That Homer moment…

Just like Homer Simpson, we’ve all had that moment where we have let slip what we really think or someone has heard something that we never intended them to hear. Unlike Homer, most of us can distinguish between our own internal monologue and audible speech, but we do all sometimes slip up, sometimes with consequences far more serious than an episode of The Simpsons.

https://www.youtube.com/watch?v=F69DQupMiZM

(the above is a clip of the Homer moment that I’m thinking of, but my embed function is a bit glitchy so you may need to click and view it on the youtube site to watch).

The judgment of the Court of Appeal last week following a case in which the trial judge made comments about the mother during a break in her evidence, that unbeknownst to her were audible to participants via the video link is a pretty awful example of one such mistake. It will understandably evoke strong feelings and criticism. (You can read the judgment here : C (A Child) [2020] EWCA Civ 987 (24 July 2020)).

From a technological point of view this sort of mistake is an easy one to make, regardless of its grave consequences in this instance (the trial has had to abandoned 3 weeks in as the case now needs a fresh judge as the comments gave rise to an appearance of bias, and the child the case is about will inevitably suffer significant delay in decision making as a result – perhaps delay in reunification with a parent, perhaps delay in being placed with an adoptive family – either way, not good). In my own direct experience since remote working became the norm as a result of covid I can think of a number of similar errors (a guardian saying ‘oh shit’ loudly when her wifi was intermittently not working – which unfortunately was working at the moment she uttered the expletive, a colleague muttering the F word thinking he was muted but being heard by the judge, a party’s legal representative describing her client during a break as ‘not very bright’, when said client was still on the link, and advocate starting to take her client’s instructions during a break without muting herself). The frequency of these mistakes will reduce with familiarity and practice (and no doubt as a result of reading this judgment), but their consequences have potential to be significant, and to have profound effects on the confidence a party has in their lawyer, the judge or the process as a whole.

But in some ways these are not new issues at all. I’ve written before about the dubious practice of advocates holding audible discussions in public waiting areas (sometimes unavoidable, sometimes just careless), about the impression to the lay parties that is given when advocates huddle, chuckling at some unheard in-joke or engage in banter in the moments between the active parts of the hearing. And we’ve all had at least a near miss with the ‘reply all’ function on email. We were all quite capable of thoughtlessness, insensitivity or causing inadvertent hurt before lockdown happened. And sometimes, not often, a judge will openly say something pejorative about a party in a moment of frustration whilst the hearing is ongoing (and in such cases sometimes the decision is overturned on grounds of actual or apparent bias or a recusal application succeeds).

I want to write though about what this unfortunate overhearing of judicial comment does and does not signify. Because whilst we can all agree that the fact this happened is pretty awful for everyone concerned, and whilst I guess the content of what Mrs Justice Judd said will be shocking to non-lawyers, I am not sure it will be as shocking for lawyers or judges to hear – or at least it won’t be understood in quite the same way. And I thought it might help to explain why.

In his book The Modern Judge, Sir Mark Hedley (retired High Court Judge (Family Division), says

Our system…is so constructed that fallible judges hear and consider evidence often given by very fallible witnesses. We should not be surprised that getting to the truth is easier said than done…

The case is over, the witnesses have all been heard, the documents read and counsel listened to; All now eagerly await the coming judgement. Young barristers are often disappointed to discover that what is troubling the judge is not there learned submissions on the law, but the dispute over what actually happened. it is at this point that the criminal judge breathes a sigh of relief and passes the baton onto the jury. … In all other cases, however, the judge must decide the facts. How, then, do they go about it?…

Our tradition puts a significant emphasis on seeing and hearing the witnesses, thereby acknowledging that in decision-making there is a real impressionistic and intuitive element. I have certainly found that to be so, and it is not always easy for the judge to explain why one witness has been accepted rather than another, other than to say that, after reflection, the evidence of one is preferred to that of the other dash an explanation that the appellate courts have made clear is acceptable.

Later he says :

It is also the case that, whoever might know the actual truth of a particular fact, it will not be the judge. The combination of those factors – the need for decision, the fallibility of the process and the elusiveness of the truth – means that the whole process is very seriously and inevitably open to error: social justice is human, but would any society want it otherwise and, indeed, what alternative might there be? …

Trust is essential, but it must be deserved, too. There is a requirement on judges not only to act with integrity (and to be beyond corruption), but with a real understanding of the needs and aspirations of the society they serve. I go further. I do not think that the powers we have been discussing can be effectively exercised without an understanding of that society and a genuine empathy with humanity, even when it goes horribly wrong. The recluse and the cynic have no place on the bench. A humane understanding of people, a deep sympathy with human fallibility, and a desire for a just and ordered society must be indispensable features of the judiciary. It is the combination of humility in our approach to a case and confidence in deciding it that should be the hallmark of the judge. Only so can judges deserve, enjoy, and retain the trust of the society among whom we are authorised to exercise these extensive and remarkable discretionary powers.

Both Hedley J and Judd J are known for their kindness and humanity. I have no doubt but that Judd J will have been mortified upon finding out what had happened, which is why she was the one who raised the question of recusal, albeit that she later concluded having heard the request of some parties for her to continue that she should not recuse herself – until the Court of Appeal intervened.

On twitter when the judgment came out one person said, not unreasonably :

Judges – I thought, perhaps naively – are trained to actively work against those natural tendencies to decide one way or the other before the conclusion of the case. I don’t imagine it’s at all easy, but I thought that was the actual point of the job.

https://twitter.com/louisetickle/status/1286928266855690240?s=20

 

Of course they are trained in fair process and evaluation of evidence – although ‘judgecraft’ is an emerging discipline. But it would be a mistake to think that a judge’s brain works fundamentally any different than the rest of us, however clever they are. Judges are not like some set of electronic weighing scales where the screen is blank and the circuits inactive whilst the cradle is loaded with assorted facts – nothing happening until the load is complete and someone presses the power button. The judicial brain is processing information continuously throughout a trial, absorbing, calculating, recalculating, adjusting – because it is a human brain.

