Gresham College Lectures

What Makes a Good Judge?

June 29, 2022 Gresham College
Gresham College Lectures
What Makes a Good Judge?
Show Notes Transcript

Everyone agrees that good judges are essential for the maintenance of the Rule of Law in a democratic society. But what makes a judge a good judge and how should we recruit them? The talk will consider how the role of the judiciary has been regarded over the years, how the skills and qualities needed have changed and how they have stayed the same as well as looking at different approaches to judicial appointment in different jurisdictions.

A lecture by The Rt. Hon Lady Rose of Colmworth

The transcript and downloadable versions of the lecture are available from the Gresham College website:
https://www.gresham.ac.uk/watch-now/good-judge

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- Good evening, everyone and welcome. My name is Jeffrey Nice and I'm an Emeritus Professor of Law here at Gresham College. It's my great pleasure to be able to introduce this year's Grays Inn Reading. Now, Gresham College has been providing free public lectures since its founding in the 16th century. Designed in the words of our founder, there he is on the wall, Sir Thomas Gresham to spread the new learning. So for 450 years education free at the point of contact in this city would be quite wrong to be challenging. Wouldn't it? But Ted lectures, 450 years keep going. We doubt you'll make the course. The Grays Inn Reading is a very special annual event celebrating the association in former days between Grays Inn, just across the road and Barnards Inn. Gresham College has been located in various places since founding, but recently here in this Barnards Inn Hall, which was established as an inn of chancery linked to Grays Inn. So again 500 years ago, there will be students, I'm afraid they would all be men learning law, instructed by their seniors from across the road, just as we are going to be tonight, but in a slightly more modern age. Members of Grays have been appointed as readers to Barnards Inn. And so the habit or the practice was revived in 2004 with the annual lecture, this lecture that concludes Gresham's academic year. It's my very great pleasure this evening to welcome this year's Grays Inn reader, the right honorable Lady Rose of Colmworth currently a justice of our highest court, the Supreme Court. She was called to the bar by Grays Inn in 1984, was in practice in Monckton Chambers for 10 years, but didn't feel the need to stick to one thing and showed her skills at others leaving private practice to join the government where she was a legal advisor in financial services at the treasury later moving to the ministry of defense's, director of operational and international humanitarian law and then to the Office of Speakers Council in the House of Commons. Her first judicial role as a fee paid chairman of the Competition Appeal Tribunal was in 2006. 2013 sworn in as a high court judge in the Chancery Division, President of the Upper Tribunal in Tax and Chancery Chamber between 2015 and 2018, appointed to the court of appeal in January, 2019 and then two years later to the Supreme Court. Will you welcome please, Lady Rose. (audience clapping) - Good evening. It has been said that without a judiciary which can and will administer law fairly and fearlessly between parties, no other guarantee given to the litigants by the law is likely to be of value. Over the centuries, there has certainly been no shortage of descriptions of the qualities one should be looking for in a judge from ancient times to modern. Socrates said, "Four things belong to a judge, "to listen courteously, to answer wisely, "to consider soberly, and to decide impartially." In the Bible in the book of Exodus Jethro advises Moses to establish a judiciary system to share the load of deciding the legal disputes that were taking up so much of his time. Jethro advises Moses to seek out able men such as fear God, men of truth, hating covertness. Moving forward in time, sometimes judges themselves give a perceptive insight into what they think will improve their performance. Sir Matthew Hale, Chief Justice from 1671 to 1676 wrote for himself a number of resolutions to which he no doubt tried to stick. These included that I suffer not myself to be prepossessed with any judgment at all, till the whole business in both parties be heard and not to be solicitous what men will say and think so long as I keep myself exactly according to the rule of justice and also to be short and sparing at meals that I may be fitter for business. In our own time, Lord Neuberger of Abbotsbury described the basic qualities needed for a prejudge when running a trial as grip, authority, politeness, fairness, an ability to simplify and an ability to express yourself. Six principles are contained in the Bangalore Principles of Judicial Conduct drafted for the international judicial group on strengthening judicial integrity in November, 2002. Those principles are now reflected in the code that governs my conduct and that of my colleagues as judges in the courts of England and Wales. The guide to judicial conduct published by our judicial studies board introduces in broad terms the six Bangalore principles. They are judicial independence, impartiality, integrity, propriety, and the appearance of propriety, equality of treatment to all before the courts and competence and diligence. All those qualities that we believe make a good judge and more are subsumed