Listen to this article
“What do you suppose I am on the bench for?” a judge is said once to have looked down and asked an especially bumptious barrister. “It is not for me to attempt to fathom the inscrutable workings of providence,” replied FE Smith, a friend of Winston Churchill and a future Conservative cabinet minister.
Like many a legal anecdote, it has the sheen of frequent repetition — and more than a suspicion that the exchange may never have happened. But the question is worth asking. What do judges do? Who are they? How did they get there?
The barrister Lord Pannick once observed that judges are “like members of the Magic Circle who face expulsion if they explain how the trick is done”. Mortals are expected to refer to them as “Honourable”, or “my Lord” or “Lady”. Even magistrates, at the bottom of the judicial food chain, may still — bizarrely — be addressed as “your worship”.
Only in the Supreme Court and tribunals do sitting judges dress like the rest of us. At the beginning of October the judiciary parades in wigs and gowns for the start of the legal year. For most of their encounters with the citizenry they retain their fancy dress. In a public-spending climate that questions even the expense of tea and biscuits, the only possible explanation is that the majesty of the law needs majestic dress to bolster its frail vehicle.
Yet judges remain, of course, human beings, with feet of clay just like ours. Since everyone’s domestic lives are full of passion and incident, similarly charged human dramas must take place for judges every day. Prick them — do they not bleed?
As a young reporter I once asked why a defendant had been sent to prison for stealing a pencil or something of similar gravity. “He made the critical mistake of appearing before Judge Michael Argyle after lunch on a Friday,” replied a more experienced colleague. Argyle was infamous for calling a mugging victim “a vicious little sodomite from Glasgow”, and telling a witness she was “far too attractive to be a policewoman”. George Orwell described this sort of judge as a “gouty old bully”.
Though the caricature of the boneheaded reactionary lives on, Argyle is long dead and judges are now more likely to be castigated by the rightwing press for being wet. “If you can keep them out of jail, you will,” one judge told me. Given the abject failure of our penal system, it seems a reasonable prejudice. There are, anyway, clear guidelines handed down by the Sentencing Council on appropriate punishments. A benign gloss would be to say judges sometimes forget to explain why they’re being merciful. But are we not entitled to know who the men and women are making these judgments?
“The best judge [is] the man least known to the readers of the Daily Mail,” was the principle enunciated by Lord Widgery nearly 40 years ago. Just over 2,000 of them preside over tribunals on everything from employment to property. Others deal with civil cases. But it is crime that catches the public’s attention. This summer the High Court ruled that an imam believed to be recruiting for the bloodthirsty Somali terrorist organisation al-Shabaab should not be made to wear an electronic tag. The man was so disturbed he thought it might be a remote-controlled bomb, and the judge decided the tag therefore breached his human rights. You could almost hear the cry of “God help us. Who do these judges think they are?” from a million breakfast tables.
England and Wales have 5,241 judges. These expressions of the word-made-flesh play an increasingly prominent role in our lives. The best indicator of this is the growth of judicial review, the process whereby people affected by the actions of public bodies can challenge them in the courts. In 1980, there were 491 cases of judicial review in England and Wales — from August 2014-15, there were 22,291. “There is no argument that judges have a far greater effect on politics now than they had in the 1950s,” says a senior lawyer. “Judicial review has given them a taste for power.”
That conservatively dressed man or woman sitting next to you on the train might be one of them. If in doubt, look at their watch. By the time lawyers reach the bench (the average age of Crown Court judges is 58, that of judges in the Court of Appeal, 63), their eyesight is going. So they prefer wristwatches with big faces that they can glance at surreptitiously, without showing the court they wish they were somewhere else.
