One of the modern tasks of the Lord Chief Justice is to give evidence annually to the House of Lords Select Committee on the Constitution. In December 2010 he made it plain that ‘judges cannot get mixed up in the political process and, more importantly, be seen to have got mixed up in the political process’. However he felt able to register his concern then that 120 bills with ‘Henry VIII clauses’ had been enacted in 2008-9 and that there was legislative overload particularly in the criminal justice sphere. Returning in January 2013 he noted that ‘just because a constitution is not all written down, it does not mean it cannot be damaged’. He was thinking of the ‘constitutional revolution’ of 2005 which eroded ‘something important’. ‘What is lost is this. The Lord Chief Justice cannot speak in the House of Lords’. He still has access to those in power and as he said, ‘I would much rather win the quiet victory as a result of cajoling, encouragement and persuasion than lose the battle having gone in with drums banging and trumpets blowing’. His passionate commitment to increasing diversity in the judiciary focused on two particular aspects: the need to recruit more solicitors and the knock-on effect in 20 years’ time if the publicly funded Bar is not able to attract young men and women of ‘real talent’. When, in January 2013, he set out everything he had done to promote diversity, he summed it up, ‘How am I seeing it? I am seeing this, perhaps because I am blinded by enthusiasm, optimistically’.
Lord Judge’s sentencing decisions took place within a moral universe in which culpability is significant when there has been betrayal. His judgments do not merely set out how the defendant has broken the law. They get to the heart of what in fact the defendant did wrong. He defined his own task in 2008 as ‘to do justice appropriate to the individual who has committed the particular crime or crimes in the light, not only of its impact on the community at large, but also the direct consequences for the victim’.
In John Hood (June 2012) he upheld a prison sentence for a 72-year-old man who had sexually assaulted a female friend. ‘The complainant reposed complete trust in the applicant and he betrayed it.’ When rejecting the appeal of Michael Brewer (June 2013) against consecutive sentences for indecently assaulting Frances Andrade he noted that Brewer groomed his victim knowing of her vulnerability; he acted ‘without regret or remorse’. When in July 2009 he allowed an appeal by the Attorney General against unduly lenient sentences for rape and grievous bodily harm by a gang against a 16-year-old female (they threw acid over her body to destroy the forensic evidence) he noted that: ‘The offenders, who worked together as a gang, did what they did, quite deliberately, to humiliate and punish the defenceless victim, and to reinforce their own authority and power and that of the gang to which they belonged, in the expectation that the victim would be too frightened to report the matter so that their crimes would not be detected.’
In John and Anne Darwin (April 2009) the defendants conspired to fake John Darwin’s death from a canoeing accident in order to collect life insurance. Mrs. Darwin had to lie to her own children. In dismissing the appeal against the sentence Lord Judge said, ‘For the fraud to work, the sons had to believe that they, and their mother, were bereaved. They were therefore bound to suffer all the natural grief and distress any child would feel when a beloved parent died suddenly and unexpectedly and to offer all normal comfort and support to the surviving parent. The appellants must have appreciated that those would be the inevitable consequence of the fraud which they were planning but they nevertheless went ahead with it. That was the grossest form of betrayal.’ The appeals against sentence were dismissed (Amir and Butt, December 2011) in the case of two cricketers who accepted bribes and agreed that no-balls would be bowled: they had ‘betrayed their team, their country which they had the honour to represent, the sport which had given them distinction and of course their followers across the world’. When dealing with the cases which arose out of the riots in August 2011, he refused to see the offences as isolated crimes.
‘It was elementary that sentencing courts could not ignore the context in which the crime or crimes for which sentence was to be passed had been committed. It was an essential feature in the assessment of culpability.’ Neither would he see them as mindless offences. ‘None of the offenders was “mindless”. The actions were deliberate and each knew exactly what he, and in one case she, had been doing.’ He also recognised the significance of modern media when dealing with appellants who had incited others through a single entry in their Facebook. ‘Neither went from door to door looking for friends or like-minded people to join up with him in the riot, but modern technology had done away with the need for such direct personal communication. In other words, the abuse of modern technology for criminal purposes extended and included incitement of very many people by a single step.”
Throughout Lord Judge’s tenure, when it came to the conduct of trials, common sense prevailed. In a speech in November 2008 Lord Judge urged the use of modern technology to do away with the need for the parties to come to court for administrative matters. In the same speech he queried the future of oral advocacy when he recognised that young, technologically proficient jurors would not be accustomed to listening for prolonged periods; they would want evidence adduced in forms which were adapted to modern technology. As for case preparation, ‘Counsel for the prosecution and the judge should reflect on which count or counts should be presented to the jury. This requires close attention to the realities of the case and none at all to the theoretical legal possibilities which may arise... Unnecessary counts would be stripped out of the indictment’ (N, D and L, April 2010, which concerned an otiose count of false imprisonment in a rape trial).In another matter, he saw no need to discharge a juror from a case alleging sexual activity with a child because she had written a note to the judge saying that she had been raped at 20 years but had not reported it: ‘We must not, and do not, assume that a victim of crime will somehow be less committed to the principles which govern trial by jury than any other of its potential or actual individual members’ (CED, November 2012). When a complainant was unable to articulate in open court what had happened, he upheld the trial judge’s decision to allow her witness statement to be read and for her to adopt it. ‘It was a sensible adaptation of the processes of the court which caused not the slightest prejudice to the appellant or the conduct of the defence’ (Simon Paul Turner, July 2012).