in the single criterion for the appointment of judges set out in the Constitutional Reform Act 2005. This provides in section 63 subsection two of that act, that the selection of judges must be solely on merit. But what does merit mean in this context? Has the content of that word changed since the enactment of the CRA and more specifically, what can we learn from the overhaul of the processes for appointing judges about who we think makes a good judge? Before the changes brought about by the Constitutional Reform Act, the assumption was that if you are a good and successful barrister, then you would make a good senior judge. It's always been rather mysterious to me as to why that assumption lasted for such a long time. Many of the skills needed for being a top barrister are not at all what you need to be a good judge, a single-minded pursuit of one side of the argument only an ability to cross-examine witnesses to make them say what you want them to say. An ability to make a thoroughly bad legal submission seem plausible and attractive. All those are talents which one would hope the barrister can and must firmly put aside on attaining judicial office. Not only was there that assumption that good barrister equals good judge, but it was so strong that it was thought that a successful barrister would not need any training on making the move to the bench. Lord Judge former chief justice has remarked in a lecture given to the Judicial Studies Board, that when he was appointed to be a recorder of the Crown Court in 1976, he sat for two years before he received any training at all. That was not he says with characteristic modesty because of his remarkable talents, but there was not thought to be any need for training. Indeed, he notes that at the time the Judicial Studies Board was set up, there was significant judicial antipathy towards it with many thinking the training was an interference with judicial independence. The fact that it was called the Judicial Studies Board was a deliberate attempt to reconcile those who thought that they were demeaned by the implication that they might need training in the performance of their responsibilities. By 2013 when Lord Judge was giving his lecture, he said that judges now welcome training and know that it has no bearing whatever on their independence. Being a judge in the modern world he says, does not merely require such education and training. It requires a frame of mind in which these positive advantages are welcomed. I think the reason why it was assumed that good barristers make good judges was the preeminent given for so long to intellectual ability and intellectual ability of a certain kind to the exclusion of almost every other quality. Judges see that the barristers appearing in front of them are dealing with not illegal problems or sorting out from a (indistinct) of evidence, what is and is not relevant day in and day out. And that is also the daily fair of the working judge. It is true that you do need to be very clever to do my job. And it's a particular kind of cleverness that is needed. I was thinking of this when reading a biography of the great physicist, J. Robert Oppenheimer. He and the other physicists who unlocked the secrets of the atom in the early 20th century and worked on the Manhattan project were clearly very clever, but were their brains wired up differently from those of say, Lord Atkin or Lord Wilberforce? If the young Tom Bingham had decided to become a scientist rather than a lawyer, would he have excelled at that in the same way as luckily for us, he did in the law? One difference that strikes me is that, Oppenheimer (indistinct) Noiman and their colleagues thought about, debated, and puzzled out the structure of the atom over many decades. The ability that a good judge needs to have is absorb a massive information in a day or so, even in the Supreme Court with the press of many different demands on our time, we us usually have the most two days in which to learn usually from scratch the factual and legal content of a case before the hearing. The topics covered by the work are tremendously varied. In my judicial work in the Supreme Court and the judicial committee of the Privy Council, I have dealt with many cases in areas that were entirely unknown to me before I clicked on the electronic bundle to prepare for the hearing coming up in a few days time. These include the international legal and institutional framework governing fishing for tuna in the south Pacific, the rights to water flowing in rivers and canals in Mauritius or closer to home the operation of the qualified one way cost shifting regime in the CPR, as well as many mind numbingly complicated tax cases about VAT corporation tax and the taxation of dividends. So every judge has to be clever enough to be able within the space really of a few hours, not only to read and understand the material, but to get themselves in a position to decide which of the two competing sets of submissions is right. To be able to challenge those submissions of counsel who may well have been working on the case for years, to discuss the case intelligently with colleagues and then write a judgment or comment on a draft judgment written by someone else. From start to finish, the judge's involvement with the case may last a few weeks or months at the end of which the judge may have to produce an authoritative and recent decision. And that takes a particular kind of intellectual ability. Though I'm not sure whether that answers