Walking for justice. The ICLR at the London Legal Walk

A team from ICLR will be walking the walk, literally, and with as much sponsorship as we can muster from all our generous supporters, to raise money for the very good cause of providing legal advice to those who really need it at a time when public legal funding is being savagely cut. 



The walk has been organised to benefit the London Legal Support Trust, which was established in 2004 as an independent charity to raise funds for free legal advice services in London and the South East.

Members of the ICLR team on the 2012 London Legal Walk

As part of a network of Legal Support Trusts working with the Access to Justice Foundation, they support the provision of specialist legal advice through law centres, advice agencies and citizens advice bureaux by providing them with grant funding alongside other forms of support. They raise funds from fundraising events, including the London Legal Walk. They also receive ad hoc donations from law firms and chambers.

In addition to funding they offer their knowledge, contacts and experience of the sector to help agencies become more sustainable and, working with LawWorks and the Bar Pro Bono Unit, they help to partner agencies with law firms and chambers who want to help them to ensure that the law is fair.

(The above information is taken from their website.)



The Trust and the Walk receive the enthusiastic support of many solicitors, barristers and, at the highest level, judges (including Lord Neuberger, shown here at last year's walk).

Lord Neuberger, leading the judiciary team

To support the ICLR team, please click on this link to our donation page at Virgin Money.

These pictures are all from last year's walk. We will post an update after this year's walk, which takes place on Monday, 20 May, at about 5pm.

For more information, follow this link to the London Legal Walk website.

Nothing new under the sun: prolix pleaders then and now

In a recent Commercial case Standard Bank plc v Via Mat International Ltd [2013] EWCA Civ 490  the Court of Appeal drew attention to Khader v Aziz (Note) [2010] 1 WLR 2673, reiterated its warning against the unnecessary length of skeleton arguments and reminded parties of the possibility of the sanction of adverse costs orders.

 Aikens LJ recognised that the problem was not new. He said, at paras 29-30:  

In a reported case,  Mylward v Weldon (1596) Tothill 102, 21 ER 136; [1595] EWHC Ch 1, it is stated that in 1595 the son of a litigant (the report does not say whether the miscreant was a barrister)  produced a pleading (a replication,  ie reply) of  “six score sheets of paper” which the Lord Keeper deemed could have been “well contrived” in 16 sheets. The Lord Keeper (Egerton) ordered that the miscreant be imprisoned in the Fleet until he paid a fine of £10 (a huge sum) to Her Majesty and 20 nobles to the defendant. In addition the Lord Keeper ordered:  “…that the Warden of the Fleet shall take the said Richard Mylward…and shall bring him into Westminster Hall on Saturday next,  about ten of the clock in the forenoon and then and there shall cut a hole in the myddest of the same engrossed replication…and put the said Richard’s head through the same hole and so let the same replication hang about his shoulders with the written side outward;  and then, the same so hanging, shall lead the same Richard,  bare headed and bare faced, round about Westminster Hall,  whilst the Courts are sitting and shall shew him at the bar of every of the three Courts within the Hall and shall then take him back to the Fleet….”  

He concluded that that sanction against prolix pleaders and submission authors might not be available today, but failure to comply with the letter of the Practice Direction on written submissions and the failure to heed the need for brevity in pleadings might well lead to strict adverse costs orders.

It is nice to know that the law reporters were on hand to record events.

***

This is a guest posting by Alison Sylvester, Barrister, who is one of ICLR's law reporters assigned to the Court of Appeal. The case is not being fully reported, but a case note will be available to subscribers on ICLR Online.


See also (on this subject): UK Human Rights Blog, Should lawyers get named and shamed for being boring?

CALL 2013 Montreal - Amongst friends

At the annual gathering of the Canadian Association of Law Librarians (CALL) 5-8 May 2013, sponsored in part by ICLR. 

Conference Diary by Rebecca Herle, Head of Marketing and Operations.

After an eventful entrance to the city I refer to as Belle Ville, Montreal, a few bags searched and a less than legal taxi journey, the ICLR team arrived safely at the Sheraton downtown. 

We decamped for a quick beer only to be swamped by a mass of Red: the  Montreal Canadiens played Ottawa Senators at the famous Bell Centre, which is conveniently located opposite our hotel. 

An interesting dialogue between three rather tired English people grappling to remember their GSCE French and an equally tired French waitress at the end of her shift meant it took some time to get the “Trois bières grandes” but it was well worth the wait. 

Finally collapsing in to bed when we realised that UK time our body clock was hitting 5am! 

Saturday morning 

the sun shone brightly as we set up the ICLR stand, with no major hiccups to report, thankfully. 

Setting up 

With the Wildy's team:  job well done!

