WIP

Rachel Bergin

The Lord Chief Justice presides in the Court of Appeal in all of the major cases. We have a relatively small Court of Appeal here comprising myself and three Lords Justices of Appeal. We have a significant work load.  Whereas when I was a young lawyer the Court of Appeal would perhaps sit once a week or even once a fortnight.  Now we have enough cases scheduled to sit almost every day and I have (certainly until recently), at times been sitting three of four times a week. Most cases in the Court of Appeal will require a reserved judgment, so presiding in the Court of Appeal and writing my judgments takes up the bulk of the work that I do. I have also a number of exchanges with public figures and government ministers and civil servants, and occasionally with our local politicians. I believe in engaging, in appropriate contexts, with as many public figures who have responsibility in matters of criminal justice, as possible. Traditionally it would not have been regarded as appropriate for judges to interact with members of the public or even indeed with public figures. However, I don’t have any problem with that, provided it is clearly understood that the cornerstone of any properly functioning democracy is judicial independence. And while I will happily engage in exchanges with ministers, for instance about proposed legislation, I will not comment on policy matters; by policy matters I mean such as whether there should be one or two ministers for justice, what particular form the proposed department of justice should take, whether legislation should be enacted to deal with a particular social phenomenon, or even whether the sentences for a particular species of crime should be fixed at statutory maximum. Those are all matters of policy and matters of policy are to be determined by politicians. What I am prepared to do, and what I will encourage other judges in appropriate circumstances to do, is to discuss with ministers foreseeable difficulties in the proposed implementation of legislation. So I’m quite happy to look at legislation within the criminal justice field - to take an obvious example - and to point out what we as judges may see as being the potential difficulties in implementing particular items of legislation.

But in as much as I will not engage in any discussions about policy matters, I expect that ministers, politicians or other members of the public, should not seek to influence judges in their judicial role. That is essential for the preservation of judicial independence. There must be no attempt to interfere with the discharge of our judicial function, or adjudicative role. There have been occasions where public figures have made comment about sentences that have been passed, for instance, and I have been quite willing to speak to them about that and point out my firm conviction that any attempt to influence a judge to a particular decision is quite contrary to the fundamental principle of judicial independence. It is very important that people should understand that judicial independence is not simply a principle for the protection of judges, but it is something in which all the members of the community have an interest. It is very much in the interest of the entire community that they should feel that a judge who may be the arbiter of some dispute that they may have in the civil context, or who is going to reach a decision in a criminal, or indeed any, context is, and should be seen to be, entirely free from any external influence and should be able to make up her or his mind unencumbered by pressure from any external source. So a reasonable percentage of my time is taken up with presenting that message. It is a pretty elementary message, but one that bears repetition, especially since we are now in a situation where there may be devolution of justice. 

As well as that I am ex officio chairman of the Judicial Appointments Commission, which is a very important body in recent legal history in Northern Ireland. Until it was established in June 2005, most judicial appointments were made by the Lord Chancellor, usually on the recommendation of the Lord Chief Justice, and there wasn’t any formal system for controlling how those appointments were made. As a matter of practice the Lord Chief Justice would take soundings from people who he thought were in a position to give advice about the suitability of certain candidates. In the not too distant past, my own case as a case in point, one didn’t apply for judicial appointment at all. One received a telephone call from the Lord Chief Justice of the day inviting one to consider whether or not to become a judge. The system has now undergone a complete change. The Judicial Appointments Commission is responsible for the recommendation for appointments of all judicial office holders up to, and including the High Court; not the Court of Appeal, although it does have a role in relation to the Court of Appeal. We have two statutory imperatives, the first and the overriding duty is that the appointments that we recommend shall be based solely on merit. The second, supplementary but nevertheless extremely important statutory obligation is that we have to embark on a programme designed to increase the pool of eligible candidates for appointment to the Bench, as widely as possible, and in particular so that it is reflective of the community in Northern Ireland, and that is a statutory responsibility that we take extremely seriously. We have embarked on all sorts of initiatives designed to identify disincentives to individuals applying for judicial appointment. One obvious area where there has been legitimate concern expressed is the under representation on women on the bench, and to my regret the High Court or the Court of Appeal does not have a woman judge as yet. I am confident that will change and I am sure that it will change in the relatively near future, but it is a part of the responsibility of the Judicial Appointments Commission to investigate the reasons that women do not apply for judicial appointment and to try to deal with those reasons and make recommendations to government as to how a change in the working patterns, for instance, of judges can be brought about so that encouragement can be given to women, and indeed other sections of society that are not as well represented as they might be in the judiciary.

