13. Judicial Training & Education - Status, Needs, Organization & Strategies

13.5 JUDICIAL EDUCATION AROUND THE WORLD : A SELECT SURVEY

13.5.1 Educating judges on judicial functions and training them on how to judge properly are relatively new ideas not yet accepted fully by the judicial fraternity. Some judges still believe that institutionalised training may interfere with judicial independence. Others resent the very notion of training in as much as it questions their capacity and competence. However, with the explosion in knowledges bearing on legal disputes and with the diversification of complex litigation, there has been increasing demand from many judges themselves for programmes of continuing education tailored to specific problems and needs. Today in some countries it has become mandatory for judicial personnel to get trained periodically. Even experienced judges have felt the need for examining their judicial skills and methods of work in the context of technological developments and specialised legal practice. In plural democratic societies the need is felt to identify possible biases in relation to minorities, caste groups and women vis--vis judicial attitudes and practices with a view to correct the distortions in the process of judging. The need for mandatory judicial education is now acknowledged throughout the world and many countries have evolved programmes for institutionalised judicial training institutes organized as part of the judicial establishment of the respective countries.

Judicial Studies Board of England and Wales :

13.5.2 In England the proposal for organized judicial training came from a working group appointed in 1975 under the Chairmanship of Lord Justice Bridge. The dislike of the word 'training' led to the nomenclature of "judicial studies" which came to be accepted in place of the then prevailing sentencing seminars. The Judicial Studies Board was created by the judges in 1978 with the initial object of reducing inconsistency in sentencing in criminal courts. Until 1985, the Board was concerned only with the criminal jurisdiction. Thereafter, its role was extended to the civil and family jurisdictions. The Board also

became responsible for supervising the training of Magistrates and members of tribunals.

13.5.3 The structure of the Judicial Studies Board comprises the Main Board, which is responsible for policy and planning and for all matters of general application, and four Committees for planning and organizing instructional seminars and providing the necessary material. In 1991 the Board established a fifth Committee to advise the Board and the other committees on the problems and concerns of Ethnic Minorities. The other four Committees are - the Criminal Committee for training those who sit in the Crown Court; the Civil and Family Committee to train judges who deal with these areas of work; the Magisterial Committee to train Magistrates and a Tribunals Committee to advise on training of those who serve on tribunals. There are sixteen members of the Main Board, of whom 10 are judges. There are 63 members of committees, of whom 20 are judges. The administration of the Board's activities is managed by the personnel of the Lord Chancellor's Department. The courses are run by the judges under their direct control despite the recommendation of the Bridges Committee to attach the programmes to an academic centre with a full-time Director of Studies. The Board reportedly has an annual budget of nearly 2 million pounds.

13.5.4 The Board's induction seminars last 3 to 4 days. There are four criminal induction seminars a year attended by an average of 120 lawyers, some of who have never even conducted a case in the criminal courts. First day is devoted to lectures on preparation and conduct of a trial. A mock trial in which the novice judges play different roles is the highlight of the second day. A real judge presides over the trial. Actual cases are used in mock trial and the trainees learn how to manage a trial. In the third day they will receive lectures from academics, probation officers, prison officials etc. The rest of the course is devoted to sentencing exercises. Much of the work is now done in groups of five or six pupils, each with its own tutor judge.

As homework, the trainees are given examples of real cases and asked what sentences they would impose. These are marked and compared with the actual sentences given by the Court of Appeal. Thereafter the trainee judges are attached with an experienced judge for a week or two before they are permitted to sit in the Crown Court. Many persons feel that even after four days of intensive training, they are not well prepared to sit in the regular courts.

13.5.5 The newly appointed judge usually begins his judicial career sitting in the court where he gained his work experience. There is always a more senior judge sitting in a nearby court; if anything goes wrong the new judges are told to adjourn the case immediately so that they can seek the advice of the senior judge. They can also telephone the Court of Appeal and ask the Registrar for instant advice on what to do next. After sitting for five years, these judges get another 3 or 4 days' refresher course for each subject area in which they are involved - crime, civil actions and family work.

13.5.6 There are no residential training courses for High Court judges or judges of Court of Appeal. They do attend occasional evening seminars to learn about developing areas of law. Sometimes they attend one day seminars on important new legislations.

13.5.7 The Board's committees use the services of law professors, practising lawyers and experts from other professions to lecture at the seminars. Otherwise, the major part of the course is to be conducted by the committees themselves. This work involves the selection of subjects, selection of speakers, selection of reading materials, selection of material for practical exercises and writing the publications of the Board. In association with the Open University, the Board has brought out training packages for Magistrate's training.

