The Judge’s Role in the 21st Century

The High Sheriff’s Law Lecture
given by The Rt Hon Sir Scott Baker, Lord Justice of Appeal
at The Examination Schools, Oxford
on Tuesday, 13 October 2009

The Rt Hon Sir Scott Baker

Sir Scott Baker was born on 10 December 1937 and educated at Haileybury and Brasenose College, Oxford. He married Lady Joy Baker in 1973 and has two sons, one daughter and three grandchildren.

He was called to the Bar in 1961 by Middle Temple. His practice was in general common law and on the Oxford Circuit. He became Queen’s Counsel in 1978, a Bencher in 1985, and Treasurer of Middle Temple in 2004. He was a member of the Senate of the Inns of Court from 1977 to 1984 and of the Bar Council in 1988. He served as a Recorder from 1967 to 1988.

Sir Scott was appointed a High Court Judge in 1988, sitting in the Queen’s Bench Division from 1988 to 2002. He was Presiding Judge of the Wales and Chester Circuit from 1991 to 1995 and lead judge of the Administrative Court from 2000 to 2002. He was appointed a Lord Justice of Appeal in 2002. He was knighted in 1988 and made a Privy Councillor in 2002.

He was a member of the Warnock Committee on Human Fertilisation from 1982 to 1984, Chairman of the Governors of Caldicott School from 1996 to 2003, and became an Honorary Fellow of Brasenose College in 2003. As Coroner, he conducted the inquests into the deaths of Diana, Princess of Wales, and Dodi Al Fayed.

The Role of the Judge in the 21st Century

In 21 years on the bench I do not think, until now, I have ever paid much, if any, attention to what my role really is. What, if anything, do judges represent? Do they represent the law or do they represent society, and if society, what society? Indeed, what is society? We are, after all, unelected.

In looking at the role of the judge today and into the future, it is relevant also to look at the role of the judge in the past and to identify the changes that have been taking place.

The judiciary of today is more in the limelight than it has ever been. A controversial decision is flashed across the media within moments of being handed down, often slanted in such a way as to obtain maximum public indignation. This is then followed by calls for the judge’s removal or resignation, and sometimes invitations to the public to sign up to support this.

Part of the judge’s role is to be aware of this and to make sure decisions are adequately explained. Of course, the bottom line is that the judge should be independent. The oath of office requires him, or her, to try cases without fear or favour, affection or ill will, but independent of whom?

Historically, the judge has been in a position analogous to that of the referee. Civil cases were usually private law disputes. The judge heard the two sides, decided between disputed evidence what was reliable, and applied the law of the land. If he got it wrong, it would be rectified on appeal. Nowadays many of the disputes are between individuals and public bodies.

In serious criminal cases, the jury decided, and still decide, the facts. Sentencing, however, is the judge’s domain. Sentencing is an area in which the role of the judge has changed in my 50 years in the law. Judges are much more constrained than was previously the case. Sentencing used to be left to the broad discretion of the judges. If a sentence was manifestly excessive it could be rectified by the Court of Appeal. The Lord Chief Justice gave judgment in guideline cases for the appropriate tariff applicable for particular kinds of offence, for example theft by someone in a position of trust.¹

Gradually, judges have become more and more limited in the level of sentence they can pass. The following changes have been a big influence in this regard.

First, the Sentencing Guidelines Council has considered and spelt out in great detail the range of sentence for offences and the circumstances that should be taken into account, thus limiting the discretion of the judges.

Secondly, the Attorney General now has the power to ask the Court of Appeal to review a sentence that he or she considers unduly lenient. If the court agrees, it may be increased.

Thirdly, Parliament has introduced legislation requiring judges to pass automatic or minimum sentences in certain types of case, for example automatic life sentences, imprisonment for public protection, and sentences of at least five years’ imprisonment for certain firearms offences unless there are exceptional circumstances.

The judge still retains some discretion in sentencing, which is essential because no two cases are identical, but any further move towards a tick-box procedure risks rendering the judge’s function more that of a computer than a human being.

