Are judges getting feisty?

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You might expect a court’s annual report to be a pretty dull read. But not so the Court of Appeal’s annual report, released earlier this month, with a forward by the lord chief justice Lord Judge.

Judge speaks frankly about the ‘unrelenting pressure’ on the Court of Appeal, and makes it clear that judges are getting sick of wading through the incessant flood of ‘impenetrable legislation’ coming their way. In one piece of thinly veiled criticism, he said ‘the search for principle takes longer and longer’, and it makes ‘unreasonable demands on the intellectual efforts of judges and lawyers’. In other words, the standard of legislation being churned through parliament is absolute dross.

What’s interesting about all this is not just the fact that Judge has made vocal criticisms, but that he clearly wants these to be heard. The Gazette was given an embargoed copy of the report to ensure that the comments wouldn’t miss our deadline and be lost in the Christmas quiet period; something that does not normally occur with court annual reports.

As head of the judiciary, Judge feels obligated to speak out, but he is not the only one. Other judges are following his lead, in what looks like something of a trend towards greater judicial outspokenness.

The Gazette has run several stories in the last few weeks based on forthright speeches by members of the bench. Only last week, Court of Appeal judge Lord Justice Leveson warned against what he considers to be the overuse of out-of-court disposals such as cautions, where the police are effectively acting as both prosecutor and judge.

In the family sphere, Mr Justice Coleridge gave a fantastic speech last month in which he lambasted the ebbing away of the authority of the Family Court, and also of parents’ own authority in relation to their children.

Also last month, the Court of Appeal’s Lord Justice Moses Lord Justice Moses held forth on how criminal trials would be improved if judges were able to set jurors a list of questions to be answered publicly in reaching their verdict, while the LCJ took a very dim view of jurors who cannot resist the temptation to conduct a Google search on defendants, suggesting they should be jailed for contempt of court in a speech to the Judicial Studies Board in Belfast.

Are judges overstepping the line by making their views known on controversial topics, where constitution and tradition usually dictate that they should be keeping mum – what some might term ‘doing a Prince Charles’? And if so, does it matter?

It seems to me that judges are indeed coming ‘off the bench’ (to quote Lord Justice Wall), and that is a reflection of the pressure that the justice system finds itself under. None of the judges I have mentioned have made party political comments. But when there is something significant that needs to be said, about the justice system or indeed about society at large, sometimes judges – with their authority and careful political neutrality – are the very best placed to say it.