Judicial Training and Performance Appraisal: The Problem of Judicial Independence
| DOI | http://doi.org/10.1111/1468-2230.00106 |
| Date | 01 September 1997 |
| Published date | 01 September 1997 |
| Author | Kate Malleson |
Judicial Training and Performance Appraisal: The
Problem of Judicial Independence
Kate Malleson*
The establishment of the Judicial Studies Board in 1979 was considered by the
judges at the time to be a radical, and questionable, development which posed a
threat to judicial independence. In the intervening period the provision of training
for judges has become an accepted feature of the judicial process and in recent
years the demand for training from the judges has increased significantly. To meet
this growing demand the Judicial Studies Board has expanded the variety and
quantity of training provided. One result of this expansion has been the growth of
pressure for the introduction of performance appraisal both as a training tool and as
a general method of monitoring and improving standards in the daily work of the
judiciary. The response of the judiciary to these proposals has mirrored its reaction
to the proposal for training at the time the Judicial Studies Board was set up. Senior
judges have opposed the use of monitoring on the grounds that it would undermine
judicial independence.
This paper examines the relationship between judicial independence and the use
of training and performance appraisal in the judiciary. To do so it analyses the
principle of judicial independence, in particular distinguishing between external
and internal interference in judicial functions. To date, the judges have viewed the
threat to judicial independence from training and performance appraisal as one
posed by external interference. However, when examined more closely this claim
is difficult to maintain either in relation to the constitutional role of the judges or
their individual decision-making. More plausible, though less often proposed, is
the argument that training and performance appraisal may undermine the
independence of individual judges through a process of internal interference from
other judges.
The introduction of processes to improve and monitor standards of performance
can be seen as part of wider structural and cultural changes within the judiciary.
The creation of a career judiciary brought about as a result of its expansion in size
has led to a process of formalisation which is designed to encourage greater
consistency, standardisation and collective decision-making. One effect of this
development is likely to be the erosion of a culture of individualism which has
been a dominant characteristic of the judiciary. These changes may, in the long
term, affect the principle of judicial independence more than any outside
interference.
Judicial training and performance appraisal
In the years since the establishment of the Judicial Studies Board there has been a
sea-change in the attitude of the judiciary to undergoing training. Professor
The Modern Law Review Limited 1997 (MLR 60:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 655
*School of Law, University of Westminster.
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