Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘judges

Judicial decision making – tackling the problem of ‘cognitive bias’

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When coming to decisions, we all have a tendency to reach decisions that are not entirely logical or free from bias. We should all aim to limit the effects of such biases. This is particularly important for those reaching decisions in a judicial setting. However, this is hard to do unless we know about the biasses that may exist and how they may be countered.

In a recent edition of Tribunals Journal (2018 No 2) Simon Ward – a medic who also sits as medical member of the First Tier Tribunal – discusses five major types of cognitive bias that exist when we are required to weigh evidence before reaching a decisions. He also considers techniques for countering these biasses.

  1. Representativeness. Similarity or resemblance to a group is used to imply representativeness of that group rather than using the real probability of membership. Applying the actual base rate rather than the perceived occurrence rate of the factor being considered, is recommended so the correct likelihood is utilised.

  2. Availability. Easily recalled or available memories or experiences are used to predict or estimate an outcome rather than the actual objective occurrence. Using measures to reduce reliance on memory such as reminders, prompts and checklists, is advocated so that accuracy is maintained.

  3. Anchoring. Salient or prominent features are preferred and given undue influence or anchored onto before evaluation is completed. Slowing down decision making to allow time to evaluate matters fully is advised so the correct weight or apportionment is applied.

  4. Confirmation. Information that confirms our own pre-existing expectations or beliefs is filtered and selected in preference to opposing or contradictory aspects. Actively seeking out alternative possibilities or positions is suggested so as to challenge and counter subjective, partisan or partial viewpoints.

  5. Optimism. Overconfident or optimistic evaluations are made of how much we know and how reliably we know it, whilst our own knowledge limits are undervalued. Comparing the current evaluation to a reference group of similar membership is recommended so as to allow calibration of the current decision

The article gives further examples of the applications of these principles and how they may be applied in practice. The lessons are, of course, important for all decision-takers, not only judges. It is an issue to which, historically, little attention has been paid in judicial training. It is very interesting that a practicing tribunal member should be seeking to share his expertise on this often misundertood issue.

The full article is at https://www.judiciary.uk/wp-content/uploads/2018/03/tribunals-journal-edition2-2018.pdf pages 2-9.

 

 

 

 

 

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Written by lwtmp

March 4, 2019 at 12:58 pm

The Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018

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The great Transformation of the Justice System programme, being advanced by the Ministry of Justice and HM Courts and Tribunals Service was initially supported, legislatively, by a substantial Prisons and Courts Bill 2017. This fell when the General Election was called in June 2017. (See this Blog,  March 2017 and July 2017). Since then, legal system watchers have been awaiting the return of the Bill, either in its original form or in a new guise.

Our patience is now at least partially rewarded with the publication of the Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018, which was introduced into the House of Lords at the end of May 2018. As its title suggests, this is not the full legislative package originally envisaged. Rather it is a short, 4 clause Bill  Iwith Schedue) which proposes measures to facilitate the more flexible deployment of judicial and other staff.

Once enacted, the judiciary will be flexibly deployed across jurisdictions, allowing judges to gain experience of different types of cases, helping with their career progression. It will also enable judges to be used in specific courts or tribunals where there are serious backlogs of cases.

As regards the taking over of tasks currently undertaken by judges, authorised staff could carry out some of the more straightforward judicial functions, including tasks like issuing a summons; taking a plea; extending time for service of applications; or considering applications for variations of directions made in private or public law  children  cases. One noteworthy measure is that the role of the Justices’ Clerk, currently a statutory one, will become non-statutory. This will enable them to give advice on law in the Family Court as well as in the Magistrates’ Court.

Details of the Bill are at https://publications.parliament.uk/pa/bills/lbill/2017-2019/0108/lbill_2017-20190108_en_2.htm#sch1

Written by lwtmp

June 4, 2018 at 1:59 pm

Equal treatment: Guidance from the Judicial College

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It should go without saying that, particularly in the legal arena, those who take part in proceedings before courts and tribunals need to feel that they have been treated equally.

This is, of course, easier said than done, as David Lammy’s report on the Criminal Justice System, published in 2017 showed. (See this blog 29 Sept 2017). But for many years first the Judicial Studies Board and now the Judicial College have offered guidance to judges (and by extension to others involved in the justice system) about the best ways to try to ensure that people are treated fairly.

Much of this focusses on the language that judges and others involved in the justice system use generally (for example in relation to litigants in person) and in relation to those from specific sectors of society, who may be defined by their religion, their ethnicity, their sexual orientation, mental or physical disabilities, their gender.