The judge’s influence and power in sentencing has been on the wane in recent years. It may be that this is in part due to the fact that the judiciary was lagging behind public opinion in certain respects, although public opinion and the views advanced by some newspapers are not necessarily the same.

I can think of two types of case in which changes in the level of sentence have been instigated by the media. The first is causing death by dangerous or careless driving; the second is rape. In driving cases the judges used to give too little emphasis to the consequences of the defendant’s driving. In rape and sex cases the fact that the judiciary was virtually all male may have subconsciously led the level of sentence, particularly in domestic cases, to have been lower than the public thought it ought to have been. At any rate, in both instances the judiciary responded, albeit less rapidly than it might.

The message from sentencing seems to be that if the judges are perceived not to represent the current views of society, Parliament will impose legislation to see that they do. The problem, however, is that where judicial discretion is removed or limited by legislation, this is likely to bring a different set of problems. Sentencing is an art, not a science. Judges need to be able to do justice in individual cases.

If the judge’s role in sentencing has become less dominant, the reverse is true in other areas.

Judicial review was unknown in its present form when I started practising at the Bar and even in 1980, which is the first year for which records are available, there were only 491 applications. In 2008 there were over 7,150.

Judicial review, as every law student knows, is the process by which judges review, and in some cases strike down as unlawful, decisions of public bodies, including Ministers of the Crown. The power was always there with the writs of mandamus, prohibition and certiorari, but little used. The big change began in the 1960s and has been developed by the judges ever since. This is an example of judge-made law on a scale that was unthinkable in the first half of the 20th century. The judges have responded to the needs of society.

But why has judicial review expanded so massively? There are a number of reasons for this. The first is the great increase in the executive’s involvement in the lives of individuals. There is much greater state control of what we can and cannot do.

The second is the procedural changes that made it much easier for individuals to challenge the decisions of public bodies. No longer is it necessary for an applicant to follow an antiquated procedure to obtain a mysterious-sounding remedy before a Divisional Court of several judges. Now a simple application can be made to a single judge for permission to apply and, if the claim has a prospect of success, it will go forward and be heard.

The third is that the deferential society of the first half of the last century has been swept away by one in which people increasingly question decisions made by others. This is perhaps the main reason why the judges have been so proactive in the expansion of judicial review.

The shift began after the war and accelerated in the 1960s away from a society in which people by and large accepted, and did what they were told by, those in a position of power. The decisions of those in authority were increasingly questioned. The population became more vociferous, with demands for justice, the right to consultation and transparency in decision-making. Decisions had to be justified, even if they were correct. People wanted reasons. Many wanted to be able to put themselves in the shoes of the decision-maker to see if they would have come to the same conclusion.

Children questioned the decisions of parents, parents those of teachers, patients those of doctors and, significantly for these purposes, individuals those of public authorities. The senior judiciary, not as a body but as individuals, felt that public bodies should not be permitted to get away with unjust or inadequately reasoned decisions and that they had to step in. They had to be seen to be in touch with public feeling and reality. Up until then they had distanced themselves from Parliament and the executive, limiting themselves strictly to deciding what the law was rather than making it. The boundary needed to change if they were to maintain credibility.

Tennis provides an interesting analogy, as Lord Brown, a Justice of the new Supreme Court, speaking in Hong Kong earlier this year, observed. John McEnroe was famous, some would say notorious, for repeatedly challenging line calls at Wimbledon. “You cannot be serious” was his familiar cry. The first point is that this illustrates the desire to challenge the decisions of others. But let us look further at the consequences. Line judges became better trained and made better decisions, and then new technology was introduced giving further assistance to the umpire, and decisions became better still. Other sports followed suit.

Some claimants for judicial review might not like to be associated with John McEnroe, but their claims that decisions of public bodies are unlawful, although more politely framed, frequently in reality amount to the same thing. There is no doubt that the quality of decision-making by public bodies has improved greatly as a result of the knowledge that their decisions are vulnerable to challenge in the courts.

