved extremely successful at addressing that point. But, as I say, I don’t envisage them as spin-doctors or acting as defenders for the judge. The decision is the judge’s decision. The public is entitled to agree with it or disagree with it. What the public needs to be is better informed about why the judge came to that decision. Sometimes in his own reasoning that may not have been apparent, and sometimes in the reporting the newspapers or the television have not grasped hold of the true reasoning. That is how I see it.
I think the deployment of these judges has been valuable, but I really wouldn’t want judges to be spinning or addressing ill-informed criticism of an emotive kind. I want the public to be better informed of why judges decide their cases, but that burden is largely for the individual judge in the individual case and then hopefully the media—and I am looking around at them—reporting accurately and fairly.
Mr Buckland: I am sure they will today, Lord Judge.
Lord Judge: Shall we look tomorrow?
Chair: I can see a rush of supplementaries on that point.
Mr Llwyd: Three years ago a judge in South Wales followed the letter of the law with a paedophile case.
Lord Judge: Exactly—Craig Sweeney.
Mr Llwyd: I found myself defending him on the airwaves because, frankly, whoever reported it didn’t know anything about the law and in fact couldn’t care less about the law. I think that it has been an important step forward because I don’t think that responsible judges such as this gentleman should be vilified in the press just for following the letter of the law. If anybody should have been, the politicians should.
Lord Judge: It was that case that led to this new arrangement because there the reporting was so outrageously unfair and so ignorant, and this process is designed to address ignorance.
Mr Buckland: Yes, and also there was ill-informed comment from a leading politician as well that didn’t help at all.
Lord Judge: Yes, absolutely.
Mr Buckland: Can I ask you about a specific issue, an area of public policy, that you may be able to comment upon? That is the provisions within the Criminal Justice Act 2003 that in certain circumstances allow courts to dispense with the use of juries where there has been clear and present evidence of jury tampering. That is an issue that I know excites a lot of debate. On the one hand, there is the cost question of having one, two or three-tiered jury protection. On the other hand, there is the strong feeling that jury trials are an important general right and that it should not be a qualified right in any way. I would welcome any thinking you may have about the future policy direction in that area.
Lord Judge: I will be extremely circumspect about how I answer that question, because I am hearing an appeal in the course of the next fortnight on the question. The only observation I would make is that trial by jury is part of our criminal justice process. Although it is in fact governed by statute, where it is available it is a right. I think the legislation has only done this: it has suggested that if you abuse the right, then you are forfeiting it. But it is only if it is abused that it is forfeited. There has only been one case in which the right to trial by jury has been removed and the trial has taken place before a judge. I suspect, and I hope, that, once it’s appreciated that if the right to trial by jury is abused you may lose a trial by jury or a retrial, fewer people will seek to take advantage of the jury and abuse it.
Chair: I think having made that point I should invite Mr Buckland to move on to the Sentencing Council and out of court disposals.
Mr Buckland: Yes, I am very grateful, Sir Alan. Out of court disposals: in your review, which was published earlier this year, you quite rightly reminded us in that document that you had said publicly in the past that any assault which causes injury should be dealt with by a court. Can I ask you to enlarge upon that point and also comment about evidence that certainly practitioners have seen over the years of charging deflation when it comes to type of injury—in other words, injuries that perhaps a few years ago would have been the subject of more serious charges and therefore been described as serious violence ending up, somewhat disappointingly in many cases, in a lower class of allegation: for example, a wound becoming a common assault or a very serious injury which perhaps would have been charged as a section 18 being dealt with in an entirely different way. I would welcome your views about that.
Lord Judge: My views were expressed as they were, and I see no reason to change them. I accept, as I have said, there are going to be occasions when a person of good character does something silly and it’s quite sensible for the Crown Prosecution Service to say, “Yes, but we can deal with this. This individual is not going to come back to court again.” But I do feel in relation to persistent offenders that if they offend they should be brought to court. The judgment should be made by a court. I believe that somebody who commits an offence of violence which causes injury should be brought to court. It is a matter of public record then. There is the issue of how the victim feels about a non-appearance in court. It is demeaning to a victim of a violent crime to be told, “Well, we’re not going to take this individual to court.” To say, “We’re not taking him to court because we haven’t got the evidence,” is quite different. If there is not enough evidence you don’t take it to court. But, in my view, you can’t not take a case which involves violence to the person to court simply because it’s not a good idea. If you’ve got the evidence, you should take it to court and let a magistrate or magistrates decide. Then it is public, there is nothing hidden and the court has functioned. I feel very strongly about that.
Mr Buckland: Where there is evidence of injury, the definition of common assault—which of course does not require proof of injury—is often being used now to cover cases where there are some injuries.
Lord Judge: There I have to confess to the fact that my own judgment at first instance was overruled by a two-judge constitution, so I am in the wrong. I haven’t had a chance to put it right again.
Mr Buckland: Moving on then to the question of sentencing, we have had the change from the Sentencing Guidelines Council to the Sentencing Council. You don’t actually sit on the council?
Lord Judge: No; I am President.
Mr Buckland: You are President but you don’t sit on it. It is Lord Justice Leveson who is responsible.
