In praise of short judgments
By:2 commentsFebruary 23, 2017
One of the central strands of the drive towards greater transparency has been encouraging the media and others to read law reports, in order to get an accurate picture of what the court decided, and why. Long-time readers will recall that back in January 2014 the President of the Family Division Sir James Munby issued his ‘Transparency in the family courts’ guidance. The purpose of the guidance was to increase the number of family court judgments that are published, with the ultimate aim of improving transparency, i.e. making the public more aware of the work of the family courts, and thereby countering the charge that the family courts operate ‘a system of secret and unaccountable justice’.
I can’t honestly say that in the three years since Sir James issued that guidance I have detected any obvious improvement in the accuracy of reporting of cases in the media. I suspect that this is at least in part due to the reporters not reading the judgments, whether out of ignorance or choice. But there is also a problem if they do read them.
The problem is, of course, that many judgments are simply not comprehensible to non-lawyers. They are written in ‘legalese’, they are not clear and often they are very long.
There have been calls for judgments to be put into plain English for as long as I can remember. The difficulty with this, of course, is that legal terminology is used for a reason: accuracy. Remove the legal jargon and the accuracy is gone. Replacing it with plain English explanations of complex legal concepts is not an easy task. Still, a quick look back at a few Court of Appeal or House of Lords judgments from just twenty years ago will show that some progress has been made in this area, and no doubt there will be more in future.
Then there is the issue of clarity. By this I mean setting out the judgment in a clear, easy to understand, way. Again, there has been much progress since I first studied law back in the 1970s. Then, most judgments were just a long wall of text, with no headings, or even paragraph numbering. Most judgments now have both and, as I mentioned here in a recent post, can be a model of clarity. The only thing missing from most judgments is a short headnote setting out very briefly what the case is about – this would I think be especially useful for non-lawyers, looking for a relevant case.
And last there is the issue of the length of the judgment. This was brought to the fore by the recent Court of Appeal judgment in BS (Congo) v The Secretary of State for the Home Department which, as Lady Justice Rafferty explained, was “a short form judgment which, with the encouragement of Sir Terence Etherton MR, judges of the Court of Appeal may in future use for appellate decisions in appropriate cases.” She made clear, however, that such short form judgments were only appropriate where the “appeal raises no issue of law, precedent or other matters of general significance and the relevant facts and documentary material are set out in the judgment under appeal and are not in dispute.”
Despite those limitations, the idea of short form judgments is surely a good one, and can no doubt be applied to many family cases. As someone who reads judgments almost every day, I certainly hope so. And as for the media, they surely have less excuse for not reading a judgment of twenty-odd short paragraphs, than they would have for not reading one of 119 paragraphs, such as in AF v MF & Others, the case I wrote about here yesterday.
And before I go I don’t want anyone to point out that there have already been some very short judgments. I know, but they are sadly rare. For example I wrote myself here about the case Re Pook (Declaration of Parentage), which was just seven paragraphs long.
Still, that doesn’t beat the shortest judgment ever, handed down by an unnamed Chancery judge way back in 1708, in the case Lillicott v Compton. That judgment was a succinct nine words long: “Plate shall pass by a devise of household goods.” One can but hope for such conciseness in future…
Photo by canopic via Flickr
February 23, 2017
Categories: Family Law