10th February 2021
One of the joys of the internet are cat videos, and for those interested in the law there was this cat video yesterday.
This may indeed be one of the funniest things you will ever watch.
“I’m here live, I’m not a cat,” says lawyer after Zoom filter mishap
— Lawrence Hurley (@lawrencehurley) February 9, 2021
“I can see that,” responds judge pic.twitter.com/HclKlAUwbM
But there is a more serious point worth making, as we rightly collapse and giggle at this footage.
In the United Kingdom, at least, judges and barristers are often required to wear things which are no less ridiculous than a cat filter.
Judges gather in the Nave before a service to mark the start of the legal year pic.twitter.com/2U1jbBJZrL
— Westminster Abbey (@wabbey) October 1, 2014
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Here two quotes come to mind.
First, a sanitised one from the immortal Withnail and I:
‘What’s all this? This is a court. This ain’t fancy dress.’
‘You think you look normal, your honour?’
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Second, and somewhat more earnest, is George Orwell in his essay the Lion and the Unicorn:
‘The goose-step, for instance, is one of the most horrible sights in the world, far more terrifying than a dive-bomber. It is simply an affirmation of naked power; contained in it, quite consciously and intentionally, is the vision of a boot crashing down on a face. Its ugliness is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren’t laugh at me’, like the bully who makes faces at his victim. Why is the goose-step not used in England? There are, heaven knows, plenty of army officers who would be only too glad to introduce some such thing. It is not used because the people in the street would laugh. Beyond a certain point, military display is only possible in countries where the common people dare not laugh at the army.’
And similarly, in the United Kingdom, we often dare not laugh at judges and barristers, regardless of how silly their paraphernalia looks.
Because of traditions, and deference.
Because we are conditioned in England to think it perfectly normal that our system of justice is administered in eighteenth-century costumes in ill-suited and creaking Victorian buildings.
That all these anachronisms are as much a part of the natural stuff of law as the doctrine of consideration or the rule against perpetuities.
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Of course, there are practical considerations.
Those at the criminal bar will say, with force, that the robes and wigs give them helpful anonymity.
But this argument from utility does not justify the wider use of fancy dress – and many other legal systems manage with no more than simple and almost inconspicuous robes, if that.
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Now look again at the cat filter video.
But this time watch the judge instead.
“I’m here live, I’m not a cat,” says lawyer after Zoom filter mishap
— Lawrence Hurley (@lawrencehurley) February 9, 2021
“I can see that,” responds judge pic.twitter.com/HclKlAUwbM
This is what the judge himself tweeted:
These fun moments are a by-product of the legal profession's dedication to ensuring that the justice system continues to function in these tough times. Everyone involved handled it with dignity, and the filtered lawyer showed incredible grace. True professionalism all around!
— Judge Roy Ferguson (@JudgeFergusonTX) February 9, 2021
The judge was calm and professional.
The judge did not need fancy dress.
Indeed, no judge or barrister or any lawyer needs to wear fancy dress as an end in and of itself.
(Yes, there may be an exception for criminal practitioners.)
Those who witter on about the ‘majesty of the law’ may as well talk of the absurdity of the law.
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As this blog averred the other day, there is no inherent reason why many court hearings – as with council meetings – cannot now be done virtually as the norm.
And if this is the case, all the visual gimmicks insisted on in actual physical court hearings no longer have any purpose, if they had a purpose at all.
Wearing wigs and robes may perhaps give a sense of occasion in a large gloomy draughty court room, but they have no place in a virtual hearing.
A good judge does not need to rely on such devices, and a poor judge should not be able to hide behind them.
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An interesting set of thoughts. Although I suspect the main motivation for writing it was to be able to show the cat video.
New courts seem to insist on creating a fancy dress for their judiciary. Look at the proceedings against alleged war criminals in the Hague – there is no reason why the judges should be wearing a uniform, but they are. Was it to humour the existing judicial authorities?
Incorrect. I had another post ready but thought I could use cat video as peg to make wider point. The wider point is the main reason.
My apologies. I wasn’t in any way implying that the point of your article was not important or serious.
It is a very funny video though.
It also occurs to me that although the USA has done away with wigs and flummery, it does that funny judicial thing with a gavel, which is also nothing but ceremony.
You have a good point about gavels.
In which square of the Zoom is the judge visible, please? None of them is labelled ‘Ferguson’, neither does the audio from the judge appear to lip-synch with the visuals of either of the besuited gentlemen, although the cat’s movements correspond well with the speech of the baffled counselor.