In February 2018, the Judicial College published an on-line updated revision to its ‘Equal Treatment Bench Book’. Bench books were originally devised as a handy guide to key issues which could sit on the judge’s desk, available for him to refer to it that seemed necessary.

I am not sure whether this particular Bench Book can be used in this way. For one thing, it is very long – well over 400 pages. And the issues raised are such that I would have thought judges would need to have considered them before a case or other proceedings have started. (It would not be desirable for a judge to stop in the middle of a sentence in order to look up how a particular person should be addressed.)

But I don’t agree, as some comments in the press have suggested, that the Equal Treatment Bench Book is an example of political correctness gone mad. It seems to me to be an honourable attempt to raise questions and address issues that arise in practice but that many judges may not have thought about before. (Indeed, I think there are some parts of the book that would be of interest to a wider readership.)

I set out the link to the text here, and invite readers to take a look at the Book and come to their own view on its value.

See https://www.judiciary.gov.uk/wp-content/uploads/2018/02/equal-treatment-bench-book-february-v6-2018.pdf

 

 

 

Written by lwtmp

April 4, 2018 at 3:19 pm

Increasing diversity in the Judiciary

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There has long been a desire to see more female and black and minority ethnic (BAME) people appointed to the judiciary. The present Lord Chief Justice Lord Thomas has promoted a number of initiatives designed to build on work already started by the Judicial Appointments Commission.

In April 2017, the Judicial Diversity Committee of the Judges’ Council published its latest report on progress together with – for the first time – an Action Plan for activities to be undertaken in 2017-2018.

The headline objectives of the Committee are set out in the report as follows:

In the next 12 months, we will –

  • continue our dialogue with BAME lawyers better to understand the barriers they face and identify what more the judiciary can do to support them;

  • work with the Law Society, Bar Council and CILEx to ensure that we are doing all we can to reach the broadest range of talent;

  • encourage more networking among the existing courts and tribunals judiciary;

  • run more workshops to support a greater number of candidates from under-represented groups to prepare for the selection process;

  • further develop our communications to potential candidates and those who have an interest in judicial diversity; and

  • improve the monitoring and evaluation of our initiatives.

While these aims may seem  little bland, detailed reading of the report reveals that there is intended to be an extensive programme of workshops, mentoring, outreach and other initiative designed to encourage those from groups currently under-represented in the judiciary to think about law and a judicial career.

The report also provides a link to a number of judges talking about their experience in becoming a judge – designed to inspire others to contemplate following their path. See https://www.judiciary.gov.uk/about-the-judiciary/judges-career-paths/videos-judges-talk-about-their-judicial-careers/

The report is at https://www.judiciary.gov.uk/publications/judicial-diversity-committee-of-the-judges-council-report-on-progress-and-action-plan-2016-17/

 

 

 

Transforming the Justice System: the Prisons and Courts Bill 2017

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Enromous changes to the ways in which courts – both criminal and civil – and tribunals operate have already been foreshadowed in a number of policy documents published during 2016. Parts 2 to 4 of the Prisons and Courts Bill contain provisions that will give statutory authority to the changes that have been proposed.

The headline provisions may be set out as follows:

Part 2 creates new procedures in civil, family, tribunal and criminal matters.

It makes changes to court procedures in the Crown Court and magistrates’ courts to make processes and case management more efficient.

It allows some offenders charged with summary-only, non-imprisonable offences to be convicted and given standard penalties using a new online procedure.

It extends the use of live audio and video links, and ‘virtual’ hearings where no parties are present in the court room but attend by telephone or video conferencing facilities.

It makes provision which will apply across the civil, criminal and tribunal jurisdictions to ensure public participation in proceedings which are heard virtually (by the streaming of hearings), including the creation of new criminal offences to guard against abuse, for example by recording such stramed hearings.

It creates a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions.

It bans cross-examination of vulnerable witnesses  – in particular those who have been the subject of domestic abuse – in certain family cases.

It confers the power to make procedure rules for employment tribunals and the Employment Appeal Tribunal on the Tribunal Procedure Committee and extends the membership of the Committee to include an employment law practitioner and judge or non-legal member.

 

Part 3 contains measures relating to the organisation and functions of courts and tribunals.

It extends the role of court and tribunal staff authorised to exercise judicial functions giving the relevant procedure rules committees the power to authorise functions in their respective jurisdictions.

It abolishes local justice areas, enabling magistrates to be appointed on a national basis, not just to a specific local justice area.

It replaces statutory declarations with statements of truth in certain traffic and air quality enforcement proceedings.

It makes reforms to the arrangements for the composition of employment tribunals and the Employment Appeal Tribunal.

It enables the High Court to make attachment of earnings orders for the recovery of money due under a judgment debt, as far as practicable, on the same basis as in the County Court.

