With widespread social media available to all with topics and sources designed to lure individuals from tots and teenagers to astronomers to zoologists there is little that can be kept secret from prying eyes especially if these eyes know where to look. If an optometrist does not perform his/her duties to a required standard there is the General Optical Council to convene a disciplinary committee to investigate. The General Medical Council`s disciplinary committees have been busy of late and the dental profession has similar oversight. Indeed where the public is putting its faith in a licensed profession there are public processes available to those aggrieved with the performance of those licensed. But in that part of the UK`s often and perhaps optimistically termed "unwritten constitution" which is as Churchill described USSR in 1939 "a riddle, wrapped in a mystery, inside an enigma" no public accountability when judges fail in their professional competence.
Whilst the Judicial Conduct Investigations Office (JCIO) investigates complaints of misconduct by judges it has no part in sanctioning judges for any apparent failing in their application of the law. Judicial capability issues are managed entirely within the judiciary under the final authority of The Lord Chief Justice (LCJ). A capability concern is usually identified by:
A senior judge reviewing court performance
Repeated issues flagged by other judges
Feedback from court staff, legal professionals, or persistent patterns in appeals
Serious problems noted during case audits
Appeal rates themselves do not automatically trigger anything but patterns can lead to internal monitoring.
If a leadership judge (e.g., a Resident Judge, Designated Family Judge or Presiding Judge) believes a judge is struggling they may initiate:
Private meeting with the judge
Advice or mentoring
Adjusting case allocation (e.g., fewer high-complexity cases)
Support from a senior colleague
If considered appropriate LCJ can order observation in court by senior judiciary
Mandatory retraining
Performance improvement plans
Regular monitoring
Temporary removal from sitting
If a judge cannot meet judicial standards even after support, the LCJ and Lord Chancellor jointly have the power to suspend or remove the judge from office (in extreme cases).
But all of the above is hidden from us; the great British public. Some cases do become newsworthy; the following recent examples where incompetence or unacceptable performance are in the public domain are a world away from misconduct cases investigated by the JCIO; eg the judge who fell asleep on the bench. Perhaps the most newsworthy example of late became public knowledge only because it was revealed during the inquiry into the Post Office Scandal. Former senior prosecutor Sir David Calvert-Smith publicly criticised a number of judges for not scrutinising the prosecution’s case deeply enough in the Horizon IT scandal leading to wrongful convictions. He argued that some judges failed to challenge prosecution evidence or push for disclosure in the trials. Sometimes information of judicial failings is revealed only as a secondary factor in a public inquiry an example being the inquiry into the Lucy Letby case (the deaths and collapses of babies at Chester hospital) Dr Michael Hall, a neonatologist and medical expert, strongly criticised the opening remarks made by Lady Justice Thirlwall. Hall asserted that Thirlwall’s comments mischaracterised those who questioned the convictions and said that some of his expert medical evidence (and possibly that of other defence experts) was not sufficiently presented in the original trial. Thirlwall defended her position but the fact that such critique came out in an official inquiry means the judicial role was publicly challenged.
A Commons inquiry report in 2022 suggested that judicial independence may be under political pressure. The report found that certain ministers had conflated “decisions with political consequences” with “political decisions,” giving a misleading impression that judges were acting outside their constitutional role.
Under the Constitutional Reform Act 2005, the Lord Chancellor can remove a judicial office holder (below High Court level) for “inability to perform the functions” of the office but only after a tribunal under section 135. There do not appear to have been in government, judicial or academic sources a removal tribunal convened since 2020 that publicly concluded a judge was “unable to perform their duties” (i.e., a formal “capability” removal). There seem to be no secret “Lord Chancellor competence investigation” culminating in removal of a judge for legal incompetence. A reasonable conclusion could be that either such cases are very rare or very secret or even both.
The legal professions from whom judges are chosen are becoming ever more aware that they and/or their members are being associated with political/constitutional opinions; leftie lawyers, immigration tribunal judges and family court judges have all had more than their fair share of recent publicity but after the newspaper headlines have receded any further investigations as to their competence will have ascended to cloud cuckoo land. There are those who will proudly say this is the British way. This point of view has little left to commend it. There are many criticisms of the continental way of running a nation or of an America where many posts are dependent upon election and not appointment as in UK. A certain conclusion is that if there is doubt in the competence of the legal system and its supervision there will arise doubt as to the efficacy of the democratic conventions from which it arose and developed.
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