Let me give an example of a case decided in 1942 that would have been decided differently today. It illustrates the change of judicial approach. In Liversidge v Anderson² we have a good example of the judicial thinking of the day. The Home Secretary was empowered under the Defence Regulations 1939 to detain anyone whom he had reasonable cause to believe to be of hostile origin or associations. The case was decided by a nine-man panel of Law Lords, who decided by a majority of 8-1 that it was enough for the Home Secretary simply to state that he had reasonable cause to believe someone was of hostile origin or associations. It was not for the courts to consider whether he did have reasonable grounds for so believing.

Lord Atkin was the minority of one and thought otherwise. But he was at least a quarter of a century ahead of his time. In the words of the legal historian Robert Stevens, democracy was to be protected by Acts of Parliament and not by the judges. But today’s judges see things very differently. The circumstances in which they have been prepared to intervene to provide relief for unlawful administrative action have expanded in spectacular fashion.

The decision-making of public officials began to be scrutinised much more acutely. For example, in 1963 the House of Lords held in Ridge v Baldwin³ that a public authority could not, regardless of what the relevant statute might say, dismiss an employee without first telling him of the allegations against him and giving him an opportunity to rebut them.

Five years later, in Padfield v Minister of Agriculture, Fisheries and Food,⁴ the House of Lords ruled that notwithstanding a statute gave a minister power to decide whether to refer a citizen’s complaint to an independent committee, he had to make his decision on appropriate grounds. The fact that referring the complaint might cause him political embarrassment was not a good enough reason for refusing to refer.

In the late 1960s, Parliament’s efforts to stop judges encroaching with judicial review into what it regarded as its province by the inclusion of ouster clauses in the material legislation were dealt a fatal blow in Anisminic v Foreign Compensation Commission.⁵

A seminal case was the GCHQ case.⁶ Mrs Thatcher’s government decided to ban employees at GCHQ at Cheltenham from belonging to a trade union. The unions sought judicial review, claiming they should have been consulted. Whilst the government succeeded on the ground that national security might be compromised if union members at GCHQ were to go on strike, a number of important developments arose from the case.

First, the doctrine of legitimate expectation was born. A GCHQ employee had a legitimate expectation that his union would be consulted before his terms of employment, including his right to belong to a trade union, were changed.

Second, even though GCHQ employees, as servants of the Crown, were employed under the royal prerogative, their claims were still justiciable by judicial review.

Third, national security was not a complete answer to a claim for judicial review. The government had to show why national security might be endangered.

A large proportion of judicial review claims are rationality challenges. Something that ought to have been taken into account in the decision-making process has been left out of account, or something has been taken into account that should not have been. Alternatively, even if the decision-maker appears to have gone through all the right hoops, the decision is such that no one in his position could reasonably have reached it.

This is where there has been considerable scope for judicial intervention, an opportunity that has certainly not been missed by the judges. Judges have become much more interventionist in the granting of judicial review, and nowhere has this been more apparent than in immigration and asylum cases. This has brought them into collision with government ministers on numerous occasions.

I remember an examination question when I was an undergraduate: “The struggle between Parliament and the courts has reached an uneasy compromise: discuss.” That question seems even more relevant today than it was then.

There is no doubt that the judges have pushed back the boundary as they increased their sphere of influence with the expansion of judicial review. This has not, I think, been a particularly conscious decision by most judges because the common law develops incrementally on a case-by-case basis.

There are two other events that have increased the politicisation of the judges’ role.

The first is the passing of the European Communities Act 1972. The judges have on occasions had to become arbiters on the boundary between European law and domestic law. Perhaps more significantly, the judges have become less insular in their thinking as concepts of the law of other European states have begun to permeate our approach. Proportionality and margins of appreciation are examples.

The second event is the passing of the Human Rights Act 1998, which became law on 2 October 2000. It is true that we had been a signatory to the European Convention on Human Rights for half a century before the arrival of the Human Rights Act, but little more than lip service was paid to many of its provisions because, as Lord Donaldson MR pointed out in R v Secretary of State for the Home Department ex parte Brind,⁷ it was inappropriate for the courts to apply the Convention as part of English law when Parliament had not yet done so.

The Act raised squarely the issue of compatibility between provisions in the Convention and our domestic legislation. Historically it had always been the judges’ job to deal with wrongs, but now for the first time they had to cope with rights as well. This has dramatically affected the role of the judges and brought them much more into the political arena.