When you consider what some of our Crown Court judges have to listen to, you can’t blame them. The daily diet of the criminal courts is a miserable procession of sexual and violent crime, often perpetrated by some of our most unpleasant and stupid fellow citizens. The mad, the bad and the sad have appeared in the dock since the law began. But, as one careworn judge put it to me, “the great growth has been in sex offending, especially familial sex. I’m not sure that there is more of it going on. But there is certainly more of it coming to court.” The challenge posed by this depressing procession of human corruption is aggravated by the need often to watch scenes of unutterable depravity in pornographic material seized by the police. “You keep thinking, ‘Well, I’ve seen it all now,’ ” one experienced judge explained. “And then you discover you haven’t.”
The judiciary tries to share out the horrors. “Giving them a break with something like a nice robbery” was the way one very senior judge put it. Yet can anyone be exposed to that much barbarism and not be affected by it?
“But it’s the job the state pays them to do, isn’t it? No one forced them,” the unsympathetic bystander might reply. “And let’s not forget all the ivy-clad judges’ lodgings and the chauffeur-driven cars to court.” Yet for many, the reality is a Tupperware box of sandwiches at lunchtime.
According to every judge I spoke to, courts have been starved of investment for years and cases are now routinely held up because, with fewer support staff, judges do not receive vital papers. Any further cuts, says the Lord Chief Justice, Lord Thomas of Cwmgiedd, and “the system will fall over”. At the Royal Courts of Justice he works on Windows XP, introduced in 2001 and for which Microsoft phased out technical support in April.
But even after a standstill in pay for the past few years, becoming a judge is attractive to the hungry barrister tired of living on his or her wits. As Sir Alan Moses, the sparky former Court of Appeal judge who became the first chairman of the Independent Press Standards Organisation last autumn, explains: “It’s such a relief not to have clients. You don’t have to be nice to anyone. People treat you with respect in court. They laugh at your jokes. There are long holidays. All in all, it’s a far more relaxed life.” Once installed, a judge endures no proper performance review, earns from £106,000 a year to the quarter of a million of the Lord Chief Justice, enjoys six weeks’ holiday (plus bank holidays) and is virtually unsackable until retirement at 70 or 75. Judges then enjoy a judicial pension of an average of £55,000 or so a year. Oh, and at High Court level the job comes with an automatic knighthood and, perhaps, a peerage later. Like the oil in the widow’s cruse, supply seems magically to match demand.
Judge Jonathan Sumption has been described as “the cleverest man in Britain” but he said a silly thing the other day. According to the Evening Standard, Sumption remarked that the fact that the judiciary was dominated by men (only one of his 11 colleagues on the Supreme Court is burdened with two X chromosomes, for example) had something to do with “lifestyle choices” made by women. He didn’t say that women were unfit for high judicial office, nor that they didn’t want it. But the damage was done.
Lord Sumption’s folly was to believe that the media could cope with subtlety. His observation that it might take decades before roughly half the judiciary was female was the sort of perspective on time one might expect from a distinguished historian whose life’s work is a multi-volume history of the hundred years’ war. Significantly, Sumption did not suggest that equal representation was undesirable nor that it was unachievable. But judges do not normally speak on-the-record to journalists, for fear of “undermining their neutrality”.
Sumption was also one of the first members of the new organisation set up to appoint judges, the Judicial Appointments Commission (JAC), which came into being in 2006. The previous system was pure establishment — a tap on the shoulder, a cup of tea and Bob was your uncle. It is ironic that, if this power still existed, the Lord Chancellor could increase the number of women in judges’ robes in no time. Though would you wish to have your case heard by a judge who had got their job not on merit but by positive discrimination, fiat or whim?
The JAC is charged with making the judiciary “more diverse”. It has increased the proportion of female judges from 18 per cent to 25 cent. (They tend to be concentrated at the lower levels: nearly half of tribunal judges, but only 21 out of 108 High Court judges, are women.) So, the judiciary does not reflect society. If judges are the embodiment of the law, their gender and skin colour shouldn’t make any difference. But, to be respected, justice must be seen to reflect the society it serves.