 

Judicial Education in the United States of America :

13.5.8 Judicial education in America is perhaps the best organized and most advanced in the whole world. Started in early 1960s as part of judicial conferences, the training seminars became popular and in great demand among trial judges. With a grant from a private Foundation, the American Bar Association with the involvement of the National Conference of State Trial Judges established in 1964 the National Judicial College . Starting with modest curriculum and an enrolment of a couple of hundred judges, by the mid 1970s, the National Judicial College began presenting 40 to 50 courses each year attracting over 1800 judges annually. Several extension programmes are additionally organized. The College, a non-profit educational corporation, is located on the campus of the University of Nevada , Reno since 1965. The College is governed by a board of trustees chosen by the American Bar Association Board of Governors. The Board of Trustees sets general college policy and chooses the Dean, who serves as the chief executive officer of the college. With an operating budget of about $4.5 million annually, the college is funded by a combination of tuition, gifts and grants from alumni, corporations and foundations and the income from $10 million endowment that the college has raised. In addition to the resident courses in Reno , the college conducts a number of State and regional programmes as well as special programmes for judges from foreign countries. The college offers in co-operation with the University of Nevada , a Master of Judicial Studies degree programme.

13.5.9 There are half a dozen other judicial training centres in America , each with specialisation in selected branches of law and judicial administration. Most of the training of federal judges is conducted by the Federal Judicial Centre in Washington D.C. which operates under the direction of the Judicial Conference of the United States . It is established by statute by the Congress and is funded by it. It is managed by an eight member board of which the Chief Justice of U.S.A. is the ex-officio chairman. Its mandate is to improve judicial administration in U.S. courts which it does through training of judges and various staff members. It has a large collection of training literature including video programmes.

13.5.10 After the success of the National Judicial College , several of the larger States became interested in having their own judicial education programmes. The California Centre for Judicial Education and Research (CJER) is one such centre for the California judges. It prepares judge's Bench Books and other educational materials. It arranges training courses to enhance judicial performance and conducts research on the subject.

13.5.11 The State judicial education officers, joined by some representatives of the national organizations, founded in 1975 the National Association of State Judicial Education (NASJE) which acts as a clearing house for the State programmes, programme materials, faculty suggestions and curriculum development. In their annual conferences they discuss innovative programmes conducted in State centres and thus help promote the cause of judicial education.

13.5.12 The Institute for Court Management in Denver , Colorado is the training arm of the National Centre for State Courts for training court administrators. The American Academy of Judicial Education, originally founded by the American Judges Association and now an independent non-profit corporation located in Alabama provides education conferences and seminars for judges in different locations around the country. It has been particularly active in providing training for judges before they begin their judicial career. Since 1980, the University of Virginia Law School at Charlottesville , in association with the Appellate Judges Conferences offers an LL.M. degree programme restricted to 30 judges.

Judicial Education in Countries of the Commonwealth :

13.5.13 In a survey on Judicial Education in the Commonwealth presented at the Commonwealth Magistrates' and Judges' Association Conference in 1994, The Hon. Judge Sandra E. Oxner, the then President of CMJA divided the judicial education programmes existing in Commonwealth countries into three categories. The first category consisting of Canada , Malaysia , Nigeria , India , Pakistan , Bangladesh and Sri Lanka do have formally established judicial education institutes though some of them are not still fully operational. The second category includes countries which have a committee or board that administers continuing education programmes for judges on an ad hoc basis. Australia , England and Wales and New Zealand are in this category because of their structure though they do have sophistication in their programmes and services. Several countries in Africa, Hong Kong and Singapore belong to this category. The third group do not have even such ad hoc programmes of judicial education. It is interesting to note that by and large whatever exists by way of judicial education in the Commonwealth are programmes organized by judges, managed by judges and offered to judges.

(The information summarised below is drawn from the paper presented by Judge Oxner at the Commonwealth Magistrates' and Judges' Association Conference at Victoria Falls, Zimbabwe in August 1994).

13.5.14 Canada had judicial education in vogue by the nineteen seventies. This included residential orientation programmes for newly appointed judges and refresher courses for judges in service. All programmes had focus on sentencing and developments in law. The Canadian Association of Provincial Court Judges (CAPCJ) organizes ten day residential programmes for newly appointed judges and residential regional provincial court programmes. Today these courses specialise in sensitivity training, judicial ethics, judgment writing etc.

Despite the above initiatives, in 1985 the Stevenson Committee Report found that 40 per cent of Canadian judges never took a course during their judicial career. The recommended solution was the establishment of the National Judicial Institute which got set up in 1986. It is a research and educational organization for all Canadian judges. Its mandate is "to foster a high standard of judicial performance by programmes that stimulate professional and personal growth, and to engender a high level of social awareness, ethical sensitivity and pride in excellence".