Since the European Court of Human Rights interprets and develops the Convention in accordance with the thinking of all member states, it has also on occasions been faced with differences between established practices in this country and its views of what is appropriate.

Some human rights are absolute, like the right to life. Others are qualified, like the right to private and family life, and require the imposition of a balancing exercise between, for example, the right of someone to family life on the one hand and firm immigration control on the other.

The judges often have to deal with litigants who do not attract the sympathy of the great mass of the population: illegal immigrants, prisoners, residents in mental hospitals, those sought to be extradited for terrorist crimes. But in a civilised society it is those least able to make their voices heard who most require the protection of the law.

The Human Rights Act has undoubtedly had a significant impact in areas such as these and the sphere of influence of the judges has been greatly increased. However, this is not so much at the instigation of the judges themselves as the fact that the Human Rights Act is part of our law and has to be applied.

Among other things, the Act requires a judge to grant a declaration of incompatibility when a provision in primary legislation contravenes the Act and cannot be “read down” to avoid such a conclusion. It is then up to Parliament to pass legislation or face the music in the European Court of Human Rights in Strasbourg. Parliament has thus, by an ingenious device, maintained Parliamentary sovereignty by not giving the judges power to strike down the offending legislation itself, but it has permitted the judges to go mighty close.

Another area in which the role of the judges has changed dramatically in recent years is what I will call the medico-legal field. Questions of medicine, law, morals and philosophy can become very closely, often almost inextricably, intertwined. How are such questions to be resolved? Increasingly, it is the judges who are turned to to find the solutions.

Let me give some examples of the kind of cases that have come before the courts.

In 1988 there was an application to sterilise a mentally handicapped adult who was incapable of giving her consent. Those who looked after her felt it was in her best interests to be sterilised, but she might have had different views had she been in the position to express an informed view. Anyway, what are the best interests of a person in such a position? Opinions on this question might differ. The House of Lords held that the doctors could go ahead without being guilty of assault.⁸

It should be noted that the judges’ power to resolve a case of this kind does not come from any statute. It comes from the judges themselves, who have developed the law. It is, if you like, a judge-made power. But how is it to be exercised? What is the judge’s role? How far should he be guided by moral considerations or his own feelings?

On occasions in this area, the European Court of Human Rights has gone even further than the British courts. For example, in Glass v United Kingdom⁹ it confirmed that administering medical treatment to a child in defiance of his parents’ wishes interfered with the child’s right to physical integrity. The hospital should have first sought the intervention of the High Court, even in an emergency situation. The failure to do so was a breach of Article 8.

Then there was the case of the conjoined twins.¹⁰ If left unseparated they would both die. If separated, the weaker one would certainly die, but there was a chance the stronger one would survive. The Court of Appeal held that separation could go ahead.

There are many different issues that concern the borderline between life and death. In years gone by, such questions were dealt with to the apparent satisfaction of the public by the medical profession. But then, as I have mentioned, we lived in a much more deferential society. As society has become less deferential and more litigious, not only are the public more ready to question decisions of this kind, the doctors are less ready to take them. Thus the judges have come to be faced with issues about when it is permissible to switch off life support machines and whether, contrary to their religious beliefs, patients should be given life-saving blood transfusions.

There has been recent litigation in connection with assisted suicide. It is not an offence to commit suicide in this country. But it is an offence to aid and abet, counsel or procure someone else to commit suicide.¹¹ Those words have a wide catchment.

In several other countries it is not a criminal offence to help someone else to end his life. But if someone in this country helps a person to go to another country for that purpose, they place themselves at risk of being prosecuted. But how is someone to know whether, if they help a relative to go abroad, they will end up in court?

Our courts do not grant a declaration in advance that if a person does this or that he will, or will not, be committing an offence. Diane Pretty had failed to obtain such a declaration some years ago.

In a high-profile case this summer, Mrs Purdy wanted to know whether, if her partner helped her to go to Switzerland at some time in the future to take her life, he would be prosecuted.¹² Her problem was the law appeared to have been settled by the House of Lords in Mrs Pretty’s case,¹³ but her lawyers were ingenious. They approached the case from a different angle, claiming that the Director of Public Prosecutions had acted unlawfully in failing to publish adequate guidelines as to the circumstances in which there would be a prosecution.