my question about whether Lord Bingham in some counterfactual world could have invented the atomic bomb or indeed whether Jay Robert Oppenheimer could have written the judgment in a... Against the Secretary of State for the Home Department. There is fortunately and increasing recognition reflected in judicial appointments, that barristers in private practice do not by any means have a monopoly on the kind of intellectual ability that is needed to become a judge. And this raises the allied question of how far experience of court based advocacy or litigation more generally is a prerequisite for being a good judge. I'm often asked when I give talks to the lawyers in the government legal service where I work for many years of my career or to solicitors who are not in a dispute resolution team, whether I think that having experience of court work is necessary before applying for judicial appointment. My answer is usually, that you might struggle to settle in as a judge if you did not start out with a rough idea of what the relevant procedural rules say, if you had never seen a set of pleadings before, or didn't know the basics for an interlocutory injunction. However, maybe I'm being too parochial. Some other jurisdictions operate on a very different basis. For example, in France, a lawyer can qualify as a judge straight out of university and judges are not ordinarily recruited from the ranks of lawyers. They are specifically trained for the role via a standalone process and it's common for a person to become a judge before they turn 30. With certain exceptions, most aspiring judges in France are required to train at the Ecole Nationale de la Magistrature in Bordeaux. This is the only judicial training school in the country. Admission to that school is determined by competitive examination. The coursework lasts over 30 months, followed by a cycle of traineeships in the court system and supporting agencies. And at the end of this period, a prospective judge takes another exam and is presented with a list of available judicial posts prepared by the Ministry of Justice. Initial appointments are made on the basis of exam scores. Those receiving the highest scores get the pick of positions. And most ENM graduates are appointed to a judgeship in the provinces at the lowest level, working as investigating judges or members of benches adjudicating minor criminal cases. They then work their way up the judicial ladder throughout a long career entirely within the judiciary. By contrast, although the previous focus here on appointing barristers suggests that merit does include experience of court work. The idea of a career judiciary used to be almost unheard of in the United Kingdom courts. People tended to choose the level at which they wanted to join the judicial system and they expected to stay there for the whole of their judicial career. In more recent years, there has been more movement. For example, of judges appointed in the crown court, moving to the high court bench and judges in the tribunal service where I had my first judicial experience moving to be district judges or high court judges. This has benefits for diversity too as those branches of the judiciary tend to have a better gender and ethnic balance, something I'll discuss more later. Moving on from intellectual ability, there has always been at least one additional requirement for being a good judge. And this is now also encapsulated in section 63 of the Constitutional Reform Act. Section 63.3 says "That a person must not be selected "unless the selecting body is satisfied "that they are of good character." The Judicial Appointments Commission provides useful guidance to would be applicants about how it assesses good character. The principles it adopts are based it says, on the overriding need to maintain public confidence in the standards of the judiciary and the fact that public confidence will only be maintained if judicial office holders maintain the highest standards of behavior in their professional, public and private lives. It's interesting to see how the content of this requirement reflects the modern zeitgeist. Let me give three examples. The first is that as you might expect, conviction of a criminal offense is likely to disqualify you from holding office. Judicial appointments are covered by the exceptions order to the Rehabilitation of Offenders Act 1974 so that spent convictions and cautions are not protected from disclosure for these purposes. The JAC takes all criminal convictions and cautions seriously and you must disclose to the JAC any you have received regardless of whether they are spent or unspent. However, forgiveness is not entirely alien to the selection process. As a general guide, the JAC may consider you suitable for appointment following a period of six years after you have received a caution or a period of 11 years following a conviction. The JAC as one might also expect makes each decision on a case by case basis. The attitude towards motoring offenses is quite nuanced. In general, the JAC guidance says any conviction for a motoring offense will be treated in the same way as any other criminal conviction and a conviction for an offense related to driving under the influence of alcohol or drugs is likely to prevent your application from proceeding. Conversely, parking tickets or speeding offenses dealt with by way of an informal warning or a speed awareness course do not have to be declared. In between our fixed penalty notices including for moving