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Modern Judge, The

Power, Responsibility and Society's Expectations

FROM £20.00

Sir Mark's aim in this book is to be frank rather than scholarly about judging

  • Published: November 2016
  • Edition: 1st
  • Format: Paperback / eBook (ePub) / eBook (ePDF)
  • ISBN: 9781784732790
  • Authors/Editors: Sir Mark Hedley
  • Category: Family Law
Sir Mark's aim in this book is to be frank rather than scholarly about judging. The trial judge is in a very different position to the appellate judge. The trial is where the facts are determined and it is essentially a trial judge who exercises the powers of discretion which modern society increasingly vests in its judiciary.

As society becomes more complex, so does the law. However, law cannot provide for every circumstance and so its application often involves the exercise of discretion. Criminal sentencing, child welfare, the protection of those who lack mental capacity and disputes about medical treatment are obvious examples. How do judges go about that? How far are judges influenced or affected by their backgrounds, beliefs and own life experiences? And, if consistency is an aspect of public justice, can that be achieved? And what about the conflict between public justice and personal privacy? Many see these as pressing questions in a society where judges have perhaps greater effective power than ever before.
  • Foreword by the President, Sir James Munby
  • Introduction to books purpose and origin
  • Judges today - what is their role?
  • What is truth? - The relationship between truth, proof and justice
  • The state and private life - Should the state intervene to protect?
  • Welfare and best interests - Public, personal or judicial values?
  • Where the court decides for those who cannot - Securing protection or promoting autonomy?
  • The sentence of the court - What is society's purpose?
  • What of the future?
Sir Mark Hedley conveys in a very short compass the fruits of a lifetime in the law, and displays the wisdom that made him one of the most respected family and Court of Protection judges.  In a series of short chapters, originally delivered as lectures at Liverpool Hope University, Sir Mark asks profound questions as to the place of the judge in society and to the basis and justification for their role in determining cases involving the welfare of children and those falling within the scope of the MCA 2005.

Although he disclaims any attempt to characterise the book as a scholarly text, reflecting instead his own experiences at the Bench, it does not need to be festooned with footnotes in order to achieve its goals.

For me of most importance, perhaps, was the clear identification of the role of judge as individual human being, seeking to exercise a discretion granted to them, the width of which is very little understood by members of society more generally.  Sir Mark is very right to ask whether this model is preferable to a model based on clear rules (or the administration of an algorithm).  He is also undoubtedly correct to note that whilst rules have the benefit of certainty, they have the ability to generate harsh results in some cases; whilst, conversely, discretion can avoid this outcome, it can also lead to uncertainty and difficulty in predicting the outcome of taking any case to court.   Further, the greater the discretion granted to judges, the more significant the role of their own value-systems and the greater the obligation upon judges to be self-aware as to the “baggage” that they are bringing to the determination of any case.

On balance, he makes a convincing case for discretion, not least given the fact that as our society continues to evolve and become more diverse, what might constitute generally acceptable norms upon which rules can be founded becomes ever more difficult.  But he is absolutely right to identify that leaving judges with such discretion (or indeed actively imbuing them with it) does commensurately increase the need to identify a real basis on which the trust is warranted.  The twin qualities that Sir Mark advocates for judges, of humility (recognising the inherent fallibility of the system) and confidence (in navigating a way to a decision), are undoubtedly ones that he displayed throughout his judicial career.  To the extent that other judges reflect such qualities, I would suggest that such does indeed represent a sound basis for reposing trust in them.

I would very strongly recommend this short but profound to book for anyone concerned not just with the role of the judiciary in the context of children and incapacity, but also with the wider balancing exercise between protection and autonomy that is required in both of these spheres by others outside the courtroom ...
Read more >>

Alex Ruck Keene
Barrister
www.mentalcapacitylawandpolicy.org.uk

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THE MODERN JUDGE AND FACT FINDING: “TRUTH IS STRANGER THAN FICTION”

There is a full review of Sir Mark Hedley’s book The Modern Judge on Pink Tape, where Lucy Reed explains how the book mysteriously appeared in her hotel room the morning after the Family Law Awards. (Lucy speculates that Sir Mark Hedley donned his robes and snuck it into her room, it is not for me to comment – I bought my copy.) Lucy gives a full review of the book. Here I have a much more limited task: I concentrate upon one aspect of the text – how judges find facts.

“What is the purpose of a trial or enquiry? Surely it is to get to the truth: that is why we have them”

“Truth is a difficult concept” ...

Read more >>

Gordon Exall, Barrister
Civil Litigation Brief

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I did very much like Sir Mark Hedley’s little book, The Modern Judge. It is really little more than an extended essay, but it is characteristically humble, thoughtful and thought provoking. It asks some very important questions, and they are questions that we ought to be asking – amongst ourselves within the legal community, and discussing with other members of society. I hope that LexisNexis will market this outside the legal community.

