Parliament on d.v. : turns out its not so easy to ask the right questions…

There was an important debate in Parliament today. The government was put on the spot about the scandalous cross examination of victims of rape by the perpetrators of such abuse. It is a shame that the video footage of the house shows so many MPs making a break for the cafe just as it started.

That this issue is being tackled (or is about to be tackled) is a good thing. It is unfortunate that it has taken so long for people to wake up to it. But I have to say that the framing and depth of the debate about this really important issue leaves something to be desired. And it does not give me great confidence that the solution will necessarily resolve the real issue.

There is some real flabbiness of definition here : There is (still) no delineation between complainant and victim, accused and perpetrator, alleged abuser / rapist and actual abuser / rapist. This should not be too hard to grasp. The presumption of innocence should not be a novel concept for our elected representatives to grasp.

Many, maybe most, of the (mainly) men accused of domestic abuse are responsible for some level of bad behaviour. Some will be guilty as charged by their ex. In other cases there is a much exaggerated grain of truth at the heart of a schedule of allegations. And some, we cannot say how many, will be innocent.

But in this really important debate about how we do justice in the family courts, this debate that has had the attention of Parliament as it rightly should – we have forgotten those victims. The victims of false or grossly exaggerated charges made wilfully or through confabulation. Maybe it’s easier to see things from only one perspective, but this isn’t about what’s easier. How can we talk about justice if we can only talk about justice for one party?

And so, the debate trundles on about why we ALLOW men to cross examine their VICTIMS. We shouldn’t allow such cross examination because we have to protect those complainants who ARE victims. But the corollary is : nor should we COMPEL victims of false allegations into having to cobble together their own cross examination, having to face a person determined to see them destroyed, having to do so without the legal aid that their accuser is entitled to. Because some of those “perpetrators” will be just that – victims who are struggling to fight off unjust allegations in order to preserve or establish a relationship with their child. Not all of them, some of them will be nasty, nasty pieces of work who (we will all agree with the benefit of hindsight after a thorough trial) did not deserve representation. But we will at least know that when the trial is over the decision is both fair and robust. And as good an approximation to “truth” as we can achieve.

I think we need to have this conversation – about the men who might not be abusers – before we rush headlong into solving this problem with the sticking plaster of appointing counsel to cross examine but not to conduct a trial or to advise an accused parent.

Not just for the sake of the innocent accused, but also for the sake of the genuine complainant. Because a family court is not like a criminal court. And a family case is not like a criminal case. Yes, it offers a whole arena in and through which a controlling man may continue to attempt to exert control. And yes, our haphazard system may inadvertently facilitate that in some cases. But there are other distinctions too.

Firstly, in the family court the parties are just that – parties. The complalnant is more than just a witness. They are a participant in the entire trial process. And as such the need for protection goes far broader than mere cross examination. The flip side is that the need for an accused to be protected against accusations that he has attempted to manipulate the trial process to exert continuing control over his victim runs throughout the litigation / trial process. An accused litigant in person can be very vulnerable indeed.

And secondly, that the parties do (usually) have a child together. This means that, however uncomfortable it may be, in all but the most exceptional of cases there will have to remain some connection between the parties for a long time – even if it is entirely indirectly through third parties.

And thirdly, because the family court can make very draconian orders – it can suspend or even terminate a relationship between child and parent – based only on evidence to the civil standard of proof. In brutal terms it is far easier for a person accused in the family court of some awful crime to be found to have perpetrated that act than in a criminal court. Again, the accused is vulnerable. And the consequences are different, but are potentially every bit as grave and lifelong as in the criminal court.

Finally, it is worth reflecting on the illuminating heading of the debate in Hansard : Domestic Violence Victims: Cross-Examination. It is broadly drawn. It is not just about rape victims any more. When ministers are reconsidering this issue and formulating proposals they need to take some real care to distinguish between the position in rape cases (specifically provided for in criminal courts) and the position in the spectrum of other cases of domestic abuse (again there are provisions in criminal courts but they only apply where the court considers that the quality of witness evidence is likely to be diminished by direct questioning). Any proposals need to distinguish between cross examination and broader participation in the trial process. They need to distinguish between : cross examination about alleged abuse (to prove or disprove it), cross examination about other matters in a case which involves (or has involved) allegations of abuse, and cross examination in a case which is nothing to do with domestic abuse but where, incidentally there is a background of domestic abuse between the parties or between a party and a witness (for example financial or civil matters between ex partners). The answers called for in each scenario might be rather different. I’m not sure the debate so far has teased any of that out.