vehicle offenses. Although they do not form part of your criminal record, they must be declared if received in the last four years. The obligation to disclose is a continuing one and this is made very clear in the application and unfortunately became relevant to my own application for appointment to the high court bench. The only time I've been fined for a moving vehicle offense was a week or so after I had submitted my application to join the Chancery Division, I accidentally drove in a bus lane in my increasingly frantic attempts to escape the St Auburn's one-way system, trying to find the Crown Court where I was due to sit as a recorder. If it had been a criminal offense to be driving a motorized vehicle on a public highway while sobbing, I would've had to have fessed up to that as well. Fortunately, the panel was in a forgiving mood and my trespass did not result in my judicial career meeting a premature end. The second aspect of good character stressed by the JAC is the importance of your tax affairs being in order and of complying in a straightforward and transparent way with your obligations in relation to tax. And this, I would suggest properly reflects the current sense that good citizens and hence good judges should pay their taxes. Sticking with money for the moment, I came across a fascinating if slightly (indistinct) article by the late Professor Peter Burkes discussing a recent discovery by metal detectorists in civilian Spain of 10 bronze inscribed tablets dating back to AD 91, the rule of the Roman Emperor Demitchel. One of the many topics covered by the inscriptions were the qualifications for appointment to the judiciary. This discloses that in order to be appointed to be a judge in Rome a candidate had to have a certain amount of money and the higher the judicial office the more money he had to have. It's difficult to see what quality this was supposed to reflect. It does not seem to have been a proxy for the candidate being hard working and industrious because it is clear that money could be inherited from the judge's father. If the thought was that judges with a lot of money would be less amenable to be bribed because they already had enough money that shows, I think, a naivety about human nature which is uncharacteristic of the Roman society that otherwise emerges from Roman law more generally. The third aspect of good character that I would like to focus on is the changing attitude towards rudeness and bullying by judges. Socrates, as I have mentioned listed the ability to listen courteously as one of the characteristics of a good judge, but this quality has not invariably been manifest in our courts. This topic has been the subject of a great deal of attention recently. In February, 2019, the Bar Council published guidance to barristers about judicial bullying. It defines bullying as offensive, intimidating, malicious, or insulting behavior involving the misuse of power as can make a person feel vulnerable, upset, humiliated, undermined, or threatened. The Bar Council recognizes that when bullying by judges occurs, it presents additional challenges because those who are a target may feel unable or particularly reluctant to do anything about it even though the impact may be particularly acute. I agree with the article written by a senior barrister in New South Wales and included in the handbook for judicial officers in that Australian jurisdiction. It contains this observation. The idea that judicial bullying is a necessary right of passage for junior council is outdated, dangerous, and wholly unacceptable. Older practitioners relating war stories of how they were mistreated by former judges should not be a source of admiration, but rather a sad indictment that this issue has not been addressed earlier. Just because one has suffered the humiliation of judicial bullying and lived to tell the tale does not mean that it should be an experience visited upon newer members of the bar rather it should trigger right thinking members of the bench and bar to ensure that such behavior is treated with opprobrium. But why has unpleasant behavior in court fallen so far out of fashion? It is partly I think because younger lawyers have been educated in a school and university system that takes bullying seriously and they are quite rightly no longer prepared to put up with it. But to my mind this whole issue is much more significant than just being a way of protecting barristers from having a bad day at the office. Important though that is. If lay clients sitting in court see the judge being rude and impatient with their counsel or with the witnesses on their side, they will feel strongly that they have not had a fair hearing, their dissatisfaction will not only be with the judge, but also however unfairly with their counsel and with the overall process of adjudication. And this becomes a vicious circle because an advocate will rarely give of his or her best for the client or the cause or for the court when subjected to undue pressure. The importance of what is said as well as what is done by the judge in court is also reflected by an interesting statistic about the categories of complaint about judicial conduct made to the judicial conduct investigations office. The JCIO's annual report for 2020 to 2021 states that 232 complaints about 19% of the total were about inappropriate behavior by the judge. The report states that most of these complaints are found to be unsubstantiated or even if true insufficiently serious to require