It was, I think, a brilliantly prescient move when in 1968 the University of Birmingham decided to set up an Institute of Judicial Administration within the congenial environment of the Law Faculty. The Institute’s new Director, Dr Marianne Wade, has invited me to offer a few reflections on the work that the Institute has done in the past 44 years. I am delighted to accept this invitation and, having been a member of the Institute for 38 of these years and having served as its Director for twenty of them (1982-2002), I think that I am well placed to comment on the contribution that members of the Institute have made.
The starting point for these reflections must be to acknowledge the crucial part that was played by Professor Gordon Borrie (now Lord Borrie) and by Professor Ian Scott, the first two Directors of the Institute. For the first 15 years, they set the direction that the Institute was to follow. They were inspirational leaders and have remained among the Institute’s most loyal and enthusiastic champions. Lord Borrie and Professor Scott established the Institute’s international reputation and developed the important first links with members of government departments, the legal profession, the judiciary and potential funding bodies. It was they who put the Institute on the map and launched its first research programmes.
It is fascinating to look back at the Annual Reports that were produced in these early years. I doubt that there are many copies of these reports still in existence and I am pleased to own a complete set. They are now almost collectors’ items, particularly the first one that was printed on A3 paper and produced from a Gestetner stencil, itself nearing obsolescence even in those years. The first Annual Report in 1969 identified a number of possible areas for research, including jury trial, the selection of the judiciary, arbitration procedures and family courts. Twelve months later, five projects were already underway, all supported by external funding.
In the following year, the Director, Lord Borrie, expressed regret that it had not been possible to secure a general grant to allow a small nucleus of permanent staff to be appointed to work on the Institute’s research projects. This may have been an over-ambitious objective. With the exception of two lectureships in judicial administration that the University itself funded (posts to which Professor Lee Bridges and I were appointed in 1973), no grant of this kind has ever been secured. Five of the six Directors of the Institute have been appointed from among the full-time staff of the School of Law, only one – Dr Wade herself – has been appointed from outside. All other research staff have been appointed on a project-by-project basis. The Director observed in the 1971 report that, while there was “no coherent research programme”, projects had emerged “from the coincidence of the interests of members of the staff and the willingness of outside bodies … to finance projects.” This summarises well a pattern that has continued. The Institute of Judicial Administration has never comprised more than a handful of people and the resources available to it have always been extremely limited. But all the experience of the past 44 years has demonstrated that, in conducting successful empirical research projects, it is the energy, commitment and enthusiasm of individuals that ultimately matter more than funding and other resources.
The Institute’s limited resources have, however, been supplemented from time to time by the appointment of distinguished scholars, judges and legal practitioners as Honorary Fellows. These appointments have included Sir Philip Otton (a University of Birmingham alumnus), Professor Graham Zellick, Professor Leonard Leigh, Mr Rodger Pannone and Professor Karl Mackie. The work and reputation of the Institute have also been considerably enhanced by the appointment as honorary members of many scholars from a number of European jurisdictions, the United States, Japan, Australia, Canada, Korea and China who have spent lengthy periods working within the Institute.
I believe that the main secret of the Institute’s success – and this is something that distinguishes it from many comparable research institutes – lies in the fact that it was physically located right from the start within the Faculty of Law building. Members of the Institute have literally worked alongside many of the country’s top academic lawyers and have often contributed to the teaching of undergraduate and postgraduate law programmes. This has been an enormous benefit to the Institute, and the dialogue between its members and academic lawyers in the Law School has undoubtedly strengthened its research. It has also meant that many people who started out as traditional ‘black letter’ lawyers have been induced to try their hand at empirical research projects. I very much doubt that this would have happened without an Institute of Judicial Administration.
The genuinely symbiotic relationship that has always existed between the Institute and the School of Law has, I believe, helped to create the stimulating and agreeable environment which is the hallmark of Birmingham Law School. It has in turn contributed to the distinctive nature of legal scholarship within the School. It was always customary in preparing the Annual Reports of the Institute of Judicial Administration for the Director to refer to the research activities of those members of the Law School “associated with the Institute’s work.” This group of people within the Law School have always been extremely important to the survival of the Institute. Professor Michael McConville, Professor Lee Bridges, Professor Andrew Sanders, Professor Richard Young, Mr Roger Leng, Professor Nick Wikeley, Dr Maureen Cain, Ms Joyce Plotnikoff, Professor Sally Lloyd-Bostock, Professor Andrew Le Sueur, Professor Richard Moorhead and Professor Stephen Shute are just some of the academic superstars who have at some time conducted empirical research projects within the Institute of Judicial Administration, many of them moving on to occupy Chairs in other universities.
These 44 years have been turbulent ones for the legal profession and the judicial system in this country. Monumental changes in the legal and judicial landscape have occurred, changes which could scarcely have been anticipated at the time the Institute of Judicial Administration was being set up. The Institute’s early priorities were “to start with small projects chosen for their social importance” and to seek to map out the territory of judicial administration “as a distinct academic discipline with its own general theory”. It was also seen as desirable for members of the Institute to grapple with sensitive legal issues.