It is really encouraging to see Parliament taking an interest in these important issues. But it is profoundly depressing to see the massive blind spot that our Parliamentarians seem to have to one whole side of the discussion – and one whole half of their constituents: the accused, who we insist on calling perpetrators as if we have entirely forgotten about the purpose of the trial in the first place – to establish guilt. Not once in the debate did anyone use the proper terms complainant and accused. Not once did anyone avert to the possibility that an allegation might not be true. It is this one eyed perspective on family courts that got us into this post-LASPO mess in the first place.

And it is profoundly depressing to see it now enter into the Hansard records as fact that “a quarter of domestic violence victims face cross-examination by their abusers.” And not just because of the use of those terms victim and abusers :

Women’s Aid have done valuable work on this topic, and it is largely thanks to their massive campaign that people seem to be sitting up and listening. They deserve credit for it, although I do not always agree with their methods or adopt unquestioningly all of their bold assertions. But the 25% statistic used by Oliver Heald does not come from court statistics, not from any proper research and it is unverified. It comes from a Women’s Aid survey of their own service users, which they have yet to answer questions about (see my previous posts about that here) [update 11 Jan 17 – they have now answered, see here]. The danger in such concerning but basically anecdotal and subjective evidence is that it may not be reliable or may become distorted by the process of stripping out important context. A striking example of this is the account given by an MP in the course of debate today that a “convicted murderer…sued for custody of their child from the prison where he was serving a life sentence for murder”. It seems highly unlikely that a person serving a life sentence for murder would be pursuing an application for a child to live with him. Instead it is far more likely that he was asking questions in the context of pursuing contact or was responding to an application made by extended family wishing to care for the child in light of the mother’s murder. Although it will have undoubtedly been very difficult for the witness, whose sister had been murdered by her questioner, it is of course not an example of a perpetrator cross examining his victim at all. We don’t know the details, and it must be right to expect the court dealing with such an application to control the court process very carefully – but it is difficult to draw conclusions from such snippets – for me this is a powerful illustration of the danger of anecdote.

That the minister for courts and justice Oliver Heald is happy to simply adopt the Women’s Aid guesstimate as fact is an indication of the real depth of consideration here. The minister needs to ensure that the government’s response is to the problem not to the publicity campaign. It all makes me concerned that we will be presented with a quick fix that in fact fixes very little. Let us suppose that a quarter of all victims of domestic abuse are cross examined by their perp (this would be a significant number as it is not limited to rape or serious physical abuse – and thus if we want to ban ALL of it a significant fix would be required). It would be unsurprising if a quarter of all those accused of domestic abuse would also express concern at their vulnerability in having to try and defend themselves against false allegations without help and against a state funded lawyer if asked to complete a survey on the topic. Who is to say which is the greater injustice when we have no proper research on either proposition,  and when our system depends upon us holding in mind the possibility of two alternate versions of reality until after the evidence has been heard?

In saying all of this I don’t minimise the legitimate concerns raised by campaigners and MPs about what is going wrong. But it isn’t the whole story and it isn’t the whole problem. And a mere BAN on cross examination by men who – in the main – aren’t terribly keen on enforced DIY cross examination in the first place is not the whole fix either.

Cross Examination of Complainants – why on earth is it happening?

NB I’ve updated this post since publication – see foot.

There has been a lot of coverage of this issue in the media in the last couple of weeks, most recently here :

There was also some coverage last week which led to a significant response in the letters section of the Guardian here (which links to earlier articles in the sequence).

I don’t think anyone would argue that perpetrators of sexual assaults or serious domestic abuse ought to be able to re-traumatise their victims by direct cross examination of the in court (I suspect there may be less of a consensus if you asked whether ALL alleged perpetrators of ANY type or degree of domestic abuse should be so prohibited). Anyone who has represented parties in these cases knows how taxing the court process is even when conducted well and when everything goes smoothly from a procedural point of view. But current criticism of judges for allowing cross examination by alleged or proven perpetrators on occasion, is somewhat missing the point. In my view it should never happen – we can and should find alternative ways of doing things that are fair to both parties. I don’t in fact think it happens very often in cases where the violence is serious*, and even less often in cases of sexual assault or r*pe, but we all have to acknowledge that the jury is still out on quite how often it happens because all we have at present is anecdotal evidence that it is happening to some extent (and that anecdotal evidence makes pretty depressing reading).

