*/
It has been said that ‘Without a judiciary which can and will administer law fairly and fearlessly between parties, no other guarantee given to the litigants by the law is likely to be of value.’* From ancient times to modern, there has certainly been no shortage of descriptions of the qualities that one should be looking for in a judge.
Socrates said: ‘Four things belong to a judge: to listen courteously, to answer wisely, to consider soberly and to decide impartially.’ In the Bible, in the Book of Exodus Jethro advises Moses to establish a judiciary system to share the load of deciding the legal disputes that were taking up too much of his time: seek out ‘able men, such as fear God, men of truth, hating covetousness’.
Sometimes judges themselves give a perceptive insight into what they think would improve their performance. Sir Matthew Hale, Chief Justice from 1671 to 1676 wrote for himself a number of resolutions to which he no doubt tried to stick. These included: ‘That I suffer not myself to be prepossessed with any Judgment at all, till the whole Business and both Parties be heard’; ‘Not to be solicitous what Men will say or think, so long as I keep my self exactly according to the Rule of Justice’; and ‘To be short and sparing at Meals, that I may be the fitter for Business.’
In our own time, Lord Neuberger of Abbotsbury described the basic qualities needed for a puisne judge when running a trial as ‘grip, authority, politeness, fairness, an ability to simplify and an ability to express yourself.’
Six principles are contained in the Bangalore Principles of Judicial Conduct drafted for the international Judicial Group on Strengthening Judicial Integrity in November 2002. Those principles are reflected in the code that governs the conduct of judges in the courts of England and Wales. The Guide to Judicial Conduct published by our Judicial Studies Board introduces in broad terms the six Bangalore Principles. They are judicial independence, impartiality, integrity, propriety and the appearance of propriety, equality of treatment to all before the courts, and competence and diligence.
All those qualities that we believe make a good judge – and more – are subsumed in the single criterion for the appointment of judges set out in the Constitutional Reform Act 2005 (CRA). This Act provides in s 63(2) that the selection of judges must be solely on merit. But what does ‘merit’ mean in this context? Has the content of that word changed since the enactment of the CRA? More specifically, what can we learn from the overhaul of the processes for appointing judges about who we think makes a good judge?
Before the changes brought about by the CRA, the assumption was that if you were a good and successful barrister then you would make a good senior judge. It has always been rather mysterious to me as to why that assumption lasted for such a long time. Many of the skills needed for being a top advocate are not at all what you need to be a good judge – a single minded pursuit of one side of the argument only, an ability to cross examine witnesses to make them say what you want them to say, an ability to make a thoroughly bad legal submission seem plausible and attractive. All those are talents which, one would hope, the barrister can and must firmly put aside on attaining judicial office.
Not only was there that assumption that good barrister equals good judge, but it was so strong that it was thought that a successful barrister would not need any training on making the move to the Bench. Lord Judge, former Chief Justice, has remarked in a lecture given to the Judicial Studies Board that when he was appointed to be a Recorder of the Crown Court in 1976, he sat for two years before he received any training at all. That was not, he says with characteristic modesty, because of his remarkable talents but that there was not thought to be any need for training. Indeed, he notes that at the time the Judicial Studies Board was set up, there was significant judicial antipathy towards it with many thinking that training was an interference with judicial independence. The fact that it was called the Judicial Studies Board was a deliberate attempt to reconcile those who thought that they were demeaned by the implication that they might need training in the performance of their responsibilities. By 2013, when Lord Judge was giving his lecture, he said that judges now welcome training and know that it has no bearing whatever on their independence: ‘Being a judge in the modern world does not merely require such education and training, it requires a frame of mind in which these positive advantages are welcomed.’
The reason it was assumed that good barristers make good judges was the pre-eminence given for so long to intellectual ability, and intellectual ability of a certain kind to the exclusion of almost every other quality. Judges see that the barristers appearing in front of them are dealing with knotty legal problems or sorting out from a morass of evidence what is and is not relevant day in day out and that is also the daily fare of the working judge.
It is true that you do need to be very clever to do my job. It is a particular kind of cleverness that is needed. I was thinking of this when reading a biography of the great physicist J Robert Oppenheimer. He and the other physicists who unlocked the secrets of the atom in the early 20th century and worked on the Manhattan Project were clearly very clever – but were their brains wired up differently from those of, say, Lord Atkin or Lord Wilberforce? If the young Tom Bingham had decided to become a scientist rather than a lawyer, would he have excelled at that in the same way as – luckily for us – he did in the law?