Diane Pretty, having failed in this country up to and including in the House of Lords, had taken her case to Europe but she also failed in the European Court of Human Rights.¹⁴ However, there was a difference between the House of Lords and the European Court because the European Court held that she at least got to first base because Article 8 of the Convention was engaged. It was wide enough in the particular circumstances to cover personal autonomy. The House of Lords had held that it was not.

That was fatal to Mrs Purdy in any court below the House of Lords because lower courts are ordinarily bound by the House of Lords even when the European Court of Human Rights has taken a different view. Interestingly, in Purdy, the House of Lords decided to follow the European Court of Human Rights rather than its own earlier opinion, and it held that Article 8 was indeed engaged. Thus the way was open to help Mrs Purdy, not to the extent of establishing that her partner would not be prosecuted if he helped her to go to Switzerland to die, but by the decision that the Director of Public Prosecutions had acted unlawfully in not publishing guidelines as to the circumstances in which proceedings under the Act would take place.

Now there are widely held views about whether helping someone to take their own life should be a crime at all. Parliament has, however, refused to change the law. Section 2 of the Suicide Act remains in its present form and is very widely drawn. The judges in Purdy were right on the boundary between their role and Parliament’s role. What they were effectively saying was that the Director must tell people in what circumstances they will not be prosecuted for doing something that Parliament has said is a crime.

The House of Lords would not have dreamt of coming to such a conclusion 50 years ago. Indeed, they would not have had the tools to reach such a decision before the Human Rights Act and, in particular, Article 8 of the Convention. The boundary between making the law and applying it is a fine one, and the judges’ sphere of influence has shifted significantly.

Looking into the future, I can see increasing involvement of the judges in areas such as the beginning and end of life, and access to drugs and treatment. As Lord Hope said in Mrs Purdy’s case, the judges have a role to play where clarity and consistency is lacking in areas of such sensitivity. The problems arise when Parliament does not legislate to keep pace with the advances of science, or leaves laws in place that are out of touch with current moral views.

The next area in which the judges’ role has changed is in administration. Judges are no longer just judges. Many are expected to be administrators as well. This had been creeping in for some time with, for example, the creation of Presiding Judges in 1971 for each of the six circuits following the Beeching Report, and the appointment of resident and designated judges for the management of the civil and criminal work at each court centre.

But the really dramatic change came with the Constitutional Reform Act 2005. This Act changed the office of Lord Chancellor, established a Supreme Court, and created a Judicial Appointments Commission. The objective of these reforms was to put the relationship between the legislators, the executive and the judiciary on a modern footing, respecting separation of powers between the three. Whether it has in fact done so remains to be seen.

The Act was preceded by a concordat between the judiciary and the government setting out a route map for the future. Of particular significance, and arising out of the Lord Chancellor’s change of office, was the divestment of many of his powers to the Lord Chief Justice, often subsequently delegated to his senior colleagues.

These functions include judicial education through the Judicial Studies Board, judicial conduct through the Office for Judicial Complaints, judicial welfare, tribunals, buildings, technology and a host of other matters, as well as the running of the criminal, civil and family justice systems.

These functions take time and inevitably impinge to an extent on the judges’ sitting hours, although most judges do what they can in their own time. These additional responsibilities need not only time but also resources, and since the government, not the judiciary, provides the resources, it is not difficult to envisage a serious clash between the government of the day and the judiciary at some point in the future.

One feature about the new administrative role of the judiciary is that they have received little or no training for it. Some judges are good administrators; some are hopeless. They are, in this sense, no different from any other professional people such as doctors, architects or teachers.

Historically, only the best lawyers have reached the top of the judicial tree. But now, if they are to hold any of the top jobs such as the Head of a Division, they require this additional string to their bow, for they will spend a great deal of their time in administration rather than judging.

There has recently been a major change of emphasis on the part of the Judicial Studies Board away from teaching black-letter law and changes in the law, which judges ought to be able to pick up for themselves, to acquisition and improvement of judicial skills, including, importantly, management skills.