Lord Judge: I am a non-functioning President.
Mr Buckland: I am interested to know how that has changed your input to the process. Can I ask the fundamental question? Guidelines were being issued by the Court of Appeal and have been for many years, sometimes by a court comprising the Lord Chief Justice, sometimes the Vice-President. Do we need a Sentencing Council? Why can’t we leave the good old Court of Appeal to deal with this?
Lord Judge: The problem is that you—not you, your predecessors—legislated and gave the new Sentencing Council a very much wider remit. There it is in the Act. They have to collect data; they have to examine public confidence. There is a whole series of requirements. Well, if that is what Parliament has decided we want to have, then we have to have it.
I think we need to be careful about my position as President. It is no secret. I see all the papers for all the meetings. Lord Justice Leveson, who is Chairman of it, and I discuss it. He knows my views and they are fed into the discussions. That is the situation. What they produce then is up to them, but my view is taken into account. Of course you will remember that the Vice-President of the Court of Appeal Criminal Division is a member of the Council and Lord Justice Leveson himself of course is a senior and very experienced criminal Lord Justice.
Chair: You have mentioned the amount of data which has to be produced, but do you think that judges know enough about the outcome of the sentences they pass?
Lord Judge: No. They know they’ve passed a sentence. They know the defendant will serve however long it is and they know he will be released. As to what happens to him thereafter, no, they don’t know. Whether they should or not, I suspect we would have to be in much more prosperous times for those responsible for the defendant on his release, while he is still on licence, to be producing reports to be sent to the judge who passed sentence. It would impose a huge burden on the probation service which they simply haven’t got the means to deal with. If you ask me about a case where the judge passes a non-custodial sentence, there I think it is very important for him to know what’s going on.
Certainly when I used to do it, and I did pass these sentences, I would ask the probation service to let me have a report every six months, and I would tell the defendant that I would get a report on him. One of the things that you hoped would work or persuade the defendant to really acknowledge that you’d given him the opportunity of a non-custodial sentence was that the judge would continue to keep an eye on him. That works very well. It enables the person responsible for the community order to be able to say to a slightly recalcitrant, difficult defendant, “Now look, if you don’t come, I’ve got to write to the judge.” There, I think there should be a close link between the judge and what is going on with the sentenced defendant.
Chair: That leaves a situation where the judge has no particular perception of how successful or unsuccessful his custodial sentences have been. They may all have gone out and carried out further violent offences, as indeed is likely to be the case and the majority of them will. But unless they appear in front of that particular judge again, the judge does not have that measure to put against the measures that he has of community sentences.
Lord Judge: No, he hasn’t. There is something about the ageing process that has to do with recidivism. Largely men offenders, though of course there are women offenders, stop committing crime. It may come to them at 28, it may come to them at 30, but there comes a time when most offenders stop offending. You have no idea when you impose an eight-year sentence or a six-year sentence or a four-year sentence what the outcome will be, and nor could it possibly influence you, because at that level of sentence you are dealing with very serious criminal activity which—and I use a very old-fashioned word—in the judgment of the court merits punishment. That is what prison is: it is punishment.
When you are making your sentencing decision you can look at rehabilitation and of course you must do, but you can’t look at rehabilitation in the case of somebody who has raped somebody. So at the end of it all you pass the sentence that you believe in accordance with our current standards reflects the punishment that this crime deserves for this particular defendant. I don’t think you can actually reflect on what may happen to him four years down the line after he has been inside.
Anna Soubry: Could I just go back to the Sentencing Council. In a way my question touches on what you began by talking about, which was the role of the judge as a deliverer of justice which is sometimes in conflict with their other role as an administrator of justice. There is a form—forgive me, I don’t know the name of it—which all judges in the Criminal Division are now being asked to complete after they have passed sentence. I am being told by various judges that this is really eating into their time and, frankly, serves very little purpose because, as we both know, and everybody knows, when a judge passes sentence they explain the reasons for that particular sentence. Are you concerned that some judges are having to spend up to 20 minutes, and on a busy sentencing day that could be two hours, completing a form which is largely a prescriptive box-ticking exercise?
Lord Judge: I am concerned that judges are talking to a Member of Parliament and not talking to their presiding judges or for that matter to me about it. The problem is this. You in Parliament have laid down a requirement on the Sentencing Council that they must collect the data. The form that has been produced is a consequence of the legislation. If we are going to blame anybody for the fact that judges are having to spend this time doing the job, I wouldn’t like to think the Sentencing Council is to be blamed. It is the legislation. One says it so often and it happens to be true.
I saw the form. It is not very difficult. Frankly, if a judge has thought carefully through what his sentencing decision will be, and to a man and a woman they do, it should not take 20 minutes to fill out the form.
Anna Soubry: I think it’s because sometimes, because it is so prescriptive, you are asked to provide an explanation in relation to a particular part of the sentencing process, and it was put to me that it had required somebody to almost write an essay because of the particular peculiarities. As we all know, no sentencing process is the same, or very rarely, and so in particular circumstances there is a particular reason you might have come to a decision based on the peculiar circumstances of that particular defendant or the nature of the offence.