The Modern Judge does not only cover the Family Court and Court of Protection, but it does take those jurisdictions as its main focus, and it is through a conscientious consideration of the wide ranging and really very draconian of powers that Hedley is able to ask wider constitutional questions about the rule of law and the societal consent that is required for judges to exercise their powers ...

Read more >>

Lucy Reed
Pink Tape

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Based on a series of public lectures given in 2015, this little gem of a book on the modern art of judging should be required reading for anyone seriously interested in law and the judicial system. As a former High Court and before that circuit judge, Sir Mark Hedley brings to his reflections a vast experience of criminal, civil and especially family cases. His observations on his role as a judge are timely and illuminating ...

Read more >>

Paul Magrath
www.iclr.co.uk

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What a pleasure to read! It’s great to be able to hear from members of the Judiciary what they think in 21st century, especially on matters such as family law. And The Modern Judge gives us a particularly powerful statement on what the public expect of their judges in 21st century.

In the Foreword, Sir James Munby writes that “some judges write memoirs, a rather dubious literary genre” but that is not the case here, thank goodness! ...

Read more >>

Phillip Taylor MBE and Elizabeth Taylor
Richmond Green Chambers

I have always had a deep respect for those involved in the family and mental capacity justice systems, whatever their particular role or discipline. As a barrister and judge (who has served at all levels from Assistant Recorder to High Court judge), I have dealt with matters from the everyday to the dramatically unique. I am therefore very aware of the pressures upon both individuals and the system, pressures that have increased over the last few years. It was only on retirement, and the opportunity for reflection that that offers, that I have begun to be able to articulate the basis for that respect. This book, though more specific in its concentration on judicial discretion, was born of that reflection.

This is the product of lifelong conversations with colleagues, court staff, other professionals, neighbours, fellow church members, members of Liverpool Hope University and indeed anyone whose ear I could engage. I have learned from all of them and am grateful to all. Should anyone see an unacknowledged idea of theirs in the text, they may well be right! I am only sorry that I had forgotten its true origin. I am grateful to the President for making time in an impossible schedule to write the Foreword and for what he says. As an innocent abroad in these matters, I have much appreciated the guidance and encouragement from Jordan Publishing’s staff. Although she will deeply disapprove of my saying it in public, my chief gratitude must go to my wife Erica who has born with me and my baggage for over 40 years and whose critical encouragement has renewed energy whenever it has flagged.

One final comment on the text. I am aware that, whenever a general noun like judge, parent, child, party or protected person is used, it may represent male or female – usually both. To avoid clumsiness and confusion, I have opted to use a specific pronoun, usually the masculine. I hope that the reader will take this to cover both male and female.

Sir Mark Hedley
October 2016
Some judges write memoirs, a rather dubious literary genre. Some very senior judges write books on the higher jurisprudence. This book by Sir Mark Hedley is, dare I say it, both more interesting and more important.

It is a truism of family law that there is no such thing as the perfect partner or the perfect parent. Likewise, there is no such person known to the law as the ideal judge. Sir Mark is a modest man – though, truth be told, with little to be modest about – and he would never think, let alone say, this, but he came as close as any first instance judge can to the ideal. When he came to the Family Division of the High Court in 2002 he brought with him vast experience as a Circuit Judge, having sat not merely in criminal, civil and family cases but also as an official referee – experience from which we and everyone who appeared in front of him hugely benefitted. It was his good luck and our great fortune that he arrived in the Family Division at a time when its work was expanding into areas that previous generations of family judges would have thought inconceivable but for which he was ideally suited.

Sir Mark’s judgments, indeed, everything he did as a judge, both in the Family Division and the Court of Protection and on the occasions he sat in the civil and criminal divisions of the Court of Appeal, exemplified his wisdom and humanity and reflected, as does this series of lectures, his deep understanding of both the forensic process and the human condition. His impact on the development of the law, particularly in novel and complex areas such as surrogacy, was profoundly significant. He had a remarkable ability to distil legal concepts and fundamentally important principles in spare, non-legal and seemingly simple language. His judgment in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, the key passage in which he sets out in Chapter 4, is a justly celebrated statement of the proper role of the state and one of the most frequently cited passages in the contemporary canon. The reference to ‘our fallible humanity’ is both striking and so very characteristic of Sir Mark’s view of the human condition.

There are many other similarly insightful passages I could cite, but one must suffice. It comes from Sir Mark’s judgment in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384, para [10], and merits quotation in full:

‘I have been impressed over the years by the willingness of the best paediatricians and those who practise in the specialities of paediatric medicine to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants. Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using control samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my  judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.’

The very apt quotation from Psalm 139 encapsulates a truth as relevant to our modern secular society as to the world in which the words were first sung.

There is much in this fascinating, humane and insightful book from which all of us, judges, lawyers and lay people alike, can learn and benefit. We are much indebted to Sir Mark for sharing with us the matured fruits of his time on the Bench.

James Munby, President of the Family Division
27 October 2016

Chapter 1 - Why this Book?