The focus of the Institute’s early work was on criminal justice questions, and this immediately led the Institute’s researchers into deep and dangerous waters. Indeed, it may well be that some of the questions that were tackled in those years were more sensitive than the founders of the Institute had bargained for. It has to be remembered that at that time rigorous academic scrutiny of the workings of the justice system was not universally welcomed, and a number of projects were thwarted by resistance from senior members of the judiciary and the legal profession, a resistance that researchers in other jurisdictions often found hard to fathom.
Even when projects were allowed to proceed, a rough ride was anticipated when it came to publishing the results. Several of the Institute’s reports were greeted with intense scepticism, even hostility. No one working within the Institute at that time will easily forget the reaction to some of the Institute’s published reports. One monograph that I myself co-authored with Michael McConville became something of a cause célèbre within academic circles when it hit the headlines in 1977. This book, Negotiated Justice, dealt with the controversial practice of plea bargaining in the criminal courts. A concerted effort was made by the leaders of the legal profession to suppress publication of the book and this led to a media frenzy, as well as statements in Parliament by the Home Secretary of the day, an attempt publicly to discredit the research, prolonged correspondence in the columns of The Times, and ended in an internal enquiry by the University’s Vice-Chancellor, Lord Hunter. This was a thoroughly chastening experience and, in a memorable speech delivered in Birmingham in May 1993 to celebrate the Institute’s 25th Anniversary, the late Lord Bingham, who was at that time Master of the Rolls, was only slightly exaggerating when he described the position of the authors as “the legal equivalent of Salman Rushdie.”
I must confess that we were taken aback by the ferocity of many of the criticisms that were made of our published reports, even if we derived some consolation from the fact that our very unpopularity indicated to the outside world that our research was at least independent. Researchers within the Institute of Judicial Administration were not alone in those years in feeling that their work was being frustrated by various powerful interest groups. Other researchers were similarly aggrieved by the obstacles that were being placed in their way when they sought to pursue sensitive lines of enquiry or requested reasonable freedom to publish the results of their endeavours whether as books or articles in the standard academic journals. I well remember how in the late-1980s a few of us formed ourselves into a pressure group – we called ourselves ‘Researchers United’ – and Professor Michael Zander acted as chairman. We met from time to time in Michael’s room at the L.S.E. to discuss ways in which we might fight back and resist the dark forces that seemed to assail us. Although I cannot now recall any significant successes that we achieved, it was nonetheless reassuring to know that there were others in the same position and there was some satisfaction to be derived from a certain strength in numbers.
Despite the resistance encountered, major criminal justice projects were nevertheless carried out within the Institute of Judicial Administration from the 1970s onwards. Landmark studies were conducted of the outcome of jury trials; the exercise of prosecutorial discretion; the negotiation of guilty pleas; police interrogation; advance disclosure of prosecution evidence; child witnesses; delays in processing cases; the right to silence; the provision of legal advice in police stations and the administration of legal services.
Attitudes towards research and researchers have of course greatly changed since the 1970s and 1980s. Looking back, it is astonishing how quickly change came and how real it proved to be. The New Labour Government’s insistence on ‘evidence-based’ policy affected the Government’s relationship with the research community and the promulgation of the Freedom of Information Act 1997 significantly changed the climate in which empirical legal research is conducted. The outside scrutiny of legal processes has become more widely accepted as desirable, and the days have long gone when empirical researchers were caricatured as irresponsible snipers intent on undermining public confidence in the administration of justice.
These changes in the political climate were accompanied by profound shifts in legal and judicial attitudes. It was probably the spectre of miscarriages of justice which have haunted English courts ever since the early 1980s – and the public disquiet that these miscarriages have engendered – that produced this change in attitude. Two Royal Commissions were set up in the 1980s and 1990s specifically to examine the workings of the criminal justice system and their reports led to a questioning of assumptions and a rethinking of fundamentals. Both Commissions launched major research programmes and these were in areas in which members of the Institute of Judicial Administration already had a keen interest. If one re-reads the reports produced by these Royal Commissions – both landmarks in their own way – one is struck by the extent to which they are studded with references to the research carried out by members of the Institute of Judicial Administration.
One might make a similar observation about Lord Justice Auld’s review of the criminal courts that was published in 2001 and about Lord Woolf’s two reports on civil justice reform in the mid-1990s. Key recommendations in Lord Woolf’s review, particularly the massive expansion of the small claims regime, leant heavily upon the research conducted within the Institute of Judicial Administration. The same was true of the ensuing steps taken by the Department for Constitutional Affairs in the late 1990s to address the problems caused by ineffective enforcement procedures in the civil courts. In setting up its Enforcement Review (which has culminated in the Tribunals, Courts and Enforcement Act 2007), the Department for Constitutional Affairs acknowledged the point that had been demonstrated in a series of Institute studies that ineffective enforcement of court judgments undermines the credibility and integrity of the civil justice system.