One difference that strikes me is that Oppenheimer, von Neumann and their colleagues thought about, debated and puzzled out the structure of the atom over many decades. The ability that a good judge needs to have is to absorb a mass of information in a day or so.
Even in the Supreme Court, with the press of many different demands on our time, we usually have at most two days in which to learn usually from scratch the factual and legal content of a case before the hearing. The topics covered by the work are tremendously varied. In my judicial work in the Supreme Court and the Judicial Committee of the Privy Council I have dealt with cases in areas that were entirely unknown to me before I clicked on the electronic bundle to prepare for the hearing coming up in a few days’ time. These include the international legal and institutional framework governing fishing for tuna in the South Pacific, the rights to water flowing in rivers and canals in Mauritius, or, closer to home the operation of the qualified one way cost shifting regime in the CPR as well as many mind numbingly complicated tax cases about VAT, corporation tax and the taxation of dividends.
Every judge has to be clever enough to be able, within the space really of a few hours, not only to read and understand the material but to get themselves into a position to decide which of the two competing sets of submissions is right – to be able to challenge those submissions of counsel – who may well have been working on the case for years – to discuss the case intelligently with colleagues, and then write a judgment or comment on a draft written by someone else. From start to finish the judge’s involvement with the case may last a few weeks or months at the end of which the judge has to produce an authoritative and reasoned decision. That takes a particular kind of intellectual ability – though I am not sure whether that answers my question about whether Lord Bingham in some counterfactual world could have invented the atomic bomb – or indeed whether Oppenheimer could have written the judgment in A v Secretary of State for the Home Department.
There is, fortunately, an increasing recognition reflected in judicial appointments that barristers in private practice do not by any means have a monopoly on the kind of intellectual ability that is needed to become a judge. This raises the allied question of how far experience of court-based advocacy or litigation more generally is a pre-requisite for being a good judge. I am often asked when I give talks to lawyers in the Government Legal Department where I worked for much of my career, or to solicitors who are not in a dispute resolution team, whether I think that having experience of court work is necessary before applying for judicial appointment. My answer is usually that you might struggle to settle in as a judge if you did not start out with a rough idea of what the relevant procedural rules say – or if you had never seen a set of pleadings before or did not know the basics of, for example, interlocutory injunctions.
However, maybe I am being too parochial. Some other jurisdictions operate on a very different basis. For example, in France a lawyer can qualify as a judge straight out of university and judges are not ordinarily recruited from the ranks of lawyers. They are specifically trained for the role via a standalone process, and it is common for a person to become a judge before they turn 30.
With certain exceptions, most aspiring judges in France are required to train at the Ecole nationale de la magistrature (ENM) in Bordeaux. This is the only judicial training school in the country. Admission to the ENM is determined by competitive examination. The coursework lasts 31 months followed by a cycle of traineeships in the court system and supporting agencies (for example juvenile facilities). At the end of this period, a prospective judge takes another exam and is presented with a list of available judicial posts prepared by the Ministry of Justice. Initial appointments are made on the basis of exam scores – those receiving the highest scores get the pick of positions. Most ENM graduates are appointed to a judgeship in the provinces at the lowest level, working as investigating judges or members of benches adjudicating minor criminal cases. They then work their way up the judicial ladder throughout a long career entirely within the judiciary.
By contrast, although the previous focus on appointing barristers suggests that merit did include experience of court work, the idea of a career judiciary used to be almost unheard of in United Kingdom courts. People tended to choose the level at which they wanted to join the judicial system and expected to stay there for their whole judicial career. In more recent years, there has been more movement For example, judges appointed in the Crown Court moving to the High Court Bench and judges in the tribunal service, where I had my first judicial experience, moving to be district judges or High Court judges. This has benefits for diversity too as those branches of the judiciary tend to have a better gender and ethnic balance – something I’ll discuss more in Part 2.
© Lady Rose of Colmworth, 2022. Lady Rose would like to thank her judicial assistant, Jake Thorold for his help in preparing the Gresham College Lecture, ‘What makes a good judge?’, 16 June 2022, on which this article is based. Part 2 will appear in the November 2022 issue of Counsel magazine.
