In the brave new world of a supreme court and judicial appointments commission but no Lord Chancellor, Grania Langdon-Down asks who will judge the judges

Ajudge recently admitted napping, but not snoring, during the Old Bailey trial of the Millennium Dome raiders, who attempted to pull off Britain's biggest robbery in 2000 when they tried to steal 200 million worth of jewellery.

Two of the defendants appealed, but the Court of Appeal said the behaviour of Judge Michael Coombe, now retired, did not give rise to a ground for appeal, pointing out that his summing up was 'carefully prepared, comprehensive, accurate as to law and detailed as to the evidence'.

The Court of Appeal is there to ensure that justice is properly carried out in individual cases, and it will publicly criticise judges who get it wrong.

But what happens if there is a pattern to the behaviour or what if a judge's decisions are repeatedly overturned as wrong or too harsh or too lenient? Late last year, Mark Easton, home affairs editor of Channel Four News, reviewed judicial accountability in 'Dispatches: Judges in the Dock', finding one judge who had had his sentences reduced more than 50 times in the past seven years, while another had been successfully appealed at least 38 times.

As Mr Easton argued (see [2003] Gazette, 18 December, 9): 'The problem is that while the Court of Appeal corrects individual mistakes, it cannot stand back to see the bigger picture.

An arrangement designed to protect judicial independence inadvertently protects incompetence.'

The Lord Chancellor, Lord Falconer, has now set out the broad framework for the complaints and discipline regime that will replace his traditional role in dealing with complaints against judicial office-holders once his position as head of the judiciary is transferred to the Lord Chief Justice under the proposed constitutional reforms.

Lord Falconer said in a recent House of Lords debate that both the secretary of state for constitutional affairs and the Lord Chief Justice - who will become the president of the courts in England and Wales - would continue to play a role in judicial discipline and conduct.

This reflected the importance of respecting the independence of the judiciary, providing assurance to the public that complaints about judges are subject to proper scrutiny and providing accountability to Parliament.

The Lord Chief Justice, Lord Woolf, then gave the proposals his support, agreeing that the secretary of state has a part to play in complaints and discipline, while stressing his role would be 'carefully limited so as to protect judicial independence'.

The proposals will have to be set out in secondary legislation.

Sanctions, short of removal, will be administered by the president, with the approval of the secretary of state, who will be responsible, with the agreement of the president, for dismissing judges, subject to the same parliamentary procedures that currently apply to the higher judiciary.

While the secretary of state can require a judicial investigation of a particular complaint, he will not be able personally to reprimand a judge or require the president to do so.

Complaints will be handled by a complaints secretariat, which will maintain records of all disciplinary action.

Serious complaints will be referred to an investigating judge.

If the secretary of state, the president or the judge concerned do not accept the investigation's findings, they can require the case to go before a review body made up of two judges of appropriate seniority and two representatives of the legal profession.

Complainants or the judge concerned who are unhappy about the handling of the complaint can refer it to an ombudsman's office, which will also handle complaints from applicants to the proposed judicial appointments commission.

However, the various bodies will only be able to make recommendations - final decisions will only be made by the president and secretary of state.

Law Society President Peter Williamson says: 'We have given a cautious welcome to the proposals.

We have no objection to the president being involved but we have concerns about the secretary of state, a cabinet member, being involved.

'We favour a body such as the proposed judicial ombudsman service, which could retain the role of the existing Commission for Judicial Appointments in reviewing judicial and QC appointment procedures and any complaints about the way those procedures operate, and be responsible for judicial discipline and complaints.

'It is all to do with independence.

We just don't believe that members of the executive should be involved in any disciplinary measures as far as the judiciary is concerned.

We don't see any reason why the ombudsman's office couldn't be accountable to Parliament by some method.'

For David Marshall, president of the Association of Personal Injury Lawyers (APIL), the first step should be to look at ways of reducing complaints about judges.

Mr Marshall, managing partner of south London firm Anthony Gold, says: 'We support the proposed judicial appointments commission as a way of getting the right people to be judges.

Becoming a judge should be seen as a positive career move for all sections of the profession - not just people reaching the end of their career at the bar.

There should be the option for bright people to move across more easily to enlarge the pool of talent.'

He adds: 'People tend to see personal injury law as terribly straightforward, but it has become more specialised over the last decade and you do find you have to do a fair bit of educating, explaining certain aspects of claims to judges.'

APIL consulted its members about judges' behaviour a few years ago and found they were reluctant to complain about someone who might be their local judge and would be hearing lots of their cases.

Mr Marshall says: 'I am not sure that will change under the new proposals, though having a more open system is a step forward.

Much more important is having an appraisal system.

None of us is perfect and I think it is a nonsense to pretend that judges don't fall into the same category.

'I think most judges would agree that having a structured system without fear of being slapped down must produce more positive outcomes than a complaints procedure, which should always be the last resort.'

Helen Cousins, senior partner of Cousins Tyrer in Leeds, is chairwoman of the Criminal Law Solicitors Association.

She says: 'The proposals are good so far as they go.