But I think it’s important that people understand why this issue is an issue at all. From the outside it probably seems a total no brainer, and its easy to criticise crusty old judges (always male in the mind’s eye of the media / campaigners of course) who just don’t “get it”. Based on my own direct experience, I think most emphatically DO get it, but I also have direct experience that a few emphatically do not. That is really worrying and it is no comfort for the individuals interviewed by the Guardian or those like them to be told that most judges are okay.

But. We do need to make attempts to distinguish between a system which is cavalier about this issue, and a system which is cornered into doing things in a profoundly unsatisfactory way. It is inevitably the case that some individual judges, magistrates or legal advisers need a crash course in domestic abuse and coercive control, but there are also many other factors at work here – and I think it is probably in addressing those other factors that the greatest potential to achieve real justice for complainants lies.

You are probably wondering why this isn’t a problem in the criminal courts. The answer is simple : Parliament recognised the issue and stepped in with Section 34 of the Youth Justice and Criminal Evidence Act 1999 :

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either – 

(a) in connection with that offence, or 

(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings…

the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused…

If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

That section banned the direct cross examination of a complainant in cases of sexual offences. And, to ensure that a defendant still had an opportunity to challenge the evidence, Parliament also made legal aid available as of right for the purposes of cross examining the complainant. That isn’t a perfect solution because the legal aid doesn’t extend to the running of the case or even advocacy for the whole trial, but it’s better than nothing. And of course in most criminal cases legal aid is still available for the rest of the trial – so this provision really only kicks in in the case of a defendant who eschews legal representation and positively wants to represent himself – it’s designed to restrain that sort of cross examination that a perpetrator might get a kick out of or use to intimidate a victim.

In criminal domestic abuse cases that don’t involve a sexual assault charge there is a slightly different scheme set out in s 36 YJ&CEA 1999 :

(1)     …(a)    [where] the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or
(b)     the court of its own motion raises the issue whether such a direction should be given.
(2)     If it appears to the court—
(a)     that the quality of evidence given by the witness on cross-examination—
(i)     is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and(ii)     would be likely to be improved if a direction were given under this section, and
(b)     that it would not be contrary to the interests of justice to give such a direction,
the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person…

The distinction here is that there is not an automatic prohibition, but the prosecution may apply for a direction if direct cross examination is likely to prejudice the quality of evidence – or indeed the judge may make such a direction if he thinks it appropriate even if not applied for. In such a case the court is given a discretion.

So, what is different in the Family Court?

As in the criminal court, the Family Court has to ensure fairness for both parties (Article 6 European Convention on Human Rights, Overriding Objective Family Procedure Rules), but here also in the context of prioritising the welfare of any child involved (section 1 Children Act 1989). The child too has an Article 6 right to a fair trial in relation to allegations of domestic abuse that might lead to a restriction on their Article 8 ECHR right to family life with one or other parent. And that means that the court has a duty to make sure that the person accused of abuse (remember, they might be innocent) is given a proper opportunity to challenge the allegations and evidence. In a family case, if the accused is lucky they will have a lawyer to do that for them, but if they don’t (and many don’t) they still have an entitlement to challenge that evidence if they wish. The court can to some extent control how that happens but it isn’t presently empowered to bar a person facing allegations from asking questions.

The relevant law here is section 31G(6) of the Matrimonial and Family Proceedings Act 1984 (inserted in 2014 when the Family Court was created but drawn from earlier legislation), which says :

Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a)     ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b)     put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

At first blush this seems to be a rough parallel with s34 YJ&CEA 99 but it’s really quite different. It does empower the court to take over the questioning or to get someone else to do it (for example the solicitor for the child), but each of these “solutions” has it’s own difficulty. But read more closely s31G(6) only gives the court this power where a litigant in person is UNABLE to cross examine effectively – which of course does not always apply, and in particular doesn’t empower the court to stop the cross examination of a litigant in person who thinks he is doing fine thank you very much, but who may be traumatising a vulnerable witness. And unlike the situation in the criminal courts the Judge is not able to grant legal aid to facilitate the conduct of cross examination by a professional. So, whilst the judge has a general power to limit cross examination (Family Procedure Rules 22.1), for example by imposing time limits or restricting questions which are irrelevant or inappropriate, this does not equate to a power to prohibit it entirely.