It has been said that ‘Without a judiciary which can and will administer law fairly and fearlessly between parties, no other guarantee given to the litigants by the law is likely to be of value.’* From ancient times to modern, there has certainly been no shortage of descriptions of the qualities that one should be looking for in a judge.
Socrates said: ‘Four things belong to a judge: to listen courteously, to answer wisely, to consider soberly and to decide impartially.’ In the Bible, in the Book of Exodus Jethro advises Moses to establish a judiciary system to share the load of deciding the legal disputes that were taking up too much of his time: seek out ‘able men, such as fear God, men of truth, hating covetousness’.
Sometimes judges themselves give a perceptive insight into what they think would improve their performance. Sir Matthew Hale, Chief Justice from 1671 to 1676 wrote for himself a number of resolutions to which he no doubt tried to stick. These included: ‘That I suffer not myself to be prepossessed with any Judgment at all, till the whole Business and both Parties be heard’; ‘Not to be solicitous what Men will say or think, so long as I keep my self exactly according to the Rule of Justice’; and ‘To be short and sparing at Meals, that I may be the fitter for Business.’
In our own time, Lord Neuberger of Abbotsbury described the basic qualities needed for a puisne judge when running a trial as ‘grip, authority, politeness, fairness, an ability to simplify and an ability to express yourself.’
Six principles are contained in the Bangalore Principles of Judicial Conduct drafted for the international Judicial Group on Strengthening Judicial Integrity in November 2002. Those principles are reflected in the code that governs the conduct of judges in the courts of England and Wales. The Guide to Judicial Conduct published by our Judicial Studies Board introduces in broad terms the six Bangalore Principles. They are judicial independence, impartiality, integrity, propriety and the appearance of propriety, equality of treatment to all before the courts, and competence and diligence.
All those qualities that we believe make a good judge – and more – are subsumed in the single criterion for the appointment of judges set out in the Constitutional Reform Act 2005 (CRA). This Act provides in s 63(2) that the selection of judges must be solely on merit. But what does ‘merit’ mean in this context? Has the content of that word changed since the enactment of the CRA? More specifically, what can we learn from the overhaul of the processes for appointing judges about who we think makes a good judge?
Before the changes brought about by the CRA, the assumption was that if you were a good and successful barrister then you would make a good senior judge. It has always been rather mysterious to me as to why that assumption lasted for such a long time. Many of the skills needed for being a top advocate are not at all what you need to be a good judge – a single minded pursuit of one side of the argument only, an ability to cross examine witnesses to make them say what you want them to say, an ability to make a thoroughly bad legal submission seem plausible and attractive. All those are talents which, one would hope, the barrister can and must firmly put aside on attaining judicial office.
Not only was there that assumption that good barrister equals good judge, but it was so strong that it was thought that a successful barrister would not need any training on making the move to the Bench. Lord Judge, former Chief Justice, has remarked in a lecture given to the Judicial Studies Board that when he was appointed to be a Recorder of the Crown Court in 1976, he sat for two years before he received any training at all. That was not, he says with characteristic modesty, because of his remarkable talents but that there was not thought to be any need for training. Indeed, he notes that at the time the Judicial Studies Board was set up, there was significant judicial antipathy towards it with many thinking that training was an interference with judicial independence. The fact that it was called the Judicial Studies Board was a deliberate attempt to reconcile those who thought that they were demeaned by the implication that they might need training in the performance of their responsibilities. By 2013, when Lord Judge was giving his lecture, he said that judges now welcome training and know that it has no bearing whatever on their independence: ‘Being a judge in the modern world does not merely require such education and training, it requires a frame of mind in which these positive advantages are welcomed.’
The reason it was assumed that good barristers make good judges was the pre-eminence given for so long to intellectual ability, and intellectual ability of a certain kind to the exclusion of almost every other quality. Judges see that the barristers appearing in front of them are dealing with knotty legal problems or sorting out from a morass of evidence what is and is not relevant day in day out and that is also the daily fare of the working judge.
It is true that you do need to be very clever to do my job. It is a particular kind of cleverness that is needed. I was thinking of this when reading a biography of the great physicist J Robert Oppenheimer. He and the other physicists who unlocked the secrets of the atom in the early 20th century and worked on the Manhattan Project were clearly very clever – but were their brains wired up differently from those of, say, Lord Atkin or Lord Wilberforce? If the young Tom Bingham had decided to become a scientist rather than a lawyer, would he have excelled at that in the same way as – luckily for us – he did in the law?
