Let me start with three quotes.
First: “There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” Justice Felix Frankfurter in his concurring judgment in United States v United Mine Workers. This quote was in the context of a case where the Supreme Court upheld a restraining order that prohibited mine workers from striking.
Second: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” Anatole France Nobel prize-winning French writer Finally in the trilogy, a quote from Nelson Mandela’s speech at his trial: “Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?… I detest most violently the set-up that surrounds me here. It makes me feel that I am a black man in a white man’s court.”
In my last lecture, I asked whether we need juries. In this lecture, I’m looking at a related question: do we need judges? In many ways this is a much more fundamental question. Plenty of legal systems have no juries but every legal system in the world has judges. An independent judiciary is usually seen as a sine qua non (an indispensable and essential condition) of liberal democracy. My own profession, the practice of law, would be impossible without judges. So, we are required to examine the fundamentals of the legal system.
Let’s start by articulating a few arguments in favour of judges. If we were looking to explain why we need judges, what would we say?
First, we would say, judges are essential to the rule of law. In modern society, we need to have legal certainty. We need a body of law that is administered consistently and impartially. We need to know, for instance, what conduct is and is not criminal, so that we can adapt our behaviour accordingly. And we need to know if we are accused of a crime, we will have a fair trial and the law will be applied impartially to us.
To make financial decisions, we need to know our contracts will be enforced and our property rights protected. And if our rights are violated, we need to know we can seek justice in court. We need to know that the law will be applied consistently and that the application of the law won’t be influenced by political or personal favour. To achieve this, we need an impartial body of decision-makers who are not beholden to the government and who apply a consistent body of rules, guided by precedent.
Second, we would say, judges provide an important check on the power of the executive and a safeguard for the rights of minorities. We might say this is particularly important in a country such as the UK, where a government with a solid majority in the House of Commons has very few other restraints on its power.
On the other hand, what would we say if we wanted to criticise the institution of the judiciary? First, we’d say the judiciary is unrepresentative of society and is disproportionately drawn from privileged groups. Judges from privileged backgrounds frequently sit in judgment on marginalised people whose lives and experiences they do not understand at all.
Second, we’d say judges aren’t democratically accountable and that vesting so much power in the judiciary is undemocratic. Third, we’d say judges are trained in law and an education in law doesn’t necessarily equip them to make all of the decisions our legal system calls upon them to make. We might sum up by asking why we entrust judges with so much power over people’s lives.
So, let’s dive into these issues in more detail. First, we’re going to ask what judges do and how well they do it. Second, we’ll look at how judges are appointed, to whom they are accountable and whether they are representative of society. And third, we’re going to ask whether we need judges, look at what the alternatives might be and ask what role judges might play in a fairer society.
In the common law world, professional judges are drawn from the ranks of practising lawyers. Their professional experience, therefore, is twofold. They are experts in law and in advocacy, the art of persuasion. However, this expertise doesn’t necessarily mean they are qualified to perform all the tasks that our legal system requires them to perform. Let’s look at a few of these.
First, a major role of judges is to make findings of fact. Since most judicial proceedings in England and Wales do not have a jury, in most cases the judge is the trier of fact. They need to assess the credibility of witnesses, decide between competing versions of events and evaluate expert evidence. Judges, with their training in law, are not particularly wellequipped to do this. They often rely on fallacious assumptions when assessing the credibility of witnesses. Many of these assumptions were instilled in them during their training as trial advocates, when they learned how to cross-examine effectively.
For example, lawyers and judges often believe an internally inconsistent account is more likely to be a fabrication. Lawyers will often elicit inconsistencies in a witness’s story in an attempt to discredit them. But we know from decades of psychological research that human memory is often poor, that truthful accounts are just as inconsistent as false ones and that mental health conditions such as PTSD and depression can impair a person’s memory and recall.
Similarly, in the past, it was often thought a trial judge’s ability to see and hear a witness giving evidence and observe their demeanour was important to assessing credibility. But we now know that reliance on demeanour can be very misleading because a person’s demeanour can be affected by cultural background and by conditions such as autism and PTSD, among other factors.
Legal education doesn’t include any training in psychology or mental health. In short, judges don’t have any special ability to distinguish truth from falsehood. But they often think they do. Similarly, judges can and do misunderstand scientific issues and sometimes this has dire consequences.
