Based on a series of public lectures given in 2015, this little gem of a book on the modern art of judging should be required reading for anyone seriously interested in law and the judicial system. As a former High Court and before that circuit judge, Sir Mark Hedley brings to his reflections a vast experience of criminal, civil and especially family cases. His observations on his role as a judge are timely and illuminating. Review by Paul Magrath.
The rules and principles of law may be laid down in statutes and in the prior cases where senior courts have set a precedent, but the application of the law to the facts and the exercise of discretion between two or more lawful and reasonable outcomes so as to achieve a just result in the individual case are, Sir Mark Hedley reminds us in his introduction, tasks which society leaves to individual judges:
How do judges go about that? How far are we influenced or affected by where we came from, what we believe and our own life experience? And, if consistency is an aspect of public justice, can that be achieved? What about the conflict between public justice and personal privacy? Many see these as pressing questions in a society where judges have perhaps greater effective power than ever before. As a result, the media have focused a critical attention on the courts as never before. This book invites reflection on these matters: it is a quest for practical insight rather than scholarly analysis.”
It would be interesting to send copies of this thoughtful, wise and illuminating book to some of the journalists and politicians who in recent months have questioned the independence of the judiciary, or reached too readily for such epithets as Enemies of the People to describe individual judges simply doing their job as public servants. Sir Mark explains how he used to set about that task, and why it can be so difficult. He does so with a modesty and humility that Sir James Munby, President of the Family division (in effect his former boss) says in his foreword is characteristic of Sir Mark as a person but unwarranted of him as a judge who “came as close as any first instance judge can to the ideal”.
The role of the judge
Sir Mark begins by analysing the role of judges today and how their power has expanded, particularly in such areas of civil law as “housing, family law, and in the law relating to the mentally ill and those who lack capacity to make their own decisions”. In these areas, especially in family and mental capacity law, judges are entrusted with wide powers to achieve just solutions in individual cases, with “very few prescriptive rules in relation to the exercise of discretion”. Every outcome will have involved a value judgment made by the judge. If those judgments are not credible, “the informed consent of society is not there”. But what are the values to which society generally subscribes? “That really can sometimes seem like a chasing of the wind.”
Although he accepts that many judges come from similar cultural backgrounds, that is changing as diversity increases, particularly among the younger judiciary. Moreover,
Judge do, however, tend to be very diverse in their own moral, political, and philosophical views. … Moreover, judges tend to have quite strong personal value systems. That will probably be something that inclined them to be a judge in the first place. The value-free judge dos not and should not exist.”
Judges are given the status, independence and authority to decide cases and bring finality to disputes. They do so in public (in most cases – but see below) and must state their reasons — which may be considered, discussed and challenged in the public sphere. The Court of Appeal is generally reluctant to interfere with the exercise of judicial discretion or the assessment of witness evidence, so the burden on the first instance judge is a heavy one.
The purpose of court proceedings
The purpose of a trial or enquiry is ostensibly to get at the truth, says Sir Mark. But truth is a difficult concept, and finding it in a system where “fallible judges hear and consider fallible evidence given by very fallible witnesses” is easier said than done.
He considers the relationship between truth, proof and justice; acknowledges that we have “made matters more difficult for ourselves by having different standards of proof” in civil and criminal cases, and explains his methods for determining whether a witness is lying. It is not just a question of common sense:
Human experience, however, teaches that human ingenuity is almost limitless when it comes to skewing human relationships and making human life difficult.”
The family judge needs two qualities above all: humility and confidence. You need the humility to accept that you will get some cases wrong, and you may never know which ones they were. But without confidence, you can never decide anything.
My method has been to approach each case with humility, decide each case with confidence, and then sleep well so that it can be done, as it has to be, again and again.”
(I infer that “how do you sleep at night?” is one of those questions judges routinely get asked at drinks parties, a bit like barristers always being asked how they can defend someone they know to be guilty.)
Intervention and protection
The central section of the book is concerned with the extent to which the state now intervenes in family life to protect children and other vulnerable parties, and the tension that must always exist between personal freedom and autonomy on the one hand, and the state’s desire to protect and prevent harm on the other. Putting it in a nutshell:
I have often thought that family law is essentially the management of the consequences of human failure so as best to protect those least able to protect themselves.”
