There are more than a million published judgments in English law, although happily for law students not all of them are on the degree syllabus. Much legal study, though, involves analysing the work of judges. In one sense, judges are the legal system incarnate. So how they behave when acting judicially, and how we expect them to behave, are matters of great importance.
Judges need to be technically excellent lawyers, sound of judgment, impartial and of impeccable integrity. They swear an oath to “do right to all manner of people” in accordance with the law and to judge “without fear or favour, affection or ill will”. What, though, of emotion? Is it unjudicial to display emotion in a court?
Someone whose emotions always collapse when hearing about awful events would be unsuitable as a judge because much of what is heard in many types of case, like family and criminal cases, is very distressing - a regularly emotional judge would attract public anxiety. Conversely, a judge who is so extraordinarily cold-blooded or prone to remain utterly impassive when hearing the most profoundly heart-rending events might lack the common humanity required for the job of judging human beings.
In 2006 Judge Julian Hall was reported as being moist-eyed during a mother’s grieving court tribute to her daughter - a young lady who was killed when her car was hit by a speeding teenage driver. The daughter, Dr Margaret Davidson, 26, a talented and recently qualified doctor, was killed by Nolan Haworth. He was driving with great recklessness, and without a licence or insurance, when he smashed into Dr Davidson’s car causing her horrific injuries from which she died. The journey Haworth was making when he killed her was to court to answer affray charges, charges for which he was also found guilty.
Later, the police officer in charge of the case, said that Judge Hall’s tearful reaction had shocked people in Oxford Crown Court. Other judges, though, have wept in court. In 2000, for example, Judge Andrew Rutherford shed tears at Bristol Crown Court when ruling that he would not be imprisoning a man for killing his wife in a drink-driving accident. Judge Rutherford sentenced the man to 18 months imprisonment but suspended the term, saying that he did not want the couple’s three children to be without their father at Christmas.
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We should not be disturbed if judges occasionally weep. In the service of society, judges must preside over cases that entail some of the most agonising, shocking and unimaginably sad events that wrack human life. We ask our judges to be balanced, measured in judgment, and reasonably stoical but we do not ask them to be robotic. We would not want them to be like the old “hanging judge” of whom it was said that you could tell which of his eyes was the glass one - it was the one with compassion in it. If we wanted to be judged by something without human emotions we could opt for computer-brained robots. In the fair application of existing law, there is commonly a margin of discretion to be exercised, and that should be exercised in as human a way as circumstances permit.
Some emotions are easier to guard against than others. If a judge feels he is becoming angered he can always step down for a while to regain perfect composure. In October 2009, Mr Justice Hedley left the courtroom when he became upset by the attitude of two local authorities who had each “abandoned” a sick child to save money. He later said he had adjourned briefly “to ensure that no wholly improper judicial observations escaped my lips”.
Spontaneous tears, however, are more difficult to control than the manifestation of anger. Society, moreover, benefits from having judges who are very occasionally moved to cry or laugh when a deep, visceral part of the human condition makes such a reaction natural. A judge does not cease to be rational or reasoning if his eyes well up. More worrying than seeing a judge who lets tears run down his face when listening to a mother’s tale of fathomless, sobbing, irreplaceable loss, would be seeing such a listening judge sang-froid and unmoved.
The mother of the young woman killed by the dangerous driver later went on national radio and read the victim impact statement that, when she spoke it in Oxford Crown Court, caused the judge to weep. The morning of that broadcast, tears would have flowed down the faces of a great many radio listeners as the mother spoke with control and dignity but with soul-shuddering grief.
In 1975 Judge HC Leon said: “I think that a judge should be looked on rather as a sphinx than as a person.” It is true that justice is best served if judges are dignified and dispassionate but not if they are required to deny their humanity in moments of emotive extremity.
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Professor Gary Slapper is Director of the Centre for Law at The Open University and a door tenant at 36 Bedford Row.