The afternoon was spent taking a leisurely stroll down Sainte Catherine and through to the bustling  Montreal old town. Very much the Parisienne Café scene with tables spilling out onto the streets, interestingly the Boisson Du Jour was a mixture of Beer pitchers (nothing odd there) and Sangria? Pour quoi? Who knows, perhaps because in Belle Ville anything goes. An exciting mixture of art, flair and happy air seems to waft the streets of this little French Canadian Citadel. 

The old town Belle Ville

Belle Ville at dusk

Sunday the show must begin...The crowd gathers, law librarians from British Columbia to Newfoundland, as distance is no barrier for this immensely cheerful crowd. 

And we're off. In contrast to other events I always feel so at home and not on show at this event. In only our second year at CALL we have already found friends and colleagues who brightly came back to visit us and sit down for a mere catchup. With genuine interest in your wellbeing, your business and general news. 

A successful first day done we all head to the Museum of Contemporary Art for the opening reception. 

Musee D'Art Contemporain Montreal

Monday already? 

Always a centrepoint for this three day strong event. Busy, chatty, bubbly... I lost count of the many conversations all equally interesting and ICLR Online is met with continuing enthusiasm.

Ending on a very civilised cheese and wine hour I sit back, marvel at the CALL experience. As people we met last year pop by to say hello, the people that we've met this year pop by and recommend a restaurant or a local attraction and ask with interest how were enjoying Montreal. 

Maybe us Brits are just too stiff upper lipped, I feel myself physically relax whilst I'm here. We all do. Lunch at Reubens, a Jewish Canadian diner style establishment famous for its smoked meat “salt beef on rye - Reuben's special”. 

La nourriture de l'amour

I always think picture-taking of one’s food is a little crass but the phenomenon of the food out here breaks my usual rule.

D'Amaretto Sour

John  Eaton with copy of Finding English Law

And now let me introduce one of our friends (and one of our very first customers), John Eaton from the University of Manitoba, Winnipeg, author of recently published “Finding English Law” (and one of our favourite customers), whose interesting life to date includes: studying law, but deciding against a practising career, hockey player cum linguistics specialist cum law librarian... He quotes the following very apt strapline to accompany my historic luncheon: 

“They say ‘Nothing succeeds like success’ in fact ‘Nothing exceeds like excess’! “ 

You exceed in excess.



En résumé - ICLR in Montreal CALL 2013, firmly amongst friends. 

HHJ Pennyweather, the legal arms race and grumpy old judge syndrome

Sometimes I really think that the supposedly cleverest people in the world are in fact the most stupid. A case which came before me last week illustrates this point perfectly. It started life as an uncomplicated personal injury matter which should have settled out of court many years ago. But instead what happened was that the solicitor in his wisdom passed the case to a barrister for advice. All well and good except that this clever young and earnest barrister was out to make a name for herself and thought the case was in fact far more important and complicated than it actually was. So she advised bringing in leading counsel. Said solicitor then passed this advice first to his client and then to the legal expenses insurers who duly brought in a very learned and esteemed Queen’s Counsel.

But this is where the stupidity arises since as soon as the other side realised that they’d be facing a much more senior barrister in court they decided that they too needed to instruct equally learned and esteemed leading counsel if they were to avoid being massively out-gunned and have any chance of winning whatsoever. So then we had two barristers instead of one on each side and probably four times the costs to boot. The problem is that it’s like a never-ending arms race or I suppose a very expensive game of chicken where each side simply matches the other and cancels out the advantage. Which ultimately leaves them all in no better position than if they’d just gone along with their original cheapo lawyer in the first place.

Now when I came to give judgment I made it very clear that I found for the claim for perfectly good reasons that would be impossible to appeal. But if you want the real truth then you should listen to my wife. She pointed out many years ago that my actual reasons for deciding a particular way are many and varied and rarely have anything to do with the law and only occasionally with the facts. In this particular case it had a lot more to do with the fact that one side provided case reports from the splendid ICLR online which to be fair is I think a perfectly legitimate reason in itself. But sometimes it can be as superficial as a barrister donning clip-on braces (a pet hate of mine) or perhaps threatening me with appeal or using the phrase ‘With the greatest respect’. Whatever it might be, I have long since given up trying to self-justify the outcome on other grounds. Judicial caprice is how my wife politely describes it even though grumpy old judge syndrome is what she usually calls it.

So unless you have a crystal ball and think you can predict the mood of a grumpy old judge (an impossible task according to my wife) or you plan on playing the cunning ICLR card, then I’d say you’d be far better off not spending a penny on lawyers and instead simply agreeing to draw straws at the beginning of the process and sticking with whatever comes from that. Because unless you do the only people who are going to win are the lawyers.

Which come to think of it, makes me think that they are perhaps not as stupid as they perhaps first appear.

