Off we go – The role of Judges

This could all end up being something of a short-lived experiment. Or it could end up with me being lauded as a genius. More likely is that it’ll be somewhere in between, with a few people reading what I have to say occasionally, and most ignoring it completely.

I was prompted to write because I have been thinking about a couple of things recently and I found that the 140 character limit on Twitter became that little bit restrictive.

So the first post will be about the decision taken in America recently that a 4-year-old girl can be sued for negligence for knocking over an elderly lady whilst on a bicycle. It is important to note that the judge made no guarantees over the outcome over the case, merely that she was able to be named in the action.

First, the facts. A useful place to start, I feel. The New York Times reported the facts as being:

“…in April 2009, Juliet Breitman, 4, and Jacob Kohn, 5, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes.”

The judge, Justice Paul Wooten of the Supreme Court in New York, ruled that the presumption in the case of Verni v Johnson, 295 NY 436, 438 [1946] that “infants under the age of 4 are conclusively proved to be incapable of negligence” should not be extended to include those of 4 years of age. He noted that Jacob and Rachel Kohn did not seek to contest the charges against them. There are plenty of other points in this case, and the best summary of it I have found is on The Volokh Conspiracy blog.

You may be surprised at my abrupt ending to that story. But that was not what I really wanted to talk about; I just needed you to have knowledge of it.

Plenty of people have had strong opinions on that case, most of which lack the appropriate reading and expertise to be taken fully seriously. Personally, I have an opinion towards it but would not be so arrogant as to think that mine is right.

The case has opened up a question in my mind though, that of judges’ decisions. I will use analogy to make my point, as I do very often in discussions.

There is plenty of talk in the sporting world at the moment of technology, and using it to improve the standards of decision-making by officials. This is all very well in situations where there is a clear-cut answer, but in situations which rely on interpretation, such as some decisions over discipline, there is no help available.

In the case above, Justice Paul Wooten heard from all parties concerned, read the evidence, saw pictures of the injuries sustained, and had plenty of time to consider his decision, which he then made on perfectly reasonable grounds, relying on case law dating as far back as 1928. There will be others in his profession who would have made the same decision. But there would, I have no doubt, also be those who would have come to the opposite decision, who would have extended the protection afforded on the basis that it can depend at that age (or indeed, any age) what sort of mood someone is in as to whether they are thinking clearly. The child can be conscientious and sensible when at school, for instance, but when allowed into the street to play they may forget all of their cares. Many children see hitting adults as something fun, because they feel that adults cannot be hurt. There is every chance that these children knew what they were doing but failed to understand the consequences of their actions.

In sport,certain decisions cannot be taken by technology. A professional foul – is the player the last man or not? Does a particular challenge deserve a red card or a yellow card? This is where the referee becomes akin to a judge, using his own judgement. One referee may be said to be ‘card-happy’, and dole out harsh punishments, whilst others may be seen as more lenient.

To move away from this conjecture and back to my original question, what is the role of judges? At least the footballer knows what sort of referee he is being controlled by when he makes a tackle – the parties in a case have no idea when they start out who they’ll be in front of. Might the outcome of an individual’s case come down to the judge assigned to their case?

This is not to say that any one judge’s opinion is wrong or that they are not performing their job correctly; quite the contrary in fact. They are not clones of each other and they are left to interpret evidence and law on their own. We do our best to moderate this by having more than one judge responsible for a verdict, or by taking some decisions out of their hands and placing them into the hands of a jury (more on that in a future blog, I’d imagine), but can we ever truly remove the possibility that a judge with one outlook would rule differently than a judge with another?

The outcome of a case should not depend on the mentality of the person presiding over it in theory. The facts as presented would, in an ideal world, be interpreted in the exact same way no matter who was in the chair. But reality tells us that this may not be the case. Is this our system at the moment in the courts? I don’t know. But in considering any controversial verdict, if the thought exists that another judge on another day would have decided differently at first instance, the question must be asked as to whether system is flawless. Winston Churchill once said of democracy that it was the “worst form of government – apart from all the others”. As an instrument of democracy, the courts can also be seen to be under the umbrella of that statement.

About Ashley Connick
Ashley Connick is a solicitor at an international law firm. For a full profile, please visit the "About the Author" section of the blog.

2 Responses to Off we go – The role of Judges

  1. The outcome of any case does depend very much on the reasoning of the judge who presides over it. That’s about the best we can do in the first instance. Fortunately, there is scope for appeal to a higher court. We are hoping that on Thursday the judge at Doncaster Crown Court will make the ruling that should have been made in May in the case of R v Paul Chambers. It’s costly and stressful of course, but appeal is the safety fallback against injustice. That’s my 2 pence. Welcome to the blogosphere!

  2. colmmu says:

    There is of course the notion of “biased brains” and the whole cognitive process of top down processing, even when presented with cold hard facts judges brains go through same processes and do have chunking processes that can create a perception. I’ve worked with Dr Itiel Dror who is a specialist in this field when dealing with brain chemistry and the processes of learning, he also works in forensic psychology: this article covers some of the basic tenets of the argument –

    Welcome to the blogosphere, good first post.

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