Judges: Performance Monitoring and Appraisal (Hansard, 16 October 1996)

§ The Lord Chancellor (Lord Mackay of Clashfern)

The Royal Commission on Criminal Justice recommended that:

"The performance of judges should be monitored during training by other members of the judiciary" (Recommendation 249)

The performance of those who sit in a part-time judicial capacity, both in the Crown Court and in other jurisdictions, is already appraised, particularly during their initial training. Following consultation with the senior judiciary and the Chairman of the Judicial Studies Board, these arrangements will be extended further.

At the present time, before a trainee Assistant Recorder, for example, is authorised to sit alone, he or she must undertake an induction programme, which includes the training course run by the Judicial Studies Board, but also involves a period of sitting-in with an experienced Circuit Judge in the Crown Court (the Pupil-Master Judge) who is required to report to the Lord Chancellor stating whether in his or her opinion the trainee is duly fitted to sit.

In accordance with the recommendation of the Judicial Studies Board, the role of the Pupil-Master Judge in respect of Assistant Recorders (and the equivalent supervising judges in respect of certain other categories of judicial office-holder) is to be extended to include an element of in-court observation so as to provide further advice and appraisal to newly appointed part-time judges, and enable better assessment of their suitability for appointment to full-time judicial office.

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Advice is already provided to those who attend Judicial Studies Board courses by serving members of the judiciary who serve as tutors for this purpose.

Full-time judges are appointed only from the ranks of those with the experience of service in a part-time capacity for a sufficient period to demonstrate their competence and suitability for full-time appointment; the period of part-time service accordingly provides a basis for ongoing assessment for this purpose.

The Royal Commission also recommended that:

"The judiciary should also have in place a formal system of performance appraisal. Presiding and Resident Judges should have the lead in this; members of the Bar should also be able to comment on the performance of judges. These aspects should be looked at by the Lord Chancellor in consultation with the judiciary." (Recommendation 251).

These matters have been reviewed, as recommended by the Royal Commission.

There are already appraisal arrangements in place for the judiciary. It is an essential feature of the arrangements for part-time sittings by Recorders and Assistant Recorders and others that their service affords opportunities for assessing their suitability for appointment to full-time judicial office (and this stands to be developed further in accordance with the arrangements outlined above).

Judicial office-holders are also assessed by more senior full-time judges as to their suitability for appointment to higher judicial office.

Judges accept their obligations under the judicial oath which is taken on appointment. All judges are subject to two further forms of appraisal or review. First, almost all judicial decisions are subject to appeal or review, enabling higher courts to scrutinise and, where appropriate, to comment on or redress judicial decisions or conduct. Second, judges undertake their work for the most part in full view of the public and are subject to the more informal scrutiny of the media.

It is, however, important to ensure that we do not undermine the primary place within our constitution of the principle of judicial independence or our confidence that judges will determine each case fairly and on its own merits, without fear of reprisal or improper intervention. The independence of the judiciary, therefore, must connote not only independence from the executive but also that of one judge from another. For these reasons, neither the Lord Chancellor nor any of the senior judges has any constitutional power to require one judge to report on another, or to offer appraisal or any other qualitative assessment of the judge's performance as a judge. Neither is there any authority to require a judge to submit to such appraisal. The Lord Chancellor's statutory powers to dismiss a judge, which in any event do not extend to the more senior judges, are also very narrowly drawn. These important considerations make it inappropriate to introduce a formal system of appraisal. The Heads of Divisions, and Presiding and Resident Judges, however, do have responsibilities for the oversight of judicial business and they are able to assist judges informally where that 221WA appears likely to be helpful. It is a well understood role of the Leaders of the Circuits to draw to the attention of the Presiding and Resident Judges, as appropriate, concerns expressed by members of the Bar about the judiciary.

In his Report, Access to Justice, Lord Woolf recommended that the judiciary conducting civil cases should be monitored in the performance of the case management functions envisaged for them in the report. This monitoring would not amount to appraisal, but would be aimed at securing consistency of approach in this new role and promotion of best practice. The Government support that recommendation, and its aim of facilitating the improvement of judges' working methods.

Judges are fully aware of their duties and responsibilities to the Crown, and the existing arrangements strike an appropriate balance between the obligations of the judiciary to the public and the overriding importance of preserving judicial independence.