Raising the bar for the bench

It does not make many headlines, but judicial training these days is a serious business, and one with an ever-expanding scope.

From modest beginnings in 1997 as the Judicial Studies Committee under the chairmanship of Lord Ross, the former Lord Justice Clerk, the Judicial Institute for Scotland has developed into a small but dedicated team of professionals that can now boast its own purpose-built facilities in Parliament House.

Taking over as director this month is Sheriff Alistair Duff, the deputy director for the past three years. It was Duff’s predecessor Sheriff Tom Welsh, who with the then chairman, Lord Brodie, commissioned the full training needs analysis that led to the organisation taking its present form, and embark on the project to set up the Institute’s learning suite, which opened in January 2013.

Impressive it is, too. A large, L-shaped room, it boasts a facsimile bench at each end, and a media control desk with a speaker’s podium sited in the angle of the L. The room can be partitioned several ways as required, and naturally it hosts all the IT currently available to our judges and sheriffs, including CCTV links to other rooms where actors can play the role of vulnerable witnesses. Rather than rows of seats, the auditorium area is furnished with tables at which participants can engage in breakout discussions.

Wide coverage

The Judicial Institute’s mantra, as Duff is keen to emphasise, is that “ ‘Judicial training must be designed by judges for judges and delivered by judges’, and we are anxious to provide that training in the way that is most effective: it is interactive; we don’t lecture the judges, we get them to engage with information and with problem scenarios and so on.”

State of the art though it may be, the learning suite is not an extravagance. Indeed it was much more expensive – and the IT much less reliable – to hire hotel and conference facilities around the country, when that was the only option. “The capital outlay that was expended to allow us to move into our offices and our learning suite, I’m told will have been recouped within the next 12 months,” Duff observes, “which I gather is unheard of in a government capital project.”

The Institute’s constituency is much larger than you might think: not just the 34 senators, or even the 180-200 full-time and part-time sheriffs, but 450 or 500 justices of the peace as well – a total of some 700 serving judges at all levels. Each group has its own particular needs: with lay justices, for example, “it’s very important for training purposes to keep in mind that advice on legal matters should be coming from their legal adviser in court and arguably not from the Judicial Institute, so it’s quite a sensitive relationship that we have to be aware of”, Duff says.

Is there an actual CPD requirement for judges? Not exactly, apart from an induction course, but as Duff explains: “All sheriffs and judges are offered four days of training per year. There is an expectation that judges will take up that offer and indeed that, in total, over a year they will undergo five days’ training, four offered by the Institute and, for sheriffs, their sheriffdom conferences which take place annually. We don’t have difficulty in engaging judges in applying for our courses and undertaking the training, and the Lord President has made it very clear repeatedly that annual training for judges is not a choice but an obligation which he expects them to take up.”

However, the Institute is not confined to Parliament House training sessions. A slate of publications includes its Jury Manual, the regularly updated guidebook for judges conducting solemn trials, the criminal and civil bench books, and specific briefing papers on significant appeal judgments, or new legislation such as the Victims and Witnesses Act 2014. Then there are external training events, for example, for sheriff clerks; the sheriffdom conferences; and events for JPs, which may need larger premises or a venue outside Edinburgh.

“We also are significantly involved with what I would call civic society”, Duff continues, referring to organisations such as Women’s Aid or the Children’s Commissioner, as well as the Scottish Government. This is essentially an awareness-raising exercise for both sides: “There is a lot to be gained by judges in hearing from those who have a particular interest in, say domestic abuse, including academics, social scientists who have carried out research in this area, social workers and others.”

He is, though, careful to add: “I may say throughout all of this that we have to be very conscious of issues of judicial independence. Not just that judges have to be independent of Government, the prosecution, the police, press and so on, but also they are independent of one another, so the Judicial Institute cannot and does not lecture judges about what they should be doing, or that one way of dealing with a situation is wrong and another way is right. What we try to do is identify the problems that judges may have, try to raise awareness amongst judges of different approaches that could be taken to these problems, and most significantly encourage the judges here, in a safe and confidential environment, to talk to one another about their experience of dealing with current issues. We hope they will then leave our courses with a better understanding of issues and with their minds provoked as to the strategies they might utilise to deal with those kind of problems.”

