A Court of Specialists: Judicial Behavior on the UK Supreme Court

Wisden will be rather thin next year, so if you like chunky facts and statistics why not console yourself with A Court of Specialists: Judicial Behavior on the UK Supreme Court, a volume to make the spotters’ eyes sparkle. (The American spelling reflects the key market of the publisher, OUP.)

The author, Chris Hanretty, is Professor of Politics at Royal Holloway, University of London. Although he is a political scientist, his aim is not to probe the Justices’ personal politics: ‘There has been no suggestion that politics matters for appointments to the Supreme Court. Indeed, it is difficult even to form an impression of what nominees’ politics might be.’ (What Justices may do in retirement is another matter.)

This book covers the period from the Court’s beginning in October 2009 to September 2017, so it misses out the turbulent prorogation spectacular of 2019, R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland, which did much to raise the Court’s profile. 

Professor Hanretty’s thesis is that specialisation dominates every aspect of the Court’s work, from who gets heard to who dissents. He calculates, for example, that Lord Neuberger weighed in at 74% tax/chancery before reaching the Supreme Court, while Lord Sumption, appointed from the bar with no bench form, ‘has been imputed values equal to the mean for English and Welsh judges.’

‘The argument of this book,’ he writes, ‘is that…the Supreme Court is a court of specialists, and that its work should be interpreted in that light…Although the court may sit in panels of five, seven, or nine, the bulk of its work…is carried out by…individuals who have given over a substantial part of their career to tax law, family law, criminal law, or public law. This specialization means that the effective size of each panel is much smaller. This in turn reduces the scope for disagreement, and makes it much easier to sustain higher levels of unanimity.’

This book is for anyone engaged in Supreme Court haruspication. Although Professor Hanretty points to the turf guide which suggests that the Government and parties using the most costly counsel tend to have a good chance of success, there are no easy answers and you are cautioned to cast your net widely: ‘Betting markets [in this case Betfair]…proved accurate in the [first] Miller case. Two weeks before the court handed down its judgment, a £1 bet on the eventual winner would have given a return of just £1.23, compared to a return of £4.70 in the event of the government winning…The betting markets thus made a confident and correct prediction about the outcome of a Supreme Court case.’

That case (R (on the application of Miller and another) v Secretary of State for Exiting the European Union) is one of two appeals spotlit in the introduction. The other is R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and another, a lyrically English village green case with added maritime romance. As Lord Carnwath points out, perhaps misty-eyed, the appellants relied on Hall on the Seashore, Phear’s Rights of Water, and Stuart Moore on the Foreshore. A 1904 decision of Vaughan Williams LJ is cited: he was the uncle of Ralph Vaughan Williams and you can hear the swelling strings.

The poet George Crabbe keeps trying to break out in the scene-setting at the beginning of the judgment (Lord Neuberger and Lord Hodge). Their conclusion is elegiac: ‘The poet Ovid spoke of time as “the devourer of things” (“tempus edax rerum”. Metamorphoses 15.234).’

I’ll bring in the translator Arthur Golding:

Thou tyme, the eater up of things, and age of spyghtfull teene [vexation],

Destroy all things. And when that long continuance hath them bit,

You leisurely by lingering death consume them every whit.

There is no poetic soul in Miller 1, enacted before a sour and riven nation, with angry tides lapping at judges left undefended by a feckless Lord Chancellor. The only balm was to see the Supreme Court, at a time of unprecedented pressure, being hospitable and accessible (‘The communications could not have been better,’ wrote David Allen Green for the Financial Times), and to witness competent, articulate people at work, contrasting with the strident reverse-talent contest across the square.

I hesitate to judge this book by its cover because it uses one of my drawings of R (Nicklinson) v Ministry of Justice, the assisted suicide appeal. On his feet is Paul Bowen QC, representing the late Tony Nicklinson and Paul Lamb. He was leading Guy Vassall-Adams, seated to his right, who became a QC in 2016. I blogged about it here.

