A conversation with the Lord Chief Justice

Photo from The Times

Photo from The Times

Introduction

Not me, of course. I’ve been in Court in front of him once, but that couldn’t really have been described as a dialogue, let alone a conversation. The LSE have greater clout than I however and managed to persuade Baron Thomas of Cwmgiedd to come and have a chat with Cranston J in front of a live studio audience. This was recorded and is available as a podcast that can be downloaded from their website. It is well worth a listen.

 

Judging the Judges

In the US the nomination of a new Supreme Court Justice is an extremely newsworthy event, with thousands of words being generated as journalists and others pore over their history, views, judgments and writings. Traditionally we haven’t done that here, mainly because the traditional view is that Judges are apolitical and above such matters.

I think that this is wrong – Judges are inherently political. Even before the Human Rights Act this was the case (a belief in the current constitutional settlement is not apolitical, it is the expression of a political belief), but nowadays Judges are deciding questions that are inherently, and overtly, political.

People are beginning to study individual judges, but we are lagging far behind other countries. I imagine that this will be an area that is increasingly studied over the next few years, which can only be a good thing. Everything is political, including judges, and we are entitled to know the political (not party-political) and legal views of those who are in charge of one of the three branches of government.

 

What have we learned?

I’m not an academic, and wasn’t listening carefully with a view to analysis, but here’s a couple of the more significant things that came across to me as being of note :

    • Legal Aid – straight away we can see the importance of knowing your man (and hopefully, one day, your woman). The LCJ said that there will be no return to the legal aid ‘generosity’ of the past. This was, in fairness, in the context of new ways of working, but criminal and immigration lawyers will not be surprised to see that. Although I am not sure when this mythical age of generosity was, it has certainly long gone now. I was surprised to see that he actually answered the question at all, given that he may have to rule on the issue at some point. But this may be an indication of how ‘settled’ the question seems to him. This doesn’t bode too well for any lawyers thinking of an Art 6 challenge down the line.
    • Trial by Jury -Judges can have a strange relationship with juries. It seems that the LCJ may be quite radical in this area as well. He mentioned that he felt the huge benefit of having an accountant sitting next to him when he was conducting the enquiry into the Mirror Group following Maxwell. This was followed up by the fact that the split in the allocation of cases between the Magistrates’ and Crown Court is a ‘conversation we have to have’. This will set alarm bells going in the heads of most criminal lawyers.
    • Role of the Judiciary and Parliament – he appears to be closer to Sumption over his ‘hands off’, or what I would call a radical view, of judging. This might not be the most earth-shattering of conclusions, but good to know.
    • Criminal Procedure Rules – he’s a fan of these. So am I, in theory. Not so much in practice, mainly because they don’t work. The LCJ indicated that he had done some jury trials, but he indicated not that many, not past about 1970 or so, and nothing of any seriousness. He would then of course had plenty of experience as a Judge (part-time and then full-time), but you get a very different view of the world sitting on the bench. Even allowing for a level of modesty in his recounting of his criminal experience, given the changes in the law since then, a little knowledge is possibly more of a dangerous thing.

 

Comment

It’s well worth a listen. I’m not an academic, a commentator, or anything like that, but I would certainly be interested reading more academic analysis of the politics of the judiciary, if anyone has any links …?

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One thought on “A conversation with the Lord Chief Justice

  1. In fairness, I think he made the legal aid comment in the context of his oft-repeated view that the Judiciary had to implement the politicians agenda. It was a comment on political reality as conveyed to him by those gold old folks and top class intellects at the MoJ.

    I agree that the split in allocation issue is bad news and concerning. Whilst he may not want to confront the Government on legal aid, he need not assist the agenda by making the trials for some offences cheaper and less likely to end fairly. I appreciate this will be resented by plenty of Magistrates, but actually if you are committed to the adversarial process that is the position. The real discussion is between adversarial and inquisitorial. I’m happy to have that debate but shifting offences around is dodging it.

    The CrimPR don’t work because of clients, not lawyers – although the CPS lack of budget doesn’t help. Instead of copying the CPR we should design something bespoke. Start again.

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