In January 2012 Lord Judge announced that people in court could Tweet during court proceedings ‘but an application for permission to activate and use, in silent mode, a mobile phone, a small laptop or similar equipment solely in order to make these communications would need to be made formally or informally.’ In August 2013 in the phone-hacking cases he held that a voicemail message that had been received and stored but to which the recipient could still have access by playing it remained “in the course of transmission” so that it was an offence to intercept it’ (Edmondson and others). In January 2013 he held that when defamatory statements about a well known person were promulgated via Twitter, the court when considering the level of damages could have regard to the capacity for a story to go viral. At the same time, speaking in November 2010, he stated ‘if the jury system is to survive as the system for a fair trial in which we all believe and support, the misuse of the internet by jurors must stop’. He has punished that infringement, several times. In January 2013 he told the House of Lords select committee, ‘I am perfectly happy for cameras to come into court, provided their presence does not increase the risk that justice will not be done. I am very troubled about the idea of having cameras swanning around the court’ and certainly not on witnesses.
Advocates and vulnerable witnesses
The question of advocacy and the duties of the profession have been prominent in Lord Judge’s thinking for a long time. It is worth recalling the Kalisher Lecture which he delivered a year after taking office, on 6 October 2009. He spoke frankly and presciently. It is sobering to note how little the Bar has yet to address itself to what he said back then. He began with definitions with which we would all agree: ‘the technique of advocacy of every advocate at least in part reflects his or her own personality and character’. The best advocates ‘use words which are fitted to the moment at which the words are spoken; they respect and understand the moment, and are alert to its needs, and flexible to its changes’.
He then said that it was true as it was in his day that there are ‘very high numbers of competent advocates’ but also ‘a number of very poor advocates’. As if in confirmation, in July 2009 the HM CPS Inspectorate had reported that 25% of the self-employed barristers they observed were no better than ‘lacklustre’. Lord Judge went on to point out that at a time when ‘more men and women than ever have qualified as barristers’ there are an increasing number of solicitors ‘who wish to act as advocates in the Crown Court’ although ‘at the same time there is no more work’. ‘The reality must be spelled out: we now have an advocacy profession which is quite differently structured to the way it was structured when I started at the Bar ... the changed structures are here and must be addressed by the legal professions.’ Finally he said that if the quality of justice in the Crown Court depends on high quality advocacy, then he rejected any suggestion that the way in which the professions govern themselves or their training or their discipline are matters ‘for the exclusive consideration of the professions’ or the Legal Services Commission or the Ministry of Justice. Of cardinal importance to the judiciary ‘is the method by which high quality advocacy in the Crown Court is assured’. There remains no method.
Lord Judge had his own clear ideas of where advocacy was going wrong. In Re B (January 2010) he had to consider the crossexamination of a four-year-old child by a QC who submitted that he was unable effectively to challenge her account and to put the defendant’s case to her. The Court of Appeal would have none of it. Lord Judge found instead that the trial process must cater for the needs of the child and for adult witnesses whose evidence ‘in former years would not have been heard’. The competency test is not failed because the forensic techniques of the advocate have to be adapted ‘to enable the child to give the best evidence of which he or she is capable’.
The advocate must formulate ‘short, simple questions’ which put the essential elements of the defendant’s case to them but it is not necessarily appropriate to put those matters which undermine the child’s credibility in detailed crossexamination, and the advocate may have to forego ‘much of the kind of contemporary cross-examination which consists of no more than comment on matters which will be before the jury in any event’. This was a clean break with the past, with the initiative coming not from the Bar but from the Court of Appeal, who have continued to adopt Lord Judge’s approach in subsequent decisions. Lord Judge returned to the theme in his lecture at the 17th Australian Institute of Judicial Administration in September 2011. He spoke of ‘unfair’ questioning of a witness, not just a prosecution witness but also a defendant whose vulnerability means he is at risk ‘of having an injustice done because the discussion is not at his or her true level of communicative skill or physical endurance’. ‘We must rid ourselves of any straight-jacketed conceptions of the form cross-examination must invariably take’.
Eighteen months later, in the first Toulmin Lecture in Law and Psychiatry he noted that we had not yet ‘established full judicial insistence that questions of a young witness should be open ended. What are described as tag questions are unacceptable.’ It is characteristic that Lord Judge has since its inception championed the innovative use of intermediaries in the courts, whom he said, in Sydney, have ‘introduced fresh insights into the criminal justice process’. ‘I am not sure that we have arrived at our final destination on the use of intermediaries’, ‘but their use is a step which improved the administration of justice and it has done so without a diminution in the entitlement of the defendant to a fair trial’. He went further more recently: ‘Intermediaries perform a valuable function which it is not open to the judge to perform without, at any rate, giving the appearance, if the judge acts entirely on his or her own initiative, of partiality.’
That was said in the Law Reform Committee Lecture on 21 November 2013, shortly after leaving office. Free to express his views as a private citizen, he presented the ‘broad thesis’ that ‘the day will surely come... when the requirement for the physical presence of a child witness or victim in the court building will be, and should be, regarded as an antediluvian hangover from laughable far off days of the quill pen and the ink well’: ‘perhaps for these purposes, the court should come to the witness. Perhaps the mountain should shift itself. That would indeed be a special measure’. At the same time he reiterated, ‘comment posing as cross-examination must stop’.
As in so many things, the criminal justice system will have to continue to try to keep up with Lord Judge and to stay in the direction he has mapped out while Lord Chief Justice.
David Wurtzel, Consultant Editor of Counsel