It is absolutely right that judges, as with everybody else in society, should be able to be complained about through proper channels and - if the complaint is found to be accurate - they should then be subject to sanctions.

'However, I don't see the need for Parliament to be involved.

If the Lord Chancellor's position is that the judiciary ought to be separated from the executive, then you don't want to give the impression that the government can still interfere.

If you are only going to half-separate the two functions, why bother playing with them in the first place?'

For Claire McKinney, managing partner of Davies Lavery's Birmingham office and president of the Forum of Insurance Lawyers, the proposals only give a very basic framework.

'We will need to see the draft legislation for the detail but I would say "welcome to the 21st century".'

'On the isolated occasions that a judge behaves in a way which makes you feel your client has not received a fair trial - for instance by falling asleep, texting or being preoccupied with events outside the courtroom - then the first step is to appeal.

You then consider lodging a complaint and these proposals look as though they will provide a more transparent mechanism for this.'

Tony Guise, principal of niche City commercial litigation practice Guise, is president of the London Solicitors Litigation Association, which represents 900 litigators within Greater London.

He says: 'We live in times of great change and increasing transparency, and these proposals seem an inevitable step down that route.

'I would imagine that if the complaints secretariat gets the go-ahead, there will be more complaints, particularly on the part of litigants in person, who are becoming more and more restricted in their activities by the courts, so they will look for any avenue to vent their spleen.

I am sure it will be a very busy body.'

Andrew Greensmith, who specialises in family law and ancillary relief with Preston firm Dickson Haslam, is on the Solicitors Family Law Association's national committee and is charged with looking into the Clementi review on the regulation of the profession.

He says: 'These proposals come at a time when the climate for overall change in the legal profession is ripe.

There is a growing tide of lack of confidence in the family courts and a more transparent system might help people allay their fears, if those fears are unfounded.'

Franklin Sinclair, senior partner of Tuckers and past chairman of the Criminal Law Solicitors Association - who featured in Mr Easton's Channel Four documentary - agrees.

'The time is definitely right to do something about the discipline and complaints process.

The only potential worry is that this government has a history of disliking judges, particularly those who are independent, and so we would want the senior judiciary to be in control.

'Regulating judges is important because there is nothing worse for the administration of justice than having stories about judges falling asleep or making inappropriate comments in rape cases splashed all over the papers.

There needs to be a way of complaining on the rare occasions when there is unnecessary bullying or bad behaviour so the judge is monitored.

It is all about improving standards and consistency.'

One issue that has not yet been made clear is whether the government intends to introduce an appraisal scheme across the judicial hierarchy.

At the moment, the scheme only goes up to deputy district judge level.

Peter Williamson says he would like to see the system extended as far as possible.

'In this day and age, everyone in this sort of position should be appraised in some way, though I can see more difficulties at the senior end and it would need to be very carefully worked out.

If appraisal isn't included in the [Constitutional Reform] Bill, then I imagine the reason will be cost.'

Andrew Greensmith, who sits as a part-time deputy district judge, has first-hand experience of the current system.

He has been 'peer appraised' twice by a full-time district judge, who sits in for an entire day with an open marking system and a long discussion at the end of the hearings.

He says: 'It is symptomatic of the current climate of increased accountability.

I found it a very positive experience - it is not about lack of trust.

There could perhaps be constitutional problems introducing it with judges in the High Court and above, but I can see an argument for extending it to circuit judge level.'

Helen Cousins also sits as a part-time deputy district judge.

'I welcome the appraisal system as an opportunity for both positive and negative feedback, and see value in it being extended throughout the system, particularly for those new to the job.'

David Marshall says: 'Nobody should be exempt from appraisal and review.

Solicitors were quite frightened about it at partner-level at first but they have found that - provided it is done properly - it is beneficial.

Judges may be worried about the idea because they fear it will be some official marking them out of ten.

However, it is likely to be done by peer review and should be seen as a positive step.'

A spokesman for the Bar Council says it is 'fairly comfortable' with the complaints and discipline proposals, and accepts the need for the secretary of state to be involved.

'There has to be some sinew between the judiciary and Parliament, and the proposals seem to strike the right balance,' he says.

'It is a brave new world for judges, who are themselves changing.

Today's judges are much more reflective of society.

It is important to find a way of reining in adverse spikes of performance but what we don't want to see is an orchestrated campaign of complaining when a judge makes an unpopular decision.'

He says this goes hand in hand with the bar's primary concern over whether more gung-ho ministers will learn to live with the proposed statutory duty that they must uphold the independence of the judiciary.

'The reforms are inextricably intertwined with regulation.

It is part of the new deal for judges - by being more professionally regulated, they should be entitled to earned autonomy.

So, while we accept there should be parliamentary oversight, we are not saying there should be adjournment debates about what happened in Nottingham Crown Court.'

There has been concern expressed by the opposition parties and others that the constitutional reforms are being unduly rushed.

The bar spokesman agrees.

'What is vital is that there is pre-legislative scrutiny of all these proposals - this is too important to be hustled in under the wire just before a general election.'

Grania Langdon-Down is a freelance journalist