An infamous example occurred when the paediatrician Sir Roy Meadows testified at the 1999 murder trial of Sally Clark and said the probability of two children dying of Sudden Infant Death Syndrome (SIDS) in the same family was one in 73 million. This statistic was fallacious in multiple respects.
Meadows’ statistic was based on the false assumption that the probability of dying of SIDS was uncorrelated between children in the same family, which it was not. It also fell into a statistical fallacy known as the “prosecutor’s fallacy”. As Dr Ben Goldacre explained:
“Two babies in one family have died. This in itself is very rare. Once this rare event has occurred, the jury needs to weigh up two competing explanations: double SIDS or double murder. Under normal circumstances – before any babies have died – double SIDS is very unlikely, and so is double murder. But now the rare event of two babies dying in one family has occurred, the two explanations are suddenly both very likely. “If we really wanted to play statistics, we would need to know which is relatively more rare, double SIDS or double murder.”
Goldacre goes on to point out that the Criminal Division of the Court of Appeal also misunderstood the significance of the figures. He said, “Not only was this crucial nuance missed at the time, it was also clearly missed in the appeal. They suggested that instead of “one in 73,000,000” Meadows should have said ‘very rare’.”
Another factor that can affect fact-finding is that, like everyone, judges have biases. These biases can affect how they view a witness’s evidence or how they view the merits of a case. My colleague Keir Monteith KC recently co-authored a report with academics at the University of Manchester, Racial Bias and the Bench, which surveyed a large group of legal professionals about their experiences of judicial racial bias.
Many respondents gave accounts of bias affecting judicial decision-making. For instance, one respondent said:
“I represented a client who was a black British youth of no previous convictions. The trial was in the Magistrates’ Court. The bench were two old posh white ladies. I knew from the way they looked at him, and looked at the case, as though it was all an unpleasant smell, that they would convict him from the start. We ran a good defence, providing as much information and evidence as we could, the prosecution barely challenged our position, and the bench convicted on obscure reasoning. It seemed to me to be a decision infused with racial bias.”
“It is difficult to set out specific instances as they are quite common: a significant minority of tribunal judges treat the evidence of appellants and witnesses from other cultures, countries and backgrounds with scepticism.”
A related problem is an unjustified judicial faith in the police. For example, one respondent said:
“While practising in the Magistrates Court, I never once saw a tribunal seriously entertaining the idea that the police might have been acting in a racist manner, or even that racialised defendants had perceived the police to have been acting in a racist way towards them (which is often a critical part of the defendant’s case).”
These examples accord with my own experience as a lawyer. Race can often have a big impact on how judges treat a client or a witness, and how seriously they take the client’s or witness’s evidence.
So can other factors such as the client’s class, their accent and how they dress and behave in court. Like all humans, judges take cognitive shortcuts when making decisions and often those cognitive shortcuts reflect race, class and cultural bias. So, judges are not necessarily well-equipped to make findings of fact. They aren’t experts and they often base their decisions on false assumptions.
Another major role of judges in our system is to make moral judgments. The most obvious example is when a judge passes sentence for a criminal offence.
In the English legal system, although considerations of prevention and deterrence are taken into account, the core of sentencing is punitive. Our sentencing policy owes far more to the concept of moral desert than it does to utilitarian ethics. Judges take into account the perceived culpability of the defendant, together with any factors that aggravate or mitigate their moral wrongdoing. Even if the defendant poses no risk to the public and no risk of re-offending, this doesn’t preclude their being imprisoned if the judge considers their crime sufficiently serious. And sometimes judges use moralising language from the bench, condemning a defendant using terms such as “wicked” and “depraved”.
In effect, the judge is empowered to make moral judgments on behalf of society, to decide what another human being has done wrong and what they deserve. While the discretion of judges has been fettered in recent years by guidelines which seek to achieve some consistency in sentencing, these guidelines typically reinforce an approach in which culpability is at the heart of sentencing.
We might well ask why we entrust judges with this power. After all, an education in law doesn’t imbue a person with the wisdom of Solomon. And judges are disproportionately drawn from privileged backgrounds and are much less likely to have experienced hardship than are the defendants on whom they sit in judgment.