In cases where a judge has decided it would be inappropriate for questioning of a vulnerable witness to be carried out directly or by the judge (who has to maintain impartiality), and has attempted to order the court service to fund an advocate that has been roundly overturned on appeal (Re K and H (Children ) [2015] EWCA Civ 543), so it is now clear this is not currently an option for those trying cases in the Family Court. In K and H the Court of Appeal effectively squashed judicial attempts to find a way out of this mess by saying that Parliament knew exactly what it was doing when it decided to go ahead with LASPO and the court had no power to order the expenditure of public funds in this way. But the Court of Appeal were also surprisingly dismissive of arguments made in Q v Q : Re B : Re C (Private Law : Public Funding) [2015] 1 FLR 324 and other cases that a fair trial would be compromised without legal representation of an accused – they thought that questioning by the judge or by a justice’s clerk or through the appointment of a guardian for the children would be an adequate solution in many cases. Many judges and advocates raised an eyebrow at that, but there we are, that was the clear view of the Court of Appeal, although they did acknowledge that questioning of a witness by a judge could involve treading a difficult tight rope, saying however that the judge must just do his or her best. That of course shouldn’t translate into the cross examination of complainants by those they say have abused them where a court has decided that would be inappropriate, but whatever the Court of Appeal say (the Court of Appeal have the luxury of not having to deal with the practical reality of a trial) the options available to a judge are all rather unsatisfactory (See Q v Q and below for a summary of why).

The President of the Family Division, Lord Justice Munby

The President of the Family Division, Lord Justice Munby

The report of the Vulnerable Witnesses and Children Working Group (Feb 2015) raised this and other pressing issues, but did not provide any answers. Since K and H in May of that year little has happened and no particular solution has emerged :

  • Guardians are rarely appointed so they can’t often help with the asking of questions through their lawyer (and they are in the same bind as a judge as they are supposed to be neutral too – I have been in cases where counsel has refused to do it and I don’t think a judge can force them to conduct a case in a particular way, that is a matter for their client and their professional ethics).
  • Magistrates are ill equipped to be asking questions directly – unlike a judge they are neither lawyers nor have a background as advocates, and the process is simply unworkable when magistrates operate by committee.
  • I have been involved in a case where a Legal Adviser asked questions on behalf of a father. It was profoundly unsatisfactory in that it was neither effective cross examination nor any less awful for the witness (since the questions were audibly asked by the father in court and re-spoken by the legal adviser, subject only to modification where they were unclear or inappropriate. It wasn’t a particularly forensically taxing or grave case of violence but I can only imagine how much more awful it would have been if it were)
  • I’ve seen judges in a range of cases (civil and family) give general assistance in the framing of questions to a litigant in person (often to both parties in a small claim or family case where there are no lawyers), but that is to help them put their case / elicit evidence helpful to the court, and NOT taking over the job and carrying it out for them for the protection of the witness. That’s a completely different task – and even the general assistance model can be quite difficult to pull off without giving an impression of bias to one side or another.
  • The Bar Pro Bono Unit are overwhelmed. I’ve been involved in many cases where a case is delayed to see if a pro bono lawyer can be found. This helps in some cases but isn’t really a viable solution, and it is inevitably the case that advocates are more likely to be willing to take on a case that has some hope of career advancement (some novel legal issue) rather than one which is just a lot of work but not legally interesting. So in many of these cases this isn’t a solution at all (and the BPBU don’t take cases at all of more than 3 days so complex fact finding hearings are ruled out).

The issue of perpetrator cross examination was always a potential problem in family cases (and probably always happened in a small number of such cases but with less fanfare) because there were always some alleged perpetrators who didn’t qualify for legal aid. But it became much more acute when legal aid was slashed by The Legal Aid Sentencing and Punishment of Offenders Act (LASPO) in 2013. A combination of the intensification and greater frequency of the issue arising where there are no lawyers, and an increasing understanding of and concern about the retraumatising effect that the court process can have has probably led to this issue coming to the fore now.

Whilst the President says he welcomes this spotlight being shone on the issue and that he will prioritise it in 2017, it is important to recognise that there are limits to what the judges, even the President himself, can do to fix this problem without the assistance of Parliament. As the article notes,

Munby “would welcome a bar” on the practice but [said] that it was down to primary legislation in parliament to do this.

Munby and others have been saying this since 2014 (and indeed said it before LASPO was implemented. Parliament and parliamentarians ignored us).

