Second Time Around

Stephen Sedley

An appeal, you might think, is an argument that a lower court has got it wrong. Whether you would consider it to be ‘a piece of linguistic shorthand which accepts the existence of a penumbra of uncertainty in order to achieve universal comprehensibility at a very low level of exactitude’ is more doubtful; but what these authors seem to have in mind is that even a right of appeal doesn’t necessarily allow you to challenge everything that has happened so far. This is particularly the case with findings of fact by civil judges. It is also the case, unless there has been a judicial misdirection, with the verdicts of juries, the vast majority of which are delivered in criminal and not civil cases.

This book is concerned only with the civil jurisdiction of the Court of Appeal. Criminal appeals, which came into being only at the end of the 19th century and are now heard by the court’s Criminal Division, deserve a separate study. It would be interesting to consider, for example, what the appellate role has been in the present prison overcrowding crisis, which has very little to do with the unnecessary jailing of petty offenders and a great deal to do with the over-incarceration of those who have earned a custodial sentence. When the reforming 1991 Criminal Justice Act came on stream, the standard sentence for a daytime burglary of an unoccupied dwelling by a repeat offender was about 18 months. Today, despite the act’s objective of minimising custodial time, it is around three years. Multiply the doubling of such prison terms by the fact that burglars are well over a tenth of the prison population, and recall that the same period has seen a sustained media campaign against supposedly soft judges and lenient sentences, and you begin to see what is happening. The attorney-general’s once little-used power to get a lenient sentence reconsidered by the Court of Appeal is now used regularly, and for the most part successfully, to keep the escalator moving upwards.

The system might even so have coped if it had not been required to absorb a new cohort of prisoners serving indeterminate sentences. Although the number of course includes killers and other major offenders, there are now almost ten thousand indeterminate-sentence prisoners warehoused in England and Wales. The imposition of indeterminate sentences is prescribed by Parliament, but the fixed-term ‘tariff’ – the element of the sentence reflecting the punitive term which would otherwise have been served – is sometimes so short that by the time they come up for parole offenders have done no work on their offending behaviour and cannot be released. For such prisoners, many of them young and disturbed, an unlit tunnel of unknown length lies ahead. The appellate role is complex in such a situation: it has to respect what legislation prescribes, but as long as Parliament leaves judges some discretion the courts can seek to mitigate law with justice. The legislative erosion of judicial discretion may play well with the media, but it comes at a price. What may, even then, be hard for judges to ignore is the noise of the journalistic echo-chamber which in this field sometimes passes for public opinion.

For civil litigants who have lost their case at trial, the gate to an appeal is strait and the way relatively narrow. Except where personal liberty is involved, only appeals gauged by the court to have a realistic prospect of success are sent through to a full hearing. It is at this point that the trial judge’s findings of fact can prove terminal. A litigant, or a litigant’s witness, who has been disbelieved at trial will have the greatest difficulty in reopening the judgment, because appellate courts, which see only the written record, accord something close to sanctity to the opinion of the tribunal which was able to look the witness in the eye. The authors of The Court of Appeal are uneasy about this, and so are many judges. A good High Court judge, Sir Brian McKenna, once wrote: ‘I doubt my own ability . . . to discern from a witness’s demeanour or the tone of his voice whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man . . . or is he taking time to fabricate?’

Senior judges have since echoed him, but the ring of sanctity remains in place, protecting not only the ordinarily pensive and observant judge but the sort of judge, more familiar in my early days than now, who could spot a bad ’un at twenty paces, complacently unaware that the bad ’un had spotted him at thirty paces. The fact is that lawyers are no better than anyone else at distinguishing truth from falsehood. Sometimes, with luck, a piece of objective evidence shows where the truth probably lies. More often judges, and juries too, are driven back on inherent probabilities, something which experience repeatedly shows to be a very poor guide to reality. But, as with many overblown legal fictions, there is, in the end, a sound and simple reason for the factual no-go zone: the appellate court’s view of the testimony, while perfectly valid, is no likelier to be right than the judge’s.

The nemesis of all courts in modern times, but of appellate courts most of all, has been the use of the photocopier – la débaucherie de la photocopieuse, a French colleague once called it. It is not only easier but more profitable to tip the whole file into the photocopier and leave it to the court to find its way through hundreds or thousands of pages, rather than to select and copy the handful of documents that actually matter. In other countries, where appellate decisions are taken after only perfunctory oral argument, the burden of donkey-work this places on the judges is huge. It leads either to overmanning the system or to colossal delays in adjudication. In this country we have the advantage of oral argument by a corps of specialist advocates, one of whose principal tasks, if they want to keep the court’s attention, is to steer the court to those documents which matter. It’s an expensive but effective system when married up, as appeals have been for some years now, with written outline arguments that allow the court to pre-read in detail without getting lost in the papers. The resultant performance figures, mapped out here in what is essentially a quantitative survey of the Court of Appeal’s work, are not discreditable. Appeals are turned round at a pretty impressive rate, oral argument included. And it’s surprising how often the dialectic of courtroom discussion changes one’s mind – usually by direct persuasion, occasionally by the process noted by the Italian lawyer Piero Calamandrei, when the joyous victor fails to appreciate that it’s the other side’s lawyer he should be embracing.

