When Lady Justice Rafferty stepped down from the bench at the end of July the event went almost unnoticed. Thanks to lockdown there was no usual valedictory, the traditional gathering of judges in court to pay tribute to a departing colleague – nor farewell parties. Instead, it was left to fans on Twitter to acknowledge the loss of ‘glamour’ from the Court of Appeal; of her distinctive style – raffish, a ‘twinkling charm’ and formidable yet fair in court.
And, of course, that she has been a ‘trailblazer’. Few women attain the upper judicial ranks and Rafferty’s departure just before she reached the mandatory retirement age of 70 leaves only 11 women among 44 appeal court judges (including heads of division). Not only that: Rafferty had been Vice Chairman of the Judicial Appointments Commission (JAC) since 2017; and chaired the Judicial College – which trains judges – since 2014.
She was rather relieved to avoid the usual farewell rite of passage. ‘I was dreading it so it was actually OK.’ And because of COVID-19, it did not come as the shock it might have: ‘I’d already gone and was working from home – everything had changed around me.’
As with many judges now on Zoom and home-working, end-of-term fatigue had set in – and Rafferty has been enjoying the change of pace. She walks most mornings the 1.5 miles to the coast from the farmhouse she shares with her retired husband, the former Recorder of London Brian Barker QC – and four cats – and swims in the sea. ‘I had a proper vacation that I’ve never had before. That was the change.’
Not that Rafferty will now be idle. Already she has picked up some small jobs: she will be an arbitrator for Sports Resolutions, an independent not-for-profit dispute resolution service; one of three former Judicial Appointments Commissioners spearheading its targeted outreach scheme, which will involve guiding and supporting candidates; and the retired appeal court judge on the QC Appointments Panel.
‘I don’t want to vegetate and I had the usual worries that everybody has... It’ll just be a desert and I’ll have nothing to do, although I knew intellectually that somebody would come calling, yes – but until they do, you’re assailed by doubt.’
Surprising remarks, perhaps, to young women barristers, who see her as a role model. But typical of Rafferty who remains modest about her achievements – and puts much of it down to luck. In a video earlier this year for the First 100 Years [of women in the law] she quoted Ogden Nash: ‘The art in life lies not in holding the best cards but in playing superbly the hand you’ve been dealt.’
Her own hand began in Lancashire and she remains a Northerner, in her words, through and through. She went to a state grammar school and then to Sheffield University to read law (in 2014 she was proud to be made Chancellor there). ‘My mother told me to,’ she says. ‘It was a family of head teachers – she said: your arts are marginally stronger than your sciences. You could read medicine but you might be better off reading law and being a barrister.’ Rafferty would have been happy being a hospital consultant which similarly involved ‘solving puzzles’ but has no regrets. In hindsight, though, she would have read classics, not law, to give more breadth. ‘They give you a very good grounding and teach you the
important lesson that nothing much is new under the sun.’
She obtained pupillage and a tenancy – and married Barker – like her a criminal barrister. That had pros and cons: he understood the territory; but they had two criminal legal aid incomes. ‘It wasn’t as if I’d been married to a member of the shipping Bar or a hedge fund manager – we’d have had the Georgian rectory and the staff. Got that one wrong.’ They went on to have four daughters in quick succession. In the early days, she admits, she got ‘really, really tired’; her husband’s somewhat traditional view was that ‘I was doing a good job of bringing up the children and should be encouraged to continue.’
The children were born in 1980, ‘81, ‘83 and ‘85. Then came tragedy: her second daughter, Davina, who had been born with Down’s Syndrome, suddenly died aged two of a undiagnosed heart condition (when Rafferty was pregnant with her third daughter) – a ‘double dose of grief’. She recalls: ‘It was a game-changer. It changes you inside for all time and you see grief and loss in other people in a slightly different way; your light catches the mirror slightly differently.’ The support of the profession got her through that time: ‘People were very good to me, stood alongside me and understood that the thing for me to do was just to get on... they were magnificent and sensitive.’
The pressures of juggling career and small children were huge: it meant turning down briefs so that she could be sure to be there for the sports day or ‘to watch them fan Potiphar’s wife with a fig leaf’. ‘I suffered because I was constantly trying to make sure I didn’t let either side down… and our income suffered because chambers rent still had to be paid. It was different world: you couldn’t possibly have said to a judge: would you mind rising at 3.30 so I can get to the nativity play?’
Rafferty took silk early, at 39, in 1990 and in 1995 became the first woman to chair the Criminal Bar Association after serving as its secretary and vice chairman. It meant a rapidly-raised profile. Her busy practice involved both prosecuting and defending: one of the hardest cases, she recalls, was defending a nurse, Amanda Jenkinson, with Paul Watson, now QC and recorder of Middlesbrough. The nurse was accused of causing and seeking to cause grievous bodily harm with intent. With diligent study of ITU machines and drug dosages the defence secured an acquittal on all but one charge – and that was successfully appealed.
