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First Distinguished Law lecture explores society's perception of the judge

Mark Hedley lectures Wednesday 14 October 2015

Professor Sir Mark Hedley began the first in a new series of Distinguished lectures by reflecting on the role of the trial judge in today’s society, and how society's perception of the judge has changed over time. 

Sir Mark said he chose to focus on the role of the trial judge in the first lecture not just because it was his area of expertise, but because it raises important questions about the discretionary powers they are given, and whether the judge exercises their powers “with the informed consent of society.” 

He continued: “There are very few prescriptive rules in relation to the exercise of discretion. Judges are entrusted with wide powers to achieve just solutions...These matters, especially in the field of family and mental capacity law, lie at the heart of our system and in the end depend on the informed consent of the society in which these powers are exercised.”

Sir Mark made a comparison between the experience of a judge in 1955 and a judge today, saying, “Our 1955 judge would have been equally astonished at the range of cases which confront the modern judge in this area including medical cases, often addressing issues of life and death, and in the rapidly developing choices inherent in the concepts of welfare and best interests both for children and adults,” and “Judges have been significantly involved in absorbing and reflecting both change and the wide diversity in our society which is being fuelled by developing concepts of rights, medical technology, immigration and birth control.”

He also dealt with the issue of media reporting of court proceedings, of which he is largely in favour, and has ruled for in the past. Sir Mark was, however, keen to make the point that there is a clear distinction between "what is in the public interest, and what interests the public."  

Sir Mark also made the case as to why a judge, rather than a panel of medical experts, is best placed to preside over matters of end of life, surrogacy and mental capacity.    

He said: “It is often in these highly technical and often emotive cases that the role of the judge is brought into question. Judges are qualified neither in medicine nor child development let alone paediatrics. How is the judge to decide between competing expert views? Surely it would all be better left to a tribunal of suitably qualified experts?

“I suggest that there are three reasons why the judge is better placed than anyone else to make these decisions. First, judges are skilled at evaluating expert evidence and, in particular, in evaluating what is truly impartial expert evidence. Take the example of baby shaking: there are a group of experts who simply do not believe that shaking can cause the symptoms most others associate with it; on the other hand there are experts who seem to see shaking around every corner. Experts are human too and have their prejudices and fallibility is like everyone else. Secondly, most of these decisions are not simply an “expert” view; for example when dealing with the withdrawal of treatment from a baby, there are the parents’ views to consider – the judgment is a “human” one and not just a technical one. Thirdly, and perhaps most importantly, a just society needs the means by which a binding and authoritative resolution can be given both to disputes between citizen and citizen and between citizens and the state. The more complex and diverse our society, the more pressing is such a need.”

The next Distinguished Lecture in the series takes place on Tuesday October 27th at 5.30pm with the title 'What is truth? The relationship between truth, proof and justice.' 

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