1 August 02
With the introduction of family courts, drugs courts and negotiating small claims, judges are being removed from their role of impartial umpire
When the small claims procedure was first introduced, a proposal was made that rather than having yet another attendant set of rules to accompany the resolution of disputes about badly mended shoes and so on there should be none at all.. It would simply be left to the judge to get things sorted out in the most appropriate way. This mode of jurisprudence we call “palm-tree justice”, often vulgarly but erroneously associated with colonialism generally and district officers in particular. In fact the term comes from the Old Testament and relates particularly to the first female judge, Deborah. (Judges 4.4) Anyway the offer that small claims should just proceed as accords was turned down.
The great English jurist Blackstone said that delay and expense was the price of justice. Lord Mackay of Clashfern in his Hamlyn Lectures “On the Administration of Justice” pointed out that if there was a quick, cheap and fair way of doing justice in the traditional way it would have been found by now. He went on to suggest that what people who bring cases into court really want may not be an evidential hearing and verdict but rather something like mediation leading to an apology. Anyway so far as small claims go, to judge from the new rules we would seem to have moved slightly closer to Deborah and her Palm Tree. Sec 9.2 (b) provides that at the Hearing the sheriff shall ”seek to negotiate and secure settlement of the claim between the parties.” This may present difficulties but that the framers of the rules considered that there may be prospects of success is evidenced by the fact that the next subsection begins with the words” If the sheriff cannot secure settlement of the claim….” Ho hum. The pursuer is apoplectic with frustration, the defender a model of sneering indifference and those in the public galleries are getting impatient, having come here to have their own business disposed of in their favour (a matter of minutes, surely) rather than to watch some sort of will-he-won’t-he game show. Solicitors will know how difficult it can be to persuade one client to accept a compromise: how a settlement can be achieved between two unrepresented lay persons is a bit of a puzzle. I say unrepresented because where both sides have lawyers one may safely assume that exhaustive efforts at settlement will have been made already. “If the sheriff…” indeed. No wonder Emanuel Kant observed that out of the crooked wood of humanity nothing straight was ever made.
There are other signs that in some respects judges are having to abandon the role of the impartial umpire as it was set out most clearly by Lord Justice Clerk Thomson in the case of Thomson v Glasgow Corporation 1961 SLT 237: “Like referees at boxing contests they see that the rules are kept and count the points.”
In those days, even matters of equity or discretion had to be approached in a circumscribed way.
One early manifestation of this change was the practice of judges interviewing children in chambers to get their views about questions of custody and access as they then were called. This practice has been superseded effectively by the requirement in the Children Act about ascertaining the views of the child. In so far as there is a guarantee of confidentiality given to the child, this may result in a decision on the merits being made without parties being aware of the precise terms of the evidential basis for it. This does not seem to have caused an outcry.
Moving to the criminal side of things, one egregious example of a change of approach (albeit one which did not need new legislation to bring it into being) is the Drugs Court now to be found in Glasgow, which has followed on and to an extent overlapped the Drugs Treatment and Testing Orders which were being piloted there and elsewhere. Both of these procedures have involved the sheriff having to adopt a role, which involves not only direct dialogue with the offender but also a strict supervision of the way the sentence is being performed. Continuing involvement of the sentencer is something new for us: the nearest before was I suppose the matter of dealing with breaches of probation or community service orders, which could on occasion be allowed to continue following a face to face confrontation in which the bench made a series of threats and promises to the defaulting and normally taciturn offender. The fines enquiry court too offered an opportunity for an exchange of views on future prospects. Otherwise it was the rule that once a sentence was passed the matter was out of the judge’s hands. Things are done differently elsewhere of course. In particular the French system involves the ongoing involvement, with powers of modification, of a judge (probably not the sentencer) until the sentence has been completed. In Scotland it has been the practice of certain sheriffs to require probationers to come in for an occasional chat to see how things were going. Although the precise legal import of such meetings is not clear, anecdotally at least they seem to have been enjoyed by all present. It does appear too that there would be many cases in which people who had successfully completed community-based disposals would not be averse to reappearing to receive a word of commendation from the sentencing judge.
