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What makes a good judge?

Updated Wednesday 22nd October 2008

The figure who must ensure that both sides feel the justice process is fair. But what does that entail?

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Copyright The Open University

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Copyright The Open University

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Jane Goodey: A good judge in court is actually a judge who’s invisible so that their own personality is kept outside of the court, so that what the judge does is serve the court, uphold the law and serve the people who are actually going to use the court rather than vice versa.

Gary Slapper: At its most base point, a court case is an intimately human experience. Everyone in it - and these things are always obvious but I think it’s a good place to start. This is a human mechanism for dispensing justice within a human drama and therefore if there were a way, and there might be in a hundred or a thousand years’ time, of allowing that process to happen through a computer system to make something electronically impartial, so you could feed in all of the relevant facts of a case and the hundred most important points of the law and evidence and get the computer to give a judgement.

Probably humanity would not favour that method of deliberating upon something which is a human dispute about a crime or a fraught family matter or a neighbour dispute, or a dispute with a bank or a school, or all sorts of any one of the thousand and one little areas of law that impinge on people’s lives would not be best dealt with people would think by a computer. And the reason is I think because at its heart the process of judgement and trial and imparting justice is a human one.

Mr Justice Calvert Smith: Courtesy at all times and to everybody who is in your courtroom, the lay people, the witnesses, the jurors, the defendants in a criminal trial, as well of course as the lawyers on each side, so as to create an atmosphere in court which is conducive to logical and clear thinking and not conducive to high emotion and an inability to think clearly because people have lost their temper or, as it might be. So set an example of courtesy.

A facet of that, but it’s not quite the same, is to create the conditions in court which enable both sides to present their arguments fairly and their cases fairly so that they both feel at the end of the day that at least if they lost they had a proper hearing, and that they weren’t simply ignored or brushed aside. I think you also have to set an example of hard work. If the judge in a case clearly isn’t prepared to put in the hours, as it were, and to rely purely on what he’s told by the barristers that soon becomes apparent and the respect of the professionals and the parties to a case will be diminished unless they feel that the judge him or herself has mastered the case.

Gary Slapper: In recent history, a case involved a judge who was said to have cried in court at what was extremely tragic and upsetting evidence to do with a case in which a mother was giving a victim impact statement about the loss of her daughter in exceptionally difficult and tragic circumstances. There were mixed public reactions to the assessment of a judge who was seen to become tearful at the evidence. One way of looking at that is that it was improper for someone who’s at the pinnacle of the delivery of justice to be seen to be shedding a tear because you would want a judge to be absolutely iron and detached and unemotional.

Another view, and this is the view that I take, is that you would want a judge to be someone who in those extreme circumstances was shedding a tear, because the sort of evidence that I heard replayed when national radio allowed the mother to read the same impact statement over the airwaves it was my view that anyone who didn’t become emotional listening to that would be someone who you would perhaps not want to be judging on human affairs in that context, and therefore that some, there is something inherently human. And provided judges are not people who are given to emotional collapse too easily during proceedings, most of which by definition because they’ve come to a law court are very extreme boundaries to places of human conduct, you wouldn’t want judges to be too easily falling into emotional upset, but equally you wouldn’t want them to be so machine-like and detached that they are unable to demonstrate human qualities that are required for being a good judge.

Mr Justice Calvert Smith: I think another important aspect of being a judge is where possible to use non-technical language. Not to use the legal jargon which you pick up at law school and rather enjoy being able to use, and the technical terms which appear in Acts of Parliament and in legal textbooks. Justice is a public function and, in so far as possible, the public should understand what’s going on in court without having to go to dictionaries or textbooks to find out what’s gone on. And a little thought as to how to phrase things in a way that somebody at your house or at a neighbour’s house or something would understand I think is very worthwhile.

I think finally, it’s very important that judges, so far as possible, avoid saying things which seem to reflect their personal opinions because the judge does not, or should not have personal opinions or beliefs. You may be for or against cannabis or for and against abortion or for and against anything really in your personal beliefs but what you are there to do is to embody and enforce the law, and I would advise judges to refrain from saying things which even seem like well I, Judge So and So, think that such and such a thing is wrong or right as might be. It is what the law decides that you have to enforce.

Jane Goodey: The same qualities that make a good barrister but, in addition, a strong sense of fairness and an urge to do right, decisiveness, and the best judges are also unfailingly courteous to everybody who’s in the courtroom.

Mr Justice Calvert Smith: Over quite a long career now, I have seen barristers who were not in the front rank success-wise make first class front rank judges, and I’ve seen front rank barristers who turned into less good judges, albeit that a number of qualities I’ve identified as making a good barrister and making a good judge are the same. I think it’s a very good training to be a judge, but when you become a judge of course you must get rid of the idea that as you have been in the past on one side or the other side, because when you’re a barrister you’re always on one side or the other. As a judge you’ve got to shake that off, and there have been examples of judges who perhaps haven’t always observed that correctly.

Abigail Bright: I think a good judge is especially concerned with the position of individuals in a trial. And so in the criminal context that translates as an especial concern for defendants, and I think good judges are infused with a sense of what Learned Hand meant, Learned Hand being one of America’s finest judges, when he said that more than death or taxes he feared a lawsuit. So I think good judges have a very firm sense of what Learned Hand meant. And also I think good judges are first and foremost very fine lawyers, so that they’re able to grasp legal principle and apply it in such a way as to do justice to the law. And following Ronald Dworkin, one of America’s finest political philosophers, I think judges render legal principles in such a way as to do justice to the law. And what I mean by that is to show law in its very best moral light.

Mr Justice Calvert Smith: Because judges and barristers by and large, and of course there’s some first class solicitor judges who by and large themselves come from a background which means they’ve been in court a good deal, because there has been that community of trust the relationship between judges and barristers is one by and large of trust. Clearly your life changes enormously when you become a judge. I have a large number of people I believe to be close, at least professional friends from more than thirty years as a barrister, and in particular from the Chambers where I practised and where I knocked around with them on a daily basis.

Of course I see very, very little of any of them now and it would be wrong to do so. We meet on formal occasions and we’ll have a good chat and find out about how our children are doing and all that sort of thing. So you do have to step back, but I think the residual benefit is that I know that I can trust the people who now appear before me, apart of course from the one or two who will have transgressed in the way I mentioned earlier and who I will always want to look at carefully.

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