Modern marriage defined: a spectrum that includes many shades of grey? A very Jamesian problem.

At a time when Parliament is considering whether to legalise same-sex marriage, and when modern medicine has severed the links between sex and procreation, Sir James Munby, President of the Family Division, giving the latest ICLR Annual Lecture, pointed to the "immense gulf" which separates our world from that of the Victorians, and asked how much of the traditional legal definition of marriage still survives today?

A few days later, in the ICLR Annual Mooting competition finals,  the problem posed discussed  how far the criminal law should go in controlling sadomasochism in the marital bedroom. 

Sir James Munby flanked by Clive Scowen, Editor on left, Richard Fleck, Chairman and  Kevin Laws, CEO of ICLR on right.

In his lecture, given at the Law Society on Thursday 25 April (above), Sir James began by quoting the definition of marriage supplied by his namesake, Sir James Wilde, the Judge Ordinary in Hyde v Hyde and Woodmansee (1866) LR 1 PD 130, 133, as

"the voluntary union for life of one man and one woman, to the exclusion of all others."

This definition, reported in the first volume of the newly-formed Council of Law Reporting's reports from the Probate and Divorce courts, represented what the Victorians had thought of as the legal concept of marriage, whose purposes (expressed in the Book of Common Prayer) included the procreation of children, the avoidance of fornication, the mutual help and society of the spouses and, according to yet another Sir James (they seem to be sprouting everywhere in this court), Sir J Hannen, in Durham v Durham (1885)  10 PD 80, "protection on the part of the man, and submission on the part of the woman."

***

Leaving aside the extent to which our post-feminist hackles might rise at such a notion, the words "protection and submission" acquired a new significance when discussing the point of law arising in the fictitious case of Regina v Masters (Susie), on appeal from the Court of Appeal (Criminal Division) to the Supreme Court, sitting on this occasion in a banc of two, Turner and Mitting JJ, in the Large Pension Room at Gray's Inn on Monday 29 April.

According to the moot problem, James and Susie Masters had been married for 25 years before they developed a mutual fascination for sadomasochism, which helped revive their sex life. They used a camcorder to record the mutual infliction of assaults occasioning rather more slap than tickle, and varying degrees of bodily harm, including the infliction of scars etched with a knife, and partial strangulation. Following an anonymous tip off, the police got involved and Susie Masters was indicted on one count of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 and one of inflicting grievous bodily harm contrary to section 20. The question for the court was whether consent on the part of James (yet another one) to his wife's actions amounted to a defence. No, said the trial judge, applying the decision of the House of Lords in R v Brown (Anthony) [1994] 1 AC 212.

The Court of Appeal, however, allowed her appeal against conviction by reference to the dictum of Russell LJ in the later Court of Appeal case of R v Wilson [1997] QB 47 (a case about buttock-branding):

"Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone prosecution."

***

The problem in Hyde v Hyde was one of polygamy (the marriage of one man to more than one woman). Sir James Wilde held that such a marriage was "utterly at variance with the Christian conception of marriage, and so revolting to the ideas we entertain of the social position to be accorded to the weaker sex" and should not be recognised by the English matrimonial court. 

Sir James Munby identified three puzzling features in this approach. First, by 1866 marriage was no longer "for life", judicially granted divorce having been introduced by the Matrimonial Causes Act 1857. Second, Britain at the time, through its empire in India, was probably "the world's largest Muslim power", and Islam permitted polygamy. Third, since Lord Hardwicke's Marriage Act of 1753 (an Act for the Better Preventing Clandestine Marriages), the meaning of marriage in English law had been a matter for Parliament and regulated by statute, and included non-Christian marriages. 

Since then, much else had changed. A poet  had famously announced that "Sexual intercourse began / in nineteen sixty-three".*  In Sir James M's view, the year 1967 had the stronger claim: in June the National Health Service (Family Planning) Act 1967, made contraception readily available;  in July, the Sexual Offences Act 1967 decriminalised private homosexual acts between consenting adults; and in October the Abortion Act 1967 legalised abortion. A fundamental link, between sex and procreation, had been irretrievably broken. More recently, developments in IVF meant that you could, conversely, have procreation without sex. 

***

Whereas 18th and 19th century judges saw the essence of marriage as a matter of "protection" and "submission", in which  a husband could possess his wife's body, "restrain her liberty at his pleasure, and ... administer physical correction at his discretion" (per McCardie J in Place v Searle [1932] 2 KB 497, 499), with grounds for divorce often centring on issues of marital cruetly, the case of R v Masters (Susie) revisited those ideas in a rather more modern context. This time, it was the husband's "submission" to his wife's restraint of his body, physical correction and infliction of cruelty that required the "protection" of the criminal law. 