So. A judge IS trained to avoid reaching a firm conclusion before ALL the evidence has been read and heard and before it has been properly analysed and weighed. But that doesn’t mean that the judge has no impression of the evidence before the end of the case – a judge has to be very cautious about expressing those impressions by speech or other means during a trial, lest that gives an impression of bias or prejudging, and because in any event the impression at moment A may be quite overturned by subsequent evidence or an overview of the weight of the evidence at the end of the case – and thus may not be is in the judges’ mind at point B, and may be different again at the point of judgment.

Judges are trained hold their impressions in abeyance until all the evidence is in and they can reach a reasoned and balanced conclusion. That doesn’t – and couldn’t – mean they don’t form impressions, provisional views along the way. But judges don’t generally express those en route because those views may change and evolve – and it’s an important part of the trial process that they should do so where the evidence points in a different direction. A fair judicial process is one of continual evaluation of evidence, adjusting over the course of a trial.

Judges are specifically cautioned against delivering a decision before they have fully considered their reasons – precisely because a judge can be clear in her mind that she is going to do X, but the process of analysing and setting out the evidence and applying the law can reveal that X was in fact the wrong answer – and thus the decision will be Y. Thus the judge will evaluate how much weight to attach to perhaps a strong subjective impression of a witness as against some more objective evidence – and the conclusion may not match the initial impression.

So, whilst Judd J’s overheard comments are rightly a recusal matter – because they were overheard and because people cannot be expected to put out of their minds what was said – the fact that she had formed some impressions by week three of the trial is not in itself surprising or unusual.

There are times when, to the experienced eye of lawyers at least, it is possible to discern which way the judicial wind is blowing – or at any rate to think one can predict from the judicial visage whether the wind is favourable or not. But such guesswork is often a subtle combination of prior knowledge of the individual judge and the lawyer’s ability to read the weight of the evidence, as it is to interpret the reactions, facial tics or soft behaviour of the judge as the individual case progresses. And in any event it is often proved wrong when judgment is delivered.

It is worth remembering also that there are times when, a judge will make a careful intervention to explore a particular point or to tentatively express a provisional view in order to ensure that all bases are covered or to help lawyers focus on the points which are likely to be useful to the court – to focus the evidence and questions on or away from a particular point and to avoid wasting time on points the judge has already understood. Such indications will always be carefully dressed with phrases such as ‘Of course I haven’t formed any concluded view on x but I’m not sure that this line of questioning is going to assist me’ or to a witness ‘Now Mrs Y I haven’t made any decisions at this stage but you told me xxx. Can you help me understand that?’

Those interventions are a sign of an active and engaged judicial brain, constantly chuntering away processes the inflow of information and trying to ensure all relevant questions are answered and irrelevant material is avoided – they are essential to case management and the trial process – and they are often a way of ensuring that a party is given a fair opportunity to address a concern that is forming in the judge’s mind before they reach a concluded view. However good a judge’s in-court poker face may be (and some are better than others), off the cuff expressions of frustration or doubt in the private of a judges’ chambers are in reality the flip side of that very necessary process, however unfortunate and upsetting their accidental broadcast may be. Even if not all judges express their thought processes verbally mid trial, those thought processes will be going on silently inside the judicial brain box, and the judge’s view of a particular witness or a parties case will ebb and flow.

Lawyers know about this process of ebb and flow too – a parent lawyer’s case is never so rosy looking as at the end of the Local Authority’s evidence, and it often takes a nosedive about five minutes after the client gets in the witness box. What looks like a strong case can crumble in seconds and the wind can turn chill very quickly. Lawyers too are constantly re-evaluating their prospects of success, re-evaluating their trial tactics and the emphasis they will take in questioning and submissions – the process is a mirror of that being undertaken by the judge. Neither lawyer nor judge can treat a case as static – a trial happens in real time, because human beings are not predictable and you never know what a witness will say or do. If live evidence did not inform the decision, what would be the point of a trial at all?

So, whilst the Court of Appeal in the specific case obviously had to conclude, in fairness to the family concerned, that a fresh judge was needed, we should perhaps in fairness acknowledge that the overheard words were likely to be a snapshot and an impression rather than a conclusion, however much they may have been felt as prejudicial and as if the judge had made her mind up. None of us can assess whether or not there was any justification in the judge’s thoughts and feelings at that moment, nor can we run the counter-factual to know if she would have softened her view further down the line. That is a futile exercise to an outsider, and my remarks are not really about the specific case as they are about the broader judicial exercise that this fits within.

I for one have no objection when a judge offers some carefully worded assistance to lawyers and parties about what issues are troubling them, which parts of the evidence they are struggling to understand or accept, and which matters they will need further help on – as long as it is made clear that the judge’s mind remains open to persuasion or change as further evidence and submissions are received. Inscrutable, poker faced judges who never intervene or give any clues are difficult tribunals to appear before – you don’t know where you are, and the advocate is never sure whether or not she is wasting her breath on a particular topic (whether because the judge has already got the point or is simply not going to take it), and is always worried she may be neglecting to cover some point that the judge needs help with. It makes the crafting of submissions acutely difficult, and can make for some unexpected results at the end of the day. It can make it difficult to manage expectations.

There we have it, my ponderings on the judicial process, prompted by Judd J’s massive clanger. I hope that for those not used to court process it might explain a little bit about what (I think) is going on behind the judge’s eyes as the trial progresses. And perhaps we might try to give all concerned the benefit of the open mindedness we also expect from our judges.

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