Although they express anecdotal concern about the length of judgments, the authors offer neither quantitative nor qualitative evidence about it. The British judgment, it has to be admitted, is one of the wonders of the legal world. Some years ago, a Liverpudlian colleague of mine entertained a European conference on the composition of judgments by describing a day spent at Whitehaven County Court as a junior barrister. The evidence and argument were over by lunchtime and he phoned his wife to say he’d be home for tea. At two o’clock the judge began delivering his extempore judgment. He outlined the issues; he then went through his notes of evidence, indicating what testimony he accepted and what he didn’t; then he turned to the law, citing substantial passages from the relevant cases. By the time he had arrived at a conclusion and dealt with costs, the last train had left and my colleague was condemned to a night in a bed and breakfast.

Most judgments are crisper than this. American judges find it difficult to believe that we can deliver them off the cuff. More often, at least on appeals that are going to lay down the law for other cases, judgments are reserved and put in writing, and agreement is sought on them. But the prose form remains that of the oral judgment, and the oral judgment at base still represents the process of thinking aloud. A judgment which is not self-explanatory, like the arrêts of the French courts, is not a lot of help to others. It simply compels researchers to seek out the materials that went into it. But a judgment which goes round the houses is not a lot of help either.

Keeping it short is a virtue, but so is making it clear, and one thing that can militate against lucidity is a multiplicity of judgments in a single case, reaching the same conclusion on differing grounds. Presiding judges in appellate courts don’t try to impose uniformity, but they do try to achieve unanimity, whether in the shape of a single judgment or two or three concurring ones. The odd thing is that dissenting judgments seem to be rarer in the Court of Appeal, where at least they carry the hope of being upheld on a further appeal, than in the House of Lords, where – barring an expedition to the courts in Luxembourg or Strasbourg – dissents go nowhere. I know of no ideal model. The EU’s supreme court, the European Court of Justice in Luxembourg, gives a single judgment which sometimes shows the brush marks of several painters and sometimes bears the scars of compromise. The practice of the European Court of Human Rights in Strasbourg is perhaps better: a majority view, laying down the law, will be set out in a single judgment, and each judge is then free to add either an assenting or a dissenting judgment.

Where this otherwise sober-sided, Nuffield-funded work approaches the edge of rationality is when it comes to litigants in person. This is how it describes them:

Litigants in person are characteristically ill-equipped to handle legal material and court procedures (however much the litigant might find assistance from a user-friendly judge). They are often blinded (or, at the very most, blinkered) in appreciation and understanding of the litigation which they have embarked upon, frequently against advice from friends and legal acquaintances. They exhibit an unremitting commitment to the rightness, even self-righteousness, of their cause, often displaying an obsessive attention to peripheral, even irrelevant, detail. The result is that the litigant in person finds it impossible to apply objectivity to legal and factual reality. These personal attributes, when translated into oral advocacy, lead to rambling, unintelligible, even gibberish submissions . . . On occasions, the court is subjected to abuse or even belligerence.

With the shrinkage of legal aid, more and more litigants are being thrown on their own resources. They now account for about four applications for permission to appeal out of every ten, though their success rate in obtaining permission is very low. They vary widely in motivation and presentation. Those who are on benefits can get the hefty court fees waived, making access that much more inviting. A number undoubtedly fit the description I have quoted, but then so do a few lawyers. At the other end of the spectrum are individuals with a genuine grievance. By no means all of these are at sea with legal procedures, and some of them learn and cope surprisingly well. Not all of them have even chosen to come to court: some have been brought against their will as defendants. A handful, the Miss Flites, have become unhinged by unremitting frustration. A larger number, neither obsessive nor manipulative, have simply got on to a treadmill they can’t get off.

Together, these litigants undoubtedly take up a disproportionate amount of the court’s time and resources: disproportionate, that is, to the time taken by professionals. But is it disproportionate to their own needs or to the principle of justice for all? It is not satisfactory for the authors, having set out an undifferentiated and hostile account of litigants in person, briefly to lament the absence of psychological research into their possible motivations before advancing their modest proposal: that litigants in person should be barred from presenting oral argument. The effect would be that, as at present, if there appears to be a realistic prospect of success when a single judge first reads the papers, permission to appeal will be given. If not, only those with lawyers will be allowed to renew their applications in open court. And presumably those who have had lawyers but have run out of funds or who have been given permission to appeal on sight of papers, will be debarred from presenting viable appeals.

The court already has power to forbid the renewal of utterly hopeless appeal applications, but it is a power which is exercised with great caution. One knows from experience that oral argument, albeit presented by a litigant in person, will occasionally reveal a worthwhile point that has been overlaid with the litigant’s accumulated frustrations or obsessions. To make the right to pursue an application for permission to appeal conditional on being able to afford a lawyer, or on being able to find one who will act on speculation or out of charity, or on being involved in one of the few classes of litigation which still carries public funding, would be to upend one of the foundational principles of the law: that it is in the individual that the right of access to justice is vested, and the lawyer’s right of audience is no more than a branch on that stem. The litigant without a lawyer has an indefeasible right to be heard; the lawyer without a client has none. The radicals of the Civil War called for a legal system from which lawyers would be banned and in which honest folk could plead their own cause without technicality or obfuscation. It’s sad to see it suggested four centuries later that it’s the lawyerless who should be banned.

What I have just written will no doubt be quoted in court by litigants who feel that they are getting shorter shrift in court than they deserve. But that is because there is plenty that judges can properly do to keep oral arguments focused and within bounds, and cut short submissions which are going nowhere, whether they come from a litigant in person or from an ornament of the legal profession. As a QC I was once on my feet in the House of Lords, trying to interest them in a point of stygian obscurity, when Lord Lowry, a former chief justice of Northern Ireland, put down his pen and said in the kindliest of voices: ‘Mr Sedley, it seems to me you’re trying to make a pig out of a pound of sausages.’