And so, after Sir James Munby pointed out that "in contemporary Britain, the family takes an almost infinite variety of forms", the Crown's leading counsel in the Masters appeal was forced to concede that modern sexual relations were not a "black and white" issue but involved "a large number of shades of grey". Muted and respectful chortles from the audience and a later interjection from the Bench (per Turner J) about "fifty shades of Gray's Inn" left no one in any doubt as to the literary reference to a recent work of fiction on the subject of sadomasochism by, yes, you guessed it, someone else called James (E L). 

*** 

The case of R v Brown (Anthony) concerned sadomasochistic activities by a group of men, all of whom were willing and enthusiastic participants. They were convicted of offences of assault under sections 20 and 47 of the 1861 Act and sentenced to terms of imprisonment. The House of Lords affirmed the decision of the Court of Appeal [1992] QB 491 refusing to set aside their convictions. According to the headnote,

"it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason and, in the absence of such a reason, the victim's consent afforded no defence to a charge under section 20 or 47 of the Act of 1861". 

The sadomasochistic pleasure derived was not considered a "good reason" in 1993. But twenty years later, with the Human Rights Act 1998 protecting "respect for private life", would the decision be the same? 

The Court of Appeal in R v Wilson had distinguished the Brown case on the grounds that "there is no factual comparison to be made" between that case and the branding by the husband of his wife's buttocks with a heated knife. As the headnote records (these headnotes are jolly useful by the way), "there was no evidence that what the appellant did to his wife was any more dangerous or painful than tattooing, which, if carried out with the consent of an adult, did not involve an offence under section 47 of the Act of 1861 albeit that actual bodily harm was deliberately inflicted".

Would the (fictitious) Masters case go the same way? It was wonderfully well argued on both sides, and no disrespect is intended if those arguments are not reported fully herein. Having heard the Open University team for the Crown on the appellants' side, and Leeds University for the respondent defendants, the court ruled that the appeal would be allowed for the following reasons: (1) the case of Brown was settled law and applied. (2) It was for Parliament to change the law. (3) Nothing in article 8 required the court to redraw the boundaries. Having commended both teams, the judges then found marginally in Open University's favour, and the prize was duly awarded to the victors. 

Winning OU team (Ms Catherine Flint and
Dr Fathi Tarada)  flanked by judges Mitting J and Turner J. 

Completing his survey, Sir James Munby came to gay marriage. Here too, there was a question about whether the law had caught up with social mores and attitudes. "Persons of the opposite sex can marry. Those of the same sex cannot; they have to make do with a civil partnership. No doubt this is progress of a kind," said Sir James Munby, "but is this halfway house tenable in the long run?"

There was, he said, a technical problem. Consummation as currently understood was, by definition, impossible in the case of a same sex marriage. Moreover, sexual infidelity with a person of the same rather than opposite sex could not be adultery as currently understood (which required at least some penetration of a vagina by a penis, though not necessarily such as to amount to what is bashfully latinised as "vera copula", or what you might call the full mounty.)

The government, in its recent consultation, suggested that "case law may need to develop, over time, a definition as to what constitutes same-sex consummation and same-sex adultery". So the burden would fall on the courts to define the nuts and bolts of gay marital problems, but  - at a time when same sex marrage had been legalised in nine European countries, nine of the United States of America, and in several other countries around the world - the question whether we too should have a fully equal gay marriage under English law was, in Sir James's view, "a matter for Parliament".

ACKNOWLEDGEMENTS

ICLR is extremely grateful to Sir James Munby P for his excellent lecture (recommended reading, available here) and to Mitting and Turner JJ for taking the time to sit late at Gray's Inn judging the moot. Thanks too, to the mooting teams and their supporters for making the competition such a success.

Citations to law reports are all linked to ICLR Online. If you do not already have a subscription, apply here. 

***

Footnotes (yes we have them too): 

* The poet - not named by Sir James, was Philip Larkin, and the poem continues: "between the end of the Chatterley ban / and the Beatles first LP." The "Chatterley ban" was lifted after the collapse of a prosecution of Penguin books for the supposedly obscene publication of DH Lawrence's raunchy novel Lady Chatterley's Lover, which (adopting the approach in 1066 And All That) was one of the Causes of the 1960s and a Good Thing. 

Larkin made a further contribution to the understanding of family life with his lines, in This Be The Verse, "They fuck you up, your mum and dad / they may not mean to, but they do". 

Judicial conduct: benchmarks for good and bad behaviour

The news that a judge has held himself to be in contempt of court - and fined himself - has yet again brought to public attention the issue of judicial conduct. The incident occurred in America, where there are plenty of examples of judicial eccentricity, to put it mildly; but that great nation is by no means unique in harbouring judges whose behaviour challenges normal tolerance of what might be considered proper behaviour from the Bench. 


