Judicial Work Shadowing Case Studies
Louise Turner FCILEX, Membership Manager for CILEX and Craig Tickner FCILEX Partner, Criminal Defence Advocate and CILEX Council Member find out what it is like to walk in the shoes of a Judge….
The success of the Judicial Awareness Course devised and facilitated personally by HHJ Horton is not dependant on knowledge of the Law nor experience in Legal practice or legal qualifications. It is a course with no correct answers but one which leads to a different thinking process on decision making. It trains you to unbuckle your entire thought process and widen its parameters to walk in the shoes of all who have an interest in every decision and take the path to a fair legal process.
Report by Craig Tickner
When I was asked to spend a week with His Honour Judge Horton at Bristol Crown Court as part of a pilot scheme to increase interest in applications to the judiciary from appropriately qualified Fellows of CILEX through shadowing I must admit that my initial impression was that it would feel a bit like a busman's holiday. I am after all a partner in a Criminal defence firm of solicitors. I have been involved with the criminal law for the past 25 years, the first five in the Crown Prosecution Service and the remainder with the defence. I know a bit about it.
Equally however, I am well aware that I do not know it all and, like so many others in my position, find the prospect of even applying to become a judge rather intimidating. ‘Am I anywhere near good enough?’ is the million dollar question. Frightened of failure and knowing that the competition from the other branches of the legal profession is so vast is enough to make you put away any thoughts of embarking on the process for the foreseeable future. It is difficult to place a finger on why we would have this mindset. Is it due to the way in which some solicitors have looked upon us as being less qualified than them? Is it because we have come through the ranks via an unconventional route? Whatever it is, such preconceived perceptions, whilst they may be well founded, do not actually play any part in whether the Judicial Appointments Commission appoint you or not. In fact, it is quite the opposite. They are actively encouraging us to apply. They are only interested in establishing whether they have the right person for the job.
And so can this scheme help in installing confidence to make you reconsider applying in future? The answer is a resounding 'Yes!’
So how does it work? The idea is to spend a week shadowing a judge who will try and engage you in their thinking processes whilst you also get to see how they spend their time at court. My week was to be spent with His Honour Judge Mark Horton who is a circuit judge at the Crown Court sitting at Bristol. I cannot pretend that HHJ Horton and I were strangers. I used to instruct him regularly when he was at the bar. That said, does he do me any favours? Well for that you only need ask some of my clients who have appeared before him to face sentence! And so naturally, I was still a little bit anxious about what was to come. Was I going to be examined or tested in some way? Was I expected to know the ins and outs of case law and legislation? How would the week unfold?
Well for starters there was of course the actual shadowing. I found myself sitting on the top tier with the judge who was presiding over a trial involving people trafficking from the Czech Republic. It was the second week of the trial but was easy to pick up. It was however a very different experience to that which I am used to as an advocate. I was not on either the side of the prosecution or defence. I had no prior knowledge of the case. I did not know the defendants or if they had a criminal history. I did not know the extent of the instructions they had provided. I was effectively seeing the evidence for the first time which is a scenario that is totally unfamiliar to me. My perspective was consequently neutral. This is probably a good place to start if you are to be a judge.
Back in chambers, it soon became apparent that there was going to be some exercises BUT that these were not such a test of knowledge but a test of judgement. The judge wants you to think like a judge! It is not rocket science but funnily enough it was not the sort of tests I was expecting. Any criminal lawyer worth their salt should be able to make a full note of the evidence, prepare and deal with legal arguments, and apply the sentencing guidelines, adding a bit for aggravating features whilst subtracting a bit for mitigating features having regard for the time in proceedings when the defendant was convicted, and having considered all relevant documents such as references and a pre-sentence report. But it was not those aspects of being a judge that I was here to think about. So how do you learn to think like a judge?
The judge told me that I needed to apply two important principles as they would be called upon in a number of scenarios that would be presented to me over the course of the following week. The first was not to judge someone until you have figuratively walked in their shoes. This should be easy. I represent some rather interesting characters and am constantly looking at why they have behaved in a certain way. The second was to ensure that the proceedings are fair to all parties and that a fair verdict is achieved. Again, surely that would not be so difficult.
The presentations largely involved issues regarding jurors but that did not matter as the object of the exercise was not one of jurisdiction but instead one of evaluation and solution to achieve fairness.
I was shown the video that is played to jurors when they initially present for jury service. Whilst we cannot apply to become Recorders or Circuit Judges it was interesting to see this information as jurors are likely to have had little or no previous experience of a real court. What has this got to do with learning the qualities required to sit as a judge? Well, the more a judge can appreciate the positions of all those involved in the trial process the more he or she can better manage the whole case to achieve fairness in proceedings and that crucial fair verdict.
And so it was that I was presented with a series of the common problematic features that crop up at court where a number of competing interests and representations were raised to see how I would deal with them if I was the judge.
I had a party to a case refusing to have her bag searched by security at the court entrance. What would you do in that situation? Would your answer be different depending upon whether she was a juror, witness, defendant, etc? All I could think about was what has this got to do with being a judge and what am I meant to do here?