Whilst there are a number of MPs taking up the issue of the treatment of domestic abuse victims in Family Courts, none has yet put before Parliament any bill that would assist the judges by outlawing the cross examination they complain of, and by giving them a feasible alternative.

The article also says that :

The spokesman said Munby welcomed the fact that Women’s Aid had raised the issues and that he was considering a review of the rules supposed to protect victims of domestic violence within the family courts and stop direct cross examination.

Although The President has some influence over the Family Procedure Rules Committee he cannot unilaterally or immediately change those rules (the reforms proposed by the Working Group in 2015 have been stuck in a tangle of red tape since 2015, it is rumoured because there are difficulties with securing ministerial approval with regard to the resource implications of those rules. The FPR Committee has no power to amend primary legislation, and it is clear from Re K and H that it is primary legislation that would be needed to secure the funding that would be required to enable a judge to appoint an advocate to cross examine on behalf of a litigant in person. There is no doubt however that the President is, like many of us, genuinely frustrated at the mess we are in, and that this press coverage may happily provide useful political leverage for those who hope to persuade Parliament to find a real fix. It is just a shame that the campaigners are aiming perhaps at the wrong target. We all agree on the problem but the solution lies with Parliament.

 

*I have known it happen without objection in cases where violence is not recent and where a survivor is ready to look her abuser in the eye, and feels that is part of her journey. Not all survivors want to be wrapped in cotton wool, some ask for special measures to be removed as their strength grows.

UPDATE :

I have just listened to the podcast of this morning’s Womans Hour with Elspeth Thompson (solicitor) and Polly Neate, featuring more details of the press release apparently made available to the Guardian as the basis for the article I’ve linked to above. You can listen here. I don’t think I can pass without comment the remarks made by Polly Neate, CEO of Women’s Aid makes in the course of that segment.

As best as I can get it down Polly said this in response to the question why is cross examination of victims still happening in the family court :

Because professionals in the Family Court – in the main judges – actually don’t understand whats going on in domestic abuse. So, they don’t understand that domestic abuse is very commonly – in fact routinely – continues after separation. So, if the last violent incident was a few months ago and they’ve separated they just don’t it see as abusive, they just don’t understand the impact on children and just don’t understand coercive control – and this behaviour we’re talking about is coercive control. It’s really a lack of understanding on the part of many judges and that’s why they allow it….it’s appalling that the level of understanding is so weak. That being said there are of course some brilliiant judges and examples where this doesn’t happen…all that goes to show is that its perfectly straightforward for a judge not to allow this if he or she doesn’t want to. So it has to stop…solicitors and judges say its incredibly uncommon but we found 1 in 4 survivors of domestic violence with experience of family court had been directly questioned. That’s not “hardly ever happens”.

I have asked Women’s Aid about the detail of their evidence base for this sort of assertion – because it is a really serious allegation and has a very different solution to the problem as I see it (as set out above), and therefore affects where we ought to be directing our energies (it’s the difference between culture and resources). Women’s Aid recently agreed to answer my questions about their evidence base. See here on The Transparency Project blog, for the background to that. I will update that and this post if and when answers are forthcoming [Update : Answers from Women’s Aid here]. I think it is critically important that they do so, particularly now it appears (as of today’s unpublished press release) that there has already been a review of PD12J conducted with the help of Women’s Aid that is coming to its conclusion. I’m not saying that Women’s Aid are wrong necessarily, my own experience may not in fact be representative – but I am asking for us to move forward on the basis of proper, balanced evidence rather than on the basis of who shouts loudest.

With respect and not a little trepidation…

I find myself this Christmas with not one but two books to review, both by recently retired judges. Both slender and thus swift to read, but otherwise very different, not least because one is written by a former High Court Judge, whilst the other is penned by a retired District Judge. And what different worlds they are.

I’m afraid I’m going to gush about one and be a little bit hard on the other. Which is awkward.

I found The Modern Judge – Power Responsibility and Society’s Expectations (Sir Mark Hedley, Lexis Nexis Family Law, 2016) in my hotel room the morning after the Family Law Awards, fumbling blearily for the kettle. It’s possible that my roomie left it behind when rushing back to court at the crack of dawn, but I prefer to think that after he had compered the award ceremony, Sir Mark Hedley donned his red robes and snuck in silently whilst I snored and left it at the foot of my bed, like the white haired santa of the Family Division. You’ve probably guessed which one I’m going to be nice about…

May It Please You Madam – A Little Book of Legal Whimsy (Neil Hickman, The Book Guild Ltd, 2016) came conventionally, through the post. In fact it isn’t that slender, but it is light in content, well spaced out and broken up with cartoons.