Nicklinson was one of the rare hyper-important cases with a panel of nine Justices instead of the normal five – not surpassed until both Miller appeals with panels of 11. Professor Hanretty uses Nicklinson to show that the UKSC may find ‘in favor of the government, but at the same time puts the government at notice that it might not be so lucky next time… The court was asked whether UK policy in relation to assisted suicide was compatible with the Convention right to respect for private life (Art. 8)…Three judges (Neuberger, Mance, and Wilson) said that it would be appropriate for the court to say whether or not the policy was compatible, but that there was insufficient evidence for them to do so in the present case…Decisions…like this suggest that judges are eminently capable of reaching decisions that are political in this sense.’

The book concludes: ‘There has been almost no study of public opinion regarding the court, of media coverage of the court and its rulings, or (save in very specific cases) the reaction to the court in the political sphere. An investigation of this kind seems necessary if we are to know whether the court’s expertise brings with it the trust of the people.’

The feverish public response to Cherry/Miller 2 moved things on a bit. And we might well ask, post no-deal Brexit, who will protect the judiciary from the suspicion of a squalid government? Where would the people rather place their trust? This book takes the Human Rights Act 1998 as a given.

A Court of Specialists: Judicial Behavior on the UK Supreme Court by Chris Hanretty, OUP, £64, also an ebook

Judging by appearances

Pope II, Francis Bacon, 1951, Kunsthalle Mannheim

Online hearings, eh. Screenshotting and drawing from the screen are illegal. I don’t see the point of drawing from memory when you can google the postage-stamp faces.

Robed or not, the judges trapped in their doll’s house squares on Skype for Business evoke Francis Bacon’s screaming popes. The stifled command, the confinement, the frustration with the bundles.

Above the Master of the Rolls, the grid lines of polystyrene ceiling tiles recede to infinity. They echo the popes’ geometric cages of paint.

The Master of the Rolls’s camera is not static so we view his surroundings from different angles. A green glass banker’s table lamp, a Victorian tiled fireplace, photos on the mantelpiece, highlighter pens, teal and dark red curtains in a design I would call ‘John Lewis first nation’. 

He sips water from cut crystal while presiding in a panel of three judges which I represent thus:

Sir Osbert Sitwell; Sir Sacheverell Sitwell, 6th Bt; Edith Sitwell by Cecil Beaton,

vintage bromide print, 1927, National Portrait Gallery, London

At a time when we are encouraged or mandated to wear masks, the case concerns automated facial recognition (AFR). Counsel muses where AFR stands in relation to other areas of identification such as fingerprinting,  DNA or CCTV. He asserts that CCTV is a greater intrusion than AFR in that it identifies ‘what a person is wearing or doing’, makes a ‘moving record of a person’s actions…happy or sad, peaceful, drunk or aggressive’; ‘identifies who a person is with and [apparently] talking to’. AFR is a tool that ‘simply narrows the pool of individuals that an officer would be looking at.’

Ed Bridges disagrees. Liberty, supporting him in R (Bridges) v CC South Wales & others, comments: 'In the world’s first legal challenge to police use of this tech, Ed is arguing the force is breaching rights to privacy, data protection laws, and equality laws.' One argument is that AFR can produce false positives/negatives, like Covid-19 tests.

Jason Beer QC wears antlers made of a light fitting. No one is robed, but if this were a real court should masks be added? Yes, says barrister and singer Ben Seifert, campaigning on the basis that courtrooms are enclosed talking shops with poor air flow.

Here is a faithful representation of the hearing:

Francis Bacon’s Study for a Head under the hammer at Sotheby’s New York, 2019

A – pumped-up legal commentator holding gavel

B – observer in jacket by Cath Kidston (subsequently in receivership owing to Covid-19 but now trading online)

C – legal teams

D – bench

Artist Jacqueline Nicholls in her own mask

Next day brings an application hearing for Depp v News Group Newspapers Ltd & another before Mr Justice Nicol. The start is delayed while Skype for Business is temperamental. The name of Johnny Depp appears among the blanked-out observers. Numbers diminish as time goes on.

The clerk, looking cool and elegant, announces: ‘Judge has said if you want to remove jackets that’s fine.’ Counsel X waits for the judge to say it himself, then takes off his jacket, revealing too much information (sweat).  

