Court of Appeal judge Lord Justice Anthony Hooper retired in July 2012. We talked to him about the legal profession and his career.
Advice for students and young lawyers
How does one become a judge?
The tradition in all common law countries is that judges are chosen from the ranks of legal practitioners. That system remains in place, although there are those who think we should move to the French model of training undergraduates to be judges from the start. There are now so many ranks of judges, from district judges through to the Supreme Court, that there are many opportunities to become a judge. But the squeeze on the publicly-funded Bar has led an increasing number of practitioners in areas like crime and family to seek to become judges.
Is it harder to become a judge now than it used to be?
When I first became a judge I did it part-time; I was an assistant recorder. At the time I was merely asked if I wanted to be one. Now there is increased competition and there are exams and role-playing exercises. I wouldn't advise anyone to enter the profession – either as a solicitor or a barrister – in order to become a judge.
Traditionally more senior judges come from the barrister ranks. That is changing, but it is still more difficult to become a senior judge as a solicitor rather than a barrister. That said, there are an increasing number of solicitor advocates in court.
What advice would you give to students hoping to enter the profession? And what would you encourage students to spend their time doing to help further their careers?
There is an increasing amount of competition and the market for barristers is shrinking. So, if you are thinking of a career at the Bar, it is important for you to show that you have the qualities required of a barrister and have experienced how barristers operate. Also, all forms of debating experience are to be recommended, as are mini-pupillages in chambers or marshalling with a judge.
Do you think the bar is meritocratic? Or does it still help to know the right people and have the right connections?
This question is very dear to my heart. While at the Bar in the 1990s I was involved in the introduction of the Bar Equality Code [which came into force in 1996]. It was designed, not only to help ethnic minorities to become barristers, but also to make chambers apply proper and fair proceedings when making pupillage and tenancy offers.
The life and responsibilities of a judge
Could you talk to us a bit about the toughest parts of being a judge? Perhaps the challenges you face and the difficulties of making ethical and 'wise' decisions?
The business of judging is not easy. In most cases good arguments will be put forward by the opposing parties. One party or another will be disappointed by the decision you make. The parties are entitled to and must be given a fair hearing and a reasoned decision, which – even if not acceptable to one party – produces the best possible result.
To me, the judicial oath which you swear – to hear cases without fear or favour, affection or ill-will – is something we as judges should remind ourselves of all the time. I spend much of my time doing criminal appeals, and therefore have to strive to be fair, not just to the defendant but also to the victim, if there is one, to the witnesses and to society at large.
Appellate judges read cases well in advance. Sitting in the criminal division of the Court of Appeals, I do nine or ten cases a day and each must be given the attention it deserves.
This is quite often a very stressful occupation. Sentencing people to significant terms of imprisonment is not an easy task, albeit a necessary one.
As a Court of Appeals judge how much do you feel able to go against what judges in lower courts have said?
(Laughs) Inevitably sitting as I do as an appellate judge, there will be cases where one disagrees with the judgement, summing up or ruling by the lower courts or the trial judge. One needs to be aware that trial judges often have less opportunity to go over a case as carefully as I am able to. It is important not to worry about the precise words used by a judge in a criminal court, who may have had to make an immediate ruling within a very tight time-frame.
An appeals judge must give proper respect to a trial judge, but if the appellate court concludes the judge has made an error then, however important the trial judge is, it is the task of the appellate court to point out where he or she has gone wrong. In most cases the appellate judge will be supportive of the decision made by the trial judge. In those very rare cases where a judge has misbehaved and not given the parties a fair hearing, it is important that the appellate court expresses that view.
I have had cases where I have been very critical of a trial judge's handling of a criminal trial. In one case I had known the other judge for many years. Later he thanked me and said he had realised he had let his standards drop and my judgement was an important reminder to him not to do that.
How do you see the future of the Bar? Does it have one? What will the consequences of government cuts to the profession be?
I do think that the publicly-funded Bar is facing huge challenges, because of government cuts. I think the Bar will survive, but it will be a leaner profession. I worry that really good people will opt for privately-funded rather than publicly-funded work. I worry that standards will drop because reduced funding can lead to more junior people doing the work that is in fact appropriate for those more senior.
For example, when I started, anyone charged with homicide or rape would have a QC representing them. Now, in many serious cases there will be no QC appearing either for the prosecution or the defence. Defending or prosecuting someone charged with such a serious crime demands huge skills. I worry that an absence of those skills due to funding cuts could lead to miscarriages of justice, that is, guilty people being acquitted or innocent people convicted. Indeed, I foresee that judges will have to become much more involved with cases than they have traditionally been. The adversarial system works only if the counsel of the two opposing parties are sufficiently experienced. If not, it puts considerable pressure on the judge to intervene in proceedings, making things far more non-adversarial.
Do you have any good stories or anecdotes from your time as a pupil or junior barrister?
This one could fall under the headline 'fact is stranger than fiction'. I remember defending a man in an Essex magistrates' court for indecent exposure. When I met him at court, I asked – on the off-chance – if he was perhaps wearing anything which could have led the witness to believe he was exposing yourself when in fact he was not. He said, he was wearing a belt and one of the belt loops had broken and the end of the belt was hanging down in a looped or curved way. I said: 'Go and get the belt!' I got the case adjourned for an hour while he went to get it. When the witness to the alleged indecent exposure was giving evidence, I asked the defendant to put the belt on and asked the witness if it may have been the belt that she had seen and not what she thought she had. (I should add that it was quite dark at the time of the incident.) She accepted that it could have been the belt and the defendant was acquitted.
If this interview has piqued your interest in the judiciary why not read our feature on How to become a judge.
This feature was first published in our June 2012 newsletter.