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July 1, 2016

Is the appeal system the only way judges’ mistakes can be addressed?

Ben Butler is an intriguing man.  Someone with a history of violence, he was convicted of injuring his baby child, Ellie.  He and his partner fought both to overturn the conviction, and to have their child returned to their care.  But then he killed Ellie and is now is now convicted of that.  The case has prompted huge soul-searching about what went wrong and why the state could not protect Ellie. Something good should come of this tragedy in terms of learning how to avoid another.  But in some ways, we are totally blocked from learning.

The Judge, Lady Justice Hogg, who exonerated Ben Butler of injuring Ellie as a baby and returned her to his care, has not commented and would not be interviewed for the serious case review (maybe she was banned doing so).  Some have criticised her for this, while others have strongly supported her silence. The latter say she made her decision on the evidence before her, and any doubts about the decision should have gone through the judicial process – through a formal appeal, since appeals are the only proper way of testing judicial decisions.

I would challenge that for many reasons.  One is that the current appeal process is not a particularly effective accountability mechanism.  The bar to appeal across the jurisdictions is quite high – you need to have very good, often new, evidence to make it worth appealing – simply thinking the judgement wrong doesn’t wash.  Also, the cost of appealing is a huge barrier to overturning decisions.  Ellie’s grandparents, who fought against Ellie being returned to her parents, had already spent £70,000 on advocacy.  This represented their life savings. Sutton Council will have spent at least twice that fighting on the same side. When a senior judge makes a very strong decision, after a long case, the losing side have to think very carefully about spending more taxpayers/personal money on an appeal they may well lose.  The financial and psychological barriers to appealing are high across family, civil and criminal, so few decisions are challenged (in comparison to the number made).

Should judges talk about their decisions in hindsight?  Family law experts have commented on this in a superb blog about the case. Andrew Pack thinks that judges should sometimes be interviewed for serious case reviews: “there needs to be some mechanism for the most exceptional cases of this kind. Likewise, the family judiciary knew of this case 2 years before the verdict – yet the Judge was still given difficult family cases to decide, and they had no press statement or comment. It gives the distinct impression that the judiciary aren’t scrutinising this decision and accepting any part in this tragedy, and that’s a bad impression to give to the Press and public”.

Louise Tickle agrees: “The ‘specialness’ of the judiciary is an irrelevance and an abuse of privilege in this extreme circumstance, if there is something to be learnt by other judges and indeed the rest of us. It is not about demanding heads on plates – it about Hogg’s thought processes and levels of risk aversion and judgement relating to facts and evidence she was appraising that could, if it were to be known, be reflected upon, considered, discussed and learned from”.

Lucy Reed, Barrister, disagrees “if alongside a judgment there is a public rumination about what might have been wrong about a judgment then the judgment loses its specialness and the authority of the court is lost”.  Sarah points to the appeal system as the remedy.

Given that the appeal system is so imperfect, I can’t agree with Lucy.  But also I think there is a wider good to providing a forum for judges to reflect on their judgements.  As it is, there is no reliable process for judges to even know that their decisions have been appealed, let alone a way to discuss and learn from them.  The best way of improving is to learn from mistakes, small and large.  But judges get scant feedback either about their decisions or about their behaviour.  So opportunities for reflection are minimal. Even if the judiciary felt it was wrong for Lady Justice Hogg to contribute to a serious case review, would it not be helpful for a group of judges to discuss the case with her?  In other spheres of work professionals are challenged through coaching and action learning.  Why not judges?  Would it do harm for them to openly (at least in front of other judges) recognise their mistakes?