Lord Judge: I entirely accept that there will be occasions when this is a complication and that the particular case demands a particular degree of input. I accept that. I also have no hesitation in accepting that this is an additional burden which judges could well do without. It is much more important to a judge to try and get the right answer in his sentencing decision than it is for him to fill a form up—plainly. I would rather they didn’t have to do it. I recognise that sometimes it is extremely onerous. I think it is particular onerous in a long plea day where there are a lot of forms to be filled up, but if we didn’t do it this way there is nobody else in court to do it. There is no court associate who could do it; they’re not there. Anyway, when we have this exercise being done, you are sure, if the judge does it himself or herself, that it actually reflects what they think.
Anna Soubry: So we need to change the legislation is essentially the answer. Is that right?
Lord Judge: If you gave me a “wish list”, Chairman, I would send it to you willingly.
Chair: I think the Prime Minister and Deputy Prime Minister have asked for a “wish list” of legislation they would like repealed. I see no reason why you should not write to them in that context.
Lord Judge: It might be a very long list.
Chair: Do send it. Miss Qureshi had another point she wanted to make.
Yasmin Qureshi: Yes. We were talking about the judges and some of the very complicated things they have to do and a lot of the extra burden now being put on to them. Coming on to that is something that I am sure you are probably familiar with. Some district judges, Crown Court or circuit judges are incredibly courteous and pleasant. If an advocate is not correct they will tell them that they are not right, but it is done in a very constructive and positive manner. Then there are many members of the judiciary who are perhaps not so polite or courteous, and in fact get quite personal and quite rude beyond what could perhaps be a reasonable way of even chastising a counsel or solicitor if they’ve got things wrong.
I am not talking about judicial decision making, because obviously whether a judge allows a piece of evidence to come in or not can be dealt with within the judicial system itself by the appeal mechanism. I am talking about where something has gone wrong or maybe where it hasn’t gone according to the way the judge wants and the mannerisms of the judges tend to be incredibly personalised criticism and having a go. I know that you have been conscious of that a number of times and have mentioned that there should be some training element or judges to be asked if they can be perhaps—I don’t know—more not impolite but if they can deal with people a bit better. I was just wondering what positive steps you’ve been able to take over the years, or what would you like to do to try to see if we can rectify this situation?
Lord Judge: There is no excuse for judicial discourtesy, but there are occasions when judges have to be very tough, including being very tough with counsel and sometimes very tough with witnesses. It’s part of the job. Always being nice is not actually the way a judge can work. There are situations in court where he has got to get a grip. But, as I say, there is no excuse for discourtesy.
I don’t accept the premise that this is a great problem. I think that there are very few judges about who are constantly discourteous. I think that sometimes, human beings being what they are, there will be stresses and strains on a day and they will be less courteous than they wished they had been looking back on it. But I get complaints to the Office for Judicial Complaints of judicial discourtesy and where I conclude that there has been discourtesy, then that judge is appropriately reprimanded, because there is no excuse for it.
Yasmin Qureshi: But Lord Judge, I think you know this—and perhaps Lord Justice Goldring, who is involved in more of the day-to-day criminal courts—
Anna Soubry: He is very nice.
Lord Justice Goldring: I hope I have never been too discourteous.
Yasmin Qureshi: We are not here talking about politeness and courtesy in the way we normally understand it. We know that a lot of lawyers will not raise any complaints against judges because of all sorts of implications. People will find out that you have done this; people are afraid of their careers being marred. In reality, the real picture on the ground is that a lot of advocates do put up with rudeness and personalised criticism of advocates. They don’t want to complain—
Chair: I can’t always be nice either, but I think the Lord Chief Justice should have a final opportunity to answer that point.
Lord Judge: If you see on a transcript that the judge has behaved badly it may not be a specific ground of appeal. A judge about whom it is said in public, as a judgment of the court, that he has behaved with discourtesy, or been rude, or not in effect acted in accordance with the standards which are expected of judges is severely publicly humiliated. It is an awful thing to have said about you. It is bad enough for the Court of Appeal to say you are wrong. It is wrong until the House of Lords Supreme Court says it was right after all. That is the system and you are bound to be wrong at times. But not behaving in a judicial way is a criticism that really hurts a judge. And, of course, we have to be fearless about it. If that is what we find, that is what we say. I don’t merely mean in the context of complaints but in the context of a hearing. But you see, what to one person sounds like discourtesy, such as, “Yes, well, we’ve got that point. Yes, you’ve made that point. No, no, we don’t want to hear you again; we’ve got it,”, that sounds very discourteous if you think you’ve got a point that the judge isn’t grasping. But to the judge, it is him getting on with the case and using up the time efficiently. There is always a tension there as to which it is.
Yasmin Qureshi: Lord Judge, that is not the thing I was talking about.
Lord Judge: I think Lord Justice Goldring would like to say something.
Lord Justice Goldring: I would actually see the judge if such a report comes to me, and have from time to time done so.
Chair: Talking of courtesies, I did undertake that we would release the Lord Chief Justice for his other duties by a quarter to 12, so I am going to bring these proceedings to a close and we look forward to seeing you again before very long. Thank you very much.