Counsel Y, more crumpled and tousled (but in a showbizzy way) than counsel X, sagely keeps his jacket on; he also has the best lighting. He laments 'a strong sense of ambush' having received 58 documents from the other side yesterday. He presents a controlled amount of head-shaking exasperation without lapsing into querulousness. When he is not speaking we see the cornice and the top of his head – he could be eating a fry-up or talking to Johnny Depp out of sight of lip-readers, who knows.

We see the jacketless judge only in close-up, in Caravaggesque chiaroscuro. He appears to be wearing a blue and white Bengal stripe shirt from T. M. Lewin, one of which I am cannibalising for masks.

I recoil from the unedifying Punch and Judy content of this application, on a tiresomely hot day when disease, political mismanagement and climate disaster stalk the land. There is talk of vodka, domestic violence, a post-nup. The judge slows right down when taking notes about the drugs (‘MDA?’ he enquires), not on familiar working territory it would seem.

While l am watching, tech problems are confined to muffled underwater sound from one, and the capriciousness of the Skype connection. The participants display Covid-friendly face and hair touching, nose and ear scratching and one imaginary beard stroking.

The obligatory offstage electric drill strikes about 90 minutes in.

Caged for Justice

In my Hancock's-Half-Hour-directed-by-Kurosawa lockdown life, I injure my nostril doing a home Covid test. Not much blood. Have I left the swab stuck up there? Panic.

Meanwhile the population is dividing into shelterers and shoulder-bargers.

For distraction I turn to the fourth mock virtual jury trial run by Justice, the law reform and human rights organisation. It starts half an hour late because there are three rival jury lists. The judge assures us that no hearing in his experience has ever started on time: 'There is always something, so don't rush away saying the technology is no good.'

The case, a fiction about vengeance and an unreliable barmaid, reads like a rejected Thomas Hardy plot. Prosecution counsel fastidiously pronounces glassing in inverted commas.

Last time the judge's backcloth was an Osborne-and-Little-style repeat pattern of the royal coat of arms, but it has been swapped for a more dignified version. Prosecuting counsel has taped white paper over his enthralling scarlet paint but is terrifyingly backlit to begin with.

Sound
For John Cage fans there is silence and found noise. Muting is a constant problem and the judge explores elegant ways to ask jurors, counsel and clerk to watch this, e.g. 'You would be held more effective as an advocate unmuted.'  Mike, the Unseen Voice of Tech, may have a hand in some of the muting. The judge is accidentally muted to the public for the summing up. Once he finds out, he gamely tries to fill us in. When he is troubled by reverb, we can hear it too.

Miscellaneous door closing, paper shuffling, drink slurping, traffic. Transmission freezes at about 13:34, but not for long. During the break, we get the judge speaking over a clicktrack of his own voice, and bursts of indecipherable chatter from a group clearly not social distancing (the jury?). Mike's mic check. 

The jury
Gathered in one place for the first time in this series, the jury are in what looks like a white-walled closed cafeteria. In their on-screen lab-rat cages, it is impossible to tell if they are social-distancing. Gratifyingly, the one called Michael Collins has an Irish accent. While the judge is assuring them that their safety is paramount and masks are provided for all, one juror is wearing a mask. By the end, three are masked.

They have been selected from people who are not shelterers. They are prepared to travel to the designated place, to be enclosed with others and to use public lavatories without fear of hazard. They may have to use public transport. When I attended a long-running trial at the Old Bailey, half the jury - who were selected because they were able to spend months out of the workforce - were obese. Where am I going with this? Nowhere. I am staying home.

Questions: how important is it to be in the physical presence of a witness? Are the pheromones and stress chemicals which you unconsciously detect a help or a hindrance? Even if a witness is easier to see on screen than across the courtroom, does the camera objectively reveal demeanour? And can you rule out online distractions? (Ooh look, bookshelves - let me judge you.)

The jury splits 7:5; we are not told which way.

From the estimable TV series Crown Court

We the people
While the jury deliberate, the judge discusses with prosecuting counsel how, in the absence of a Tannoy, the public can be informed when the jury is returning. He speculates that the public are getting on with 'your novel, your crossword or your knitting'. His concern for the public is not mirrored in real life: the public gallery has effectively been junked for the duration, despite pious assertions to the contrary.

