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Educating the judiciary

1 June 00

Director of Judicial Studies describes how judges are subscribing to the need for ongoing skills training and professional development

by Charles Stoddart

The requirement for continuing professional development has come very much to the fore in recent years in both branches of the practising legal profession. Not only do clients benefit greatly from the skilled delivery of legal services, but the standing of the courts is likewise enhanced when the public at large can see that the disputes which they bring for adjudication are professionally litigated on all sides. But it is also clear that judges, like other professionals, can enhance their knowledge, skills and attitudes (and, in due course, the quality of the performance of their judicial duties) through professional development throughout their careers on the Bench.1

This proposition is a long way removed from the traditional view that judges, by virtue simply of their prior experience as practitioners and the judicial authority which comes on appointment, are deemed to be virtually omniscient as well as omnipotent. Not so long ago, Lord Devlin described proposals for structured judicial education as “one of the worst manifestations of socialism, that is, an excessive zeal for setting up bodies at public expense to do what any rational person would do in their own way, in their own time, and at their own expense.“2  This view was echoed in 1967 when the Grant Committee completed its report on the Sheriff Court. Expressing doubt about the scope for formal training, the Committee thought that persons appointed to be sheriffs-substitute (now sheriffs) “should be able (semble by their own efforts) to undertake such studies as are necessary to equip them for their duties and that they succeed in doing so”.3

Background to establishment of Judicial Studies Committee

Until recently, there was no structured approach to judicial education in Scotland, although for many years it had existed in a number of different forms.4  For example, prior to 1997 the Sheriffs’ Association regularly organised a five-day residential Induction Course for recently-appointed permanent and temporary sheriffs;  and there was always a “training” element in the programme for the Association’s Conferences. Occasional meetings were held to discuss new legislation and, in addition, both judges and sheriffs often attended a variety of events run by outside bodies such as SASD, SACRO and the Judicial Studies Board for England and Wales.

But from the early 1990s it was becoming more and more apparent that in Scotland we were falling behind other Commonwealth and foreign jurisdictions in the provision of comprehensive judicial education programmes, not just for new judges and sheriffs, but for those already in post.  To this end (and following a report by a Committee under the Chairmanship of Lord Cameron of Lochbroom) the Judicial Studies Committee for Scotland was established in April 1997.  Lord Ross, the former Lord Justice Clerk, was appointed its first Chairman;  and I was appointed as the first Director of Judicial Studies. My appointment was originally on a part-time basis, combined with shrieval duties, but I became full-time in August 1998.  

The Committee’s remit is to promote training for the judiciary in the Supreme and Sheriff Courts, but has no responsibility for the District Court or Tribunals.  Since the Committee’s inception it has taken a variety of measures to enhance induction and continuing judicial education for those within its remit. But before I describe what we have done and what we propose, it is as well to make one general point. Like solicitors, judges are distinctive learners, and educational programmes must address their distinctive needs.  They have particular learning methods and motives.  Because of their constitutional independence, judges must be reassured that appropriate educational priorities are determined “by the judges, for the judges” and that study programmes reflect this. Such has been our aim from the beginning; and it also means that judicial education takes place in “official” time, not as something to be added on at the end of the court day or at the weekend.  This is why, from time to time, court business is curtailed so that judges and sheriffs may participate in our various events.  

Induction for new judges and sheriffs

Presently, all new judges and sheriffs receive immediately after appointment a selection of written materials to introduce them to life on the Bench of the court to which they are appointed. These include briefings on jury trials, sentencing, evidence, road traffic law, civil procedure and (most important at the present time) human rights law and practice.  They also receive copies of the Scottish Judicial Bulletin, an occasional newsletter solely for the judiciary. All these materials are produced in-house, but most have been written by experienced judges, sheriffs or legal academics. The contents of these “starter packs” are continuously revised and updated.

All new judges and sheriffs also undertake a number of days sitting on the Bench along with an experienced colleague, hearing the arguments and observing the proceedings. This is regarded as essential, so that the new appointee can adjust to a new judicial role which is so different from that previously adopted as a practitioner. Reading the case papers beforehand, watching the case unfold and discussing the problems which emerge are all excellent ways in which to learn the art of judging:  judicial skills are enhanced much more in this way than across a lecture room. A recently-appointed Senator will also have available (in the early months) a Mentor, being a judge of some years’ standing who agrees to be the first point of contact in the event of queries or difficulties, whether theoretical or practical. The same system applies to new sheriffs.

