Thursday, 30 October 2008

Wigs and gowns ... "I think"

In his comment about one of my recent offerings, Mr Simpleton raised an interesting point, he wrote:
"One of my bugbears is those who call for judges and lawyers to lose the regalia of the courts in a process of "modernisation". ... The wearing of wigs and robes may look arcane but the donning of them, like any uniform, makes the wearer conscious of their responsibilities and the heritage of the positions they hold. Furthermore, those in court are left under no illusion that it is the State that is trying the case and not some geezer from down the road which adds to the solemnity and impersonalisation of the proceedings."
It seems to me there are three points here. First is there scope for "modernisation" of court proceedings? Secondly does the wearing of a uniform affect how advocates do their work? And, thirdly, does the wearing of a uniform affect the way the public perceives court proceedings and the authority of the court?

"Modernisation" is one of those horrible New Labour words, like "stakeholder", "delivery agency", "social justice" and "empowerment". They don't mean anything and can be moulded by the user to his own purposes. The essential structure of court proceedings in this country is that there are two sides (prosecution and defence in criminal cases, claimant and defendant in civil disputes) who present their case to a tribunal (judge alone, or judge and jury) at which point the tribunal decides which side wins. Constant changes are made to the way proceedings can be conducted to reflect technological and scientific advances. Not so long ago there was no email, and it is only about 25 years ago that fax machines became readily available. These modern devices allow formal documents to be served far faster than when everyone relied on the postal service; the procedural rules of the courts changed to accommodate them. That is real modernisation. Some hearings are now conducted by video-link to save time and money. That is real modernisation. Trouble results from tinkering with the underlying trial system for political reasons and calling it modernisation.

Of course the trial system we have is not perfect. Every year some innocent people are convicted of criminal offences, including very serious criminal offences. In the civil courts some people have a judgment given against them and face financial ruin despite the fact that they have done nothing wrong. Whether it is a judge or a jury that decides the case, mistakes can and always will be made because judges and juries are human beings. If you want to reduce or remove the risk of miscarriages of justice you need to identify why a miscarriage of justice occurred and find a better way of doing things.

In my time in the law there have been some radical changes made to the law of evidence to exclude or limit apparently strong evidence which in fact is not strong at all. A good example is the way identification evidence is now treated in the criminal courts. Where a substantial part of the case against a defendant is a witness who says "that's the man I saw", the law now requires the court to treat the identification with great caution. Not because there is any particular risk of witnesses lying but because it is easy to be mistaken. This was a lesson learned over many years and we can only guess at how many innocent people were wrongly convicted because a witness was honestly and absolutely sure that the defendant was he man they saw, when in fact he was not.

That sort of advance in procedure is real modernisation. It uses the advancement of knowledge through experience to reduce the risk of miscarriages of justice. Are people still wrongly convicted on identification evidence? Almost certainly, but far fewer than would have been the case 30 or 40 years ago. Numerous further examples could be given of changes in legal procedure aimed, after careful analysis, at reducing the risk of mistakes occurring.

In recent years we have had proposals from governments of both parties to change the law so as to make it easier to convict defendants of certain crimes. Often they have pleaded that the established law of evidence and rules of procedure obstruct justice and should be relaxed. They seek to reduce the weight of evidence the prosecution must adduce in order to secure a guilty verdict, or seek to place a burden on the defence to prove their defence rather than require the prosecution to prove their case. Some of these calls for "modernisation" have proposed sensible measures which assist in reaching a just verdict, but most are nothing other than calls for more people to be convicted because the politicians think it will make them look good in opinion polls.

The only real "modernisation" of the trial process is a change which enhances the prospect of reaching a just decision on the evidence available. What judges, barristers and solicitors wear in court can make no substantive change to that.

As for a uniform helping to ensure that advocates present their clients' cases properly, I am doubtful that it is a significant factor. Wigs and gowns are not worn in Magistrates' Courts nor in the County Court and High Court when hearing most family law cases. For many years they have not been worn in most proceedings conducted by District Judges or Masters (the lower of the two ranks of judges who sit in County Courts and the High Court) or in proceedings before Circuit Judges or High Court Judges (the higher rank) unless those proceedings were open to the public (and even then there were exceptions). To that extent, what is worn has proved to be of no consequence to the ability of the advocates and the judge to fulfill their functions.

Every barrister of experience will occasionally appear before a judge who is a personal friend, sometimes even with another personal friend as his opponent. There is no risk of first names being used or corners being cut because you do not appear in court to have a chat with old chums, you are there to put forward your client's case and the judge is there to decide between the cases of the clients not between his liking for the advocates. It is the nature of the work rather than the way they are dressed which dictates how lawyers should (and usually do) behave in court.