You’re entirely correct. As a District Judge (Magistrates’ Courts) I sat in both criminal and family cases without ever being required to wear a wig or gown, and the same was true of the advocates who appeared before me. In my court (Birmingham) judges had to go through public spaces in order to access the courtrooms, yet incidents of confrontation between aggrieved litigants (or their family members) were vanishingly rare. Even for criminal practitioners, the argument for anonymity does not carry much weight.
I don’t think that defence solicitors and barristers would agree with you. Virtual trials deprive juries of important visual clues.
If you read the post I link to, you will see I say that about the non-virtual need for examinations re witness evidence.
A cat filter is a bit different to wigs and gowns, but as a barrister I consistently vote for their abolition for Civil practitioners, whilst respecting the desire of the majority of Criminal practitioners for the anonymity they bring.
One irritating aspect of Court Dress is that, despite there being rules about when to wear it, different Judges take different approaches and the Court staff invariably do not let one know in advance (to be fair, they have more pressing concerns), so one has to bring a wig and gown and court shirt and spare collars along with all the books and files one needs, more often than not to be told at the last minute that, ‘this Judge does not require Counsel to be robed for this type of hearing’. Worse things happen, but….
I think the purpose of the fancy dress is to create legitimacy. Perhaps it’s too early in the morning for me to write an entirely coherent explanation, but if you remember Weber’s account of legitimacy it is first of all defined as the perception of legitimacy, and secondly comes not only from the existence of a system of legal rules but also from tradition.
The robes tell a story of tradition since time immemorial (even though the true judicial uniforms in the past were different). This storytelling increases the likelihood that the losing party will accept the court’s decision as legitimate, just like the design of the court room, and indeed the entire building, as well as the processes and procedures.
All of this is important because the courts lack the ability (and the willingness) to enforce their decisions over the barrel of a gun.
So the UK is the only nation state with a legitimate legal system?
I said that was the *purpose* of the fancy dress. I didn’t say it was either necessary or sufficient to achieve legitimacy.
That said, in other countries the judges’ dress might be slightly less fancy, but it still involves robes and occasional discussions about headscarves.
Moreover, because it’s all a story, the effectiveness of the story as an instrument to create legitimacy depends on people’s expectations. In order to perpetuate the story the judges have to dress the way the parties before them expect judges to dress. In different countries people are used to different court dress.
If not with a gun the ultimate sanction is still force, even in England and Wales, and I have met some pretty formidable tipstaffs and bailiffs over the years.
Optics, storytelling, what you will, they’re designed to be intimidating. All this storytelling and fancy dressing up that goes on in Parliament too, is absurd in this 21st century. I fear it speaks volumes about Britain’s perception of itself as a nation.
As an articled clerk I was taken along on a House of Lords case. Apart from the decrepit state of the sun-rotted tapestries the other abiding memory is having to wait outside while a file of elderly men in suits filed past to go in. Once proceedings got under way the authority of the five sitting at floor level desks was clearly on view without the need even for gowns.
Similarly with visits to the EAT where the judge and tribunal members dressed perfectly normally.
I’ve always felt gowns and wigs distracted from and trivialised the underlying importance and seriousness of proceedings. Particularly when for instance a judge insisted he “could not see” counsel, who’d forgotten their tabs.
Years later I took a group of foreign lawyers to see a District Court in action. Despite the gowns, although I think wigs may have been dispensed with, what impressed them the most was the lack of theatricality and the businesslike calm in the presentation of the case
I agree with the suggestion to do away with these trappings in most cases, although I also accept that they have some value in certain settings. There’s also a danger that clinging to historical outfits in the name of tradition might make it less obvious that we should also dispense with some archaic procedures that really should be modernised.
This applies even more to parliament, which looks more like a historical enactment society performing a pantomime than a 21st century place of work in which laws are to be created. Where else in the world do legislators still spend time trooping through lobbies to have their votes counted?
The U.K. is not the only country where the issue of appropriate dress in legislatures (and courts) is becoming more challenging, I’m glad to say.
This month has seen the New Zealand Parliament faced with a challenge to the obligation for male members to wear a tie. When Mr Waititi, a Maori Party MP, arrived wearing a traditional pendant instead (which he described as ‘Maori business attire’ – although he’d previously used a more evocative image, namely that of a ‘colonial noose’), he was booted out.
The Speaker has now relented, I was pleased to learn.
