Why do judges wear wigs? The same reason they used to pretend not to know about the Beatles – because they want to convey the impression that they are above and apart from society. Fashion and politics don’t influence them, for they are the guardians of the eternal flame of law – the nearest thing we have to divine authority.
And like divine authority, they cannot be second-guessed – at least, not by upstart law officers who aren’t even members of the Faculty of Advocates. So, when Elish Angiolini last month publicly challenged the decision of the judge in the World’s End murder case to abort the trial, wigs fairly flew on Edinburgh’s New Club and other legal watering holes. Who is this woman! By what right! Married to a hairdresser too!
Last week, the Scottish legal establishment’s top gun, Lord Justice General Lord Hamilton, delivered an extraordinary public rebuke to Lord Advocate Angiolini for trampling her kitten heels across the sacred divide. She had disrespected a the High Court, undermined the independence of the judiciary, and had taken unfair advantage of her seat in parliament to – effectively – murmur a judge. Now, murmuring a judge, for those not familiar with the term, was a criminal offence back in the days when journalists were not allowed to question a the rulings of a court. Nowadays, they don’t so much murmur as scream at the top of their voices.
Ms Angiolini, insisted that she hadn’t undermined the independence of the judiciary and had just restated the Crown’s view that the evidence against Angus Sinclair should have been put to the jury to decide. Most politicians and hacks tended to agree with her. Alex Salmond said that she had been “absolutely right” to make her statement to parliament. A clutch of legal pundits censured Lord Hamilton for going public in a fight the judges were going to lose. But I’m not so sure we are right to rush to judgement against the judges.
The wigs resent Angiolini’s access to the media deriving from her seat in parliament. And they have a point. Few of the politicians who commented on this row know the detail the World’s End case and why it was aborted – I certainly don’t – other than at the prosecuting counsel went awol and there were questions about whether the evidence was properly presented. That’s a pretty embarrassing state of affairs for the Crown prosecutors and their boss the Lord Advocate, who might reasonably be expected to want to cover her derriere.
But are judges to be allowed similar rights? They don’t have a right of reply, and cannot. I mean, just imagine if judges started holding press conferences to put their side of the story, to rebut what the law officers are saying in parliament? Pretty soon you’d have the legal equivalent of those daytime TV shock shows where people shout and head-but each other.
This isn’t really about the political independence of the Lord Advocate, but about the limits of public accountability. We live in an age of scrutiny, certainly, and the public expect people in public life to answer for themselves. But judges are not part of public life, in our system. If they were they might turn into politicians who have to weigh up how every legal decision will be interpreted by a fickle and febrile media.
It’s a curious and archaic convention that no one murmurs a judge – but it is not one we are in a position to abandon just yet. Time for Angiolini and Lord Hamilton to go out for a curry and a few pints to sort this out.