The perception of those involved as parties to litigation is more difficult to assess. I suspect the vast majority of people in this country only go to see a solicitor if they are buying a house or when a close relative dies and the estate has to be sorted out. Fewer still will ever need to hire a barrister because litigation is very rare. The very fact of being involved in litigation is a cause for at least apprehension and very often terror because it is something far outside the everyday life of most litigants and they do not know what to expect or how to deal with it. It does not help that lawyers are obliged to tell their clients that there is no such thing as an open-and-shut case. Actually that helps those who know they are in the wrong because they see a possible escape from the consequences of their errors, but it scares the living daylights out of those who know they are in the right. Nonetheless, it is a fact.

When at court I cannot think of any time when my clients appeared to be any less anxious because the judge had decided we would not wear formal court dress or any more anxious because everyone was topped with carefully curled horsehair. Whether it was a shoplifting or a murder, a dispute between neighbours over three inches of boundary or a multimillion pound claim for a bank, it was the case that was in their minds and they had no difficulty in understanding that the man or woman sitting in the big chair had their fate in his or her hands.

The only time a client made an adverse comment to me about a judge being too informal was a case in which we were all fully robed, we won the case but he felt the judge did not seem to take matters sufficiently seriously. On the other side of the coin, there were quite a few cases in my career in which the client expressed disappointment that no one wore a wig or gown in court (except the usher). It was clear that they expected the sartorial trimmings as part of the whole once-in-a-lifetime experience. None of them suggested that the trial was not conducted properly, they just expected the full paraphernalia and were rather sad not to have seen it.

When I heard that wigs were to be dispensed with in civil proceedings and judges would have to wear a new style of gown I was rather disappointed. It seemed to me to be a change for the sake of change. Lord Phillips was the driving force behind it. He has been an outstanding judge for many years and has held the three highest judicial positions in the country. His argument was that old-style court dress was antiquated and added nothing to the proper administration of justice. In that I agree with him. He also suggested that it might do harm by giving an impression of form over substance. With that, I do not agree. I think it did no harm at all, it was just a uniform like chequered trousers and a toque on a chef. There is, of course, an argument for doing away with an historical quirk that gives no positive benefit, but a little pompous kernel in my soul rather enjoyed the visible badges of office.

So far I have agreed with Mr Simpleton about "modernisation" and disagreed with him about wigs and gowns. But I have to add a rider. It comes out of something you might be familiar with from television and films. In American courts you will hear advocates telling the court what they think. You will see the District Attorney addressing the jury along these lines: "You know what I think, members of the jury? I think he is guilty. I am absolutely sure of it because I have read every word on every piece of paper this case has produced. I have been in the law for thirty years and I know he is guilty." I have attended trials in American courts and heard it for myself - indeed that is why I have taken time out of holidays across the pond, I wanted to see whether they really say what Perry Mason used to say. They do.

Over here any barrister or solicitor using the words "I think" would be reminded instantly by the judge that his opinions are irrelevant and that his job is to present the case objectively not subjectively. Presenting a case objectively requires attention to be concentrated on the evidence. Presenting it on an "I think" basis concentrates attention on whether the advocate's opinion is correct, something which necessarily includes an assessment of the advocate and his experience, not on what the evidence actually proves.

There is the possibility, and I put it no higher than a possibility, that relaxing the formality of dress will lead to a relaxation in the formality of the proceedings themselves. Over time it could even result in "I think" advocacy becoming acceptable in British courts. Perhaps that is part of my disappointment at the removal of traditional court attire, because I have no doubt at all that trials are at their fairest when minds are concentrated on the evidence rather than the individuals involved.


Anonymous said...

I rather like the wigs and gowns, but only because I'm a hopeless old fogey. As you point out, most of us rarely see the inside of a court; in my case, when my mother was taking an airline to court, and twice as a juror. Still, I found the get-ups reassuring - a sign that we were in a proper court, dispensing British Justice (the finest in the world), and not some cheap imitation.

barmaid said...

I submit that Anomnymous is correct

The Great Simpleton said...

An excellent piece and thank you for addressing my comment in such a thorough way.

My concerns are two fold: moderniation for the sake of modernisation and a drop in standards, both of which you adress comprehensively.

Although I have had no contact with the courts, other than a day visit to the Old Bailey, I shall remain skeptical of change. It always seems to be driven by hard of thinking populist MP's and journalist with an axe to grind. However with deep thinkers like you around I will rest a bit easier if and when it happens in the knowldge that it will have at least been considered thoroughly.

You touch on the proposals to reduce the evidence required for conviction in certain cases, and that is far more of a concern. I would happily see dress standards relaxed rather thab see an increased risk of innocent people being convicted.

PS I hadn't taken in that you were in the legal profession, so my original comment was quite fortuitous.