disciplinary action to be taken. But the fact that 232 people took the trouble to lodge a complaint with the JCIO about behavior in court is a salutary reminder to any serving or would be judge that people are listening and watching and holding us to a high standard as regards our behavior. At the other end of the spectrum, does a judge need to have a sense of humor? That New South Wales Judicial Conduct Handbook contains a delightful article by the honorable Judge Chiru of the Court of Appeal, Supreme Court of Victoria. He discusses some of the key personal attributes of a good judge in which he includes not only independence, impartiality, and communication skills, but also patience, cultural awareness and tolerance, people skills, a sense of perspective and a sense of humor. He says, "The administration of justice is a serious business "with important obligations and responsibilities. "Court cases involve tremendous stress for court users "and therefore the court room is not the place "for judges to try their hand at being comedians." But that does not mean however that judges must be perennially uptight and unhappy, a balanced lifestyle, interests outside the law, a down to earth personality and a good sense of humor can increase a judge's enjoyment of the judicial role and this can assist in ensuring that the mood in the courtroom is positive which in turn can ensure that the hearing is conducted in an efficient and harmonious manner. One can contrast this approach with a comment of Lord Judge in that 2013 lecture I referred to earlier. He also lists the qualities that he considers the modern judge must have. These include the ability to make decisions that are profoundly unpleasant and have very serious consequences. This is not a fun job he said and you have to do it. I would say that that is true, of course, but the job is sometimes a fun job. And if you're going to get through the difficult intense times, it can be helpful to be able to lighten the mood when that is appropriate. That said, judges have sometimes got into trouble for flippancy or inappropriate remarks and every judge must also bear in mind that you do not get a genuine reaction for those in court. So the fact that everyone in court roars with laughter at some little quip that you make at the end of the day should not encourage you to give up the day job and start working the circuit as a standup comedian. Your audience might well be rolling their eyes as soon as you have left court. No talk or at least no talk by me about what makes a good judge is complete without some mention of diversity. And this is also dealt with in section 63 of the Constitutional Reform Act. Following on from the provision that appointment must be solely on merit, subsection four qualifies this by providing but the use of the word solely there does not prevent the selecting body where two persons are of equal merit from preferring one of them over the other for the purpose of increasing diversity within the group of persons who hold office for which there is a selection under that act. Critics of this provision have commented that this appears to embrace the view that diversity is something different from merit. And as if there has to be a choice made between the two ideas or a balance of them treating them as competing goals. Another way to look at it is to recognize that for many centuries the selection of judges has not truly been on merit or rather it has been limited to comparing the merits of only a very narrow group of people. This does not seem to have troubled those who have been selected under that system and who are sometimes heard to complain about the unfairness of this tie breaker provision. By contrast, it might be said that by time a woman or a person from an ethnic minority community gets to the position where subsection four might be triggered, they must already have overcome such challenges of conscious and unconscious bias that they may well in fact, be of greater merit than their rival. Further treating the ability of a candidate to bring a fresh perspective from a different life experience as being something not embraced by the term, merit seems to me unfortunate. This was put very well by Sir Sydney KenRidge when he gave the second Sir David Williams lecture at Cambridge University in May, 2002. The topic of his lecture was, the highest court selecting the judges. It was prompted by the coming into force of the Human Rights Act 1998. This act, Sir Sydney said permits and requires (indistinct) two unknown judicial interventions not only into the sphere of executive action, but also into the sphere of legislation. Did this he asked, mean that we should look for different qualities in our top judges? Sensitivity to social issues and an appreciation of the importance of individual rights would be desirable qualities if only he says, there were some way of discerning them. Sir Sydney compared the at that time entirely white male, middle class members of the House of Lords with the South African Constitutional Court on which Sir Sydney sat as an acting justice. Of the 11 judges on that constitutional court there were six white men, three Black men, one Black woman, and one white woman. Five had been high court judges. Some had come directly from the bar and at least four had at some point been academics as well as having worked in private practice, either as advocates or attorneys. One had been a political exile. Sir Sydney writes, "They were all good lawyers, "but