I think that these examples illustrate a key characteristic of the research that has been conducted by members of the Institute of Judicial Administration. Its focus has been on the practical effects of the operation of legal processes, often examined from the standpoint of those who are on the receiving end of them. For good or ill, most of the research has been highly pragmatic in character, not abstractly theoretical or remote from policy debates of the day. When Lord Borrie delivered an inspirational address at a celebratory dinner on the occasion of the Institute’s 21st Anniversary in 1989, he underlined the importance of this practical empirical dimension. He cited a former Master of the Rolls, Lord Evershed, who had made the following important observation:
…when we speak of a ‘system of law’ we are apt to think too much of substantive laws and far too little of the way in which in fact the law operates. Yet for the ordinary citizen … the method may be more significant than the substance.
Seeking to understand how legal processes operate in practice has meant that members of the Institute have had to spent long hours sitting in courts, tribunals, police stations, the offices of lawyers and the like and very many hours talking to lawyers, judges, police officers, litigants, criminal defendants, prisoners and others about their experiences. And if we have ignored the Court of Appeal or the House of Lords, it is only because we have focused on the way that legal processes are experienced by the ordinary citizen.
It also seems to me remarkable how often Institute researchers have succeeded in anticipating the big issues of the day. While most academic legal research involves investigation of topical issues – the often ephemeral issues that preoccupy policy makers – it requires a more profound understanding of the subject to predict the issues which are likely to become matters of public and political concern. It is, I think, extraordinary how often, when governments have initiated official enquiries of one kind or another, members of the Institute have already embarked on relevant enquiries ahead of time. It is surely the hallmark of the very best research that it helps to identify the key issues of the day rather than simply to follow in the slipstream of governmental or media concerns.
But a number of delicate balances need to be struck here. While the policy concerns of government cannot dictate the research agenda, members of the Institute have never sought to remain aloof from policy debates and political controversies, Since public expenditure on research on the administration of justice inevitably reflects the interests of government – and it is always much easier to secure funding for short-term projects which fit the policy needs of government departments – great care has always been taken to ensure that the Institute’s research is assessed according to strict academic standards, not by its utility to government departments. For this reason, members of the Institute have sought to conduct research which has not only had an important bearing on the direction taken in public policy but which is at the cutting edge of academic debate too. Rightly recognising the need to strike a balance here, the Constitution of the Institute laid down from the very beginning the basic principle that “[a]lthough ready to provide assistance to any Royal Commission or government committee examining aspects of judicial administration, the Institute will be an independent body upholding the highest principles of academic freedom and enquiry.”
The raison d’être of the Institute has, therefore, always been to conduct dispassionate, independent enquiry into all aspects of the administration of justice. Yet upholding “the highest principles of academic freedom and enquiry,” which is of course just as important today as it was when these words were written 44 years ago, is by no means straightforward in an area that is as politically charged as judicial administration. It is, I think, greatly to the credit of researchers in the Institute of Judicial Administration that it has never been alleged that they have compromised their independent academic status, whether this be in the choice of subject to study or in the preparation of a report. It remains axiomatic that no one will toe a particular party line or seek to appease a particular funding body.
I hope that I may be forgiven the self-indulgent, even self-congratulatory, tone I have adopted in writing this short piece. It reflects the genuine sense of pride that I feel at sharing in what the Institute of Judicial Administration has achieved. With only slender resources, it has established itself as one of this country’s leading centres of empirical legal research and its work is known and cited throughout the world. The reputation of the Institute remains high and the many hundreds of books and academic journal articles that its members have produced in the past 44 years are cited in the national and international literature of socio-legal studies, criminal justice, criminal and civil procedure and judicial administration. The Institute is also very proud of its association with the Civil Justice Quarterly which is now established as the leading civil justice journal in this country. The CJQ was edited until 2005 by members of the Law School staff associated with the work of the Institute of Judicial Administration with Professor Ian Scott as its editor.
It is, I think, fair to say that recent years have been relatively lean ones for the Institute and it has proved difficult to find a Director with sufficient time to devote to the promotion of its activities. However, I believe that the appointment of Dr Marianne Wade as Director will mark a watershed in the history of the Institute of Judicial Administration. Dr Wade joined the Birmingham Law School as a Senior Lecturer early in 2011, having previously worked at the Department of Criminology at the University of Gőttingen and the Max Planck Institute. She is a distinguished criminal law scholar who has written extensively in the area of European criminal justice.. Having talked with Dr Wade at considerable length about the future direction of the Institute, I have been struck by the huge enthusiasm and drive that she brings to the task. She will add a fresh comparative dimension to the Institute’s research, and her specialist interest in comparative criminology, prosecution services and criminal justice structures will allow her to take the Institute’s research in these areas in new and exciting directions.
On a personal level, I wish Dr Wade every success as she prepares for the re-launch of the Institute of Judicial Administration. I am very confident that the she will maintain and advance its international standing. As someone who greatly admires Marianne Wade’s personal and academic qualities, I am certain that the future of the Institute is in safe hands.
Emeritus Professor John Baldwin