The Modern Judge: Power, Responsibility and Society’s Expectations (Sir Mark Hedley, Jordan Publishing, 2016, paperback, book and ePDF £20.00)
In The Modern Judge: Power, Responsibility and Society’s Expectations, Sir Mark Hedley conveys in a very short compass the fruits of a lifetime in the law, and displays the wisdom that made him one of the most respected family and Court of Protection judges. In a series of short chapters, originally delivered as lectures at Liverpool Hope University, Sir Mark asks profound questions as to the place of the judge in society and to the basis and justification for their role in determining cases involving the welfare of children and those falling within the scope of the MCA 2005. Although he disclaims any attempt to characterise the book as a scholarly text, reflecting instead his own experiences at the Bench, it does not need to be festooned with footnotes in order to achieve its goals.
For me of most importance, perhaps, was the clear identification of the role of judge as individual human being, seeking to exercise a discretion granted to them, the width of which is very little understood by members of society more generally. Sir Mark is very right to ask whether this model is preferable to a model based on clear rules (or the administration of an algorithm). He is also undoubtedly correct to note that whilst rules have the benefit of certainty, they have the ability to generate harsh results in some cases; whilst, conversely, discretion can avoid this outcome, it can also lead to uncertainty and difficulty in predicting the outcome of taking any case to court. Further, the greater the discretion granted to judges, the more significant the role of their own value-systems and the greater the obligation upon judges to be self-aware as to the “baggage” that they are bringing to the determination of any case.
On balance, he makes a convincing case for discretion, not least given the fact that as our society continues to evolve and become more diverse, what might constitute generally acceptable norms upon which rules can be founded becomes ever more difficult. But he is absolutely right to identify that leaving judges with such discretion (or indeed actively imbuing them with it) does commensurately increase the need to identify a real basis on which the trust is warranted. The twin qualities that Sir Mark advocates for judges, of humility (recognising the inherent fallibility of the system) and confidence (in navigating a way to a decision), are undoubtedly ones that he displayed throughout his judicial career. To the extent that other judges reflect such qualities, I would suggest that such does indeed represent a sound basis for reposing trust in them.
Indeed, I would also suggest that the same questions and the same principles apply to all those who seek to apply s.4 MCA 2005 outside the court system, given the way in which the Act has made so many more people informal “judges” in this context, both as to capacity and to best interests.
I would very strongly recommend this short but profound to book for anyone concerned not just with the role of the judiciary in the context of children and incapacity, but also with the wider balancing exercise between protection and autonomy that is required in both of these spheres by others outside the courtroom.
[Full disclosure: I am grateful to the publishers for providing me with a copy of this book. I am always happy to review works in or related to the field of mental capacity (broadly defined)]