The competitions that we run for judicial appointments are competence-base. In most instances candidates for judicial appointment will be required to complete what is variously called an application form or self-assessment form, in which the competences which have been decided upon by the Judicial Appointments Commission are set out. They will be required to give examples of how they have performed in those areas in the past and, in virtually all of the competitions, there will be an interview process in which testing will be undertaken of how the candidates claim to have possessed the various attributes which are required. This presents quite a challenge to lawyers who, by dint of their experience, have really no background in applying for that kind of post. It is therefore very important that we as a Commission convey to potential candidates that it is not sufficient for instance, simply to say that they have long experience doing various types of cases. Rather it is necessary for the candidates to provide examples by which the appointing panel can make its own judgment as to how well they have performed in the various areas that we regard as prerequisites to appointment. So that's a very interesting dimension to the job of Lord Chief Justice that has only been in existence since June 2005.

As well as that I have regular invitations to make speeches to various bodies and to participate in conferences. I do quite a lot of that and I try to do as much as I can; I don’t have a great deal of time, but I do think it is very important that the judiciary should, in appropriate circumstances, be prepared to engage with public bodies and members of the public generally, so long as there is a clear understanding of the parameters beyond which that engagement must not stray. In addition to that, I have recently been interviewed for television, which has been quite a departure from my previous stance or that of my predecessors.

 

I work a great deal with my staff, in particular with my private secretary Simon Rogers; his role would be difficult to define in any comprehensive way because he does so much. He is an extremely clever, able, committed and dedicated public servant and I am extremely fortunate to have him. It would not be at all uncommon for Simon and myself to exchange emails early in the morning.

6:00am A typical day will start with my going into my study and that could be at various hours, usually fairly early between six and six-thirty and I’ll exchange emails with Simon then.

8:30am I usually leave at eight-thirty, but I will have done one or two hours’ work before I come into the office in the morning.

9:30am When I arrive in the office I will have a number of files on my desk for direction as well as correspondence and I’ll deal with those. I may have meetings in the morning. This morning for instance I had a meeting with a number of judges from various judicial tiers to discuss various matters.

10:00am I may have to go to court to deal with reviews of cases at ten o’clock. We as judges have a major responsibility to case manage litigation that comes before us. It used to be the case that judges stood aloof from the progress of the case to court. The reverse is the situation now as, when we become aware of cases now, (I am speaking at a high level of generality here), we monitor them and review them and give direction as to when various deadlines must be met. So I will spend time reviewing cases in the Court of Appeal, giving directions about when they should be listed and dates for submission of skeleton arguments. Usually a case that is proceeding will start at ten-thirty. Sometimes people ask why we don’t start cases much earlier: partly for the reasons I’ve given already, there is a lot of work to be done before we go into court. Incidentally it should be made clear that in the Court of Appeal in the vast majority of cases, we will have had skeleton arguments submitted and we will have done a lot of reading of the case before going into court. That means that the case can be presented much more succinctly and economically than was previously the case. In a sizeable percentage of cases the Lord Chief Justice’s Legal Unit (part of his office staffed by bright young lawyers) will have prepared a summary of the case, and the library prepares a PDF file in which all the decided cases that are going to be referred to by the parties, all the relevant legislation, skeleton arguments and submissions, and increasingly - if we can persuade the parties to do it - the affidavits that form part of the Appeal book, will be contained. This means that if you go into the Court of Appeal, for example, you will frequently see that the Judges don’t sit with great rafts of legal authorities and texts. We have laptops in court in which most of the material we require to resort to will be contained. Virtually one part of every day will have to be set aside to reading the material that has been submitted for cases that are coming up in the relatively near future.

10:30am The court sits at ten-thirty and if the case proceeds we sit until one o’clock.

1:00pm I will have correspondence to deal with, but I do eat! At lunch the judges have a common room at the end of the judges’ corridor, which is a wonderful facility because it means that we can get together every day and discuss issues of mutual interest. We also arrange listing of future cases.

2:00pm The court resumes at two o’clock.