There are plenty of examples not only in Prof Gary Slapper’s entertaining collections of Weird Cases, published by Wildy’s, but also in David (now Lord) Pannick’s erudite monograph, Judges (OUP, 1987).
The issue is topical too, because only last month the Judiciary of England and Wales issued the latest edition of their Guide to Judicial Conduct (March 2013). More on that anon.

The squawk of an unsilenced cellphone

According to the report in the Wall Street Journal, Judge Raymond Voet, Ionia County’s chief district judge in Michigan has zealously enforced a “one strike, you’re out” policy in relation to any interruption of court proceedings by, for example, the  “squawk of an unsilenced cellphone”.

“I can’t stand cellphones ringing or making noises,” the judge told WSJ’s Law Blog. “I’ve taken phones from lawyers, cops, witnesses, members of the public, and the media.” 

Last Friday, while a prosecutor was delivering his closing arguments in a domestic violence trial, Judge Voet accidentally poked a button that activated voice command, whereupon a female computer voice was heard to declare: “Sorry, couldn’t hear anything. Try saying, ‘call mom’ or ‘open calendar’.” It seems the judge had failed properly to lock the keypad on a new phone.

After the judge apologised, the prosecutor continued and the case was left to the jury in the usual way.  Judge Voet then filled out his notorious “Contempt of Court” form, scribbling his name in the empty space and fining himself $25. He also signed the order.

Expressing himself surprised by the coverage generated by the story, he said:

“It’s a small county. Your reputation is important. I wanted to make sure anyone who had a phone taken by me knew that I lived by the same rules.”

Court napping

Not long ago I posted on this blog about jurors falling asleep in court. It had many hits, presumably because it is the sort of thing that might happen to anyone, including not just jurors (who could easily be bewildered into boredom by the proceedings) but also counsel and even judges. Respect for the rule of law does seem to require that judges charged with the task of deciding issues between litigants should stay awake during the proceedings while the evidence is being adduced and the submissions of each party are being made.

The problem of judicial somnolence is not, however, a new one. According to David Pannick, Plato alluded to  the problem (in The Republic), and in the 17th century Mr Justice Doderidge “had the habit of shutting his eyes while sitting on the bench, for the purpose of concentrating his attention on the argument, without being distracted…” Quite so.

 The problem found a solution, in the following century, when it was said of Lord Chancellor King that he “often dozed over his cases when upon the Bench,” but “it was no prejudice to the suitors” because two eminent barristers, Sir Philip Yorke and Mr Charles Talbot, were invariably briefed for the opposing parties and, being men of “good principles and strict integrity” they “were sensible on which side the right lay”. Accordingly, they would instruct the registrar what order should properly be recorded.

Lack of concentration may take other forms. When Lord Brougham was Lord Chancellor in the 1830s, “it was common talk how he would write letters, correct proofs, read the newspapers, do anything, in short, but follow the arguments or listen to the affidavits.” When a barrister complained of this inattention, Lord Brougham riposted: “You may as well say that I am not to blow my nose or take snuff while you speak.”

Courtus interruptus

No less off-putting for counsel can be the irrelevant or outrageous comments of judges, such as that of Judge Michael Argyle in 1986, animadverting to a jury trying a tax fraud case that the lack of Test Match cricket on television (owing to a strike) was “enough to make an Orthodox Jew want to join the Nazi Party”. Argyle had gained fame as an advocate by defending Ronnie Biggs, one of the Great Train Robbers, in 1963 and as a judge had caused amusement, perhaps not intentionally, when presiding over the Oz obscenity trial (see Reg v Anderson [1972] 1 QB 304; [1971] 3 WLR 939) in 1972, by asking counsel: “What is this cunnilinctus?”


Judicial unfamiliarity with contemporary life is often exaggerated, but as David Pannick points out in his book, “the ability of men and women to serve adequately as judges is likely to bear a closer relation to their knowledge and experience of life outside the courtroom”. For examaple, Lord Scrutton observed in 1932 that a judge who had not been married should not “proceed to explain the proper underclothing that ladies should wear”.

John Mortimer QC, reflecting on his role in the case of Director of Public Prosecutions v Jordan  [1977] AC 699; [1976] 3 WLR 887  observed in his memoirs, Clinging to the Wreckage (1983):

“No one has felt the full glory of a barrister’s life who has not, in wig and gown, been called to the podium in the committee room of the House of Lords by an official in full evening dress and, on a wet Monday morning, lectured five elderly Law Lords in lounge suits on the virtues of masturbation.”

Certainly, judges and prospective judges should disabuse themselves of any notion that the job can be done in the absence of close personal experience of the human condition and the rough and tumble of contemporary life. “In England,” writes Pannick, “we expect the judge to adopt a respectable lifestyle free of any hit of the unusual, let alone the deviant.” But naïve innocence or ivory-towered aloofness from the concerns of those over whom they sit in judgment would be a hindrance to the proper performance of their duties.

