A JUDICIAL AWAKENING: A JUDGE BEGINS TO QUESTION HIS HUMANITY

The judge walked briskly into the courtroom and turned to face the court.

The court personnel, prompted by his presence, rose in unison and bowed deferentially to His Honour.

The proceedings then commenced.

It was a criminal case and he was there to pass sentence on the young convicted felon who sat nervously in the dock.

With crisp efficiency His Honour addressed the young man who had recently been found guilty by a jury.

“Please stand up Mr. …“. He addressed the prisoner by his surname. He then proceeded to sentence him to a head sentence of 5 years with a non-parole period of 2 years and launched into his reasons for the same.

However, shortly after the initial announcement that he was going to jail the young man in the dock broke down howling like a wounded animal and wailing incoherently in a rapid, desperate, appeal to the court for mercy.

“Please don’t send me back to gaol. … Please! Please! don’t send me back there. … It’s doing my head in. … I can’t take it anymore! … I can’t go back!”

He then collapsed in the dock falling to the ground out of sight visibly reappearing above the dock guardrail only when lifted up by two Sheriff’s officers.

This outburst had interrupted the oral rendering of the judicial sentencing remarks and his Honour had needed to chastise him for the interruption several times in an attempt to continue his oral sentencing remarks.

During this outburst both prosecution and defence counsel were looking down fiddling with the papers in front of them seemingly indifferent to the tragedy that had suddenly erupted in the dock.

In the end His Honour gave up and announced to the court that he was discontinuing the oral sentencing and that his sentencing remarks would be available online in the usual way. He was barely audible above the hysterical, banshee-like, wailing of the distressed prisoner as he was dragged by the two sheriff’s officers from the dock and through a door leading to a court precinct holding cell out of sight from the courtroom.

His demented wailing was still audible in the body of the court as the judge closed the proceeding and peremptorily left the courtroom for the safety of his office deep in the sacred bowels of the courtroom precinct.

While he had maintained his composure in court despite the anguished cries from the dock the judge had been badly shaken by it.

xxx

That night the judge poured out his considerable distress over this unexpected courtroom drama to his wife.

His wife was sympathetic – but didn’t know what to say to comfort him. They were otherwise close but they rarely discussed his judicial life together.

Shortly after his recounting of the incident to his wife she retreated upstairs to their bedroom leaving him with his brandy to brood over this distressing courtroom outburst and the judicial demons that had been taking hold in his mind in recent years.

He wasn’t an alcoholic but his wife had noticed that his Methodist abstemiousness had weakened in recent years.

“He’s drinking much more than he should”, she thought.

xxx

The judge’s distress over the incident had been brewing for some time over a number of years.

He found himself later in his judicial career increasingly aware of the considerable tension, as he saw it, between the staid and colourful genteel pageantry of the courtroom and the often utter barbarity this had masked for centuries in the lawful punishment for crime and which burst forth to upset the charade every now and then.

“We are not as far removed from the medieval use of subjective force to order our society as we think we are”, he often mused to himself in moments of doubt.

“For all the niceties of legal argument and procedure it – justice – was still backed up by brute forces as it had been for centuries.”

While his contemporaries in the criminal law seemed to have an accommodation with this and continued in denial of this reality the more he experienced the criminal law in practice as the years went by he was becoming incrementally painfully aware of a perhaps necessary double standard when it came to the ordering of our society in the criminal courtroom.

During these still moderate drinking bouts his mind often went back to his student days when he was studying law in the 1960s. In those days, he recalled, the criminal law was coming round to being on the side of the angels. It was strongly idealistic and humanitarian in its flavour he remembered.

So when the unforgiving punitive changes to the criminal law came along as the old millennium gave way to the new millennium it caused a feeling of foreboding in him from a humanitarian point of view. The law was starting to lose its way he felt. For him the balance was shifting too far away from due process for the accused in a criminal trial toward excessive sympathy for the victims of crime. He accepted that due process - the rule of law- should apply equally to all citizens no matter what their gender, class, or position in society. But for him the criminal law was losing a proper perspective on this and that judicial discretion was being pushed very badly in the wrong direction as a consequence.

xxx

These sentiments had begun for him many years before when something happened in the same court precinct where he was shouted down by a prisoner he was sentencing.

Back then, a young man who did not want to be imprisoned had tried desperately to avoid imprisonment and literally jumped bail some years earlier. At that stage he was about 10 years into his career as a criminal law practitioner.