Judges as negotiators
It may be thought that neither by temperament nor training are judges suitable people to become either negotiators or supervisors. There are difficulties too, so far as negotiation is concerned, of issues being prejudged which eventually have to come to proof. This may be especially true of courts trying to deal informally and on an ongoing basis with family matters such as contact. For example, it is common for one parent to make serious but in fact unfounded allegations about the conduct of another in a spirit of revenge in order to thwart contact. In order to make some sort of progress, contact may be under all sorts of conditions which are unnecessary but imposed with a view to moving the parties on to a situation where there can be even grudging agreement. It is difficult to see how this can be done without one or other (or both) parties feeling that decisions are being taken for reasons which do not reflect the true facts. There is much to be said for arbitration but perhaps judges should be kept for judging. In negotiation their position is that they are there not because of actual skills but because of their power to use the iron fist of compulsion if parties will not agree with the velvet-gloved indications of compromise.
Traditional judicial virtues
The French philosopher Denis Diderot described how men construct what he called a personal internal statue which has all the virtues to which they aspire. So to the traditional judicial virtues of private rectitude and public gravitas, the ability to take detailed notes of what a witness is saying (while simultaneously forming a view on credability based on the look on his face) a reasonable familiarity with current thinking about the causes and consequences of youth crime, an effective way with the law of parent and child ( nb Solomon did not have to make findings-in-fact about the divisible baby) and a belief that somewhere there may be a unified field theory of the law of contract in Scotland one now has to add the patience of a poker player and the negotiating skills of the man who talks the prisoners down off the roof at Saughton Prison. One would like to see the judicial appointments board wish list. Diderot goes on to say, incidentally, that much human unhappiness is caused by people’s failure to come up to the standards of their own ideal.
I do not wish to sound as though I am claiming that the judge’s lot is an unhappy one. To start with one is dry, warm and indoors. But if you look over the last thirty years then it becomes clear that the range of work in the sheriff court has increased enormously. It is a tribute, I suppose, to the versatility of sheriffs that when something new has come up it has often ended up in their court. But what is sometimes overlooked is that it is also a tribute to the skill and versatility of the solicitors who appear in that court, since it is no secret that it is much easier to decide a well-argued case than an ill-prepared one. As long as the adversarial process was the rule it did not matter very much what the subject matter was. So fatal accident inquiries without juries, appeals from children’s hearings, place of safety order applications and all the rest , all were fine. But of course the adversarial system has its critics, especially in terms of inequality of resources both in civil and in criminal matters. Accordingly, if for good and sufficient reasons we are beginning to depart from it in certain areas, there might be something to be said for looking somewhere other than the already busy sheriff court, particularly if the necessary skills of the person in charge are not necessarily those of the impartial judge.
Of course the reason for preferring the court is the perceived necessity of compulsion in the event of unsuccessful negotiation. “But was it for this that I studied Stair and Grotius?” I hear the sheriff say, faced with a claim for £100 for the hire of a minibus answered by a counter-claim that it broke down and the travellers arrived at the function too late to enjoy the pre-paid high teas. Well it might be, as these sort of cases notoriously throw up points of law about agency, implied terms of contract and the actio de minimis even if the judge is the only person to realise (and ignore) this. However, if the first duty of the sheriff is to try to settle the action then there might be something to be said for looking at an approach along the lines of that set out at the beginning of this piece. Applications for the post of para-sheriffs should be sent to the usual address.
More pilots ahead?
I hope I am not being unfair if I say that I am not entirely sure that matters are going to end. One hears whispers of domestic violence courts and of youth courts. It seems that pilot schemes (dread words) are the way we live now, based perhaps on the interesting if fallacious idea that a judge should have technical expertise rather than just an ability to understand evidence (there is an interesting argument about this, vis-à-vis coroners’ courts in “Middlemarch”but the idea really turns there on the suspicion that some medical witnesses would talk such rubbish that it would need a medically qualified judge to realise this). It is difficult to see why pilots are thought necessary; either something is a good idea or it is not and one should not forget that while the experiment is just that, the subjects of it, those caught up in the Public Defender pilot for example, are real.
About twenty-five years ago a plan to create what were known as mini-sheriff fell by the wayside with a change of government. It may be time to look at the proposal again, with a view to letting negotiatory and supervisory work, along with most interlocutory work, being done by someone other than the judge, who will then be freed for solemn (or at least serious) criminal work and civil proofs of substance. There is too much delay in the disposal of important business and inappropriate use of shrieval time cannot be anything but a contributory factor.