The gender pattern doesn’t reflect prejudice so much as practicalities. The real problem — the “lifestyle choices” Sumption was referring to — is not in the appointment of judges but in the availability of candidates. “I have never heard of a judge going on maternity leave,” one (female) senior judge told me. Beyond the fact that the average age of appointment is past typical childbearing years, the explanation for the lack of women, Sumption suggests, is that some had been deterred from continuing a career at the bar and had therefore ruled themselves out of consideration for selection as judges later in life. There are obvious solutions to this — younger judges and career breaks, for a start.
Apart from being overwhelmingly white and male, the other striking characteristic of the judiciary is its age. Embarrassments such as the revelation that the judge trying the men accused of the Millennium Dome diamond heist — a case that transfixed much of the world — had nodded off are rare. But none of the judges I spoke to seemed to think the middle age of the judiciary is a problem, despite the often diametrically opposed views of young and old on all manner of social issues — sex, drugs, protest, to mention but three. Do we only have ageing judges because before they can be lured on to the bench they want to try their hand at making a fortune at the bar, or does wisdom really only come with the onset of presbyopia?
The benefit of the old “tap on the shoulder” system was that it might occasionally lure someone unexpected — a wealthily successful barrister, for example — on to the bench. The danger of the formal appointments system is that it rewards the sort of people who sit at the front of the class with their hands up. As one disillusioned veteran put it, “Every [court] judgment they make becomes a job application.”
The 18-week selection process begins with self-nomination and an interview before requiring would-be judges to try to control a mock courtroom in which actors play disorderly defendants, inept barristers or confused juries. The JAC seems rather proud of the job it does — its chairman, Christopher Stephens, once ran the human resources division of a global company and reckons the process is “better than many I saw in the commercial world”.
Would-be judges are also invited to complete a questionnaire — which is not shown to the selection panel — declaring any religious affiliation, what they consider to be their ethnic identity and their sexual orientation. About 4 per cent of applicants are gay, as are about 4 per cent of those appointed. Only 7 per cent of court and tribunal judges belong to ethnic minorities (perhaps 14 per cent of the population of England and Wales does not define itself as white).
No one seems to question why the emphasis on diversity should be necessary: if those on the bench are, as they claim, loyal only to the law, then surely their gender or skin colour is immaterial. Yet appearances matter: the justification for wanting to increase diversity is that people are entitled to expect that justice will not only be done in their name, but in their image.
It is true that there is a Welsh High Court judge who began life as a parking adjudicator, and the JAC has just appointed an expert on drainage to the Lands Tribunal. But the biggest barrier of all is neither gender nor ethnicity. It is class, for it takes a great deal of time and money to qualify as a barrister. Though the training to become a judge lasts only a few days, followed by mentoring, the talent pool of potential judges is dominated by those who could afford the years of training to become a barrister in the first place.
A visitor from Mars might, however, conclude that the elephant in the room is not age, race, gender, sexual orientation or class but the politics of the judiciary. Judges appointed to the US Supreme Court are obliged to undergo scrutiny from elected representatives. Why not here? If the English appointments process is nosy enough to inquire about sexual preferences, why does it not also ask how would-be judges vote in elections? Why shouldn’t we know? The argument against doing so is facile (“the judiciary must remain above politics” etc, etc). True, most of the judges to whom I spoke seemed socially motivated and not that different from probation officers or prison governors in their ambitions. But a potential judge who declared he or she couldn’t be bothered to vote should surely be disqualified for indifference to the society they claim to care about.
“They’re all Guardian readers, you know,” a Conservative minister observed in conversation. He was talking of the High Court and above; a barrister who spends most of his time defending criminals lower down in the Crown Courts told me he thought most of the judges he appeared before read the Daily Telegraph. “They’re not intellectual at all,” the barrister continued. “Very middlebrow.”
And when I tried out the idea of parliamentary confirmation hearings for the Supreme Court on one of its judges, he produced an unanswerable argument. In a written constitution, the Supreme Court is — as its name implies — supreme. In Britain, parliament can always trump the judiciary by passing a new law. He’s right, of course.
But it wouldn’t do any harm for us to know more about precisely who our judges are.
Jeremy Paxman is an FT contributing editor