Now here's a worry. Writing about this project on his blog Counsel of Perfection, barrister Maximilian Hardy says that a virtual public gallery 'needs to function in such a way that the trial is not being recorded on mobile phones. The solution to this is to have supervised remote locations at which trial observers are able to log into a particular trial having surrendered any recording devices with the parties alerted to their presence.' That excludes shelterers.

He doesn't mention the need to stop people drawing from the live screen, which is illegal, even in your home. Courtrooms (below the Supreme Court) have to be drawn from memory. Look, I don't make the rules.

This is the fictional case of  R v George Drew, indicted for s20 Offences Against the Person Act unlawful wounding. HH Alistair McCreath (who devised the case) is presiding at the virtual Crown Court, which he places in Erewhon, but let's not go off on a Samuel Butler tangent about the potential criminalisation of shelterers.

The prosecutor is Mark Trafford QC. Defence Counsel is Louise Oakley.

For more information about this project, please see https://justice.org.uk/our-work/justice-covid-19-response/

The adventure of the empty public gallery

What can the public see in today's hastily improvised, virus-adapted virtual courts?

Not much. The public gallery has for the most part been removed.

Today's lucky dip is in the Court of Appeal. Selected cases have been streamed from here since November 2018. The service has been suspended for the duration, but one exception is Hoareau & another v The Secretary of State for Foreign and Commonwealth Affairs. This concerns citizens of the Chagos archipelago in the Indian Ocean seeking to return to the islands following eviction by the UK to enable the US to build its Diego Garcia naval facility.

You are not allowed to reproduce court footage. Here is what remains after I've taken out the incriminating bits, plus some more to be on the safe side. Yes, I know we don't want people adding a dub reggae soundtrack, or editing a judge's words to make it sound as if he said X instead of Y. I get that. So I guess we're lumbered for now.

To test the water for virtual jury trials in a self-distancing age, the campaigning body Justice has been conducting mock hearings. It declared that the one on 6 May would have 'particular emphasis on how to recreate the solemnity of the court, and the rituals that contribute toward it.' But, even if you leave aside the overalls-and-spanner aura of the event itself, that whole idea is blown out of the water once you plonk a hearing down in the foetid bone-strewn cave that is YouTube. Your recommendations down the side will be a model of good taste but I've redacted some of mine. I am the thirteenth viewer present. Each participant (wigless and gownless) is separately boxed. A muted solicitor lurks in a blacked-out rectangle. The dolls' house look evokes Play School for anyone old enough. The sound is tinny and distorted; some words are lost.

In one rectangle the Master of the Rolls sits on a chair placed asymmetrically beneath the royal coat of arms. The rectangle to his right is a blurry, glaring, flashing representation of migraine, not safe for anyone with epilepsy. Compiled by some offstage Drosselmeyer (possibly a hard-pressed individual taking terrible risks to be at work) it contains a patchwork of four scenes, stitched together on one master screen. What we are seeing is a close-up film of this screen. The second-hand nature of the image accounts for the Vaseline-on-the-lens look.

I can see that people are trying very hard in ghastly circumstances and I am sure that things will improve.

Lord Justice Green has a half-timbered ceiling. We hear the reassuring tones of Sir James Eadie QC, appearing for the Secretary of State. His backlit features are hard to discern. He has obviously taken television training to heart and is keeping his head still. Unnaturally still. In fact... I think of Sherlock Holmes in The Adventure of the Empty House. To foil a would-be assassin, the great detective commissions a wax bust of himself so that he can appear silhouetted in his Baker Street window. The bust is occasionally moved by the faithful Mrs Hudson, keeping out of view. Could Sir James...? But no, his image has just frozen for the duration, like so much else of life.

Illustration by the great Sidney Paget

The virus has inevitably restricted court access for the public, and those people who can't get online simply don't exist. My one attempt so far to join the public in observing a hearing shared on meetings software was met by an unexplained refusal. It was however illustrated in sepia tones from memory, to comply with the law, by a court artist and I'm not allowed to show you that image either, because of copyright.

