Starting from the fundamental premise that the sheriff court needs to be radically re-engineered in terms of both its structure and procedures applied, Graham Johnston remains committed to an idea he first devised 15 years ago, namely of the need for two tiers, the upper tier dealing only with jury trials and ordinary civil cases, the lower exclusively with summary cases and summary trials.
“There would be no appeal to the Sheriff Principal, it would go straight to the Court of Session and within each Sheriffdom upper tier sheriffs would take appeals from the lower tier. Sheriffs would be peripatetic, recognising that territoriality is out of date.”
Procedures too would be overhauled in order to be simplified. Civil cases would be started by a uniform procedure, and the sheriff would, by looking at each individual defended case, decide the course it would take.
For Graham Johnston, the crisis over the use of temporary sheriffs ought to provide the impetus and opportunity for the kind of overhaul he suggests.
“Cases are taking too long to resolve. Resources because of the out of date procedures are being channelled into firefighting and as soon as the problem has been solved another appears elsewhere.”
At Glasgow Sheriff Court a pilot programme which Graham Johnston hopes could provide a model for the future has been running for four months, dealing with family cases. The Glasgow mission statement is “to create and maintain an environment in which identification of issues of concern for children from broken families is facilitated” and where discussion can lead to resolution of issues of concern and future review as circumstances change.
“Reports are positive so far. It is hard work from a sheriff’s point of view and goes against the idea of omni-competence. But I’m of the view that we’re not offering a proper service to the litigant if there is no specialisation.”
Tied in with his commitment to specialisation is a perceived need for case management and dispute management by judges.
“Case management by the bench ensures the best use of resources and convenience to the litigants. Dispute management allows me to do what I can to reach a compromise settlement by getting solicitors round the table and having the matter resolved.
“We need to learn from other jurisdictions and become pro-active. The courts in the form of judges must exercise control over the time which a case takes in court, taking into account, of course, the wishes of litigants.
“Almost every civilised system now has in place a system for resolving family problems which does not rely upon the old adversarial procedure. It is embarrassing when I speak to lawyers from Canada, USA, Australia or New Zealand and I tell them that we do not have specialised family courts, we do not have specialised family judges. In crisis we still proceed on the bash them on the head and someone will submit and someone will win philosophy.”
By and large, he is impressed with the approach solicitors take to family cases. “The majority of solicitors who deal with family cases are keen to see matters resolved. They don’t use procedural techniques to slow things down. Most are young, recently qualified lawyers and their attitude is that there is a family problem which needs resolution and they tend towards a conciliatory approach, not the ‘Rambo’ confrontational style.
“Family cases are very stressful for solicitors, judges and clients. After a day of child welfare hearings, trying to negotiate and understand the positions, I am emotionally drained.”
His pragmatic approach to resolving family disputes isn’t always shared by members of the profession. “I do not subscribe to the view that litigation should always be a form of a game of chess or strategy, with formal written pleadings giving way to practicalities. I get really hot under the collar when at a debate one side complains that it does not have fair notice of the other side’s case when in fact much - if not all - of the facts claimed to have been omitted from the formal pleadings by one party should be or, with reasonable expectation are, within the knowledge of the other party and he knows very well what his opponent is referring to.”
Fundamental to developing a better system is removing the excess of procedure which Sheriff Johnston maintains merely clutters the path to finding a resolution to most disputes.
“The starting procedure applicable to every case should be the same. The sheriff would then be in a position to decide which channel it goes through. In a straightforward case I should be able to get the parties along and find a solution after discussion with the parties.
“Lawyers’ slavish adherence to rules, their absence of flexibility can inhibit progress. Eventually with appropriate training and practice we can achieve a consistency of approach.
“At Glasgow we have developed a corporate body attitude, we do talk about issues to try and achieve some consistency. We don’t want to take away the individuality of a sheriff, but we need to bed-in a proper understanding of what our role is.”
Asserting that judges “are under stress”, with “more work being loaded on us”, Graham Johnston believes the need for a clearly independent judiciary is clear.
“I would propose a College of Justice as the solution, run by judges who would recruit numbers to their ranks, contracted to the state to provide a judging service. Judges would control where they sit and train and there would be no question of Executive interference.