Not long before Christmas I came across one of those catalogues of legal themed tutt, the sort of stuff that over enthusiastic law students seem to think will stand as categorical proof of their dedication and legal knowledge. I think it was slipped inside Barrister Magazine, although I can’t now recall. But you know the sort of thing : carbolic smoke ball tea-towels, unfunny cufflinks, inappropriate gavels and other assorted accessories of pompous try-hardiness. And I wondered to myself who in the hell is this stuff FOR? Do actual practising members of the bar buy this stuff? Or is this just the sort of prop that a certain type of person relies upon to look the part? Perhaps the great unregulated covet such things instead of actual qualifications, like this McKenzie friend with his “proper solicitors briefcase”? Anyway, by the time I had got to the end of May It Please You Madam, I was asking myself the same question – who is this book FOR?

This book should be great. It is a collection of amusing snippets and stories of life at the judicial coal face, much drawn from former DJ Hickman’s own experience at the District Bench, or that of his colleagues, mixed with much material from notorious cases that we all learned of in our time as law students. So it is comfortingly familiar to legal readers, and many of it’s stories will have been heard and told by readers of this blog. But somehow something died in translation and the funny leached out. Told over dinner, or in the judicial corridor or robing room to members of the same community these anecdotes are momentarily funny, sometimes laugh out loud funny. But taken out of context and strung clumsily together one after the other after another and another in print, they just deflate and give an overwhelming sense of ennui. So, for example, the laboured retelling of an email exchange between judges about a court order that mistakenly refers to doughnuts instead of documents was just excruciating to read, as was the reduction into print of the only mildly and fleetingly amusing solicitors’ typo regarding office closure over Christmas (office shit instead of shut). This sort of banal cock up is not special to the field of law (although as one of the few industries still quite heavily reliant upon audio-typing we do have some corkers). But it is the stuff of everyday. And even in a book with “Whimsy” in the title, the material cannot always bear the weight of print. It’s ironic that Lord Wilson in his foreword identifies at  that court room humour arises out of the live spoken word, before giving way to DJ Hickman who skilfully suffocates the humour out of each anecdote by the mere act of writing it down. It is possible to convert legal or courtroom humour to writing, as the recently deceased Gary Slapper proved, but it turns out it isn’t as easy as he made it look.

There are good things in this book, but much of it we have heard before – although I did not know until now that the infamous response letter in the matter of Arkell v Pressdram did not put off the claimant, and that litigation ensued anyway (albeit unsuccessful).

But, I’m sorry to say that I got much more entertainment from the immediacy of the #freelegaltips hashtag that was trending on twitter recently than I did out of this book. I ploughed through to the end, like someone fishing through a bowl of pistachio shells hoping to find one last nut. But I got to the end dissatisfied – the funny bits had been drowned out by the bits that flopped.

I was also left unsure whether this book was intended for lawyers or for non-lawyers : I thought lawyers would mainly have heard it all before and non-lawyers would wonder what all the fuss was about and take it as confirmation of just how dull we lawyers must be – and at moments the author forgot to translate for the non-lawyer and I suspect some anecdotes would make little sense to a reader not conversant in the legalese that the author (rightly) takes the mickey out of.

So, I’m sorry to say that this particular Madam was a little bit underwhelmed. But perhaps the mysterious lot who buy gavel cufflinks, legal advice dice and bears with “worlds coolest lawyer” on their tiny knitted sweater will love this book.

In contrast however, I did very much like Sir Mark Hedley’s little book, The Modern Judge. It is really little more than an extended essay, but it is characteristically humble, thoughtful and thought provoking. It asks some very important questions, and they are questions that we ought to be asking – amongst ourselves within the legal community, and discussing with other members of society. I hope that LexisNexis will market this outside the legal community.

The Modern Judge does not only cover the Family Court and Court of Protection, but it does take those jurisdictions as its main focus, and it is through a conscientious consideration of the wide ranging and really very draconian of powers that Hedley is able to ask wider constitutional questions about the rule of law and the societal consent that is required for judges to exercise their powers.

