The subject of judicial bias has always fascinated Researching Reform and in the family justice system, where discretion is not just an afterthought but a much-used tool, bias can be magnified and in turn can affect judgement.
In February of last year, we wrote about a piece in The Guardian which explained that judges who show persistently poor judgement cannot be sacked. In a world where most employees who fail to carry out their duties competently can be fired it seems rather out of touch with the modern-day work ethic, and perhaps highlights an entrenched superiority complex inside a system which believes it is above the law, not its custodian.
And in 2010 we also wrote about judicial bias and the fascinating research Cornell University published about impartiality amongst judges. So what gives? Can prejudices be removed and can humans be completely impartial or will bias always have a part to play?
Well, it seems from the research as if bias is an integral part of the human condition. We store experiences in our mind and use them to weigh and measure future experiences; it’s how we survive. But how well we do that really depends on how well we process experience. And for judges, who, the research suggests, are no less prone to poor stereotyping and unhelpful bias than us mere mortals, processing their experience properly becomes an integral part of whether or not they can carry out their function.
Fast forward to Sir Paul Coleridge, judge-gone-political activist and founder of the recent Marriage Foundation, whose charity is now being called into question. Sir Paul speaks plainly – he always has done. But this time, instead of just speaking about his views on things like the family justice system and marital breakdown, he has formed an organisation he calls a charity and has been trying to persuade the nation that heterosexual marriage is the ultimate model for the good of society. The Office for Judicial Complaints are now looking into this and the only reason we imagine they are doing that is on the point of bias and Sir Paul’s ability to function as a judge.
Judges must be able to interpret the law fairly. In practice, this does not mean ignoring experience, being devoid of emotion or ignoring the realities of life. It just means that a judge must be able to be magnanimous: he or she must, in effect, look beyond the perceived obvious.
And this can be done. Cornell’s seriously interesting research, which you can access above, is well worth a read. It explains that bias can be assessed, addressed and checked and that with the right kind of training judges can judge fairly. It would be impossible to remove inherent prejudices within human beings altogether, but judges can and do function without allowing their personal preferences to dictate their processing of a case.
Too often in the family justice system, and elsewhere, we see judges applying their discretion to tailor the law, not to suit the parties that come before it, but to exorcise personal frustrations. Judges sometimes forget they are there to serve. But they should be reminded.
The fine line between having an opinion and allowing it to affect how a judge judges, is difficult to measure. Lord Justice Munby was perhaps the first modern family law judge to become politically active, peppering his judgments with political philosophy and warnings on things yet to come if the family justice system continues down the road it is travelling. And Sir Nicholas Wall was quick to follow, in ceremonial speeches too. So what makes it okay for one judge to be political and not another? This is an intriguing question to answer, as it would need to be weighed up against the way each judge manages his cases, but one distinction that does set Coleridge apart from Munby and Wall is that Coleridge has sought to change the way an entire country lives its life – Munby and Wall only ever expressed their concerns about the functionality of the justice system in relation to how it might better serve families and children that come before it.
Furthermore, judges are considered to be cornerstones of society, upholding the most decent and free-thinking modes of thought, the most sophisticated thinkers, a little like modern-day philosophers. But all too often, they are simply just time-short, temper-short and short on perspective. And most importantly perhaps, judges who seek to change the way society functions on a political level are blurring the lines between the judiciary and the executive. And that too, creates conflict of interest and can have devastating consequences for justice.
So, how do we change that? How can we manage the necessary boundaries and make sure our judges function professionally? One suggestion might be to have an organisation that reviews and monitors each judge’s cases – not all of them, but perhaps just one case a year, so that fairness can be monitored and quality assurance verified. And if a party complains about their case, there should be a proper complaints procedure in place, to allow for a proper investigation.
It might also be useful to have a directory of judges and their views on things like heterosexual marriage, divorce, child welfare and more, biographies about each judge, their financial interests and which groups and organisations they belong to. Transparency would be achieved in this way and it would go some way to help restore trust and confidence inside a system which is sorely lacking it.
Yes, judicial bias is always going to exist: but it can be managed and justice can prevail.
Mehrnaz Allawi said:
BRILLIANT NATASHA………..THEY SHOULD MAKE YOU A JUDGE. Such a well balanced view of our judges. Let’s hope they listen to your suggestions of lessening the bias in the system.
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Natasha said:
That’s really very kind.
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nojusticeforparents said:
brilliant hun xxx subject im looking into myself . Yes you should be a judge. In answer to what can be done make a citizens arrest of the judge for breach of oath this has been tried in birkenhead . Occupy family courts turn up with a pop up tent lol on a less anarchistic note how about setting up an independent regulation authority based only of people that have experienced injustice, breaches of article 6 of human rights act , to ‘ judge ‘ the judges . Any judge found to be biased guilty stripped of his robes and oath and penalised financially very heavily . Judges decisions affect people lives and if they have shown bias etc they should warrant serious repercussions and nothing would hurt more than facing financial ruin.
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Natasha said:
That’s very kind and thank you for your suggestions xxx Yes, it would be great to have deterrents like that for judges.
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Sabine Kurjo McNeill said:
My mum would say: “your words into god’s ears”, Natasha!
Do “they” read your blog? Do they take notice? Who will establish the directory? A good researcher and campaigner just sent me all the addresses. Can you put them up and let people add what they know / experienced with those judges? It would be better to click into a data base, but we need to live with what we’ve got. If we organised by region / court first and then alphabetically, people would find their target, methinks.
