Diary

Stephen Sedley

Q: How many judges does it take to change a light bulb?

A: Change?

Barely three centuries after the full-bottomed wig went out of fashion, and hardly two centuries after the sartorial demise of the short wig, Her Majesty’s judges are going to sit with bare heads. Well, almost. The short ‘bench’ wig will still be worn on formal occasions such as the Lord Chancellor’s Breakfast; judges sitting on criminal cases will continue to wear it daily; and while the change affects England and Wales, Scotland and Northern Ireland will make their own arrangements. In the many Commonwealth countries where wigs and gowns are still the costume, notably in Africa and the Caribbean, no change seems likely. In the old Commonwealth wigs have been largely but not wholly abandoned. Canada dropped them long ago, New Zealand more recently. In Australia’s modern federal court they were initially worn, then abandoned; but in its state supreme courts the full English regalia are still worn. American judges were long ago steered away from wigs by Thomas Jefferson, who, having visited Westminster Hall, reported: ‘We must not have men sitting in judgment who look like mice peeping out of oakum.’ The Bar of England and Wales will have to decide whether to wear wigs to address now bareheaded benches, and what they decide will either amplify or silence the current demand of solicitor advocates to be allowed to wear wigs too.

The Scottish judiciary, which has been divided for years on the subject, shows no sign of following England and Wales. In Northern Ireland, however, the Good Friday Agreement included a simplification of judicial dress. All judicial costume has been dropped in cases involving children; but the Bar has not reciprocated, and the courts now display the incongruous spectacle (though no different from judicial proceedings in the House of Lords and Privy Council) of judges in mufti being addressed by counsel in full costume. The likelihood is that the other courts in Northern Ireland will follow England in abandoning wigs in civil but not in criminal cases. If the Bar, again, does not reciprocate, someone may have to get firm with it. The alternative is the Republic’s easygoing process of elective abandonment.

Whether retaining wigs in criminal cases will help to anonymise judges who come face to face in court with sometimes very violent people I am not sure. It has not saved judges who for reasons of politics or revenge have been tracked down and murdered, mainly in Northern Ireland, but at least once in modern times in England too. On the sanguine side, my colleague Quentin Campbell, in the days when he was a stipendiary magistrate and so sat unwigged, was passed in a dark street by a car, pulsing with sound, which stopped dead. A black youth got out, marched over to him and said: ‘I know you – you’re at Marylebone Court.’ Quentin, getting ready to part with his wallet, defiantly admitted it. ‘Fucking magic!’ the youth said delightedly, and hopped back into the car.

Security has always been hit-and-miss in the judicial sphere. In the early 1990s, when IRA assassinations were a real possibility, we would set off from the suburban judges’ lodgings in robes and wigs in a limo with the royal pennant on its bonnet, led by a permanently angry police motorcyclist who would force oncoming mothers with cars full of children onto the grass verge to give us a clear passage. After a couple of miles of this we would enter urban gridlock, where any assassin could walk up to the car and pick his target at leisure – possibly the judge or possibly the high sheriff who, in doublet and hose like the principal boy in Dick Whittington, would be crammed with his unmanageable sword into the dicky-seat behind the driver.

Although not having to adorn my head with horsehair every time I go into court will be a relief, an even bigger relief (if it happens, which is still not certain) will be not having to put on the rest of the heterogeneous costume: a tunic shirt, studs and cufflinks (mine, a thoughtful Christmas present, say ‘Guilty’ and ‘Not Guilty’, but I keep forgetting to look at them), an Edwardian wing collar, medieval bands (usually, but disputably, known as clerical bands), a sleeved vest (a waistcoat equipped with the sleeves of a Victorian tailcoat to make it look as if the wearer is even more cumbersomely clad than he is) and a black gown. It takes about four minutes to get into it and another four to get out of it. In a year that adds up to about three days’ sitting.

Women appeal judges wear somewhat more elegant simulacra of all this. High Court judges, male and female, have a wardrobe of astonishing proportions, most of it dictated by a royal decree of 1635: two blue-black robes for civil work, one with silk facings for summer, one with ermine facings for winter; a similar pair of scarlet robes for criminal trials; and a black gown for other work. Forty-two years after the abolition of capital punishment they still carry into court not only white gloves but the black cap. The latter was missing from the set of robes I acquired when I went on the bench (they had belonged to Leslie Scarman), and the lugubrious butler at the Birmingham lodgings remarked on this as he got me robed on my first day there. I said I wasn’t sorry. ‘Time you started topping them again if you ask me, my lord.’