The question of state intervention in the private lives of families and the tensions between child protection and the right to family life is sensitively considered here, and if ever any person were doubtful that judges appreciate the weight of responsibility they bear they should read this book. Of course Sir Mark is not just any judge, he is a judge who was already known as humane and wise, and whose wise words about the need of society to tolerate diverse standards of parenting including the barely adequate are often quoted in court (although Sir Mark quipped wryly at the first Transparency Project conference that they were only ever quoted by the side about to lose) (see Re L (Care : Threshold Criteria) [2007] 1 FLR 2050, approved by the Supreme Court in Re B [2013] UKSC 33). But although one cannot promise that every judge is a Sir Mark, those who imagine judges as wielding their powers in a cavalier and thoughtless way may be reassured to read this. The seriousness with which the task is treated by Sir Mark is something which we are entitled to expect from all members of the judiciary.

Hedley draws a number of vignettes of cases he has tried over the years, illustrating perfectly just how impossible some of the questions we ask our High court Judges to answer really are – anyone who thinks its a cushy job should read this book. He draws from his CoP experience as well as family, including forced adoption cases. He reminds us of the relative recency of adoption as a legal concept, but does repeat the error of many other illustrious colleagues in stating that of all of Europe we are the only jurisdiction to do non-consensual adoption (we’re not – google Clare Fenton Glynn). But the broader point about how our type of adoption is culturally alien to many living in this country and falling under the jurisdiction of the courts of England & Wales is well made. He acknowledges, refreshingly, that :

I do not believe that we have yet achieved a consensual view in our society on this [adoption], although current policy of all main political parties is very much in support of adoption. The problem is that the concept of adoption is attractive in our society and has, at present, strong official support. The difficulty comes when the story of an individual case is told, the true loss to parents is fully understood, and the consequences of adoption laid out in specific terms. This difficulty becomes the greater if there is personal knowledge of the family, and greater still where – and this is often the case – the parents’ failure to care is not culpable but, because of a lack of ability, not brought about by their own actions. These are tensions inherent in our current approach to adoption and child protection.

Through these examples Sir Mark sets out the irreconcilable conundrum facing every family judge daily – how to exercise one’s discretion so as to draw the proper balance between protection and private life.

It is clear from reading the book that this is not a new topic for this judge, but something about which he has given anxious thought throughout his years at the bench. He is obviously alert to various familiar areas of particular public public anxiety, debate or complaint :

  • the differing standards of proof as between criminal and family courts, the justifications for those distinct approaches, and the practical problems this gives rise to
  • the fallibility of witness evidence and of human ability to reliably assess it – and thus the inherent difficulties of a system heavily reliant upon oral witness testimony
  • the  danger of a lack of accountability in the exercise of discretionary power – and the particular protections against the arbitrary exercise of state or judicial power afforded by our Human Rights legislation
  • the inevitability of injustice through human error in some small number of cases
  • the tension between doing justice in public and the need to protect privacy and the dangers of a public who are unaware of the judicial powers that are being exercised in their name

On this last point he says this :

While I was a serving judge I became increasingly concerned that many in society are simply unaware of these powers, especially the discretionary powers, vested in the modern judge. One of my purposes is to offer some description and explanation of those powers. In a democratic society, these powers should be exercised by the judges with the consent of that society. If there is no proper understanding of these powers, how can there be proper consent to their use? Moreover, the use of these powers involves society placing extensive trust in judges to exercise them properly. On what basis may such trust be given? Is it a trust that our judges can actually justify or fulfil? These are some of the issues on which I would like to reflect and which I believe to be of some importance in the life of our society, with its inherent sense of fairness and desire for justice.

Later he says :

The more I reflect on this question of judicial discretion …the more I am conscious of the power which society has put into the judges’ hands, and which generally Parliament has shown no desire to curtail. The truth is that the system can only work credibly for so long as the judges received (and, of course, deserve) the confidence and consent of the society in whose name they act. That trust must be predicated on an understanding of the nature and extent of those powers, and that is one of the principal purposes of this book. The reality is that in exercising these powers the judges are not just reflecting society, but are making an active contribution in influencing its development. That is why…the tension between protection and autonomy – is so important.

Thus, The Modern Judge is an exercise in transparency.

Of the media Hedley says :

If it can be said that the media are a little too ready to respond to individual complaints against the state, and that the agents of the state are a little too defensive in their response, it does not hide the fact that there are real issues and that there is all too often more than one reasonable view and more than one reasonable outcome available. 

I don’t know how many parents would be likely to read this book but I’d certainly recommend it to them, as well as to judges, lawyers and social workers alike. As well as to a few journalists.