Between a rock and a hard place – should judges be “out of touch”?
My hypothesis is that the judiciary are – and on the same logic the magistracy is – fiercely independent and currently this has been clearly illustrated in the Grenfell Towers and Charlie Gard cases. In both of these there is a widespread accusation that the judges (in one case brought from retirement) are out of touch with the people and the issues involved, and that this debars them from acting independently or impartially. On one reading this means they are clearly independent, as they don’t have any direct connection with the protagonists. Another reading is that they are out of touch for exactly the same reason. Yet one has only, for example, to read the judgments of Mr Justice Francis to see the focus on independence based on law, and his dismissal of the merits of a popular claim, or series of claims, on social media. But that judgment also evidences humanity and humility, an aspect widely under-reported in the press and TV media. I assume that Mr Justice Francis has no direct personal experience of the issues facing the Gard family, any more than most magistrates have of being victims of a serious assault, or walking the streets with a bladed article. Our independence and training enables us all to deal with the relevant issues, considering only those aspects of any allegation supported with evidence, and measured against current law and practice.
But is the delivery of justice disadvantaged by judges like us not being part of the community and, if we are not, does that matter? Until relatively recently magistrates were respected figures in their local community and typically an active part of it. They were known by all who lived in their parish, street or town and took a leading role in community events. Today, my neighbours possibly don’t know who I am, let alone whether I am a magistrate, judge or local crime lord. Community involvement for most judges therefore can only be through community groups and activities. This may be a tenants’ association, the village fete committee, or the local gardening or amateur dramatic clubs. It could be and should perhaps also be through any of the many groups concerned with justice, law and order, which range from being a volunteer special constable to chairing the local probation board, being an independent custody visitor, a member of the prison visitors group, or any other grouping. The parish in which I live has a local crime committee. (For the avoidance of doubt, it is against crime, not trying to promote it). Others present there will be local, interested in justice and express a range of views on multiple issues.
The law and sentencing guidelines do permit judges to consider local matters affecting a community, and the impact of certain types of crime in specific areas. For the judiciary, and magistrates in particular, to know what those issues are, relies on community involvement. Independence does not mean isolation.
Of course there are crimes for which this doesn’t matter. Dealing with a “no insurance, licence or MOT” case requires no local knowledge whatsoever. Our approach is typically as independent as a robot would be. Dealing with careless driving is often easier if the bench knows the location of the alleged incident. But local knowledge is not the same as independence. Around the world we see allegations that the tribunal is not sufficiently independent, be that in religious courts, village elders’ hearings or kangaroo courts. These examples have high community involvement, but poor independence.
The current guidance is clearly unhelpful, all but ensuring that the judiciary is seen as out of touch. Whilst no judge has recently asked in open court “who are the Beatles?”, an expectation remains amongst the public that they might, and therefore justice cannot be seen to be done. Statements on behalf of the Gard family and the Grenfell victims, indicate that this latter view is common. Suggestions that the judge “doesn’t look like us”, lead to an assertion that justice cannot be done.If it were seen that judges understood communities, perhaps this view might change.