At its inception, the Committee also took over from the Sheriffs’ Association responsibility for the  Induction Courses held for new sheriffs.  These have been held in 1998 and 1999, but the impending changes to the make-up of the shrieval bench following Starrs and Chalmers v. Ruxton (the “temporary sheriffs” case) may mean that current practice needs to be reviewed, especially when the new part-time sheriffs begin to be appointed.

Continuation and refresher courses

The increasing importance of human rights issues will be obvious to all practitioners.  Similarly, the judiciary have had to deal with the impact of the devolution legislation and the Human Rights Act 1998. An intensive programme covering several stages started in March 1999 and is continuing. By October 2000, all sheriffs will have had three working days training on ECHR issues, and will have also received detailed briefing papers. Senators will have had two formal all-day meetings to supplement their informal discussions and the experience each has already gained in dealing with devolution issues on circuit and in the appeal court.

Other Judicial Studies seminars have been held on Sentencing Guidelines, the use of forensic science evidence, ordinary cause procedure in the Sheriff Court, and court procedures involving children.  Roadshow-style events for permanent and temporary sheriffs on the Children (Scotland) Act 1995 were previously organised by the Sheriffs’ Association in spring 1997; we have carried forward their valuable work.  All seminars and courses are evaluated, so that we can assess the successful elements and those which could be improved.

Communication throughout the judicial community

The Judicial Studies office is also fully connected to  e-mail and the Internet. Most judges and sheriffs have e-mail addresses within a private network. Electronic copies of Judicial Studies written materials are available to the judiciary for easy customising and duplication. Updates to briefing materials following major court decisions (for example, changes to criminal procedure following the decision in Thomson v. Crowe) can be disseminated instantaneously.

The Committee has always acknowledged that its work is still at an early stage and we have much to learn from other jurisdictions where structured judicial education has existed for longer. There is close co-operation with the respective Judicial Studies Boards for England and Wales and Northern Ireland. There is also broad co-operation on judicial education with other European countries, something recently given greater prominence by decisions of the Council of Europe in Tampere, Finland. Contacts have also been established with associate organisations in common law jurisdictions world-wide, including the USA, Canada, Australia and New Zealand.

Future prospects

The qualifications and experience of judges and sheriffs on first appointment are vital to an assessment of their training needs. We will continue to give considerable support to new appointees in order to smooth their transition from legal practice to life on the Bench. There have been many new appointments recently, both to the Supreme and Sheriff Court, so our immediate aim is to meet their particular needs. The Scottish Executive has recently issued a Consultation Paper on the manner of appointment of judges and sheriffs and has invited the Judicial Studies Committee to assist “by providing a statement of the competencies of a judge as well as continuing its primary role of facilitating appropriately tailored training and mentoring for new appointees”.  We have agreed to accept this task.

The Committee also wishes to devote more attention this year to issues of equal treatment, something which our colleagues in other jurisdictions have already tackled. For example, in England and Wales the JSB has already made good progress in relation to race, discrimination, language and the needs of the disabled, all from the standpoint of equal access to justice.  In Canada, this is called “social context” judicial study and is viewed as being of great constitutional importance. We are sure that the commencement in October 2000 of the Human Rights Act 1998 will emphasise the need for judges to be better prepared to deal with these problems.

It is clear to the Committee that the need for quality judicial education is burgeoning and that opportunities to participate in it within normal working hours must be increased. Legislation is becoming increasingly complex and voluminous, and the Scottish Parliament will accelerate at least the latter of these trends. For example, in the Scottish Parliament’s current session, the Adults with Incapacity (Scotland) Act, the Bail, Judicial Appointments etc. (Scotland) Bill and forthcoming Bills on protection from domestic abuse and the reform of family law will all have implications for the judiciary. The Committee has an important role in bringing to the attention of judges and sheriffs those provisions which, if enacted, will affect the practice and procedures of the courts.

Case decisions are now more frequently and comprehensively reported, which often means more authorities for the court to consider in a given case. New challenges such as human rights and interpreting the constitutional limits of the Scottish Parliament and Scottish Executive must be met. Proper skills must also be refined and applied in more ordinary cases such as summary trials and child welfare  hearings. The Judicial Studies Committee is committed to delivering high quality, practical and focused learning opportunities for Scotland’s judiciary.

NOTES

  1. Educating Judges: Towards a New Model of Continuing Judicial Learning, L Armytage (1996, Kluwer Law International)
  2. The Judge, Lord (Patrick) Devlin (1979, Oxford University Press)
  3. The Sheriff Court: Report by the Committee appointed by the Secretary of State for Scotland, 1967 (Cmnd 3248) paras 398 - 400
  4. Some of them are set out in Judicial Business:  A Review, The Rt. Hon Lord Hope of Craighead (1991) JLSS 266