While he was waiting outside court for his case on the list to come up he had become aware of a sudden, violent, scuffle just outside one of the magistrate courtrooms.

A defendant who had been denied bail suddenly jumped out of the dock and ran out of the court only to be brutally restrained by several sheriff’s officers who had wrestled him to the ground and pinned him there until he was subdued before being taken to the precinct cells to begin a period of incarceration until his remand date came up in court once again.

“That poor man”, he thought. “It was blind fear of being locked up which made him do it.”

The image of that poor man lying face down with three sheriff’s officers holding him there stayed with him for the rest of his career.

xxx

“We are just that far from the Middle Ages”, he told a legal colleague when he returned to his chambers that day. He held up his thumb and index finger to indicate the proximity of mediaeval barbarity he had witnessed in court that day.

xxx

Ever since that incident he had been bothered by what he saw as the tension between the upper class genteel courtroom protocols and the lower class forceful barbarity that was the underlying harsh reality masked by all that courtroom pageantry.

xxx

“Maybe it’s time you had a break from the criminal law” was the response when he confided the sentencing outburst to a legal colleague during end-of-year drinks that same year.

“Your capacity to cope with this sort of stress – stress we all feel on the bench from time to time - is obviously wearing thin for you.

Maybe it’s time for you to pack it in old man”.

There was a pause while His Honour poured himself another drink. Whisky this time.

He spilled some drink as he raised his whisky glass to his lips. He replied:

“Well, it’s either a sort of nervous breakdown which is nothing more than something pathological - or it’s a reawakening of my humanity as a judge, and as a person – a humanity that has been dormant in me for some time now. In fact, dormant for far too long.”

His drinking companion demurred.

“Nonsense. Nothing of the sort. It’s just that you are getting soft in your old age. We can’t let such sentiment run away with us as judges. You’ll snap out of it. Will you be holidaying in Edithburgh again this summer? That’ll enable you to snap out of it. You’ll see it all differently in the New Year.”

His Honour was not convinced.

“Maybe, maybe. But I’m not so sure it is as simple as that. It’s all this red neck trend towards harsher penalties – and the stripping away of due process in the criminal law that’s starting to get to me.

What’s happened to the compassion and humanity that used to characterize the practice of criminal law? Where is the mercy in all this?”`

His Honour was starting to slur his words now.

“No, no, I’m not at all sure it’s just a passing thing as you say. Do you want another beer?”

His companion declined – and sounded a note of caution.

“I think we both better get a cab home eh. We don’t want to be up on a DUI charge or worse do we. I can’t afford another ‘show cause’ submission to the Law Society. And I imagine it’s the same for you.”

They both chuckled at this.

But for His Honour this jollity was largely mirthless. He could only join his companion in such levity to the degree that his awakening troubled humanity for the human suffering he saw as a judge would allow.

xxx

Later that same year – just before Christmas – His Honour was persuaded to take some leave.

His drinking had led to a minor indiscretion which got into the media for a short time.

His superior had persuaded him to take some leave to enable the embarrassment of the minor indiscretion to die down.

“You see old chap. We judges have to be seen to be as pure as the driven snow. We are not of course. You and I both know that. We are all human – and because of this we make mistakes from time to time just like everyone else. But at a time when the rule of law is under great stress – more so now than ever before in my experience - we must keep any such human weaknesses as far from the public eye as possible if the law is not to lose its moral authority completely. Of course it’s a double standard. But that’s the way our very censorious society is at the moment and we must all behave in a way that does not bring the law into disrepute. As I say - it’s just the way it is – and you and I as judges – indeed, all legal practitioners - have to keep ourselves on the right side of this necessarily hypocritical situation. I wish I could wave a magic wand and take us all to the tolerant progressive days of the 1960s and earlier 70s. But I can’t.”

“Yes, you’re right.” His Honour said.

“I concur with you on that. We just have to live with a double standard I know if the law is to avoid losing its moral authority through bad publicity. If that were to happen we would end up on a path to anarchy I agree.

I promise to be more careful in my extrajudicial behaviour from now on for the reasons you give.

Just one thing though. On the bench I will need to continue to remind myself that the law says – has always said - we do not incarcerate a citizen - do not take away his or her liberty - unless there’s a bloody good reason to do so.

I will continue to adhere to that with a vengeance in my judgements where needed.”

His superior raised his glass and smiled knowingly.

“I’ll drink to that”, he said.

“Me too”, His Honour replied.