The nature of the profession has changed as the years have passed. Less extravagant advocacy styles have generally made courtrooms less dramatic places. This has reduced the attraction for judges to indulge any temptation towards unnecessary theatre. Nevertheless, there are still, even today, almost daily stories of rudeness and inappropriate impatience on the bench, occasional misogyny and the placing of increased pressure on advocates who are not members of a set of barristers’ chambers.
The OJC has now been transformed into the Judicial Conduct Investigation Office [JCIO], as a result of the Toulson review. That review resulted in the introduction of the Judicial Discipline (Prescribed Procedures) Regulations.
The appearance of the word “investigation” in JCIO’s title is welcome, as it suggests a capacity for inquiry into the ongoing conduct of judges at all levels about whom complaints are made.
However, the judiciary will soon be the last redoubt of professionals carrying out the public service, and being remunerated from public funds, who are not subject to formal inspection, performance review, peer review or quality assurance on a continuing basis. For example, NHS medical consultants now have to revalidate with the General Medical Council periodically: this requires an assessment of their continuing ability to perform their work to a requisite standard. The publicly funded criminal Bar is about to face the complexities of an ill-conceived system of quality assurance [QASA]: barristers do not like the system proposed, but there can be no issue as to the principle. It is no longer enough to say that the competitive market is a sufficient guarantor of quality control – though, of course, there may be better methods than the clumsily conceived QASA programme.
It could be argued that appeals at all levels act as a form of peer review of judicial performance, and can be rigorous. This is true as far as it goes, especially in relation to the legal quality of decisions. However, it is rare for appeals to focus on poor judicial behaviour.
Another response I have heard to questions about judicial conduct is that every court centre has a resident or designated judge, who is well able to deal in a subtle and proportionate way with any issues relating to other judges at the court. Indeed, I know a small number of judges who have described taking others to task or themselves being taken to task when problems arise. I have no doubt that the given seniority and role of resident judges does provide them with a level of managerial authority which properly can be deployed to correct poor standards, as in any well-run organisation. Unfortunately, this is insufficient as a quality mechanism in itself. How many resident judges have slipped into the back of another judge’s court and watched him/her in action unannounced? And how real would such a form of inspection really be? In reality, resident and presiding judges have to rely on anecdote and gossip, some of which is bound to be at least inaccurate.
Judges as inspectors
Surely the time has arrived for the creation of a small judicial inspectorate? There are plenty of models to use as templates or examples. John Vine, the successful chief inspector of the UK Border Agency could provide one. The CPS Inspectorate [HMCPSI], led by Michael Fuller, is another: it was established following a report by Sir Iain Glidewell, a former Lord Justice of Appeal. HM Prison Inspectorate is another, highly rated and very effective.
Objections are easy to anticipate, though equally easy to dismiss. Judicial independence would be cited by some in opposition to a formal scheme. However, the reality is that many of the worst complaints about discourtesy and other unacceptable behaviour in court arise from the failure by a few judges to exhibit the independence which in reality they probably possess. I am not suggesting that there should be some uniformly bland standard of neutrally polite behaviour from the bench: all advocates expect, and should welcome, legitimate and sometimes robust judicial challenge. Nevertheless, poor practice needs to be challenged, preferably before formal disciplinary processes are needed.
Another objection would be that it would be extremely difficult to find a cadre of inspectors who would have the skills and respect of the judges under inspection. To this there is a simple response – the inspectors should be drawn from the judiciary itself. For example, for a period of two years at a time a High Court judge could lead a team of four or five judges seconded for the purpose. They would be able to carry out routine and unannounced visits to courts without there necessarily having been a complaint. The judiciary and the legal profession could refer issues to them falling short of formal complaints; for example, when a resident or presiding judge was concerned by suggestions of serious “judge-itis” as occasionally happens with relatively new judges. And, of course, the judicial inspectors, where appropriate, could work alongside the new JCIO in its performance of inquiries following formal complaints.
The judicial inspectors would assess such issues as case management, treatment of victims and other witnesses, behaviour towards advocates and those instructing them, and all other matters of judicial performances. The purpose would not be to criticise, but rather to review and improve. Measurement of performance would be important – for what is measured is improved as a general rule.
Judges perform a great service for the public. However senior, they are servants of the public. In the US some judges are elected, a form of public reassessment of the services they provide. The election of judges at a regional level might be considered in England and Wales, but I would hope that Parliament would reject the concept as undermining the true independence of the judiciary. Nevertheless, important public servants, especially those with little line management and ostensibly lengthy security of tenure, should expect to be evaluated in their courtroom performance. I think that most would welcome it.
Therefore, my hope is that the present government, which has not been reluctant to replant significant parts of the legal landscape, will take on the issue of the quality assessment and, where necessary, re-training and re-evaluation of judges, as a progressive reform that would enhance confidence in our legal system.
Lord Carlile of Berriew CBE QC, is a practising barrister and Liberal Democrat peer. He sits as a Deputy High Court judge, recorder and tribunal chair.