Having to change into court dress is the more annoying for me because I’ve already changed once on my way to court. I have a swim most mornings in the heated outdoor pool at the Oasis, which gazes up between flats and office blocks at the sky over Shaftesbury Avenue and Covent Garden. The late Roger Deakin, in Waterlog, his delightful narrative of swimming round the British Isles, found this pool at one of its magical moments, with snow falling through the steam onto the swimmers, as it was doing this February. A handful of us regulars – a stage director, a poet, a journalist, a lawyer – potter up and down the scenic lane and then go round the corner to Silva’s café, where the cook, Romano, does breakfasts a piacere and, for those who want them, fry-ups to die from. For all its fixed furniture and leatherette upholstery, the café, now in the family’s second generation, has weathered all the well-heeled competition which periodically moves into the street. Romano’s eyes lit up when I asked him last year if he’d like some of the rabbits that get shot by a neighbour of ours in Oxfordshire, where the hunt and the motor car between them have wiped out most of the fox population, leaving rabbits to proliferate. I fetched him back six frozen rabbits in a holdall – a frozen rabbit, I can tell you, is almost a yard long from tip to tip – and Romano made casseroles with tomato and thyme which the lunchtime customers fell upon.

The decision to abandon wigs, even partially, has been agonisingly contested and was finally resolved only by the new lord chief justice’s fiat. There had in fact been a brief respite from them in the summer of 1832, when it was so hot that the only remaining wig-wearers, the bishops and the judges, got the king’s permission to take them off. The bishops never put them back on again, but the judges did, and there they have stayed, despite Maitland’s description of them as ‘the silliest adornment that the human head has yet invented for itself’ and Chief Justice Denman’s as ‘the silliest thing in England’. Sir Matthew Hale, the great chief justice of the mid-17th century, refused to wear one when the fashion came in, and Scottish judges wore ordinary clothes until James VI, newly besotted with England, decided that gowns would be ‘comilie’. Nobody so far as I know has advanced a psychological explanation for the reluctance to part with them, possibly along the lines of the hired gunfighter, played by Lee Marvin in Cat Ballou, who could shoot straight only when he was zipped into his sequinned catsuit. Nor has anyone produced bacteriological evidence – as I strongly suspect one might – for getting rid of them. The argument, at least on the surface, has been between tradition and innovation.

But tradition can be a false friend. For centuries English and Scots judges wore the coif – an elongated skullcap – which continued to be worn by serjeants-at-law long after judges had adopted the Restoration fashion for wearing perruques, made originally from a mixture of human hair and goat hair and dressed daily with grease and powder. French lawyers and judges did the same, but rapidly abandoned them in the wake of the Revolution. Scottish advocates also abandoned wigs when fashion forsook them and took to wearing hats instead, doffing them only when they rose to plead – with the exception of the lord advocate, who had since the time of Charles I enjoyed the privilege of pleading with his hat on. The Scots are said to have rejoined their English counterparts in wearing wigs when, at some point in the mid-19th century, a behatted advocate who happened also to be an important landowner was mistaken for an usher by the approaching lord advocate, who ordered: ‘Macer, open the door.’

The possibility that a judge will be taken for an usher is one of the slightly strained arguments now being deployed against the reduction of judicial dress to a simple black gown. But there is an equal possibility that an usher will be taken for a judge. In the case law which has accumulated in the common law world about lawyers who have discharged judicial offices to which they have not been appointed, a somewhat pragmatic jurisprudence has grown up to the effect that what matters is whether the individual was reputed to hold the appropriate judicial office. This works quite well for lawyers who could and would have been duly appointed but for some administrative error; but we do not know what the answer will be when, one day, the judge is late and the usher, well versed in how to behave on the bench, enters court, hears argument and gives judgment.

One of the first reviews I wrote for the LRB, some twenty years ago, remarked that in the legal profession practically any change, starting with the transition from foolscap to A4 stationery, feels like a revolution. That’s how it will feel when, in October, civil judges of England and Wales enter court not only bareheaded but either in sober suits with a black gown on their shoulders or – if a design can be agreed and someone will pay – in a European-style round-necked gown, closed by a Velcro strip, under which I shall be able to wear my Judge Dredd T-shirt (‘He is the Law’) without anyone knowing.