THERE any many tales of judges dealing with people before them in a profoundly uncompassionate way, particularly in the past.
 
Mr Justice Hawkins was infamous for his heart of stone. During one capital trial, he arranged for black mourning gloves and bands to be left on the court bench used by defence counsel. The message was unmistakable: “I shall hang your client.”
 
Rayner Goddard was appointed Lord Chief Justice by Clement Attlee. He was another strict sentencer with a reputation as a “hanging judge.” His nicknames included “Justice-in-a-jiffy.” The journalist Bernard Levin said that he walked hand in hand with ignorance on one side of him and barbarism on the other.
 
When I started in practice in the 1980s, Crown Court judges were often known by names such as “Maximum Bob” or “No Bail McBain.” To what extent have times changed? How important is compassion in a judge today and what weight do or should our judges place on compassion when carrying out their judicial duties?
 
Compassion is sympathy in action. The compassionate heart feels that action is required of them. It is not very different from what most people think of as kindness or generosity of heart.
 
A judge’s first duty is to administer justice in mercy. This acknowledges the reality that it is not injustice we fear most but justice, and all of us rely on others showing us mercy.
 
Most judges accept conversationally that they should be as sensitive and compassionate as possible towards the people they encounter in their work, whether court staff or court users.

However, from personal experience, most would immediately qualify this by emphasising that personal feelings must not be permitted to skew what the law requires of them. Their analysis must be “objective,” their findings “evidence-based,” their decisions “impartial,” their remedies and punishments circumscribed by statute and judicial guidelines. Unprompted, they would be more likely to say that the ideal judge is one who is “dispassionate” rather than “compassionate” in their judicial role.
 
Powerful arguments can be advanced in support of this view. Politics determines the priority given in a society to different values. It is for Parliament to decide how much compassion and justice to incorporate in our statutes when enacting primary legislation. The judge’s duty is set out in their judicial oath and it is to “do right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill will.”
 
Respect for the law, adherence to it and the use of courts of law rather than violence to settle disputes all rely on citizens being confident that a judge will fairly administer the law as they find it and not according to some personal law or custom.
 
There are many laws which each individual judge feels are unjust, harsh or lacking in compassion. However, if the people through their Parliament have spoken without compassion then, unless the constitutionality of the provision is in issue, it is the judge’s duty to apply the statute without reference to their own feelings.
 
To do otherwise would be to make the judge, not Parliament, sovereign. The law would become arbitrary, inconsistent and uncertain, with each judge following and enforcing some laws but not others. The judge’s right to change the law and to express their disgust is no greater than that of any other citizen, by means of the ballot box.
 
Parliament has increasingly sought to reduce judicial discretion in the application of the criminal law by prescribing what a judge must do in a particular situation. Obvious examples are mandatory and minimum sentences. Such interventions limit and are intended to limit exercises of judicial compassion and to restrict the expression of judicial ideas of justice, because of public and press concern that courts are “soft” on criminals.
 
Some judges would agree that in certain situations compassion may equate to judicial weakness or be a dereliction of duty. They would sympathise with Lord Kenyon’s viewpoint in Stone’s Case (1796):
 
“The wishes of every human man are, that guilt may not be fixed upon any man; but I ... am not one of those who wish under false compassion, inconsistent with the administration of criminal justice, that a person on who guilt is fairly fixed, should escape the punishment which the law annexes to his guilt.”
 
There is an obvious tension here between the ideas of justice and compassion which cannot properly be characterised or dismissed as a contest between the kind- and hard-hearted. Compassion may be good but is justice better?

Kant believed that the hurt done to the criminal should equal the hurt the criminal did to others both in amount and in kind. Consistent with this, when justice is personified as a goddess she is often depicted as carrying not only scales but also a sword with which to despatch the wrong-doer. And CS Lewis saw a dignity in deserved punishment.
 
Unless one believes in a God it is not possible to say that such views are undeniably right or undeniably wrong. It is a question of which human values society should prioritise from the many competing values to be taken into account.
 
By way of example, in the criminal law what value should we attach to the ideas of law, order and justice; to ensuring that the criminal does not escape justice as against ensuring that the innocent are not wrongfully convicted; and to the competing sentencing principles of punishment, retribution, deterrence, rehabilitation and treatment?
 
Even if society could agree that first-and-foremost criminal laws must be “compassionate” and Parliament tried to reframe our criminal laws so that none are lacking in compassion, what does that mean? Compassion for who? For the victim of the crime or its perpetrator?

What if it could be demonstrated that reintroducing the death penalty or some other draconian punishment would very significantly reduce the number of offences of child rape and murder? Would reintroducing it be a compassionate or uncompassionate act?

Similarly, if flogging a young offender would keep them out of prison and placing them on probation lead them to a life of crime, which is the more compassionate sentence? And to what extent should society or a judge prefer compassionate sentences to uncompassionate sentences if the latter are significantly more effective in reducing crime?
 
How one responds to these difficult questions turns in part on each individual’s views on utilitarianism and rule-based (deontological) ethics. Should we be guided by absolute moral rules (eg, taking human life is wrong) or by the utility of the act (eg, taking the lives of offenders saves lives)?
 
If justice is rendering to everyone that which is their due then law and justice must be distinguished. Although it is an uncomfortable thought, a judge’s duty is to dispense justice unless to do so would be contrary to law, rather than to dispense justice according to the law.
 
While there can be law without compassion arguably there can be no justice without compassion. This is because rendering to everyone their due involves not causing them to suffer more than is their due. Ensuring this necessitates that the judge is in sympathy with the suffering he or she is inflicting on the people involved in the case and alleviates it where possible; otherwise, the suffering meted out is excessive and so unjust.
 
There are many examples in the civil law where a judge is similarly constrained by the law and is bound to reach a decision which they feel is unjust or lacking in compassion. Obvious examples are where the outcome is determined by the terms of a contract, possession proceedings for mortgage or rent arrears, social security appeals and bankruptcy proceedings.
 
However, some areas of civil or family law, in particular those concerned with vulnerable people, do allow a judge more leeway for compassion. In such cases, the judge’s primary role is often to decide what is in the person’s best interests having regard to their values, beliefs, wishes and feelings, not the judge’s. The only value the judge needs is not to impose what they themselves value on the individual. The judge is their servant.
 
Anselm Eldergill was until recently a judge in the Court of Protection. He is an associate at Doughty Street Chambers.