A distinguished American judge1 has said: ‘Judges, like other refined people in our society, are reticent about talking about sex, but judges are also reticent about talking about judging, especially talking frankly about it, whether to their colleagues or to a larger professional audience.’ In so saying, he has highlighted a factor which also applies to judges in England and Wales.

Scholarly works on appellate2 courts have been written (especially in the USA), as have many judicial memoirs. This is neither of those. The purpose of this book is a frank, rather than scholarly, reflection on judging, focusing in particular on the trial judge.

The trial judge is in a very different position to the appellate judge. It is at the trial that the facts are determined, and it is essentially the trial judge who exercises the powers of discretion which modern society increasingly vests in its judiciary. As society becomes more complex, so does the law. However, the substantive law cannot provide for every circumstance, so its application often involves the exercise of discretion. This discretion may perhaps be described as those powers that give to a judge the right and duty to choose between two or more lawful and reasonable outcomes so as to achieve a just result in the individual case. Criminal sentencing, child welfare, the protection of those who lack mental capacity, and disputes about medical treatment are obvious examples.

How do judges go about that? How far are we influenced or affected by where we came from, what we believe and our own life experiences? And, if consistency is an aspect of public justice, can that be achieved? What about the conflict between public justice and personal privacy? Many see these as pressing questions in a society where judges have perhaps greater effective power than ever before. As a result, the media have focused a critical attention on the courts as never before. This book invites reflection on these matters: it is a quest for practical insight rather than scholarly analysis.

Thus, I want to discuss frankly being a trial judge, and to describe how I plot my way through some of these issues. My emphasis will be partly on how disputes of fact are resolved, but mostly on how discretion is exercised particularly in those areas mentioned above where a judge does indeed have wide powers. As I have said, this is intended to be a practical reflection rather than a scholarly analysis, and accordingly the book will be fairly light on references and footnotes. The cases used to illustrate points will almost always be those over which I have presided – not least because I understand precisely why I decided them as I did! Most of them will have appeared in formal Law Reports, but the few that have not have been sufficiently edited to ensure the privacy of those involved.

This book is built on a series of five public lectures given during Autumn 2015 under the title ‘The Modern Judge: Power, Responsibility and Society’s Expectations’ at Liverpool Hope University, where I am a Visiting Professor of Law. I have sought to integrate into this my inaugural lecture given there the year before, and then to conclude with some thoughts as to what might lie ahead. I have spent 42 years in the law as barrister and judge, having held part- and full-time judicial office for 30 years; the last 11 of those as a High Court judge until my retirement in 2013. That has provided a fair opportunity for
reflection.

What follows, therefore, is a reflection on the modern art of judging. It is necessary to start by setting judging in its social, political and (where necessary) historical context in modern Britain. Even in ancient times, every civilisation has required the law and a legal system to enable social coexistence. The biblical comment (appropriately in the Book of Judges) that ‘in those days Israel had no king and every man did what was right in his own eyes’3 was not a description of Utopia, but of anarchy. That experience of need is essentially unchanged today. Indeed, the more complex the structures of society and the more diverse its experience and values, the more the law and its administration is required.

That leads to a consideration of the role of the modern judge. In many cases of medical treatment and childcare, it is often asked why this is entrusted to judges at all and not, for example, to ‘experts’. The answer lies less in the specific expertise of the judge than in the need for society to provide an independent means for the authoritative and binding resolution of disputes between individuals and between the citizen and the state. This independence becomes more important as greater powers are vested in judges. These powers are often not direct but they derive from statute or common law, giving to judges not only the duty (in civil cases) to resolve disputes of fact, but also to decide what ensures fairness, justice and protection of the vulnerable in any individual case.

A current concern about many of these cases is that they are conducted in private, even though the decisions may have life-changing and lifelong consequences. It is the tension between doing justice in public and protecting the privacy of the vulnerable and those who reasonably expect their private affairs to remain private.

All of these matters are most fully expressed and tested in child welfare cases, issues relating to mental capacity, medical treatment, and criminal sentencing; areas which coincide substantially with my own experience. Although, of course, similar issues arise in many areas of the law, these are the ones that tend to attract most public attention. I plan to consider these issues in a little detail, especially the tension between protection and autonomy which lies at the heart of much controversy in these areas and which, with an ageing population, will not diminish in importance.

While I was a serving judge I became increasingly concerned that many in society are simply unaware of these powers, especially the discretionary powers, vested in the modern judge. One of my purposes is to offer some description and explanation of those powers. In a democratic society, these powers should be exercised by the judges with the consent of that society. If there is no proper understanding of these powers, how can there be proper consent to their use? Moreover, the use of these powers involves society placing extensive trust in judges to exercise them properly. On what basis may such trust be given? Is it a trust that our judges can actually justify or fulfil?

These are some of the issues on which I would like to reflect and which I believe to be of some importance in the life of our society, with its inherent sense of fairness and desire for justice.

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