By that time, Rafferty herself was on the bench. At first she had no interest in it but then thought: ‘I have been in silk long enough and it’s time for a change.’ She loved the way the work was ‘linear’ and generally, a case was started and then finished and then there was another. ‘Whereas being a silk, my mind was like spaghetti: there’s the case you’re doing, the one the clerks ring up about at lunchtime because you have a con in the evening; the other three you’re reading for...’ There were other advantages: ‘I don’t like combat; I never have liked cross-examining. I liked a complicated plea of guilty.’ Through being a Recorder and a deputy High Court judge she found she was ‘much more comfortable adjudicating than playing the match’. Her many trials included that of Paul Burrell, the butler to Diana, Princess of Wales, for theft; and the schoolmaster Siôn Jenkins’ re-trial for murder.
She was 11 years on the High Court bench and then nine on the Court of Appeal. Attitudes to women have changed; but her life at the Bar, she says, was probably little different from what it might have been other male-dominated workplaces. She did not experience overt discrimination or sexism but the culture was unsympathetic to women and no quarter was given: as a young QC, she says, she stood out and people would think: ‘Now let’s see what’s so special about her.’ Women are still not well represented in the upper ranks ‘and therefore when they make a step up, their performance attracts more attention’.
Women, she suspects, still have the same pressures as she did about appearance: ‘It’s just a fact of life: there’s a limit to the interest in dark suits and ties and a man’s hair, but far more scope to put the spotlight on how a woman has chosen to turn herself out.’ Nowadays, too, all members of the profession face the pressures of social media and technology which demand instant response. ‘The time which naturally allowed for reflection, when I was young in the profession, is abridged now. That’s tough. It’s also unhelpful.’
On the shortage of women at the top she says: ‘You can’t open a newspaper or a device without reading concern about the lack of diversity at the top of profession and the judiciary. One of many factors is that women, for instance, simply don’t apply: you can’t assess the merits of a woman seeking appointment at the top of the profession unless she lets you, by applying. Huge efforts are being made to remedy this and the JAC’s targeted outreach pilot is a step in the right direction.’ It is not just women, she adds: ‘Minority ethnic candidates enrich a diverse profession and the bench at every level. At the core of all this is one stark fact: we serve the public and we must earn credibility in its eyes.’
Some recent measures should help. While Vice Chairman at the JAC under the Chairman Lord Kakkar, she saw a transformation in the deeply unpopular over-complex application procedures. After a successful start with the High Court the aim is to extend the streamlining to other competitions. The JAC, which retains an ‘unswerving’ commitment to merit alongside its statutory obligation to have regard to diversity, was key in ensuring that the Judicial Diversity Forum, also chaired by Kakkar, publishes all diversity statistics across the profession under one umbrella. This, says Rafferty, should bring the opportunity for ‘some really targeted work to help and encourage near-miss candidates or those readier for appointment than they think.’
What of the criminal justice system itself? COVID has exacerbated an already strained system, she says, and ‘played a chunky part in achieving the backlog – but things were not good before. The Bar particularly had been suffering for quite some time, courts not fit for purpose, lifts not working, roofs leaking and for not a lot of money. And then you say: we’ve got COVID and we want everyone to help and pull together to drag us through as best as we can – you’re asking that of hard-working, rather disillusioned people in a profession which is feeling unloved. If you took a notional member of the Bar, his or her battery was already quite flat.’
In the face of all this, the mood of judges is ‘resolute’, Rafferty says. Still active in the profession, she is careful not to criticise ministers and nor to venture near debate over the ‘rule of law’ or ministers’ actions over Brexit. But she supports wide debate on measures floated by the Lord Chief Justice, Lord Burnett, from a judge sitting with two magistrates, reducing juror numbers, trial by judge alone and so on. He had never, she insists, suggested abolishing jury trial. ‘In some cases he said there was an arguable case for suspending jury trial – it is disappointing that some of the profession did not get that difference. I think there is a reason to explore everything – have a calm, careful considered discussion... to draw breath.’
The pandemic has, though, brought benefits: one is the ‘kick up the buttocks’ to courts and judges on using technology: this has had to ‘move at a rate of knots in seconds’ to manage remote hearings including appeals lists, involving a variety of arrangements for judges, appellants, victims’ families and so on in multiple locations. ‘And remember it’s got to be open justice so the public must have a method by which they can ask to dial in or link and watch. It was time consuming, complicated but impressive – and involved meetings as well as hearings. It might have taken five years to find that technology is a servant of the system,’ she adds, predicting that there would not be a return to the old normal. ‘Technology remains a real change for good...the days of “everyone’s got to attend court for everything” are gone – yes, it was a massively expensive and time-wasting system.’
The job was a privilege, Rafferty insists and adds modestly: ‘I think a lot of it is luck – and timing. You have to have a level of ability and plenty of people have a lot more – but I was in the right place at the right time: I came along when women were a novelty and I didn’t make a fuss. I just got on with it and I think that helped.’ She misses the people and the ‘checks and balances’ and stimulation they bring. But at just 70, Rafferty is not lost to the system yet. When the next call goes up for judge to chair an inquiry, her name must surely be in the top of the list.
Called to the Bar (Gray’s Inn): 1973
First woman to chair Criminal Bar Association: 1995
Deputy High Court judge: 1996
High Court judge: 2000
Presiding judge of the South Eastern Circuit: 2003-6
Lady Justice of Appeal and Privy Counsellor: 2011
Chairman of Judicial College: 2014-2020
Chancellor Sheffield University: 2014-
Vice Chairman, Judicial Appointments Commission 2017-2020