I then had a claustrophobic juror, an intoxicated party to proceedings, jury interference where the defendants were in denial, two jurors on a bus overheard by an usher talking in unfavourable terms about one of two defendants in their trial, an uncooperative juror and even a juror who had locked themself away in the bathroom and were not communicating with anyone!
Would you proceed? How would you proceed? Would there be any sanctions or orders made as a result?
I was soon learning that none of the scenarios were set with a view to simply arriving at a right or wrong answer. There may not be a simple answer. The whole process is designed to see what decision you reach and more importantly HOW you reach it. It's a bit like showing your working when answering a mathematics question in an exam. You get a small mark for getting the right answer but the examiners are far more interested in how you get there. They want a considered answer.
And so back to my own question. This would be easy right? Well the emphatic answer to that was the only easy answer of the whole week. No!
It is not easy because there is real pressure. There is the pressure of the court's time, the pressure of the court's budget, the pressure of ensuring a fair trial for all interested parties and achieving a fair verdict. And all of this while knowing the law and procedure. And I can reliably inform you that it soon became clear that there is world of difference as to how one approaches a certain scenario depending upon which side you are representing or whether you are the judge. If someone had asked me before embarking on this course whether I thought there would be a material difference then of course I would have said yes, but I would not have appreciated to such an extent. A good lawyer always tries to approach proceedings fairly but even then, it is easy not to fully appreciate the position of the other parties whom you do not represent. Take the two jurors on the bus for example. If my client was the subject of their discussion I would be spitting feathers arguing to have the whole jury discharged. But was that the right answer? If not, then why not? I'm not going to spoil it. You'll have to embark on this course yourself to find out.
And what of the principle of walking in someone's shoes before you make a judgement upon them? I'm ashamed to say that this was the most eye opening of all. I am a defence lawyer and advocate against prejudice almost on a daily basis. Yet as soon as I was in the judge's position, those prejudices were all mine. When asked what I would do with the drunken party to proceedings I immediately thought of contempt. I had not even considered if there was an explanation. I had assumed that no right minded person would attend court drunk and so they must be in contempt. The same applied to the lady who had not wanted her bag searched. Or the juror who appeared to be isolating himself from the remaining jurors. Was it his fault or could it be the other jurors? How do you deal with that to ensure that a fair verdict is reached? All at the same time as ensuring that the defendants feel that they are having a fair trial. Justice must be seen to be done. The answer is to walk in their shoes. There could be a number of reasons for someone's behaviour and even if you are not permitted to ask them directly, do not automatically make an unfavourable assumption. Ask yourself WHY they may be acting like they are, and then act depending upon the circumstances such as they exist. There maybe a simple solution. The fairness of proceedings may not have been affected. It may be possible to continue.
I would never have guessed just how narrow my thought processes were before embarking on this course. You have to unbuckle your entire thought process and widen the possibilities of why a particular matter might have occurred, how it might affect the course and fairness of proceedings, whether certain matters are brought to the attention of other interested parties, and if so when that should be done, and deciding upon a solution to ensure that a fair verdict is achieved. Some matters may require further examination whilst others may require no further action at all.
By day four, I had been joined by Louise Turner from CILEX. We were shown a film of a short trial, based upon a real case, where you watched the complainant and then the defendant giving evidence. Both were examined in chief and then cross examined. The defendant had been charged with robbery. She had a previous conviction for similar. HHJ Horton then gave closing speeches for the prosecution and then for the defence. Louise and I were to be the jury. Could we be sure of the defendant's guilt? We were being asked to consider our approach to the case as a whole. We were challenged on our perception of the appearance and attitudes of the two witnesses and whether that would, or even should influence our decision. As it happened, Louise and I did not agree on the verdict but that did not matter. It was how we approached our deliberation that was important. Did we consider all available information from what we had been told and what we had observed?
The course did not end there. There followed a series of sentencing exercises where you initially played the part of a Probation officer and had to select five questions from a set list in order to try and find out about the defendant and their offending behaviour. From the answers given, you had to select a number of sentencing proposals in order to achieve, whenever possible, both punitive and rehabilitative elements. These were in fact real life cases and you also got to find out what the actual sentence was and how it worked out for the defendant. You were given the view of the actual probation officers involved. Again, there was no right or wrong answer. You just had to express how and why you reached the view that you did.
As stated above, I will not spoil this learning experience by giving away answers. All I will say is that sometimes you will have to make a decision that does cost time and money. You cannot fix something that is broken beyond repair without resulting in unfairness to one party or other. But sometimes there is a simple solution that becomes rapidly apparent by applying the correct thought approach.
As for me, well I've a few years left in me as partner but I now have one eye looking at potential judicial appointments. And I know HHJ Horton, a staunch supporter of CILEX, will have me back at any time to refresh my thinking skills should I ever ask.
With Special thanks to HHJ Mark Horton for opening our minds.