In some countries, judicial administrators are taken out of judging altogether to be full-time administrators, but not here. On the one hand, the judiciary can ill afford to lose so much judicial time to administration, but on the other, most judges regard a judiciary run by the judges as far preferable to one run by civil servants.

One role of the judge that is not new is the holding of judicial, often public, inquiries. This dates back to the Tribunals of Inquiry Act 1921. It has become much more common in recent years, as one often hears the call by opposition parties and others for a judicial inquiry.

Examples are the Denning Inquiry into the Profumo/Christine Keeler affairs in 1963, the Macpherson Inquiry into the police investigation of the death of Stephen Lawrence, the Hutton Inquiry, the Saville Inquiry into Bloody Sunday, and many others.

It is a very British phenomenon to use judges for this purpose. Nothing like it happens, for example, in the United States of America. It is very useful for the Government to push knotty political problems into the long grass, and it reflects well on the standing of the judiciary that judges are so often asked to conduct these inquiries and that their reports are so widely accepted.

There are, however, two disadvantages of using judges in this way. The first is that when the judge is away conducting an inquiry, he is not doing his ordinary job of trying cases, so the establishment is depleted. The second is that the judge may be drawn into political controversy and then lose his reputation for independence and impartiality, thus causing damage to the judiciary as a whole.

The role of a judge in conducting an inquiry is different from his or her ordinary role of sitting, trying cases or hearing appeals. The inquiry process is investigatory rather than adversarial. The judge, not the parties, within his terms of reference, sets the agenda for where he wants to go.

Two years ago I was asked to conduct the inquests into the deaths of Diana, Princess of Wales, and Dodi Al Fayed. Other senior judges have been asked to conduct inquests since. If, as in my case, there is a jury, the judge is not the fact-finder, but certainly the inquests that I conducted seemed to be a public inquiry in all but name.

My role as the fourth coroner into the deaths of Diana and Dodi was unique in a number of ways. It may be recalled that I came into the case after the decision of my predecessor, Baroness Butler-Sloss, to hold the inquests without a jury had been overturned by the High Court on, I would add, a judicial review application.

There had been two previous investigations, one by the French and another by the Metropolitan Police following Mohamed Al Fayed’s allegations. An inquest was required by law because the bodies had been returned to this country, even though two investigations had concluded the deaths were no more than a tragic accident.

It was obvious to me from the start that there were many who, if not propounding the view of Mr Al Fayed that the deaths were the consequence of a conspiracy by the establishment orchestrated by the Duke of Edinburgh, had real concerns that something fishy had been going on and that there were issues that required serious investigation.

It was easy to focus on any of a number of areas of the case and identify points that, taken alone, might support the conspiracy theorists. It seemed to me it was necessary to look at the whole picture in an entirely open way. In doing so, I identified some twenty issues that needed to be explored.

I was conscious that investigations of this kind can generate a life of their own. What we were doing needed to be open and transparent, but it needed to be kept in bounds. In this regard, I was fortunate to have a jury because there is a limit to how long jurors can be expected to commit their time.

Counsel on all sides agreed that the hearing must not take longer than six months, and we achieved that virtually to the day. We did so by careful planning and a certain amount of good fortune. Seeking to fit everything into that time frame involved allocating witnesses or groups of witnesses particular slots and sticking to them. Some issues fell away as others expanded. Because we finished on time, we finished substantially under budget.

The organisational aspect of these inquests was considerable and something I had not experienced before. There was a lead-in of four months after my appointment before the hearing began. Apart from a number of pre-inquest hearings with parties to the proceedings, it was necessary to appoint a senior civil servant, for him to get a secretariat together and, most importantly, a solicitor to manage correspondence with the interested persons and sort out the witnesses and documents.

Setting up a secure and effective computerised document management system in a short space of time was a real headache, but we achieved it thanks to the efforts of the solicitor and secretary, both of whom had held identical roles in the Hutton Inquiry.

