It’s the stock image for any story about judges or judging. A short-handled two-headed wooden hammer, used by the judge to draw attention in a court of law. But not in this jurisdiction.

The courtrooms of England and Wales are not equipped with gavels. Our judges are not mini-Thors, whacking their bench tops with a little toy hammer to gain attention. They are made of sterner stuff. (No doubt there’s a whole course module from the Judicial Studies Board about getting the public’s attention without hammering for it.)

So why do they do it? Why do the media love this stock image? Why did the Daily Telegraph only last week illustrate a story about judges with this picture (left, courtesy of Getty Images).

The story, headlined “Give women priority for top jobs, urges judge”, was about Lord Neuberger of Abbotsbury, Master of the Rolls, suggesting that section 159 of the Equality Act 2010 might be employed to engineer affirmative action in the selection of judges to favour female candidates or those from ethnic minorities. Baroness Hale of Richmond, the only female member of the Supreme Court, was quoted as saying that a woman litigant ought to be able to go into court and see more than one person who shared at least some of her experience. The arguments on both sides of this debate (quality, or equality, etc) are so well worn as to require no repetition. But to use such a hackneyed image alongside seems, well, a bit like using a sledgehammer to coin a cliché .

The Telegraph isn’t the only culprit. Far from it.

Even legal organisations who ought to know better have been known to sport the misplaced gavel in their imagery. The Treasury Solicitor’s Department, for example, displayed this image (right, combining two cliches for the price of one) on its page about the Attorney General’s panel of counsel.

Even the BBC – or perhaps (knowing what we now know about the liberties taken in “restructuring” the historical truth behind Garrow’s Law) especially the BBC, has been guilty of this kind of error. Back in 2009, during Garrow’s first series, the well known legal journalist and commentator (and former law reporter for the ICLR) Marcel Berlins took them to task for:

The judge’s use of the wooden gavel, much banged in Garrow’s Law and many other BBC dramas containing scenes in court. In reality, English judges have never had gavels – not in Garrow’s time, not now, not ever.”

Berlins goes on to point out that many people derive what little they know of courtroom procedure from televised drama, the majority of which is American and accurately features the handy wooden attention-seeker as a prop.

It is therefore important, for educational purposes, that when the English criminal justice system is being shown, it is presented accurately, particularly as our schools don’t teach much about it.”

Since ours is an adversarial system in which we observe the Rules of Natural Justice, one ought to hear the opposing viewpoint. This, interestingly enough, is to be found on the website of the Garrow Society, where it is asserted not only that judges used gavels in Garrow’s day, but that Garrow himself possessed one. (An unusual specimen, by the look of it.) The site may also be recommended for more serious Garrow-related background information and miscellanea.

Just for the fun of it, here is another image. The mistakes in it are not all deliberate, so far as we can tell, but see how many you can count. Answers by way of comments below, please. (The most interesting will win a special ICLR i-pad cover.)