Decisions decisions

A perennial problem for judges is the inability to make a decision. No doubt acute consciousness of the responsibility of deciding a matter of supreme importance to the litigants may cause a kind of block in some judicial minds. It was said of Benjamin Cardozo, a Justice of the US Supreme Court in the 1930s, that:

“At times… the anguish which had preceded decision was apparent, for again and again, like Jacob, he had to wrestle with the angel all through the night; and he wrote his opinions with his very blood.” 

But the rule of law depends on certainty, and it is sometimes said that certainty is more important than right. People need to know where they stand, even if they don’t think the law is fair. As a law reporter, one gets to hear quite a lot about the judges one covers. There was one new judge who was said to have turned up embarrassingly late for work because he had not been able to decide which of two different cereals to eat for breakfast.

A related problem is long delays in giving judgment. It is not uncommon these days for judges in the High Court or Court of Appeal to reserve judgment for weeks or even months, before handing them down. On occasions, they overlook a matter altogether, unless and until reminded. In 1823 Lord Eldon was asked to give a decision in a case he had heard in 1817. He had “entirely forgotten it” and so the case had to be reargued.

Litigants who await judgment should, perhaps, be allowed to send the judge a gentle reminder, lest they forget (literally). But the process of appointment should, ideally, weed out anyone prone to indecision. After all, the one thing you expect from a judge, failing all else, is an ability to make a decision.

Judicial conduct: the official guide

Lord Judge CJ, introducing the new edition of the Guide to Judicial Conduct, notes that

“the responsibilities and the public’s perception of the standards to which judges should adhere are continuously evolving. To take by one example, when I came to the Bar it was considered in order for a son to appear before his father. This would be unacceptable today.” 

That may seem an obvious risk of bias, but there are more subtle occasions where the duty to ensure that "justice is not only done, but seen to be done" may arise. In the comic film Brothers in Law (based on a novel by Henry Cecil (Leon), himself a judge), the hapless young pupil barrister (played by Ian Carmichael, pictured right) attending a Bar Golf Club tournament is paired with a crusty judge (John Le Mesurier), who grows increasingly frustrated by the pupil's hamfisted playing. Some days later, the pupil finds himself in court, presenting a divorce petition with equal hamfistedness and you can see the judge struggle with his conscience in an effort to deal fairly with his case. Should he perhaps have recused himself - but on what grounds?

The six principles

 This new guide has been drafted by a standing committee  chaired by Patten LJ. It sets out and elaborates upon the six principles known as the Bangalore Principles of Judicial Conduct endorsed at the 59th session of the UN Human Rights Commission at Geneva in April 2003. These are as follows:

(i) Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

(ii) Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.

(iii) Integrity is essential to the proper discharge of the judicial office.

(iv) Propriety, and the appearance of propriety, are essential to the performance of all of the activities of the judge.

(v) Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.

(vi) Competence and diligence are prerequisites to the due performance of judicial office.

There seems to be considerable overlap between these principles, and some of them are so obvious as to need little if any elaboration. Nevertheless, the guide provides useful context and examples.
The guide notes:

 “Judicial independence is sometimes mistakenly perceived as a privilege enjoyed by judges, whereas it is in fact a cornerstone of our system of government in a democratic society and a safeguard of the freedom and rights of the citizen under the rule of law.” 

The guide goes on to say that “The relationship between the judiciary and the other arms [of government] should be one of mutual respect, each recognising the proper role of the others.” The problem for judges is that, unlike some members of the Government, cannot answer back when their decisions are misinterpreted. Indeed, they are not supposed to have strong views on any political issue. But in relation to their own decisions, “A judge should refrain from answering public criticism”. (Even from the Home Secretary.)

Media and publication

There is separate guidance as to how to react when factually misreported in the media, but this is not publicly accessible so I cannot comment on it. In other respects, the judge’s relationship with the media should be one of guarded discretion:

“many aspects of the administration of justice and of the functioning of the judiciary are the subject of necessary and legitimate public consideration and debate in the media, legal literature and at public meetings, seminars and lectures, and appropriate judicial contribution to this consideration and debate can be desirable. It may contribute to the public understanding of the administration of justice and to public confidence in the judiciary.” 

But “caution should be exercised when invited to take part in what may be legitimate marketing or promotional activities…” Also, perhaps, in competitive cooking  contests.

As for blogging and tweeting, the guidance previously issued is summarised as follows:

“Judicial office-holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.
Blogging by members of the judiciary is not prohibited. However, judicial office-holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.” 

