How Judges Decide Cases
| Author | Andrew Goodman |
| Pages | 13-46 |
CHAPTER 1
HOW JUDGES DECIDE CASES
The first principle of judging is dirty dogs don’t win
Lord Browne-Wilkinson
Get the facts right and the law will look after itself
HH Judge Rolff Hammerton
1.1 JUDICIAL TRANSPARENCY
In order to analyse judgments you need some insight into the decision-making process of the judge. The single most important means of assessing whether you think a judge is right or wrong is to develop an understanding of how the judge has come to arrive at his conclusion, yet very little has been written by judges themselves about the practicalities of judgeship in modern times. The seminal work is an article written in 1985 by Lord Bingham entitled ‘The Judge as Juror: The Judicial Determination of Factual Issues’.
That analysis of the common law judge’s method of finding fact pre-dates both the Civil Procedure Rules 1998 (SI 1998/3132) (CPR 1998) and the adoption into British domestic law of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The paucity of material on the subject of how judges decide cases suggests
14 How Judges Decide Cases: Reading, Writing and Analysing Judgments
that, just as a particular judge’s approach to writing a judgment is highly individualistic in terms of literary and linguistic style and format, so is his approach to decision making.
Under Article 6 of the ECHR all courts are required under the HRA 1998 to give reasons for their rulings and judgments to demonstrate that a fair hearing has been conducted by an independent and impartial tribunal. One of the consequences, the implementation of CPR 1998, rule 39.2(1), which states the general rule is that a hearing is to be in public, suggests that decisions which would formerly have been made in chambers, or even in the privacy of the judge’s or master’s own room, now need to be reasoned even where the parties or their lawyers do not attend. In some courts this was already a familiar process, notably the Family Court and particularly after the implementation of the Children Act 1989; and in crime where courts were expected to provide reasons for refusing bail or imposing a custodial sentence.
The fact that reasons have to be given, usually in plain language so that a defendant to a criminal prosecution, or a litigant in person, can understand what has happened and why, demonstrates that the judge or bench has used a process of structured decision-making rather than reached a decision arbitrarily.
This means that the losing party is more likely to accept the judgment of the court or tribunal and, if challenged on appeal, assists the appellate tribunal in supporting where possible the conclusion of the court below.
Academics and psychologists have long investigated decision-making techniques and further reading is available
Our purposes, however, are practical. You are viewing critically the judge’s ability to show the losing party and the Court of Appeal how he
has arrived at his conclusions, the basis upon which he has resolved the key issues of fact, and why he assessed the witnesses in the way he has. The judge assesses the credibility and reliability of a body of evidence by asking how probable the account is in the light of agreed facts or any uncontentious background, of contemporary documents, and of the evidence of independent witnesses whose impartiality is not in question.
At the outset, therefore, the judge must have in mind which facts are agreed and which are significantly in dispute if he is going to use the former as a benchmark against which to measure the latter. He must be able consciously to formulate a sufficiently detailed reason for preferring one witness to another. He has to consider, for example, whether it is essential to the decision that a witness is lying, or whether unreliability stems from honest but faded or distorted recollection.
1.2 THE MECHANICS OF FACT FINDING
Most judges adopt the approach of first seeking out agreed facts as an anchor or base from which to build up a picture of what they can safely find is the more likely to have happened when forced to choose between conflicting events. If the likelihood is finely balanced and it is difficult to make a value judgment as to which evidence to prefer, they will rely on the burden of proof to come to a decision. If he who asserts a fact has to prove it, the task of the judge becomes far easier when deciding whether or not the standard of proof required has been met sufficient to discharge respectively the evidential and legal burden.
Many judges admit to a fairly strong intuitive approach which develops with experience. They will fit the facts to a gut feeling of whether someone is lying, or of where the justice in the case rests. This can be limited to their analysis of specific material before them rather than the outcome of the whole case. Sometimes they use their intuition at the point where it becomes necessary to stand back and take in the whole picture; or where a key exchange in evidence becomes the centre of gravity of the entire case. In his opening remarks to a joint Chartered Institute of Arbitrators, Inns of Court and Bar Council lecture
December 1988.
16 How Judges Decide Cases: Reading, Writing and Analysing Judgments
It was always said of Lord Denning that he claimed to decide intuitively what should be the outcome of a case and then to go on to analyse the law in such a way as to justify his intuitive decision. Of course he was wrong to say that. Quite wrong. Most of us do exactly that, but we would not dream of saying so.
For the vast majority of judges their sensitivity and reaction to witnesses comes from past experience as an advocate. The intuitive judge will say that the burden of proof method is rarely helpful although it can be determinative. It is more a question of stacking evidential beans as you go through the case, standing back and saying – does this result feel right?
Those who favour starting from an anchor point and then proceed to a logical development of the necessary findings in a case tend to establish a pattern of decision-making in which they decide each conflicting fact and apply law to it separately and then move on. This is a more generic approach since all of the available types of evidence are considered in relation to each factual conflict separately: thus a judge in relation to disputed fact ‘A’ will consider:
• Is there contemporaneous documentary evidence available in respect of the issue the provenance and reliability of which is of assistance?
• Is there primary evidence of witnesses of fact?
• If so, is the documentary evidence consistent with the primary evidence of witnesses?
• If not, how do the witnesses present: which is to be preferred?
• Is there secondary evidence available consistent with either real or primary evidence?
• If not, is there secondary evidence to which some weight may reasonably be attached?
• Is there evidence of system to which some weight may reasonably be attached?
• Is the intended finding on the issue consistent with undisputed findings or agreed facts?
• Is the intended finding consistent with a prior finding?
• Is the cumulative result correct?
Then the judge must move on to adopt the same process with disputed facts ‘B’ and ‘C’ and assess the position cumulatively.
It is reasonable to expect that the judge will have formed a general impression of the case from his preview of the papers. If he has time to read in properly he will note the opposing contentions in the primary evidence of facts and will consciously be looking for omissions, conflicts
and ambiguities in the documentary evidence. This shows him the margin of dispute and materiality of the evidence.
The fundamentals of viewing evidence will be ingrained: he knows, as do you, that the importance of direct or oral evidence of matters within a person’s own knowledge is that it may be tested by cross-examination; hearsay evidence may not be tested and should be afforded lesser weight.
Assertions of fact are not evidence unless admitted or supported by evidence. The introduction by the CPR 1998 and Family Procedure Rules 2010 (SI 2010/2955) (FPR 2010) of an annexed statement of truth
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