4:00/4:30pm We rise between four and four-thirty. People ask why we rise so early. Firstly, because there is still a lot of work to be done. Secondly, because depending on the type of case it is, we find that it is difficult to sustain the required level of concentration over a very protracted hearing. Now that is more relevant I think in first instance cases where evidence is being given, rather than in the Court of Appeal. Furthermore, if one is sitting as a judge at first instance with a jury, the judge must keep in mind that the capacity of the jury, however conscientious- and my experience is that the vast majority of juries are extremely conscientious- to keep the level of concentration at a pitch which is necessary, particularly in the important field of criminal law, is not limitless. So those two considerations mean that we will rise usually between four and four-thirty.

4:30pm After that I usually have meetings of various types and with various committees. As well as being the Chairman of the Judicial Appointments Commission, I am Chairman of the Crown Court Rules Committee, the Supreme Court Rules Committee, and various other committees like that, and there are also judges meetings to be attended to. Various people will want to come and see me, or I to see them; for instance, I have periodic meetings with the Chief Constable, the Director of the Public Prosecution Service and various other individuals, so those will be scheduled, usually starting at four-thirty and ending probably about six o’clock.

6:00pm I’ll then try to do a little work here in the office, clear up any outstanding emails.

7:00/7:30pm I aspire to be home between seven and seven-thirty. 

8:30pm That's not the end of my day as it would be a most unusual day, especially during the week, when I wouldn’t have to retire to my study for at least a couple of hours; writing judgments, looking at cases for the following day, and again dealing with correspondence. The computer is a wonderful invention, but it is also a fairly cruel master!

That shouldn’t be too discouraging because a lot of the work of course is extremely engaging and one doesn’t feel the time passing. And of course, judges have long vacations - whether vacation is the correct appellation is another question, as a lot of the time in the summer vacation one is trying to catch up with outstanding judgments, and trying to find time to keep abreast of legal developments.

Judges have a very lively education programme organised by a Judicial Studies Board. One of the Lords Justices is the Chairman of the Board. At least once a fortnight we will have a seminar in the late afternoon, at which various tiers of the judiciary will attend, for instance about new developments in sentencing, or sometimes we are addressed by groups such as the Probation Board, about difficulties they are having, for instance in implementing new terms of legislations.

I was finishing my degree. I went to university when I was seventeen and of course in those days the law course was a four year course, so I was twenty in 1968 and I would have been doing much of what you’re doing at the moment; trying to be scrupulous to attend lectures and tutorials, not succeeding in being as conscientious as I should have been in preparing for them. I was generally enjoying university life, which I think is a great pre-requisite and something which I always advise young people to do, to the despair of their parents. University is not only a time for concentrated study. Despite what many commentators may say, I suspect that it is probably far more intensive study now than it was. But it is also a time in one’s life I think, where one should have the opportunity to mature emotionally and socially, and to avail of all the chances that come your way while at university.

That's a very difficult thing to apply any analysis to. My wife has a theory that I require a different challenge about every six or seven years, and I’ve been very fortunate in my career as a lawyer.

I chose law, slightly to my shame, as a matter of elimination. I didn’t think that I was well disposed to avail of a scientific education, although perhaps looking back that was a wise decision, and I didn’t particularly want to become a teacher; my mother was a teacher and it is a very arduous profession. Therefore I chose law because the other options weren’t immediately obvious. It was an extremely fortuitous choice, as it suited me and I suppose, to an extent, I suited law. I didn’t have a great deal of knowledge about what it entailed in advance, and I quite enjoyed the study of law at university, but I enjoyed the practice of it infinitely more. I didn’t really have, at the beginning, a very good grasp on the distinction between barristers and solicitors, but I chose the Bar and I can’t claim that was a product of any great process of analysis or reasoning, but it was an enormously happy choice because I found that I had an aptitude for it. I was called to the Bar in 1970, the first of the large calls to the Bar.  There is, I think, a misconception that we flourished then because the Troubles, as they are euphemistically called, had begun and that provided a great deal of work in the criminal sphere. I don’t believe that to be true at all. Certainly the paramilitary violence that this society suffered from for a very long time generated quite a lot of work in the criminal sphere, but it certainly didn’t percolate down as far as my lowly position in the Bar, and I didn’t do very much criminal work at all. 

After the first six or seven years I had a reasonably good practice and in 1978, eight years after I was called to the Bar, I was invited to become Junior Counsel to the Attorney General. That was a very interesting, challenging job, which I gladly took on and I remained in that position for another five years.