Part 4 contains measures relating to the judiciary and the Judicial Appointments Commission.

It enables more flexible deployment of judges by enabling them to sit in different jurisdictions.

It brings the arrangements for the remuneration of judges and members of employment tribunals – currently undertaken by the Secretary of State for Employment – under the remit of the Lord Chancellor.

It rationlises the roles of  judges in leadership positions who will support a reformed courts and tribunals system. (This includes provision to abolish the statutory post of Justice Clerk; this role will continue, but those qualified to be Clerks will also be able to undertake analogous work in other court/tribunal contexts.)

It  gives the Judicial Appointments Commission the power to carry out more work (not directly related to judicials appointments) on a cost-recovery basis.

Source, Explanatory Notes to the Prisons and Courts Bill 2017, available at https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/en/17145en02.htm

Lammy Review: racial bias in the criminal justice system

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In this blog, I noted (Feb 2016) the appointment of the MP for Tottenham, David Lammy, to lead a review of racial bias in the criminal justice system. He has now published his ’emerging findings’ in a letter he has sent to the Prime Minister. His final report is expected in 2017. The Press Release states:

The review commissioned an analysis paper looking at disproportionality in the criminal justice system. One finding was that for every 100 white women handed custodial sentences at Crown Courts for drug offences, 227 black women were sentenced to custody. For black men, this figure is 141 for every 100 white men.

Among all those found guilty at Crown Court in 2014, 112 black men were sentenced to custody for every 100 white men .

The disproportionality analysis also found that, among those found guilty, a greater proportion of black women were sentenced to custody at Crown Court than white women.

 

Other notable findings highlighted today from the disproportionality analysis and the wider Lammy review include:

  • Of those convicted at Magistrates’ Court for sexual offences, 208 black men and 193 Asian men received custodial sentences for every 100 white men.

  • BAME defendants are more likely than their white counterparts to be tried at Crown Court – with young black men around 56% more likely than their white counterparts;

  • BAME men were more than 16% more likely than white men to be remanded in custody;

  • BAME men were 52% percent more likely than white men to plead ‘not guilty’ at crown court;

  • In prisons, BAME males are almost five times more likely to be housed in high security for public order offences than white men, and

  • Mixed ethnic men and women were more likely than white men and women to have adjudications for breaching prison discipline brought against them – but less likely to have those adjudications proven when reviewed.

  • 51% of the UK-born BAME population agree that ‘the criminal justice system discriminates against particular groups’, compared to 35% of the UK-born white population;

  • 41% of youth prisoners are from minorities backgrounds, compared with 25% ten years ago, despite prisoner numbers falling by some 66% in that time;

  • The number of Muslim prisoners has almost doubled in the last decade.

The next stage for the review will be to examine the reasons for these figures and to explore whether they reveal bias in the system against those from BAME groups.

It has also been announced that Lammy will – as part of this exercise – take a closer look at diversity in the judiciary and the numbers of judges from BAME groups.

The details of the emerging findings are at https://www.gov.uk/government/news/lammy-review-emerging-findings-published

 

Written by lwtmp

November 23, 2016 at 11:33 am

Determining judicial pay – current concerns

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Each year, the pay of judges is determined – along with other public sector senior appointments – by the Government, following recommendations made by the Senior Salaries Review Board.

They come to their views in the light of evidence received from government and the judiciary themselves.

In January 2016, the Ministry of Justice’s evidence to the Board was published. It provides a great deal of statistical material on the judiciary – both in the courts and in tribunals.

The Government’s position is that overall increases in judicial pay should be limited to the target that has been imposed thoughout the civil service that total pay should increase by no more than 1%.

But the MoJ concedes that there is some evidence that, especially for appointments to the High Court, the recruitment and retention of highly qualified and experienced judicial expertise is proving a bit tricky. The attraction of the knighthood/damehood that all high court judges receive on appointment and a good pension are – it is argued – no longer sufficient. The Ministry of Justice is therefore suggesting that the pay of High Court judges should be enhanced by 3% – to be funded by lower pay increases for other judicial ranks.

The Senior Salaries Review Board has not yet reached its determination for this year.

Looking ahead, the Ministry of Justice contemplates that – in light of all the changes currently taking place in the justice systems – there should be a more fundamental review of judicial pay, taking into account no doubt whether the current numbers of judicial appointments are appropriate.

I will note the outcome of the Board’s Review in due course.

The Ministry of Justice evidence is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/492029/senior-salaries-review-report-2016-2017.pdf with a short summary at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/492028/ssrb-evidence-pack-covering-letter.pdf

Written by lwtmp

February 20, 2016 at 12:27 pm