what I found overwhelming was a depth and variety "of their experience of law and life. "This diversity he said illuminated their discussions "when he was sitting especially when competing interests, "individual, governmental, and social had to be weighed. "I have no doubt, he said "that this diversity gave the court as a whole "a maturity of judgment he would not otherwise have had." This brings me to another quality required of judges. The framework of judicial abilities and qualities published by the Judicial Studies Board lists compassion as one of the qualities included on the umbrella of community and authority along with firmness without arrogance and sensitivity. This quality is discussed by Robert J. Sharp, a judge of the Court of Appeal of Ontario in his book, "Good Judgment Making Judicial Decisions." He notes that our most respected judges are often described as compassionate. But what exactly does it mean to judge with compassion? The law is the law and must be applied with an even and consistent hand and cannot be modified on grounds of sympathy or emotion. Indeed, I would add in parenthesis, another of the qualities in the Judicial Studies Board's framework is, remains detached and manages one's reactions and emotions. John Sharp's answer is that judging is not an abstract or mechanical process. It is an intensely human process. The judge is engaged in unraveling and resolving disputes that often have had a profound effect on the lives of the litigant. A judge who is able to see all sides of a problem has a better chance of making a decision that is both fair and just and seen to be fair and just. He quotes Canadian Chief Justice, Brian Dixon as saying "That a judge must be guided "by an ever present awareness and concern "for the plight of others and the human condition. "Compassion is not some extra legal factor "magnanimously acknowledged by a benevolent "legal decision maker rather compassion is part and parcel "of the nature and content of what we call law." That is certainly something that accords with my own experience and is true whatever area of the law you specialize in as a judge. One thing that struck me during my time as a judge in the Chancery Division is how often what appears on the face of it to be a rather dry case exploring some arcane provision of the company's act or the insolvency act in fact arises from a very human dispute between the litigants. The parties use the courts to resolve their own feelings of upset or betrayal about some business partnership that went wrong or some ambitious commercial venture that unhappily founded throwing their lives into turmoil. So as a trial judge, being able to feel compassion or being able to empathize with the parties and the predicament they find themselves in is often an essential part of being able to decide which of the parties is giving the more accurate account of what happened when you come to make the findings of fact, as well as the other elements that go into forming the bedrock of your application of the law. Following on from that thought, let me close by sharing some advice I give to judges just starting out and which indeed I regularly give to myself and which I find very helpful in my desire to be a good judge. Bear this in mind, for every case that you preside over there comes a point a day or so before the hearing when the lawyers involved in the case find out from the listing office that you are going to be the judge hearing their case. They ring up the client and say, "We've just heard that we have Mrs. Justice Rose "or Mr. Justice X." Inevitably the client asks, "Is that good or bad? "What is he or she like?" So if you want to be a good judge try to think of how you would like the lawyer to respond to that question from the client and then in all the different aspects of your conduct in and out of court, try to behave so as to bring that about. Thank you. (audience clapping) - Lady Rose, thank you very much for a fascinating lecture. I'm going to open it up to questions now if you don't mind. Are there any questions in the hall? We've got a few hands up. If you could just hang on for one second, my colleague is just going to bring in the microphone, okay. - Hello, thank you so much for the talk. Fascinating. And I wonder does a good judge ever have doubts about their decision and how do you deal with that as a judge thinking about a case decision after you've made it, do you put it aside? What do you do? - I don't particularly recall a time... I certainly recall a time when I have changed my mind during the course of a hearing, when I've gone into a hearing having pre-read the papers and thought I was likely to come to one view and then have entirely turned around during the course of the hearing, but then I'm usually pretty firmly of the view that I come to. Sometimes you do that and then when you hear the other advocate you realize you were right the first time. I don't think that there's much scope for anxiety after the decision because you move on so quickly to the next case. Of course, what sometimes happens is your decision goes up to the higher court and then you are either upheld. In which case you say few, I did take the right decision or you're overturned at which point you can either say, well, I was right all along and they've completely messed up. Or you can say, well, I can see that the case was argued in a slightly different way. There are... The thing about the job is that you do have to arrive at a decision at the end of