Time to judge the judges, says leading peer

Carlile: almost daily stories of rudeness

The time has arrived to create a “small” inspectorate – led by a High Court judge – that will evaluate judges’ courtroom performance, Lord Carlile QC has argued.

The Liberal Democrat peer said “important public servants, especially those with little line management and ostensibly lengthy security of tenure, should expect to be evaluated”.

Lord Carlile, who practises from 9-12 Bell Yard Chambers, is himself a deputy High Court judge, Crown Court recorder and tribunal chair. He predicted that most judges would welcome such a move, noting that the judiciary will soon be the “last redoubt” of professionals carrying out public service who are not subject to formal inspection, performance review, peer review or quality assurance on a regular basis.

Appeals are not sufficient for peer review, he said, as they rarely focus on poor judicial behaviour.

While courtrooms have become “less dramatic places” in recent years, there are still “almost daily stories of rudeness and inappropriate impatience on the bench, occasional misogyny and the placing of increased pressure on advocates who are not members of a set of barristers’ chambers”.

The Judicial Conduct Investigation Office (JCIO, formerly the Office for Judicial Complaints) deals with formal complaints against judges, but an inspectorate could both work alongside the JCIO and also deal with issues before they reach that stage, Lord Carlile wrote in Counsel magazine.

“They would be able to carry out routine and unannounced visits to courts without there necessarily having been a complaint,” he said. “The judiciary and the legal profession could refer issues to them falling short of formal complaints; for example, when a resident or presiding judge was concerned by suggestions of serious ‘judge-it is’ as occasionally happens with relatively new judges.”

The inspectors would assess such issues as case management, treatment of victims and other witnesses, and behaviour towards advocates and those instructing them, the peer continued. “The purpose would not be criticise, but rather to review and improve. Measurement of performance would be important – for what is measured is improved as a general rule.”

Lord Carlile insisted that an inspectorate – which he suggested could be made up of a High Court judge on a two-year secondment leading a team of four or five other judges – would not damage the independence of the judiciary.

“The reality is that many of the worst complaints about discourtesy and other unacceptable behaviour in court raise from the failure by a few judges to exhibit the independence which in reality they probably possess.

“I am not suggesting that there should be some uniformly bland standard of neutrally polite behaviour from the bench: all advocates expect, and should welcome, legitimate and sometimes robust judicial challenge. Nevertheless, poor practice needs to be challenged, preferably before formal disciplinary processes are needed.”