Trusting the Judges

h7It is a proud feature of our system of English law that guilt or innocence is ultimately decided by a jury of twelve citizens – not by judges or lawyers, but by twelve ordinary people who use their experience of life and their own common sense to reach a verdict, after due deliberation and discussion. Having said that, if I were unfortunate enough to find myself standing in the dock, I would have great difficulty trusting twelve total strangers, most of whom would otherwise be sitting at home watching daytime TV, with my future.

Trial by a Jury of one’s peers is by no means an abdication of responsibility by the legal profession, but a fundamental right to justice that has been enshrined in our constitution since Magna Carta. Most proceedings are held in full public view, except jury deliberations, which are secret. In the United Kingdom it is a criminal offence to interview jurors and publish details of their deliberations, unlike the American system where jurors, especiall those involved in the trials of celebrities, can go on to make millions by writing books and appearing on Larry King Live. Nonetheless, ours is a system that has evolved to near perfection by hundreds of years of exercise and experience.

To the Sun reader and his wife, it may appear that the wigs and gowns we looked at in the chapter on Symbolism and Imagery in All In The Mind are an out-dated tradition, a hangover from a previous century, that the Judges are out of touch with the modern world, and that the whole system is in need of a long overdue overhaul.

The traditional public view of a judge is of someone who has never heard of the Rolling Stones. He has been immortalised in Private Eye as Mr Justice Cocklecarrot, a pastiche of the real-life Mr Justice Popplewell, who was genuinely surprised that fans swore at football matches. But there is a lot more to all this than is usually reported in the sensation and gossip hungry tabloids. In fact judges do know who the Rolling Stones are – “they are a popular beat combo, m’Lud.” Some judges have even been to football matches, although probably not many. It’s all part of the gallows humour of the courtroom, part of its own tradition like the expression Liverpool Jury – a hangover from the Ken Dodd trial – “the scoundrel’s got away with it m’Lud – I think we have a Liverpool Jury!”

A judge will take any and every opportunity to feign ignorance at the mere mention of a celebrity. They can’t help themselves, and it’s always a moment of quiet, understated humour. But it’s also one of those things where you had to be there to get it. Reading about it in the Daily Mail just isn’t the same.

And then there is another urban myth, again perpetuated by the adult comics – the notion that judges are out of touch when it comes to sentencing. Judges do not make the rules that govern sentencing – the government does. This is the same government that conveniently points the finger of blame at the judiciary every time a celebrity criminal gets off with a slap on the wrist instead of the life sentence punctuated by hourly prods with a red hot poker he so richly deserves. Even so, Judges are tasked with the responsibility of dealing with each and every case on its merits, and according to the evidence. Every right minded Sun reader knows that farmer Tony Martin deserved a medal for shooting that burglar and that justice was “stood on its head” when he got five years instead. Unfortunately for the Sun, Mirror, and all the other tabloids, it was not the judge who sealed Martin’s fate – it was the jury.

Likewise, judges are all too often held up to public opprobrium because they are constrained by liberal laws that reduce their powers of sentence. Again, don’t blame the judges, blame the politicians; it is they who are ultimately responsible for these laws. The fact is there are twice as many people in prison in the UK today than there were ten years ago. This is partly because crime is on the increase, but partly because sentences are in reality, generally longer.

Judges have all done their years of apprenticeship as barristers, QC’s, or occasionally solicitors, dealing on a one to one basis with their clients, often in the cells, and are fully aware of the backgrounds of some offenders, so it’s hard to understand how they can be out of touch. In fact when it comes to dealing with criminals, they are more in-touch than most.

A very useful, and more honest, exercise next time someone conducts an opinion poll as to whether judges are out of touch or not, would be to add to the survey just one simple question – have you ever visited a Crown Court? Experienced court watchers will know very well that judges are amongst the most intelligent members of society. They are promoted purely on merit and intelligence. It is only when one watches these proceedings and pays close attention to the reasoning behind sentencing that one feels an overwhelming sense of relief that the law really is in safe hands.

Our system of justice is based on the rehabilitation of offenders rather than retribution (as in America) and it is only natural that sentences reflect this. If judges were to be promoted as instruments of political will, they would lose their independence very quickly. When George W. Bush was first elected President, it provided us with a perfect example of the sort of political patronage that has always been eschewed in Britain. Three Florida High Court judges decided that there would be no recount, dimpled or hanging chads not withstanding, and George W. Bush was upgraded from failed businessman to President of the United States of America. Those same three judges now occupy positions in the Supreme Court. Judges in England can only be appointed or sacked by the Lord Chancellor, and in the latter case, only after some gross misdemeanour.  It simply will not do to have English judges looking over their shoulders every time they are asked to make a decision that is at all controversial or that the government of the day mightn’t like.

And of the seven hundred or so judges in England and Wales, they are almost unanimous in their wish to keep their accoutrements, not just as a handy form of disguise (you never know when you might meet someone you sent to prison for ten years on the street) but for other, far more subtle yet enormously important reasons.

To abolish the wigs and gowns and centuries old observance of the protocols of the courts, even to dilute it, would spell disaster. We should preserve the traditions that make our system unique, and for future generations who will ultimately rely on the protection of the courts. The old adage of “if it ain’t broke, don’t fix it” was never more true. Prime Ministers and Home Secretaries may tinker and meddle all they like, but they are only temporary custodians of our welfare and therefore lack the experience… the law is the beneficiary of over seven hundred years of evolution and more important, the understanding behind it.

Copyright Andrew Newton 2013. All rights reserved.