Balancing the independence and accountability of judges is a tricky job. Lord Carlile has recently suggested a judge led inspectorate to tackle poor practice short of misconduct. Joshua Rozenberg suggests it is unnecessary, taking a line which I suspect would be taken by many judges. My initial response to the Carlile story was not a million miles away: Lord C does not appear to have a strong evidence base to suggest the need for a judicial inspectorate.
One might point to recent reports on litigants in person suggesting a need for collective change to cope but Lord Carlile’s case (at least as reported) is based more on poor performance and incivility from the bench not the more positive case of collective self-improvement. For my own part, when researching courts I was struck by the fact that they did admirable, sometimes difficult, sometimes tedious, jobs. I was also often told of judges who routinely flouted the law on McKenzie friends because ‘this is my court room’. The sort of behaviour which I would imagine would be difficult for any Judicial Complaints body to adjudicate on (it will usually be the word of the litigant against the word of a judge when it gets down to it) and the Court of Appeal takes a varied approach policing such matters on appeal which gives judges much benefit of the doubt (usually but not always). Rozenberg’s piece, if I read it correctly, appears to concede there is a gap between misconduct that can be seized by a judicial complaint, what can be appealed and conduct that might need addressing (though he also suggests that sometimes this conduct is picked up anyway). I vividly recall, but not vividly enough to find a link (sorry), a judge briefly jailing (or perhaps just threatening) a barrister for refusing to amend his client’s defence statement. It was reasonably clear (after the fact, but I suspect also there and then) that the judge was in the wrong. It was not I think appealed and I doubt a complaint was made. It would be interesting to know if any action at all was taken as regards the judge. I know where my money is.
Joshua Rozenberg also makes a good point about the impact of inspectors appearing in courts. Researchers sometimes call this the Hawthorne effect. We know full well that judges will modify their behaviour as soon as an inspector is in the court (just as they may do for researchers). That said, most court proceedings are recorded and inspectors could use those as a basis for sampling judicial approaches to hearings in a way which is not invasive and which is much less likely to impact on judicial behaviour negatively. Indeed, for me the language of an “Inspectorate” is a little unfortunate. Lord Carlile is right of course to point out that all other public services are subject to scrutiny; but will need to answer the question as to how successful those modes of scrutiny have been. Research on what judges do in the courtroom and what ‘works’ is being, and has been, attempted – not always with the full throated support of the judiciary. Those researchers typically seek to work with the judges constructively to encourage critical reflection by the judiciary. There is a case for stronger challenge – and I suspect Judges will only take that from their own (and not often then) which is why Lord Carlile has suggested the staffing that he has – but whether an Inspectorate making unannounced visits is the best approach, I have doubts.