Those consequences can be very serious. Sir Mark’s discussion of their management is illustrated by examples of his own cases in which difficult decisions had to be taken. I found this particularly interesting, because as a law reporter in court one is privy to each decision as it happens, but judgments only refer to other (usually reported) judgments as precedents, rarely to a judge’s own personal, and anecdotal, experience of judging other cases. Cases are reported (I was always taught) because they raise a new issue of law; rarely, if at all, simply because of their difficult facts and circumstances. So these anecdotal reflections added hugely to my appreciation of the points made.
Though I never covered his court, I once heard Sir Mark speak at a conference and can report that he writes very much as he speaks, clearly and plainly, without resorting to jargon. This is a short book, and an easy one to read, but in no sense is it lightweight. It deals with some of the most difficult dilemmas faced by the modern judge in a system in which, as he acknowledges, the state exerts enormous and even draconian powers to change, sometimes even to end, people’s lives.
They include the removal of a child for adoption by complete strangers, the sterilisation of a person lacking capacity to consent to sexual relations and the withdrawal of medical treatment from a person artificially kept alive, among other cases which routinely crop up in Family Division or Court of Protection.
Crime and sentencing
But Sir Mark has also worked in the criminal courts and devotes a chapter to another area in which the judge exercises wide discretionary powers, namely the sentencing of offenders. This is, he notes, an emotive and controversial issue.
It is also the one judicial function in which half the population and all the media think that they are experts too…”
Society may seem to have become more punitive over the last few years, but Sir Mark points out that this is actually consistent with how this country has always been. It was the last quarter of the 20th century, with its experiments in reducing the use of custody, that was the exception. That said, there are a number of reasons why sentences generally have increased. One of them is the use of guidelines, introduced to achieve consistency, which have a tendency to ratchet up sentencing. Another is the low expectations of rehabilitation. Sir Mark notes that “most crime is instinctive or opportunistic”, and is committed by people who exhibit a “general indifference to consequence or concern for the future”. Finally there has been a greater focus on the consequences and on the victims of crime, which has made some offences (such as road deaths) appear much more serious.
It is on the discretionary factors, taken into account once the starting point under the guidelines or statute has been identified, that Sir Mark concentrates. There may be aggravating or mitigating features; and there is scope for the prerogative of mercy which the judiciary have always been keen to uphold. Again, Sir Mark’s discussion of his approach is illustrated with examples of real, often controversial, cases he has tried.
Postscript: transparency, open justice and public education
Sir Mark is in favour of transparency. “There are real merits in all cases being heard in public,” he says, not least because it means the judges’ reasoning is there for all to see, “rather than the reporting depending on versions given by disappointed litigants”, coupled with “secret court” allegations. On the other hand, the courts are dealing with people’s private lives.
The modern tendency, which I would very much endorse, is to open the court to scrutiny but to preserve the anonymity of the actual parties; the emphasis is thus less on who attends (provided that we do not allow parties to have rival groups or supporters in court) than on what may be reported.”
The problem here is that the media, partly for reasons of accuracy and for the avoidance of any potentially defamatory confusion of identity, and partly to feed a lust for celebrity gossip, insist on knowing who the parties are and noting their ages and home addresses. In Sir Mark’s view, the law here is developing (in a more open direction) but in the meantime it is for judges to manage the tension between transparency and respect for personal privacy.
I would add this. Although transparency is in large part about scrutiny and open justice, justice being “seen to be done”, it is also about public education. The public that is well informed about what the courts are doing in its name is better able to understand why sometimes controversial decisions are made. A better informed society is also better able to direct its political support in elections and, dare one say, referendums, and to demand of its politicians something better than knee-jerk responses to difficult legal questions.
So when Sir Mark talks about the “informed consent” of society for the decisions of the courts, this depends a great deal on fair and accurate reporting of the decisions in question, which is sadly not something for which we can rely these days on the media. With some exceptions, decisions by judges exercising their discretion in difficult Family Division and Court of Protection cases are reported in the newspapers more for sensation than information, with news values skewed to provoke outrage over the breakfast table or on the commute, rather than to enable the public to form a balanced view of the work of the judiciary. Given that accredited media reporters may now attend most private family court hearings and given that most significant judgments, albeit in redacted form, are readily available on BAILII or the Judiciary’s own website, the failure to report them in an accurate and balanced way, or to link to the full judgment where available, seems inexcusable.
This review was written by Paul Magrath, Head of Product Development and Online Content at ICLR. He tweets as @maggotlaw.
For another review (by a family law practitioner) of this book, see Lucy Reed, on her Pink Tape blog, With respect and not a little trepidation…
View the original lectures, given at Liverpool Hope University, via YouTube.