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What Makes a Good Judge?

Mr. Justice Hickinbottom

This article first appeared in ‘Judicial appointments balancing independence accountability and legitimacy’ a collection of essays published in the year 2010, United Kingdom.

Justice Hickinbottom is a judge of the High Court of England & Wales. He was knighted by the Queen at Buckingham Palace in 2009.

Until recently, a judge’s job, if not simple, was at least narrow in scope. Judges sat in court, where trials would be listed before them. In a civil trial, they would hear the oral evidence and submissions, decide what happened, identify the relevant rules of law, and apply the law to the facts as they found them. In a criminal trial, their role was similar; although, of course, a jury would decide the facts and apply the law as given to the, by the judge—and the judge would sentence any convicts. They would rarely work when not sitting—they would sit from 10.30an until 4pm, and very often rise earlier. They would have a proper lunch. When there were no cases listed, they would have nothing to do. Many judges would keep a fishing rod in the boot.

Over the last 20 years or so, the work of judges has immeasurably changed.

First, their work they do in court has changed. Parties are no longer allowed to conduct proceedings without some form of case management, which requires judges to be actively involved in managing cases from issue to trial. Much case management is done on paper. Even when there is a hearing, it is often by way of telephone conference call. For many judges, the amount of case management work far exceeds the time they spend on final trials.

Thankfully, judges do still sit in court—but, even in trials, evidence and submissions are now largely committed to paper, which means that a judge’s work may be predominantly reading, rather than listening. Judgments in longer or more complex cases are given, after a period of reflection and deliberation, in written form. A substantial amount of judicial work does not involve ‘hearings’, in the traditional sense, at all. Many decisions are given in writing, the judge having considered at an oral hearing. As a result of all of that, many judges spend more time working in their rooms than actually in court.

Second, in addition to the management of cases, judges have been increasingly involved in the administration of the justice system. The Constitutional Reform Act 2005 not only made the Lord Chief Justice responsible for judges in the courts, it also imposed upon him a variety of obligation—including judicial discipline, training and welfare—much of which has been delegated down to other judges, often at local level. The Tribunals, Courts and Enforcement Act, 2007 imposed similar responsibilities upon the Senior President of Tribunals in respect of tribunal judges, many of which have again been delegated down to other judges in that system. Judges have in any become increasingly involved in the administration of their part of the justice system, for example in the assignment and listing of cases. Most full-time judges have some administrative responsibilities, in one form or another.

Third, the scope of judicial work has expanded, partly because judges now have a more important—or, at least, a more overt—role within the constitution. At the level of the High Court and above, since the 1960s we have seen the rise of judicial review work, in which members of the public challenge decisions made by various arms of government in the widest sense; and, since the Human Rights Act, 1998, all judges have been required to ensure that their decisions are complaint with the European Convention on Human Rights. To a greater or lesser extent, all judges now have to consider whether a wide range of government decisions are lawful in the light of general public and human rights law.

Finally, the size and breadth of the judicial family has expanded. In 1970, there were fewer than 300 judges. By 1998, this number had risen to 3,000. There are now over 9,000. That increase reflects not only the extended role of judges and the amount of work that they do, but also the increase in number of fee-paid, part-time judges—and, importantly, a proper recognition that others within the justice system who sit in judgment (such as those who were formerly District Registrars, and those who sit in tribunals) are as much ‘judges’ as those who work within the higher echelons of the court system.

How the public regard the work of judges is also important, Although judges now have a broad scope of work, their ‘core—business’—in truth, and certainly in the eyes of the public—remains deciding cases. Judges are still required to determine claims between citizens and, more often, between a citizen and the state. The weight of that responsibility should give any judge pause for thought. In almost all cases, before whatever tribunal, the case is regarded as being of vital importance by at least one party. Some cases have wider importance—for example, for victims or for a themselves; but what they do is important. By the nature of judicial work, it is vital that public confident is maintained in the justice system, without which the rule of law—crucial in any democratic society—would be undermined.

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