Further challenges

Further IT developments are expected to bring to fruition a single platform, the “Judicial Hub”. Launched in March of this year as a communication vehicle in place of intranet and group email, it will shortly also allow judges to book courses online, and already enables e-publication of the Institute’s written resources for judges.

“The next part of the Judicial Hub that we hope to develop over the forthcoming year is the provision of online learning”, Duff adds. “That is an art and not something that we’re going to rush into without producing a good, high-quality product, but what we hope ultimately is to be able to provide what in the educational world is called blended learning, where some learning is provided through the Hub on an online basis, and some through face-to-face engagement.”

As Duff is well aware, the Judicial Institute is entering a period when it will need all the resources it can get: “There are going to be training challenges out of the appointment of summary sheriffs, potentially specialisation, the Sheriff Appeal Court, and the responsibility the Lord President will have for the devolved tribunals – that will be another substantial expansion in the number of people we have to cater for.”

The Mental Health Tribunal alone would add another 400, though it and other tribunals do already have fairly well-developed training methods. “While it has yet to be decided, what we may do is oversee all of the training, but endorse the current arrangements that are in place for the technical legal training that the members get, with the Judicial Institute perhaps providing more generic training around court craft issues and the like”, Duff explains. “So yes, that’s going to be a challenge, but tribunal members are already being trained and we hope we can make best use of the arrangements that are currently in place.”

It all adds up to more pressure on the dedicated team of 15 or so who between them deliver, or co-ordinate, the Institute’s output – in addition to the director and deputy (Sheriff Andrew Cubie steps into Duff’s previous post), there is a university-trained head of education, a learning technologist and assistant on the IT side, office and course managers, three law graduates as legal assistants, a consultant to assist with JP training, and other support staff. Strategic decisions are made by an executive board comprising Lord Malcolm (chairman), Lord Woolman (vice chairman), and the two sheriffs; a larger advisory council with legal and lay membership provides further input.

A serious business

It might be thought surprising all the same that the Institute requires the services of two sheriffs full time, but preparation of the courses is nothing if not thorough. Speakers, however eminent, are not given carte blanche to decide their own content. “We have a clear idea of the learning objectives that we want to achieve”, Duff affirms. “We will identify a potential speaker, we will engage with them – this will be five or six months before the course – about the topic, talk through what we would like them to cover, ask them to prepare their presentation and let us see it so that we can then go over it with them, fine tune it, indicate areas that we think might need developed or excised or whatever, until it is polished and is clearly going to be successful in achieving the outcomes we want. So we retain control over the delivery of both content and methodology of delivery of the training.”

Finally, there is the international dimension. “There’s a lot of cross-fertilisation”, Duff agrees. “There is a view that all judicial education is theft and that judicial training institutions are regularly raiding the larder of other institutions when good ideas are spotted.”

Not covertly, of course. The Institute is a member of two international judicial training networks, and separately collaborates on programmes with the National Judicial Institute of Canada. Even where systems differ markedly, there can be assistance: Duff was recently in Slovenia to lecture on plea bargaining, where it has only recently been introduced and, in fact, remains highly controversial among the legal community. “It was highly illuminating to engage with lawyers for whom it was a rather strange beast”, he observes. “It also helped to inform the way I look at the issue of plea negotiation here. I actually researched the subject, which I had never even thought about doing before because it was in my DNA.”

All of this emphasises the seriousness with which judicial training is now widely regarded. Concluding, Duff points to a further benefit of the Institute’s learning suite: the opportunity it has brought for the senior judiciary to engage with the training, in a way that would not be possible if it were in some distant hotel. Not only can senators deliver a paper before taking their seat on the bench for the day, but “The Lord President and Lord Justice Clerk try to come to all of our courses that are held in this building, at some point, to meet with the judges attending, and that I think is very supportive, and serves to underline for those attending the importance with which they view judicial training. All that is of great value and has been perhaps an unforeseen consequence of our move here – that ability more easily to involve the senior judges in our training.”