the day and someone has to win and someone has to lose. But I think for me I feel as long as I have overseen a fair process and I have explained my reasons clearly in the judgment that satisfies me and I would hope would satisfy both the parties, both the winner and the loser at the end of the day. - May I pose a question from the online audience. They've been coming in thick and fast now. Sorry, I've lost it. My son is currently sitting his A levels and wants to pursue a career in law and eventually become a judge. What is the best advice you would give him at the age of 18? - I would certainly recommend a career in the law. I've thoroughly enjoyed all the different aspects of my career and I think that legal training as a mental discipline is a very good training whether you choose to spend your career as a lawyer in one or more different branches of the professions or whether you choose to go on to do something else. I think that if you are minded to be making your way towards the judiciary, the important thing is that wherever you practice as a lawyer, you must keep primarily a legal content to your work. One of the reasons why I left the civil service when I did was that I saw that if I was promoted to a higher grade, I would lose a lot of the legal content of my job and do more management and strategy. And although a lot of lawyers really take to that and really enjoy that, I very much wanted to maintain primarily a legal content. And if you are thinking of being a judge, then I think that that is... That still have to be an important part of your career. And it's also... I mean, one of the things that certainly helped me having come from a rather unconventional background for the judiciary was that I had specialized in practice in an area of law about which there was a tribunal. So I had been a competition lawyer in Grays Inn and then my first judicial post was in the Competition Appeal Tribunal. And I think that was helpful because many fee paid judges get their first post dealing with law with which they're familiar. And once they've got some experience and judge craft skills, then they can move to be a judge in other areas of the law as well. So I think those would be the two things. - Great, thank you. I think there were some other questions in the hall. If you could wait, sir, just for the mic to come to you. - [Man] The recently leaked judgment of the Us Supreme Court on abortion rights shows that the court is sharply polarized on purely political lines which have nothing to do with constitutional principles. Would you agree that this is the inevitable and very unfortunate result of the fatally flawed judicial appointment system which is enforced in that country? (audience laughing) - I think that one of the things that one learns as a judge is that... And as a lawyer that procedural matters are very individual for different countries and every country will make murder a criminal offense, but when it comes to the organization of the courts and the method for selecting judges there are a whole range of different models which are used. The French example is one I gave. Here we don't have political involvement in the appointment of judges whether there is inevitably polarization if you do have a political component, I don't know. I mean, I would say that even in the US the number of cases in which politics either with a big P or a small P is actually relevant, is tiny. Those are the ones of course that get the media coverage, but most of the cases that most of us are doing most of the time are nothing to do with those kinds of controversial areas. - I think (indistinct) Okay, one just there. - [Woman] Yes, good evening. Thank you very much. Could you please tell me, you have only touched very lightly on the impartiality of judges as one of the characteristics. As a hospital doctor and a lawyer I would like to know there has been a lot of recent research in subconscious bias especially in courts around the globe. Do judges get any training in Britain in subconscious bias and how do they go about it? There's a lot of research going on at the moment showing that we are not aware of our subconscious bias. - The answer to that is certainly, yes, that at various stages of my judicial career I have had training in subconscious bias and certainly all those who are involved in the selection of judges do undergo that training. And so that is part of the importance of being open to training and not regarding it as something as an anathema to one's independence. Yes, there is that kind of training. There is also a marvelous publication called the bench book, which I think is online, which is a resource for judges covering all sorts of different issues about what language it's appropriate to use, about how one should make accommodations for people with various disabilities. And we are often being notified of updates for that. So for example, a year or so ago there was an issue about arrangements that you should make for somebody who's in court who has Asperger's syndrome and little adjustments that you can make which might not occur to you as a judge if someone hadn't pointed it out. So yes, there is that resource, which I've quite often called on available to judges and there is certainly a training about that kind of thing. - I have a question about... There's a couple of questions about diversity. One is about women. Women are still in the minority in the senior levels of the judiciary and the process of climbing the ladder can be