Media interest was enormous, not only nationally but internationally. Our policy was to be as open with them and as helpful to them as possible, and I think this paid off. We had to construct a semi-permanent building to house 400 people in the quadrangle of the Law Courts to operate as an annex to the court. This required planning permission.

Arrangements for the protection of the jury from the media had to be arranged with the Metropolitan Police. We also had to arrange an overnight jury visit to Paris early in the inquests so that they could see for themselves the places they would be hearing evidence about. This proved something of a nightmare to organise because I had no sanctions I could impose against the media, particularly the international media, abroad.

In this regard I had the greatest assistance from the Judicial Communications Office, who joined us on the trip and set the arrangements with the media. The French too were enormously helpful, closing roads and providing police cover.

One aspect of the inquests that I found particularly interesting was the involvement of the Secret Intelligence Service, MI6. Their involvement arose in this way. It will be recalled that Mohamed Al Fayed’s case was that the Secret Intelligence Service killed Diana and Dodi in a staged accident on the express instructions of the Duke of Edinburgh.

Richard Tomlinson, a former member of MI6, had written a book about his experiences. Its contents compromised the safety of his former colleagues and others. He was prosecuted and sent to prison, about which he was very bitter. After his release he told the French inquiry he thought he could throw light on the accident.

The accident, he said, bore similarities to a plan he had seen put forward by a member of MI6 to kill a Balkan leader should he come to power and embark on genocide. It is true that a junior member of MI6 had some years before put up a proposal that suggested various ways of assassinating such an individual, but the idea had been stifled at birth by the proposer’s superior and never got as far as being recorded in MI6’s records.

It did, however, give rise to the contention by Mohamed Al Fayed and others that MI6 did kill people and would shred or destroy documents to cover their tracks should the need arise.

It seemed to me that these suggestions needed to be explored and, if there was nothing in them, this needed to be definitively demonstrated by authoritative evidence. The problem was that the instincts of the Intelligence Services were, like those of Brer Rabbit, to lie low and say nothing. Historically, their policy was neither to confirm nor deny allegations. If you respond once with a denial, it raises expectations and it is difficult not to do so next time.

I am glad to say that those running MI6 were eventually persuaded that it was in their interest, as well as in the public interest, that evidence should be given, as far as it was possible to do so, to explain their procedures to the jury and what was, or was not, permissible. To this end, Sir Richard Dearlove, who had been the Head of MI6 at the time, gave evidence. So did others, who remained unidentified by name. They described administrative procedures within MI6 and who was where in Paris on the relevant night.

Historically, the security services have appeared to many to be shadowy organisations who kept themselves very much to themselves, and there was great reluctance on their part to be as open as they were. It was greatly to the advantage of the inquest process, and to the organisations themselves, that they provided the evidence they did, much of which was unchallenged.

Presiding over a high-profile inquest or a public inquiry is multi-faceted and includes a great deal of work out of court.

I have been considering judges primarily in the higher judiciary, but there have been changes in the lower courts too. Crown Court judges are increasingly expected to become involved locally with wider issues involving the criminal justice system. Judges at all levels are required to manage cases effectively and efficiently.

I return to where I began. What judges do has changed since I was last in this building as an examinee nearly half a century ago. Their task is still to apply the law, but the dividing line between applying the law and making it is a very fine one. Close to this divide, judges should be astute not to be ahead of the views of society, but they should be careful not to be far behind either.

The judges’ role, like that of the High Sheriffs whose office dates back over 1,000 years, has adapted, partly at their own instigation and partly through circumstances, to serve the needs of this country in the 21st century.

¹ R v Barrick 81 Cr App R 78
² [1942] AC 206
³ [1964] AC 40
⁴ [1968] AC 997
⁵ [1969] 2 AC 147
⁶ [1985] AC 374
⁷ [1990] 1 All ER 469
⁸ Re F (Mental Patient: Sterilisation) [1990] 2 AC 1
⁹ (2004) 39 EHRR 15
¹⁰ Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961
¹¹ Section 2(1), Suicide Act 1961
¹² R (Purdy) v Director of Public Prosecutions [2009] UKHL 45
¹³ [2002] 1 AC 800
¹⁴ (2002) 35 EHRR 1