Meanwhile: look at this incredible “bias”: the criminal judge in Wood Green Court follows the ‘secrecy directive’ of his senior colleague Sir Nicholas Wall, i.e. NOT to take notes, let alone REPORT on what is acknowledged to be the worst of all child snatching cases: the Musas who didn’t get bail twice since they were imprisoned on 28th November 2011. And Gloria overheard Sir Nicholas say “they must not get bail”. How can he extend his ‘network’ so destructively??? Well, the Facebook photo here says it: http://bit.ly/LnRsrQ and http://bit.ly/MD8dFd
All this, while the two Slovak boys are being adopted under the father’s nose who’s lost not only his sons, but also wife, job and house, courtesy of Social Services!…
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Natasha said:
Hi Sabine, thank you for your comment. I think it might court legal problems to get people to note down their personal experiences with various judges, and could lead to defamation suits and possibly jail time for anyone breaching a court order and we don’t want that. Complaints about judges in an ideal world, would be placed in the hands of an uber-efficient machine, which would handle these matters discreetly but effectively, bringing to the fore any professional who had behaved in a manner warranting legal action. And registers ideally, should be nothing more than factual documents stating every judge’s biography, interests (financial and otherwise), and any other facts which are appropriate for such a registry. And whilst lawyers may try to use that registry to their advantage, the real arbiters at the end of the day, will be the parties that come before the judge, because they should also, in an ideal world be able to raise legitimate concerns not just about judges but about lawyers, too.
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Sabine Kurjo McNeill said:
Well, in a ‘judge neutral’ world, yes. But how many victims of how many judges do we know of???
John Hemming MP wants to get some traction going to get Parliament to remove judges.
Maybe we need “Michelin stars” to rate them first of all?
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Thomas Valenti said:
We all have biases whether we choose to admit it or not, so we cannot expect judges to not have them wither. The problem is that we do not have the power of the judiciary to affect other lives. An unchecked bias in a judge can cause immeasurable harm to others. I like the idea of a registry of case results for judges, kept in, of course, an unbiased manner. The registry would contain facts that would allow others to form their own judgments about whether there is some bias that needs to be worked around if you have a matter before a particular judge. With a good set of data points in the “registry” — it could be a valuable tool to everyone, even the judges themselves who may be unaware of their own cognitive biases.
Unfortunately in most jurisdictions there is no way for judges to be screened for the traits that a judge needs to call upon to keep biases in check —
Attunement: the ability to enter other minds and learn what they have to offer.
Equipoise: the ability to serenely monitor the movements of one’s own mind and correct for biases and shortcomings.
(borrowed from an editorial entitled “New Humanism” some time ago)
If all of our judges could do this on a regular basis, no registry would be needed.
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Natasha said:
Yes, I agree. I do worry about lawyers ‘manipulating’ their client’s cases to represent to the judge though. But in a working system, lawyers who behave unethically, who cross the line from trying to communicate effectively, to manipulation, should also be held to account.
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4orseti said:
I wonder if “persuading the nation that heterosexual marriage is the ultimate model for the good of society” is really a bias or the simple recognition of an obvious truth. It is easy to accuse Coleridge of being “political”, particularly that marriage has become a political football and it is trendy to disparage it and promote other relationships as equally valid. I doubt that Coleridge would consider his views as political – more the considered conclusions of a career spent surrounded by the detritus of failed relationships. I think it is rather the opponents of marriage who have sought to politicise what he is doing. Personally, I wish he would come out in support of gay marriage, but it is probably irrelevant to what he is seeking to achieve.
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Natasha said:
Nick, I would disagree. I’m pro marriage, that is to say it suits me as a living arrangement, but take the view that people can be happy and fulfilled in different types of family unit. The good of society is a broad and nebulous concept, but to my mind it means a society that is largely content, experiences low crime, good quality of life and is overall very productive. I have no interest in destroying the concept of marriage – I would like to get remarried some day, but I can still accept that others choose to live their lives in different ways and that ultimately, it has never been about superficial structures, but lack of conflict, warmth, kindness and most importantly, love. And the fact that people spend most of their time working leaving very little time for their relationships is a hugely important factor, to my mind.
The data on marriage is, like all data, packed with stats for and against Coleridge’s proposition. I’ve written about the research on this topic before and it all comes down to one undeniable fact – marriage as a model for the good of society isnot an obvious truth, nor has it been ‘proven’ to be the root cause of happiness.
As a society we are very quick to look for the quick-fix – but there isn’t one. If we want a civilised society, we have to look deeper than ‘I do’.
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American Fathers said:
Reblogged this on American Fathers.
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daveyone1 said:
Reblogged this on World4Justice : NOW! Lobby Forum..
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Forced Adoption said:
Judges are entitled to have political views and to express them.That should not stop them enforcing the law as it is ; not as perhaps they would like it to be !
In the family courts judges often refuse parents the right to call witnesses contrary to article 6,refuse to consider kinship care ,contraryto the Children Act 1989,refuse to allow children to testify in court,contrary to the European Convention on children’s rights,allow social workers to stop children in care from communicating freely with visiting parents and even stop them talking their own language if they are foreign ,contrary to articles 10 and 11 freedom of expression and freedom of association,similarly stopping parents and others discussing their cases openly and publicly contrary again to articles 10 and 11.
Judges too often either ignore the law or even more often interpret the law directly opposite to the intentions of those who drafted the law ! A prime example of this is article 8 giving everyone the right to a private familylife undisturbed by public authority,clearly mean’t to protect the family from the State.Our family court judges interpret this as a protection of the State from the family when they stop parents protesting when their babies are taken from discussing their cases in the media openly in case it breaches the privacy of the baby !! How perverted can justice get??
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