Of course, writing comes (or should come) naturally to a good judge, and while blogging is usually unpaid, it is worth noting that the only form of paid employment which a full-time judge is allowed to pursue is writing and editing.

Judge not lest ye be judged

Unfortunately, judges can’t get out of doing their job by reference to this proverb. What they must do, however, is to conduct themselves in such a way as not to raise eyebrows or stimulate gossip. “Judges have to accept that the nature of their office exposes them to considerable scrutiny and puts constraints on their behaviour which other people may not experience.”

Few examples of unjudicial behaviour could trump that found in one of Gary Slapper’s memorable Weird Cases: it concerned a man in Georgia who was a habitual user of cocaine, marijuana, synthetic heroin and hookers, and who carried two loaded handguns during drug deals. He lost his day job after being caught out in a sting operation…
 but what made it an especially problematic case was that the job in question was that of being a federal judge.

They don’t make them like that over here. (At least I hope they don't.)

*** 

Acknowledgements: apart from the story in the Wall Street Journal, all quoted material is generally taken from Pannick's Judges or the latest Guide to Judicial Conduct. I am grateful to Professor Gary Slapper for his constant stream of anecdotage on Twitter, @garyslapper which enliven the dullest days.

Fighting for justice: "let right be done" - The dramatic case of The Winslow Boy

The passion for justice is something that runs from generation to generation. It is the writing that permeates the stick of rock that we call society. Even when it isn't there, perhaps especially when it isn't there, its absence makes its presence felt. 

Today we take the right to a fair trial for granted. Magna Carta, the Bill of Rights, the European Convention. And yet, we are never closer to losing it, than when we assume it won for ever. 

This play, this case, is about the loss, or alleged loss, of a postal order to the value of 5/- (five shillings). One wonders how many of the encouragingly youthful audience at the Old Vic theatre can tell a shilling in Terence Rattigan's 1946 play from a groat in one of Shakespeare's. Or a postal order from a bill of right. 

An Edwardian drawing room drama - floral hats, long dresses, tailcoats and a wind-up gramophone: the accoutrements of datedness could never have been so omnipresent, so overpowering. And yet Lindsay Posner's production of The Winslow Boy and the marvellous vitality of all the performances make this story seem as real and as urgent and as crucial as any case from today's law reports.

I saw the movie (the original 1948 one, directed by Anthony Asquith), long ago, at school, and afterwards could never remember whether, in the end, the boy done good or ill. But I saw it as a boy and all I saw was the boy. Now I see it as a father and the play is all about the father, about his vain and foolish and stubbornly unpragmatic fight for justice. Motivated by some selfish gene, he all but throws away the peaceful enjoyment of family life, and the well-being and happiness of the rest of his family, in a reckless bid for the vindication of the name of his barely interested teenage son. It's vindication of the father that's really at stake; but not just of him: vindication of everyman, his right to a fair trial, to be judged not by a coldblooded establishment, not swept under the carpet of institutional convenience, but given the right to a verdict from a fair tribunal. From a court.

So what's it all about? 

The story is set in Edwardian Britain on the eve of the First World War. A 13-year-old boy (Ronnie Winslow) is expelled from the Royal Naval College, Osborne, Isle of Wight, having been accused - he says wrongly - of stealing a postal order to the value of five shillings (a substantial sum of money in those days). His father, Arthur, is furious and immediately sets about trying to clear his name. But the Royal Navy refuses to reconsider the matter; and, as an emanation of the Crown, is not amenable to the jurisdiction of the court. Nor, as a mere cadet, would Ronnie be entitled to a court martial hearing. Arthur's only recourse is to apply for a petition of right, under the Petitions of Right Act 1860, which, until the Crown Proceedings Act 1947, was the only mechanism by which citizens could sue the Crown. It required a petition to be addressed to the Home Secretary, who, on the advice of the Attorney General and with the consent of the government, could issue a document on which the words "Fiat justicia" ("Let right be done") appeared alongside the monarch's signature. As Carl Cardner points out in his Head of Legal blog review of the play, this was akin to the modern procedure of judicial review. And it is this hearing (rather than any actual criminal trial) forms the basis of the courtroom drama. 

Terence Rattigan's master stroke in writing the play is to set the whole thing in the Winslow's drawing room. In the traditional theatre of the Victorian and Edwardian period, the drawing room is a symbol of family life. And this is very much a story about a family. The Winslows are reasonably prosperous but certainly not rich upper middle class people. Arthur is a retired banker; he and his wife Grace have three children, an older son (Dickie) at Oxford, a daughter (Catherine) who is a suffragette, and the boy Ronnie who has done well to get into the naval college at Osborne. They have a maid (Violet) and a cook and before Catherine's engagement to a young officer is announced, he and her father have a decidedly unsentimental discussion about their respective means and the sort of settlement the young couple can expect. All that, however, has to go by the board once Arthur embarks on his stubborn fight for justice. Though they ultimately win the battle, each member of the Winslow family sacrifices something significant. Catherine's officer, goaded by his far more establishment-minded father, breaks off their engagement. Dickie must give up his allowance and his place at Oxford and get a job. Ronnie moves to a much less prestigious school (they are lucky to find one that does not ask too many awkward questions). And Arthur, who begins with a walking stick and ends confined to a bath chair, is broken in health and fortune.