“We are in Europe and yet are somehow surprised when decisions coming from there don’t accord with our philosophy. But we operate a totally different system from the rest of Europe; in France and Germany there is an investigative and career judiciary.
“The College would eliminate the need for the much mooted appointments board, judges would be recruited on a probationary basis initially, gaining experience and subject to assessment and performance appraisal.”
He readily admits that ideas he has proposed over the years have by and large been ignored, but seems sanguine in believing notions that are regarded as maverick in the present climate may soon become part of mainstream thinking.
“I do find that I’m always thinking about how we can improve things. A lot in the profession adopt the approach that things have always been done that way, but never stop to ask why or whether it is the right way. The courts administration for example seems to exhibit a reluctance to acknowledge that a sheriff can have a useful input into the re-engineering of sheriff court procedure.
“There seems to be a gap between the judicial and administrative section, but we are very keen on team-working and at Glasgow we are getting that with the family and commercial court.”
He maintains that a good policy would always see a proof as a method of last resort. “I realise that certain sheriffs are very ‘legal’ and more comfortable when the solicitors outline the two positions and they then determine what the law says. But sheriffs ought not to be sitting in an ivory tower. If they say “I don’t want to get involved”, and say “this case is not for me”, I respect that. Specialisation requires a change in the mindset of much of the legal profession.”
Graham Johnston’s unconventional approach to his job extends to taking notes on a laptop computer at the bench, a handy benefit of his ability to touch-type. He bemoans the slow take-up of IT in the courts.
“The aim is to go on to a network allowing electronic retrieval of documents. From my machine I ought to be able to access a list of cases, all the documents lodged and assess the action required. I could fire off an e-mail to the solicitor involved and discuss their minute of amendment.
“Equally I can see no reason why a witness has to travel half way round the world or a doctor spend an entire day waiting around for ten minutes in the witness box. Surely technology could allow that to be done by videoconferencing.
“Similarly sheriffs have to do out-of-hours work, signing routine warrants. It’s beyond comprehension that we, along with a sheriff clerk and social workers, have to come to court at 2am when it could all be done by telephone and fax.”
No subject is taboo for Graham Johnston and his views on the attire he dons at the bench come as little surprise. “From a PR point of view, we have to start dressing down. It’s beyond the powers of reason why we wear a piece of horse-hair on our heads in the 21st century. Some argue it’s necessary to keep control of the court and for solemnity, but I don’t find it necessary to have a bit of carpet on my head to keep control. It comes down to innate conservatism.
“I also believe that a litigant is entitled to know the name of the sheriff. If I’m sending someone to prison he should know my name. A person sitting in judgment over other human beings shouldn’t be anonymous”.
To that end, Graham Johnston suggested American style name plates be issued for sheriffs, a suggestion which he eventually had to implement himself. He reckons still to be the only person to use one.
In welfare hearings he reduces the formality further by addressing participants by their first names and inviting children up to the bench to speak with him. Nor is he pedantic about how litigants address him (though he does concede that ‘Graham’ might be inappropriate). “What I am doing by instinct today will become standard practice in the future. Other things I started to do, such as the way of speaking to children, have crept in. What we’re doing in the family courts is trying to make the court more effective and do everything we can to find a solution. I’m not keen on rules and regulations - I’m anarchical in that respect - though that can get me in trouble with the appeal courts.”
How is a sheriff’s ego affected when his decision is overturned? “Very few of us are concerned if an appeal court reaches a different decision. Most of us take the attitude that we did the best we could. The appeal courts are entitled to take a different view. The only gripe I have is when sheriffs are criticised in public unjustifiably and we can’t answer back. We are regularly lampooned in the tabloids, but have no right to put the record straight. That is an entitlement we deserve.”
In this issue
- President's report
- Preparing for the Human Rights Act
- Lockerbie trial: telling it like it is
- Jumping the gun
- Too many chiefs and not enough Indians?
- Assessing your risk awareness
- Interview: Graham Johnston
- Civil law update of recent decisions
- Managing clients and time
- EU funding opportunities for solicitors
- For whom the doorbell tolls