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THE ADVOCATE
NEWS &FORUM
Issue IV
Judicial Diversity Does it Change the Way our Judges Judge? Hamza Caan Contributor The Judiciary of England and Wales is well respected worldwide due to its outstanding ability, personalities and fairness. Seeing as 11 of the 12 Supreme Court judges are white males, however, one would imagine the judiciary would be reflective of the diversity of the nation. This has led people to question whether the judiciary profits from the talents of the broadest range of individuals and if the current judges are able to appreciate the situations in which people of different backgrounds find themselves. On the other hand, some feel that those in favour of diversity ignore the fact that this will change the way in which our judges approach the task of judging. It shall be argued that whilst the encouragement of judicial diversity may affect the decisions made by judges, it will not necessarily change a judge’s approach to the task of judging. Let us first consider how exactly our judges approach the task of judging today. Legal positivism is one of the leading philosophical theories regarding the nature of law and its followers, such as John Austin, believe that the only legitimate sources of law are written rules, regulations and principles. Positivism was even described by Morris Cohen as “arising from the fiction that the law is a complete and closed system, and that judges are mere automata to record its will or phonograms to pronounce its provisions”. Is this truly correct? Personally, the legal realist point of view seems much
News Briefs: Fake Barrister Arrested An impostor, David Evans, who posed as a barrister at a trial at Bristol crown court was arrested and charged with "carrying out reserved legal activities when not entitled to" and " willfully pretending to be a person with the right of audience". Impersonating a barrister was not his first stunt; he had been arrested before for pretending to be a clinical psychologist. It was during his jail term that he met the man, Terry Moss (a convicted cannabis farmer)
more convincing in the sense that the law is subject to human partiality and prejudice, however much we hope that judges try to treat each party in a given case equally. Legal realists such as Karl Llewellyn and critics like Professor J Griffith argue the point of view that impartiality is a myth. R v Brown is a
ties that took place in the former were less dangerous than the latter. Furthermore, one could argue that with more judges from different backgrounds with their own partial opinions, there would be a higher chance the final judgment as a whole would be impartial, as all the different
The UKSupreme Court well-known case that has faced much academic criticism where a group of men who were involved in sadomasochistic were convicted under the Offences against the Person Act 1861, even though each defendant consented to the actions and did not complain. However, two years later, when a similar case, R v Wilson, appeared before the courts but this time involving a heterosexual couple, the defendant was acquitted on the grounds of the victim’s consent, even though the activiwho was later to become his 'client'. Evans told the court he was a "senior advocate" at a London law firm but the judge, Stephen Wildblood, became suspicious after he made a series of legal blunders. Besides, Wildblood told the Bristol court that Evans's appearance struck him immediately as curious. He noticed that Evans appeared to be wearing a solicitor's gown but a barrister's wig.
The ECHR Asked to Rule on ACTA The European Court of Justice, EU's highest court, has been asked to rule on the legality of ACTA (Anti-Counter-
judges reached the same decision that there were justifiable grounds for the interference, Baroness Hale in particular seemed to be more sympathetic towards Begum by taking into account the fact that she “is on the brink of… adolescence. She may have views but they are unlikely to be decisive. More importantly, she
photo courtesy of guardian.co.uk
perspectives of the judges would be taken into account. The variety of different opinions would allow the judges to attack an issue from all viewpoints, thus encouraging greater discussion. In R (Begum) v Denbigh High School, for example, two of the judges, Baroness Hale and Lord Nicholls held that Begum’s rights had been interfered with with regards to her manifesting her religion by wearing the jilbab. Although in the end, all five feiting Trade Agreement), a controversial anti-piracy agreement. The agreement has been criticised by rights campaigners who argue that it could stifle free expression on the Internet. On the other hand, EU trade head Karel De Gucht claims that "[ACTA] aims to raise global standards for intellectual property rights" and that the treaty "will help protect jobs currently lost because counterfeited, pirated goods worth 200bn euros are currently floating around". The agreement has so far been signed by 22 European backers, which include the UK, as well as other countries such as the USA, Japan and Canada.
has not yet reached the critical stage in her development where this particular choice may matter to her”. This clearly shows that Baroness Hale, as the only female law lord, has given the case some social context: the fact that Begum’s decisions might actually be her family’s and even if they were her own, it is normal for a girl her age to be making choices that aren’t a “product of a fully developed individual autonomy”. Surely with more judicial diversity, one would expect to Some countries, for example, Germany and Poland, have however, backed away from the treaty.
The ICC Passes Down Its First Judgement The International Criminal Court found child army leader Thomas Lubanga guilty on three counts of war crimes. In its first verdict, the ICC ruled that the Congolese warlord forced children as young as nine to fight for his militia. The sentence will be passed later this year and Lubanga faces a maximum of life imprisonment. It was the first trial at an international court that focused exclusively
see more valuable alternative insight like Hale’s in the sense that more consideration would be given to a defendant’s circumstances. This strengthens the argument that the way in which judges approach the task of judging will not change because it is clear that the opinions of existing judges such as Baroness Hale are already influenced by their background, knowledge, experiences and arguably, even sex. Additionally, increased diversity could result in higher public confidence in the judiciary. A 2003 MORI survey of confidence in the criminal justice system highlights the fact that 43% of those questioned felt “not very/not at all confident” that different branches of the judiciary were doing a good job. A lack of confidence is further reflected in popular media where judges tend to be portrayed as “pale, male and frail” and have a lack of necessary life experience to enable them to identify with the average citizen. Whilst one could argue that the idea of all judges are graduates of Oxbridge and public schools is a stereotypical and possibly a misleading one, one cannot ignore the reality that Lord Collins is the only law lord who worked as a solicitor prior to becoming a judge and Lord Kerr is the only judge at the Supreme Court who did not attend Oxford or Cambridge. These facts can have a very adverse impact on public confidence and are liable to continue for as long as the judiciary remains statistically unrepresentative of the society it serves.
DIVERSITY page 9 on the use of child soldiers. Criticism has been raised as to the ICC’s decision not to charge Lubanga for sexual violence amidst reports of rape and sexual abuse. The judgement is seen as a legal landmark, although questions about the court’s effectiveness remain. Since its inception in 2002, this was the court’s first judgement and criticism regarding its efficiency and perceived ineffectiveness prevail. Furthermore, the ICC is entirely dependent on the enforcement of arrest warrants by the states that have recognised its jurisdiction. Several key states, such as Russia, China and the US, have not recognised its jurisdiction.