Book review: The Safest Shield: Lectures, Speeches and Essays

During and after his six years as Lord Chief Justice, Lord Judge delivered numerous speeches and lectures – to fellow judges, to the Judicial College, at the Lord Mayor’s Banquet, in his Inn and in his native Malta. The texts of many of these talks have now been gathered together in this volume. They include a number of issues he felt deeply about, from the role of the judges to the independence of the judiciary and the rule of law; from the separation of powers to the accreditation of expert witnesses; from telling judges what their duties and responsibilities are to explaining to the outside world the difficulties judges have in discharging those duties; and most especially sentencing. The title is taken from Sir Edward Coke (‘The law is the safest helmet; under the shield of the law no one is deceived’). Sad to say, Coke wound up in the Tower for refusing ‘to see his responsibilities in quite the same way as King James I’.

The book is broadly divided into six sections – towards a constitution, continuing constitutional concerns, liberties and rights, administration of justice, the judiciary and personal reflections – but the themes overlap. Unlike Coke, Lord Judge did not have to worry about a monarch who felt herself to be above the law. He did, however, have to cope with an over-active Executive. He was on the Bench when the Government announced the abolition, without prior consultation, of the role of the Lord Chancellor. Earlier, in 2001, he was one of the team that had to explain to Tony Blair that putting the courts under the Home Office was absurd. To the end he waged such campaign as he could against Henry VIII clauses’.

Lord Judge discusses how much has changed in the course of his own judicial career. When he became a Recorder in 1976 he received no training because no judicial training existed. After two years he was called into a seminar chaired by a Lord Justice (later Law Lord) and assured that ‘the judge could run the trial on the basis that provided he repeated and emphasised that the jury was entitled to reject any comment made by him, he could make virtually any comment he liked. That is not how we do it these days’. The dictum of Lord Goddard in 1958 that no jury could put weight on the evidence of a small child was then good law and remained so. In 2010 in R v B Lord Judge presided over a Court of Appeal that forever changed the way in which we look at children’s evidence. He repeated this in his 2013 Toulmin Lecture: ‘We should be considering each individual child as the individual he or she is, at the age and with the level of the maturity that he or she has.’ He looked forward to the time when no child witness would need to go into a court building.

Perhaps most striking is his recognition of how things could be better. In an IT age, why should jurors only be presented evidence as if we still lived in the age of hard copies? ‘I do not understand why justice is less likely to be delivered in a criminal trial if a fair timetable is imposed and the advocates are required to stick to the points that matter, instead of travelling over every bit of land without a stopping place.’ His crusade to get advocates to ask questions rather than to make statements ending with ‘didn’t you?’ is ongoing. Even his colleagues are not immune. ‘The day should come when everyone who is appointed a full-time judge should have been appraised when sitting as a part-time judge.’

The issues Lord Judge deals with are still with us. The text is never less than beautifully written.

Reviewer: David Wurtzel, Counsel Editorial Board