I then had the opportunity to take Silk and I became a QC. The profile of my work changed quite radically then because I wasn’t engaged by the Crown immediately after I took silk. After taking Silk I moved into a very different area of work altogether; I moved into a lot of personal injury work, some planning work, very little criminal work, but occasionally I would have done a criminal case.

Five years later, in 1988, I was invited to become Senior Crown Counsel for Northern Ireland. The title ‘Senior Crown Counsel’ might be supposed to imply that you do a lot of criminal work, but you don’t. It is a job that's broadly equivalent to Treasury Counsel in England, and where you appear on behalf of the government and government departments. It was an extremely interesting time, very demanding work of course, a lot of appellate work in the Court of Appeal and the House of Lords. I appeared on behalf of the government in the European Court of Human Rights a number of times and in the European Court of Justice in Luxembourg a few times.

Then five years after that, in 1993, the Lord Chief Justice of the day, now Lord Hutton, telephoned me and asked me would I become a judge. True to my experience, and what my wife would say was my nature, I thought that this was another opportunity and took it. I became a judge in 1993 and within a fairly short time of being appointed I had the great good fortune to become the judge in charge of Judicial Review, which was an area I’d specialised in at the Bar and was an area which I greatly enjoyed

In January 2004, I became Lord Chief Justice. I’ve been Chief Justice now for something over five years and I am about to leave the position to join the House of Lords. So I think my wife’s theory has a little justification!

It is very difficult to single out one person. But, I’ve been thinking about this and it has struck me that the three most influential people in my life have all been women.

Secondly, my mother of course, was a remarkable woman as well, she was also widowed when she was quite young and also had a large family. If anything, she believed even more firmly in the value of education than did my grandmother, and all of her children she ensured, were educated to the full level of their ability, and she certainly encouraged me in all of the educational endeavours that I undertook. She was also an extremely admirable woman who had to deal with great adversity, and overcame that in ways that I find difficult now to understand.

           Finally, of course my wife, whom I met when I was seventeen, just a short time after we started our university career together, and has been an inspiration and a great support to me.

Well that’s not a difficult question at all, it is family. I think there can be no doubt that my family means more to me than anything else in my life. A successful career is very important, and I place a great deal of store in friendship, I have been blessed with many colleagues who are also extremely good friends, and that I think is very important. But above all that, family.

I had the great good fortune to appear in the House of Lords in very important cases when I was Junior Crown Counsel and Senior Crown Counsel, and of course I had the good luck to go to the European Court of Human Rights and the European Court of Justice. By definition those cases were very important.

I was at the Senior Bar at that time and when the case came on for trial a recent decision of the House of Lords in the case of Arnold v The Central Electricity Generating Board had suggested that a limitation issue arose in cases of this type, and there was a real possibility that if Mr Simpson’s case proceeded, he would not have received compensation at all because of the limitation issue. But in any event, just before it was due to start we were offered £45,000 in settlement of the case, which was a great deal of money, by the standards of those days but certainly no more than was his due. I believed that the case had a higher potential and I recommended to Mr Simpson that he shouldn’t take the sum offered. I met him and his wife, who were wholly admirable people, many times and had established a rapport with them and they accepted my advice, albeit they were concerned that if the case proceeded there would be a very adverse result. In any event, as the case went on, an award was made of £75,000 for general damages plus his special damages which brought it up to something approaching £90,000. Now the insurance company which provided insurance for the Harland and Wolff employees appealed the decision. It was argued in the Court of Appeal that the level of damages for all manner of personal injury claims in Northern Ireland should approximate to that which was prevalent in England and Wales, and that was a very important issue because, since we had abolished juries in civil cases much later than in England and Wales, generally speaking the level of compensation for personal injury in Northern Ireland was greater than in England and Wales. But it was a case where an intensely human dimension coincided with the important point of principle so that one was very conscious in the Court of Appeal that whatever was the outcome about the dispute on this issue of principle, there was an individual and his family who were going to be acutely affected by it.

As it happens, the argument we made, that there should be a distinction between the levels of personal injury damages in the two jurisdictions was accepted, but the award was reduced, but it was still significantly greater than the sum that he had refused in the first instance. One had the sense in that case of achieving something for an entirely worthy individual. Now sadly his prognosis was very poor, but at least he had the satisfaction of knowing that his wife would be provided for in the inevitable event of his early death. And that was an extremely memorable case for me, and one that I got a great deal of personal satisfaction from.

I suppose the advice I would give is more or less the same in either context. I remember when I was a young man receiving advice, and I frequently felt that people should be a l...