daunting. Do you have any advice for aspiring women judges? - Just keep applying for positions. It will only get easier if more people, more women do it. And I think you must never be put off by the imbalance that there is in the bench to which you want to join. And every time you achieve something you make it that a bit easier for the people who come after. - Okay, there's another one here. A very concise question. Do good judges try their best to keep their judgments concise? (audience laughing) - This length of judgments is certainly a point that people complain about. And it's a factor of a number of things. The word processor of course makes everything a bit longer. The availability online of so many thousands of authorities mean that many more authorities are cited to the courts and judges feel that they need to deal with them. Arguments are very sophisticated. And even though the court of appeal keeps telling high court judges and judges in other benches, don't feel you have to deal with every point. There is a feeling that in order to give people a sense that they've had a good, a fair hearing even if they've lost and of course that's most important for the side that lose, they do have to see a substantial written judgment. And I think that if you've presided over a trial as I sometimes did for 30, 32 days, people expect quite a tone at the end of that. And that you also need to realize that the judgment is directed at a number of different audiences and the parties are not interested in all the legal part. They're interested in the bit that the law students and the academics and the court of appeal sometimes just scroll down through which is the findings of fact because they want to know were they believed or not. And to give them that sense of having had a proper hearing and enable them to move on after the closure of the proceedings, they have to see that the judges really understood what was going on, has really assessed the evidence and I think that that takes up time and it takes up space nowadays. So of course one tries to be concise, but I think that the days when judges would just extemporary give a four page judgment after a substantial trial, I'm afraid are gone and they're not coming back. - Thank you. Are there any other questions in the hall? There's one over here, and then we will probably finish at that point. - [Man] Just wanted to ask about when you have a hearing and arguments are being made rather than evidence being given, how active or passive should a good judge be during that hearing? - Right. I think that advocates and the parties often misinterpret interventions from the bench. I think you can't overstate the extent to which the judge from the moment they arrive in court is thinking about the judgment that they're going to have to write. And most of the questions are directed at the judge, making sure that they have tested the arguments so that they know whether they're going to agree with them or not how they're going to deal with them in the judgment. And also trying... The thing that's most difficult about judgment is getting the structure right. And that is something where submissions from council are not always very helpful. Submissions from council can have a section note, the meeting of the 6th of June, they say this happen. We say that happened. You should decide in favor of all witnesses, but the judge just can't have a judgment that says, the meeting of the 6th of June I believe him. It's got to be brought into some kind of structure. So I think a lot of judicial intervention is testing the arguments, trying to work out what is the scheme that I'm going ultimately to have to follow in the judgment. I really enjoy the to and fro between council and the bench. Sometimes council say they find it quite unnerving if the judge actually sits there completely silently throughout the hearing because they have no idea where it's going. So I think the good advocates are able to respond in a helpful way. Whether sometimes judges press a little bit too hard. I don't know. I think people are mostly fairly tough, but that was one of the things that I mentioned about in the talk. But I think that... I'd say to barristers, don't try and read too much in into the nature of the questions or the extent of the questioning. It's really just the judge trying to work out not only what the answer is, but how they're going to express that. - Well, Lady Rose, I'd like to thank you on behalf of Gresham College for your presentation of this year's Grays Inn Reading, it was really fascinating to hear your views on the characteristics that make a good judge. We'd like to thank you for your generosity in devoting your time this evening and to the lecture and to answering the audience questions. The whole presentation is a welcome addition to the Grays Inn series which you can all check out online. It's on our website. We'd also like of course to thank the honorable society of Grays Inn for your co-sponsorship of this event. And finally, thanks to our audience those both... Both those attending in-person and those of you who have joined us online, thank you for your attention this evening. This is the final lecture in Gresham College's academic program for this year. So please do keep an eye out for our next program that will be issued online in August. We have lots of exciting new lectures coming out and we look forward to welcoming you back. So please do join me in thanking our speaker again, Lady Rose. (audience clapping)