The point is that even this reasonably prosperous well educated and well positioned middle class family (not unlike the Bankses in Mary Poppins) can be treated like a mere insect to be crushed by the imperial and impersonal might of the state. So it's a David and Goliath battle, in which the little man ultimately wins. 

By enacting all the drama in the drawing room, the very hearth of this family home, Rattigan takes a daring risk. He gives up the opportunity, which a less confident playwright would surely have exploited, of staging his court room scene in a court room. Instead, he brings the court room into the heart of the family home, in the person of Sir Robert Morton KC, the coldly ambitious barrister who eventually decides to take on their case. Sir Robert visits the Winslow home just before the interval, ostensibly in order to discuss the case with Arthur, but in reality so that he can have an opportunity to cross-examine the boy Ronnie and test the strength of his case. The scene is a brutal one, as Sir Robert, who is supposed to be on their side, grills the boy to tears, trapping and confusing him with machine-gun questions. The rest of the family, gathered around the drawing room, look on aghast. And yet, the minute it’s over, and Ronnie is collapsed in a heap, Sir Robert briskly declares that of course the boy is innocent and of course he’ll take the case. (No nonsense about the Cab Rank for Sir Robert.)  

It’s a dangerous gamble, playing this court room scene in the drawing room, just before the interval, because there’s a risk that nothing in the second half will quite match this dramatic climax. And it never quite does, though there are twists and turns and revelations (mostly revelations about people’s true character, when tested and found, in some cases, wanting; in others, triumphantly, not). The day-long debate of the cause célèbre in the House of Commons is brought into the drawing room in the form of newspaper reports and the coming and going of witnesses who were there, but it doesn’t have quite the same impact. We can see how things fall apart, as the case drags on, how it takes its toll on the various family members; and then, quite suddenly, it’s all over. The admiralty run up the white flag and concedes the case; Sir Robert accepts the compliments of the family with awkward hauteur: but he’s a bit of a Mr Knightley. Cross-examined by suffragette Catherine, he almost admits to a sneaking regard for her unconventional ambitions. You sense there might be more than a negligible chance of something blossoming between them, something rather more than with the stodgy family solicitor who dotes on her with hangdog hopelessness.

True to law, true to life?

The story is based on a real case, though some of the details have changed. There really was a boy of 13, accused of stealing a postal order for five shillings, but the boy’s name was Archer-Shee and it happened a few years earlier than as set in the play. The suffragette sister and playboy brother seem to have been invented; in reality, the brother was much older and already an MP by the time of the case, which he was instrumental, together with their father, in pursuing. In the play, Dickie can’t quite see what all the fuss is about, it’s the sort of scrape (a bit of pinching) his chums wouldn’t turn a hair over. But in the eyes of Mr Winslow, the charge against Ronnie is something which, if it sticks, will scar his reputation for the rest of his life.

At the time Rattigan wrote the play, the petition of right was already a creaky legal anachronism, about to be swept away by the Crown Proceedings Act. It now resembles one of those medieval pleas which it was so important to get absolutely right, like a latinate spell out of Harry Potter. But in other respects, it is hard to regard the law as having developed an easier access to justice. As John Morrison points out in a piece in the theatre programme, it took the Archer-Shees two years to get justice done; but the families of the Hillsborough disaster victims waited more than two decades to see their claims of a police cover-up vindicated, while Doreen and Neville Lawrence are still waiting for all the killers of their son Stephen to be finally brought to justice. Since the middle of the last century there has been a gathering crescendo of cases of judicial review, in which every kind of governmental and administrative action has been questioned and often found wanting by the courts; and yet public authorities, in the name of terror or data protection or health and safety, continue to find ways of behaving like the Admiralty in the Archer-Shee case and putting up the shutters to justice.

So the themes of justice delayed, justice denied, and justice finally done are no less valid now than in 1913 or 1946. Sir Robert Morton in the play, complimented on the passion with which, it is assumed, he must have fought to win, rebukes the compliment by saying it is not passion that wins cases, but “cold clear logic”. He adds that “It is easy to do justice, but it is very hard to do right”. Meaning, presumably, that “justice” is the law as it is, whereas “right” is as it should be. Hence the motto that runs through the play, “Let right be done”.