One difference that strikes me is that Oppenheimer, von Neumann and their colleagues thought about, debated and puzzled out the structure of the atom over many decades. The ability that a good judge needs to have is to absorb a mass of information in a day or so.
Even in the Supreme Court, with the press of many different demands on our time, we usually have at most two days in which to learn usually from scratch the factual and legal content of a case before the hearing. The topics covered by the work are tremendously varied. In my judicial work in the Supreme Court and the Judicial Committee of the Privy Council I have dealt with cases in areas that were entirely unknown to me before I clicked on the electronic bundle to prepare for the hearing coming up in a few days’ time. These include the international legal and institutional framework governing fishing for tuna in the South Pacific, the rights to water flowing in rivers and canals in Mauritius, or, closer to home the operation of the qualified one way cost shifting regime in the CPR as well as many mind numbingly complicated tax cases about VAT, corporation tax and the taxation of dividends.
Every judge has to be clever enough to be able, within the space really of a few hours, not only to read and understand the material but to get themselves into a position to decide which of the two competing sets of submissions is right – to be able to challenge those submissions of counsel – who may well have been working on the case for years – to discuss the case intelligently with colleagues, and then write a judgment or comment on a draft written by someone else. From start to finish the judge’s involvement with the case may last a few weeks or months at the end of which the judge has to produce an authoritative and reasoned decision. That takes a particular kind of intellectual ability – though I am not sure whether that answers my question about whether Lord Bingham in some counterfactual world could have invented the atomic bomb – or indeed whether Oppenheimer could have written the judgment in A v Secretary of State for the Home Department.
There is, fortunately, an increasing recognition reflected in judicial appointments that barristers in private practice do not by any means have a monopoly on the kind of intellectual ability that is needed to become a judge. This raises the allied question of how far experience of court-based advocacy or litigation more generally is a pre-requisite for being a good judge. I am often asked when I give talks to lawyers in the Government Legal Department where I worked for much of my career, or to solicitors who are not in a dispute resolution team, whether I think that having experience of court work is necessary before applying for judicial appointment. My answer is usually that you might struggle to settle in as a judge if you did not start out with a rough idea of what the relevant procedural rules say – or if you had never seen a set of pleadings before or did not know the basics of, for example, interlocutory injunctions.
However, maybe I am being too parochial. Some other jurisdictions operate on a very different basis. For example, in France a lawyer can qualify as a judge straight out of university and judges are not ordinarily recruited from the ranks of lawyers. They are specifically trained for the role via a standalone process, and it is common for a person to become a judge before they turn 30.
With certain exceptions, most aspiring judges in France are required to train at the Ecole nationale de la magistrature (ENM) in Bordeaux. This is the only judicial training school in the country. Admission to the ENM is determined by competitive examination. The coursework lasts 31 months followed by a cycle of traineeships in the court system and supporting agencies (for example juvenile facilities). At the end of this period, a prospective judge takes another exam and is presented with a list of available judicial posts prepared by the Ministry of Justice. Initial appointments are made on the basis of exam scores – those receiving the highest scores get the pick of positions. Most ENM graduates are appointed to a judgeship in the provinces at the lowest level, working as investigating judges or members of benches adjudicating minor criminal cases. They then work their way up the judicial ladder throughout a long career entirely within the judiciary.
By contrast, although the previous focus on appointing barristers suggests that merit did include experience of court work, the idea of a career judiciary used to be almost unheard of in United Kingdom courts. People tended to choose the level at which they wanted to join the judicial system and expected to stay there for their whole judicial career. In more recent years, there has been more movement For example, judges appointed in the Crown Court moving to the High Court Bench and judges in the tribunal service, where I had my first judicial experience, moving to be district judges or High Court judges. This has benefits for diversity too as those branches of the judiciary tend to have a better gender and ethnic balance – something I’ll discuss more in Part 2.
© Lady Rose of Colmworth, 2022. Lady Rose would like to thank her judicial assistant, Jake Thorold for his help in preparing the Gresham College Lecture, ‘What makes a good judge?’, 16 June 2022, on which this article is based. Part 2 will appear in the November 2022 issue of Counsel magazine.
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