Those who are trying to widen access for all kinds of observers include Transform Justice and The Transparency Project

Jammin' for Justice

We're jammin', we're jammin'
And I hope you like jammin' too
                                   - Bob Marley

We're all stuck, computer screens freeze into lockdown at will, and we're having to improvise like mad. 

What does social distancing mean for jury trials? The all-party law reform and human rights organisation Justice is experimenting with mock Crown Court trials online, to assess their workability and fairness. I'm tuning in to the fictitious case of R v Christopher Hallett, concerning alleged unlawful wounding with a wheel brace at a petrol station following an altercation about loud music played in an open-top car. 

It's delayed by an hour and a half because a juror has tech problems. Then we see the virtual court with judge, jury, clerk, counsel, defendant, and witnesses in turn, like a pile-up of Punch and Judy booths, but there's no sound. I'd like a lip reader with me and a sign language interpreter on screen.

Prosecuting counsel wins on colour. His striking scarlet background seems to reinforce his message. Colour affects emotions. Red is a political colour to some. I would impose a neutral background. 

Everyone else sits in the grey-to-magnolia spectrum apart from the judge, who appears in front of multiple versions of the royal coat of arms, wallpaper style. 

I am uncomfortable with the prominence of the jury. I would rather not see them at all, as the present format allows them to be identified by people beyond the court. I certainly don't want to draw them.
 
At last the sound comes on. The judge is warning the jury that it can be hard to concentrate on a virtual scene: 'I ought to notice if any of you drifts off... I will say generally "time to wake up" as it were...' He points out that the jury's on-screen view of the witness is 'as good as if not better than the view you get in court' but balances that by saying that a blind judge is not at a disadvantage. I think of Sir John Fielding, the blind eighteenth century magistrate whose innovations helped to bring about stipendiary magistrates and the Bow Street Runners.

Next, prosecuting counsel piles on the drama: the defendant used a wheel brace 'to strike, to assault, to hit...'

There is bundle malfunction. Everyone can see the document except the judge. 'Don't worry about me,' he says, probably for the first and last time in his career on the bench.

There is an awful lot of face-touching, mainly from counsel and judge. Defence counsel manages finger licking too. A juror sneezes.

I'm drawing in an aimless sort of way. Sketching in the courts below the UK Supreme Court is illegal. I recently got in touch with the Royal Courts of Justice to check that this applied to hearings that were currently streamed. They confirmed that I would have to draw from memory - either switching off my device or retreating to another room. I pointed out that the picture would look like a Francis Bacon screaming pope with a Laura Ashley border. Today I'm ignoring the stricture as this is a mock-up.

In a virtual courtroom, no one knows what else you might have on your split screen. I resisted the stream from the Metropolitan Opera (Hamlet by Ambroise Thomas) and a random episode of Crown Court, a magnificent TV series which you are too young to know about but can be found on YouTube.

The brief lunch break is like a Shakespearean scene of comings and goings, overhearings and misunderstandings in a twilit forest, with Puckish technology thwarting the unwary. Individual cells blacken and flicker back to life. The judge removes his wig for some more face and head touching and stares into his camera.

'The public are still listening,'  the clerk warns judge and counsel.

'I'm going to mute my video,' says the judge, 'in case some gossip comes into my head that I can't resist sharing with you and the whole world.'
 

Face-touching judge

After the break, glitches are resolved. Professor Linda Mulcahy from Oxford University, one of the independent academics who is evaluating the test, does a brilliant turn as a witness for the defence. When the jury retires, the judge reckons that they won't reach a verdict: 'I'll give you odds,' he says, but fails to run an illegal book.

'Have you reached a verdict?' asks the clerk.

'No,' says the forewoman. The judge beams. In a show of hands, seven would convict, three would acquit, two don't know.

This is the fictional case of R v Christopher Hallett, indicted for s20 Offences Against the Person Act unlawful wounding. HH Alistair McCreath is presiding at the virtual Crown Court, Pimlico. The prosecutor is Mark Trafford QC. Defence counsel is Rosina Cottage QC.

Further details: https://justice.org.uk/our-work/justice-covid-19-response/