From a moral perspective, for example, we might ask what right a judge earning a six-figure salary has to sit in judgment on a homeless person for stealing bread. Or, to take a real example that occurred in 2018, we might ask how a judge whose family members have financial interests in the fracking industry can send anti-fracking protestors to prison.
And again, we know that bias plays a role. In previous lectures I’ve talked about the Lammy Review’s finding that there were large race disparities in sentencing, especially for drugs offences. The experiences of the respondents in Keir Monteith’s survey were consistent with this. So, we might well ask why we entrust judges with the power to issue collective moral condemnations from the bench on behalf of society.
Finally, judges also make political judgments. Judges, of course, are supposed to avoid political partisanship. But it’s inevitable that sometimes judges decide cases with profound political implications.
In the United States, where judges have broad powers to strike down legislation as unconstitutional, this has been a topic of debate for generations. Here in the UK, where we have no codified constitution and Parliament is sovereign, the judiciary historically posed less of a threat to the power of politicians. But since the passing of the Human Rights Act 1998, judicial decision-making has increasingly provoked political controversy.
When judges make decisions which are politically controversial and which thwart the will of the executive, it’s often decried as “judicial activism”. To a significant extent, however, this is inherent to the protection of fundamental rights.
Most human rights instruments define their rights in fairly broad terms: the right to life, the right to liberty, the right to a fair trial, the right to private and family life and so on. The practical application of these rights is inevitably left to judicial interpretation. Judges must make evaluative judgments about how far a right extends and how it should be balanced against other priorities.
What’s interesting about the debate about ‘judicial activism’ is that its political contours can change radically over time, depending on the political orientation of the government and the political tenor of judicial decisions.
Simply put, most people like judicial activism when it accords with their political views and dislike it when it doesn’t. For instance, in the “Lochner era” of early 20th century America, when the Supreme Court effectively imposed right-wing economic policies by judicial fiat, socialists were among the strongest critics of judicial activism. Whereas by the late 20th century, it was conservatives who were vocally criticising judicial activism, being aggrieved by decisions such as Roe v Wade which recognised a constitutional right to abortion. Today, as the US Supreme Court has swung decidedly to the right again, we are once again seeing criticisms of the judiciary coming from the left.
Similarly, in the UK, the debate has to be viewed in its political context. Much of the hardest-fought litigation under our Human Rights Act has been concerned with protecting the rights of marginalised groups, such as immigrants, asylum-seekers, prisoners, benefit claimants and homeless people.
Sometimes judicial decisions have expanded the frontiers of human rights protection and thwarted government policy. One of the earliest and most dramatic examples was the 2004 case of A, in which the House of Lords held that the indefinite detention of foreign national terror suspects without trial at Belmarsh Prison violated the European Convention on Human Rights.
Against this backdrop, most criticism of the Human Rights Act has tended to come from the political right. Some decisions have attracted particular ire, such as the European Court of Human Rights decision in Hirst which held that the UK’s blanket ban on prisoner voting violated the convention. The Hirst decision is unique in the annals of British human rights litigation, in that successive governments have simply refused to act on it and prisoners continue to be banned from voting today.
But it’s important to note that if the political contours of the UK changed, the debate over “judicial activism” would change too. For instance, if a socialist government came to power and nationalised all the assets of the rich without compensation, we could expect the aggrieved property owners to challenge it in court under Article 1 of Protocol 1 to the European Convention. In those scenarios, it would likely be the left decrying judicial activism and the right supporting it.
It’s also important to note that the courts don’t always protect the rights of minorities against an overbearing government. Sometimes they throw minorities under the bus. For example, in 2005 the House of Lords decided the case of N, in which it held that it did not breach the European Convention to remove a woman with AIDS to a country where she would die an early and painful death from lack of access to lifesaving medication.
The European Court of Human Rights reached the same conclusion. This decision represented the law for over a decade, until the European Court revisited its approach in 2016 in the case of Paposhvili, and the UK Supreme Court decided in the 2020 case of AM (Zimbabwe) to follow Paposhvili and overrule N. ■
Next week: Critics of judicial activism often use the word “unelected” when describing the role of judges. We look at how judges are appointed, to whom they are accountable and how representative they are of the public. ■
Professor Leslie Thomas KC is a lecturer at Gresham College in central London