The country’s current foreign minister, Ms Mahuta, also faced criticism for appearing in Parliament with a sacred facial tattoo back in 2016. When she was appointed as Foreign Minister last year, a conservative author denounced her appearance as ‘the height of ugly, uncivilised wokedom’ (reminding me somewhat of the offensive descriptions used by my own country’s Prime Minister to describe Muslim women who choose to wear burkas). The author likewise faced fierce criticism for her comments.
I’m glad that these discussions are now taking place, and just hope that they can be conducted with more mutual respect and consideration.
For my part, I’ve never forgotten the extraordinary rudeness of a (young) barrister who furiously demanded that the Judge in a Crown Court appeal I was sitting on as a JP order a heavily pregnant solicitor to stop using the lectern reserved for counsel, despite her explaining that her laptop was too heavy to hold aloft.
Her Honour invited him to take some time out to reflect on his conduct and to return when he’d grown up. To give him his due, the apology he delivered on his return gave every appearance of being truly contrite.
The Magistrates’ Court nevertheless went on to order black Perspex stands for barristers and clear stands for solicitors…
Some people would apply same contemptuous label of “fancy dress” to Sikhs’ turbans, or Muslim headscarves, or the gele, or the shalwar kameez, or the fashions of particular white subcultures. I wouldn’t, and I wouldn’t be contemptuous of traditional English (and Welsh) court dress either.
The argument in favour of judges having distinctive clothing is precisely so that the judge is not dressed like any conceivable litigant. It is a visual signal that the judge stands apart from the dispute, even-handed between the parties, no matter who the parties might be.
Much the same goes for what you deride as “the visual gimmicks insisted on in actual physical court hearings”. They have an obvious purpose: to signal that the court is a different world. The world outside the court is, notoriously, unjust, and the court exists to redress this.
Finally, regarding the idea that court hearings should “now be done virtually as the norm”: Many people are very happy to have virtual hearings– or phone hearings, or decisions on the papers– especially for disputes which, for the litigant, are minor.
However, where the dispute is something that, for the litigant, is of huge importance, it is likely that many litigants will always want an actual physical court hearing. They deserve this hearing, and in dignified surroundings, commensurate with the importance to their lives.
So how do other legal systems around the world cope?
And you analogy with religious dress is provocative, but that this is the best counter-example you could conceive is telling, and your point unpersuasive.
Many years ago I was party to custody proceedings in the Family Court. The Judge and barristers were in full rig, and I must say that this added to an atmosphere of oppressiveness. To put it bluntly I felt – and was made to feel by the other party’s Counsel – as if I were on trial. I remember that at one point the Judge had to remind Counsel that he was not addressing a jury, and I have no doubt that the rig encouraged barristers to see such proceedings as trials; it’s certainly an improvement that such proceedings no longer involve fancy dress.
All credit to Judge Ferguson for the way in which he handled this, and especially for making the footage available for public viewing.
I’m with David on the need to rethink the whole issue of court dress, especially in the criminal courts (despite his careful caveat) notwithstanding the desire of many practitioners to ‘dress up’ (it goes with the personality of many of the best advocates).
The most specious arguments invoked in favour of maintaining wigs et al (for me at least) are those of ‘the dignity of the court’ and ‘the gravitas of the sentencer as a representative of the state’. That should come from the manner in which the participants conduct themselves, not the wearing of anachronistic theatrical garb.
The claim that it confers anonymity is questionable, and disturbing in its implications.
Not the main item of interest in these comments (although touched in by DAG), but I would add that there is no point whatever fantasising about virtually-conducted justice until the DOJ has enough budget returned to it – cuts across the system have been brutal for years – to be able to invest in proper functioning technology. In the magistrates’ courts at least technology is so poor as to be often useless.
Let’s also remember that some of the male law makers in the House of Lords wear dresses regularly. And pointed hats. Praise be!
https://en.wikipedia.org/wiki/Lords_Spiritual
I believe that the commercial court does not require wigs or robes certainly not for remote.
The exchequer no longer pays for the long wigs. Why we pay for the buckle shoes britches etc is anybodies guess.
As a juror last February I did not find the counsels’ or recorders wigs to be a problem and they paid for them. I think the robes are useful to help delineate who is who.
Jury bailiffs wear a gown and that helps them manage the gaggle of public who form the jury.
