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August 4, 2018

The judgment of Solomon – should judges be all-knowing?

My daughter has started training to be a social worker and her first essay was on reflexive practice – the need to reflect about your own professional behaviour both alone and in discussion with colleagues. It’s compulsory for many professionals including doctors to write a reflective journal. This reflection needs to be open, self critical and non judgemental.

This week I wondered more than ever whether judges might benefit from structured reflection – mostly to think about unconscious bias, but also about what they don’t know. Three recent issues/cases came to mind

  • Judicial discretion in use of video hearings. An HMCTS blog published this week gives an update on the programme. It is at pains to emphasise that no video will be used unless the judge concerned has approved it. This implies that judicial discretion is the magic wand to all the potential problems inherent in video hearings – that judges will know whether access to justice is compromised or not in the case of each individual. The problem with this idea is that it endows judges with the judgement of Solomon given that no one actually knows what the effect of video is – either on the behaviour of defendants/litigants/witnesses or on justice outcomes.                                                                                                                                                      There are some indications from research that appearing on video changes behaviour – both of those on video and of judges and juries. But we need more research in order to understand about any unconscious bias induced by seeing people on video. I’ve heard judges say “don’t worry, we treat everyone the same, whether they are on video or not”, but the problem is they don’t know what they don’t know. Unconscious bias affects all judges – research has shown that they approach decisions differently before and after lunch, or whether their favourite team has won at football. Responding to someone on a video screen versus face to face is a huge difference, and everyone who has talked to someone on Skype notices the difference. Judges are not superhuman, so the chances are they will react differently too.
  • In the last ten days a number of children (under 18 year olds) have been identified/named by judges. Children who commit crime are not usually named and shamed. But judges can lift reporting restrictions if they believe the public interest outweighs the child’s rights to privacy. My concern is that the judges use deterrence as a reason to identify the children, yet there is no evidence that naming acts as a deterrent, either for the individual or their peers.  The evidence we have suggests that naming children really harms their chances of rehabilitation, but has no positive effect. And naming devastates the families of the child defendants, including totally innocent siblings.  I wonder if any judge making such decisions has read the academic evidence on deterrence and reflected on it?
  • A High Court (HHJ Hayden) judge did a rare thing recently in criticising another judge. Appeal judgments usually avoid clear criticism of other judges. But here it seemed unavoidable. A judge in the family court had presided over a fact-finding hearing of a father who had been accused of rape by his ex partner. The father was unrepresented (since not entitled to legal aid) and was ready to cross examine his ex-partner himself. As a police officer, he had prepared carefully. The judge refused to let him cross examine his ex-partner (for undoubtedly good reasons), and took it on himself to do so. But in so doing the judge (accordingly to HHJ Hayden) did not fairly represent the interests of the father F: “Whilst I am extremely sympathetic to the situation Judge XXXX found himself in, it must be emphasised that, having decided to put F’s case, he was required to do so fully, properly and fairly. A litigant in person is far more exposed than a represented party. The content, focus and style of the questions often reveal the personality of the litigant, long before he enters the witness box. It is clear to me that the Judge formed a very adverse impression of F, he considered him to be arrogant to the point that he regarded himself as “god like”. The disagreeable and the arrogant are of course as entitled to a fair trial as the polite and amenable….I am entirely satisfied that the hearing fell short of what fairness demands and to which F was entitled”. In effect this judge was accused by HHJ Hayden of bias in favour of the mother, and the father won his appeal for a re-hearing. I wonder if Judge XXXX reflected on their behaviour that day, either alone or with colleagues? Have they, in the light of the judgment, discussed the case in a structured way so they can learn from it?

Judges are not omnipotent. They cannot always discern their own bias, nor know things that can only properly be discovered via data collection and research. But the crucial thing is for them to understand and acknowledge what they don’t know, to keep up with academic research, and to reflect on and discuss issues with colleagues in a structured way. Conversations with colleagues over lunch are important, but not the same as formal constructive feedback and reflexive practice.  I can understand the need for judges to seem all-knowing in court. But discretion can only properly be exercised with knowledge and self-knowledge.

NB Judges were revealed this week to have some doubts about the digital court reform programme, particularly about access to justice and open justice, so maybe they are aware of the significant gaps in the research?