In the case of the cat video – an English judge could have reversed the formula to a barrister who is improperly dressed. “I can see you but I cannot hear you”
My brother was accused of something he didn’t do and despite a lack of evidence the case went to Crown Court. In the run up to the trial my brother was frustrated with his barrister and too emotional to be able to see the QC was working very hard in his defence. At the trial, in a modern Crown Court, I felt that the otherworldly atmosphere was of great benefit. Everyone in the room is aware that they are in a place where the rules, the language, the behaviour is different to outside that room. It concentrates the mind on the matter in hand without distraction. I was there as a member of the public and the visual clues to the roles of people were helpful, just as in a hospital you can tell the medical staff from the administrators. Surely for courts there could be a 21st century dress code to replace wigs and gowns?
Despite direction for the judge that the jury must find my brother guilty of both charges or not guilty of both charges, it returned a verdict of not guilty of the first charge and guilty of the lesser one. A year later I found myself at the appeal hearing at the Royal Courts of Justice, possibly the most surreal experience of my life. The surroundings most definitely contributed to my being completely and uncharacteristically overwhelmed when three men in robes and wigs came back from their short conversation into a wood lined courtroom to tell my brother he was free to leave without a stain on his character. I was relieved to step outside onto the Strand, back into a world where I know what the rules are, how things work and I’m fluent in the language.
The participants in that online hearing – apart from the cat – are wearing their own uniform – jacket, shirt with collar and tie – which is the expected costume adopted by lawyers when practising the art of court advocacy according to the tradition in their location.
Do English judges and barrister need to wear 18th century gowns and wigs? Probably not, although there is something to be said for tradition and expectation: judges and lawyers wear some sort of distinctive clothing to mark their special performative role in court in many jurisdictions. But they will end up wearing another uniform instead, just like schoolchildren, road sweepers, Hoxton barbers, City bankers, and tech start-up entrepreneurs.
Only ‘probably’ not?
Indeed. Probably best that the humans wear something.
It will cease to be an issue by the time justice is dispensed quickly and cheaply on the papers by AI bots (not perfectly, but by and large well enough) .
From Henry Cecil’s 1970 Hamlyn Lectures, ‘The English Judge’, at p 35:
‘The tradition of wrapping up judges in scarlet and ermine and horsehair may tend to obscure the fact that they are, as the schoolboy said, only human beings but I think it is quite useful to give a judge a sort of impersonal look.
I am sure that the litigants at Willesden County Court took more notice of me in wig and robe than if I had simply worn a lounge suit. I also suspect that, if you put the prisoners walking round the exercise yard at Wandsworth prison into judicial robes and sat them on the Bench, everyone would think how learned they looked. Conversely, if you took all the members of the Court of Appeal, put them into prison uniform and walked them round Wandsworth prison yard, visitors would note their near-set eyes, receding chins and low foreheads.’
I was about to comment on today’s article on my experiences of over 40 years in magistrates’ courts where where wigs and gowns do not appear but occasionally dress did become an issue.
There is now however, a more pressing issue which I do hope you may consider writing about – the use of the Forgery Act for false statements under public health regulations. I have looked at the Act and without the benefit of legal textbooks have doubt that the Act can be used in the way suggested by No10. I wonder what advice the A-G gave?
Another way of looking at wigs and gowns is that they can be a deliberate costume to emphasise the difference between a person and their role. A bit like Bruce Wayne turning into Batman or Clark Kent becoming Superman when they are in costume.
The costume should act both ways: the wearer gains both the respect and the duty of their role.
I believe we should not ditch solemnity along with the ermine (or cat fur), for which reason I dislike Dress-Down Fridays in professional firms. The term Dress-Down implies condescension, coming “down” to the client’s level. A professional should look neutral.
The things that makes robe-wearing, at least in the Crown Court, not totally daft are (i) a visible link with a long tradition of doing justice (imperfectly but nevertheless); (ii) a signifier that criminal trials are highly unusual, formal occurrences. Seems to me that both give value and meaning to the fancy dress. But Danny and the Coalman have a point.
I once heard a lovely story from a stenographer, of barristers winding down after a hearing by trading Pingu impressions.
Since hearing that, I’ve become just a little less intimidated by legal dress!
“Now look again at the cat filter video. But this time watch the judge instead.”
Except the judge is not in the video (except for audio). Neither of the other two participants are labelled with his name, and you might notice that their lips do not move as the judge is speaking.
We are viewing a recording made from the judge’s point of view. It’s not usually necessary to have one’s own image in the screen during a video conference.