13.5.15 A very significant contribution of the National Judicial Institute of Canada for the programme of judicial education every where is the publication after two years of research and consultation a series of minimum standards in organizing judicial education. The study emphasised that judicial education is essential to enhance the fair and efficient administration of justice and that an organizational and individual commitment to judicial education must be made. According to these Standards -

(a) the Goals for judicial education are (1) to bring about an awareness by judges that education immediately after appointment and, on a regular basis throughout their judicial careers is necessary for maintaining and enhancing essential competence, personal growth and social awareness; (2) to provide the public with information on judicial education in order to get recognition of the need to make time and resources available for this purpose; and (3) to create standards for judicial education, both at national and local levels.

(b) the Objectives to be achieved include (1) providing judges with knowledge, skills, techniques and awareness required to perform judicial responsibilities fairly, correctly and efficiently; (2) to improve through education the administration of justice, including fair and efficient management of trials and the reduction of court delay; and (3) to promote each judge's commitment to the highest standards of personal growth, official conduct and social awareness.

(c) the Structure of judicial education to include ten days of intensive education at the time of appointment and ten days of continuing education every calendar year thereafter. These programmes should include a balance among the areas of substantive law, skills training and current social issues. Topics to be studied include evidence, procedure, sentencing, family violence, judicial ethics, media relations, cross cultural issues, judgment writing, case flow management, gender bias, tribal issues, computer courses for judges and designing strategies for implementing change in the courts.

(d) the Faculty should consist primarily of judges with expertise in the subject matter and who are capable of preparing and presenting educational materials effectively. Law Professors, lawyers and people with special expertise are also to be utilised where their expertise are needed.

The NJI is governed by a Board of judges representing all courts chaired by the Chief Justice of Canada and includes two lay members.

13.5.16 Australia has a Judicial Commission in New South Wales established in 1986 which provides education and technical assistance to the judiciary in New South Wales which, incidentally has more judges than the rest of Australia put together. The three major functions of the Commission are to assist the Courts to achieve uniformity in sentencing, to organize and supervise a scheme of continuing judicial education and to examine complaints against judicial officers. In addition to presenting seminars and conferences ranging from induction courses for new appointees to specialists conferences on specific aspects of law, procedure and judicial skills, the Commission publishes monthly The Judicial Officers Bulletin with information of interest to judges. It maintains a fairly up to date sentencing data base. Nearly all New South Wales magistrates undergo a three week induction programme, a voluntary judicial education programme in the Magistrates' Courts and are expected to devote five days a year to judicial education. The curriculum includes study of judicial attitudes in decision making on key issues and broader understanding of social problems, computer training and advanced court management.

13.5.17 The Australian Institute of Judicial Administration is another educational and research institute affiliated to the University of Melbourne . Its object is to conduct programmes of continuing education for judges, magistrates, officers of courts, lawyers and law professors. The AIJA provides conferences, seminars and workshops in which judicial officers, among others can participate. The subjects covered include use of technology in courts, computer use and sentencing. There is no course offered on substantive law. In 1997 in association with the Judicial Commission of New South Wales, the AIJA offered a week-long residential judicial orientation programme for new judges. The first day consisted of two sessions of lectures by senior sitting judges on (a) the Role of the Judge and (b) Becoming a Judge. The second day had a series of small group workshops on (a) trial management and (b) ADR. The third day included lecture-cum-discussion on topics such as (a) Financial Statements Partially Demystified, (b) Using Computers as a Research and a Management Tool, (c) Assessing the Credit of Witnesses, and (d) Issues Relating to Migrants, Interpreters and Multiculturalism. The fourth day was entirely devoted to Courtroom Issues such as contempt in the face of the court, disqualification for bias, ethical issues arising in a courtroom setting and unrepresented litigants. The fifth day of the programme had four sessions one each on (a) Sentencing, Civil Damages and Gender Awareness, (b) sentencing practice sessions and damages determination sessions, (c) judgment writing, and (d) problems in evidence. The final day was devoted to a session on courtroom communication and judicial intervention and court-media relations.

13.5.18 In most European countries, judicial appointments are based on a career judiciary after completing basic legal education. The arrangements for judicial training therefore focus on the additional courses for prospective judges, and judicial appointment is conditional upon successful completion of the programme. Thus, in France , judges who are recruited directly after university education undergo a two-year course under the direction of the Ecole Nationale de la Magistrature. The first part of the course consists of full-time formal training and the second part of service as a clerk to the local judges in a lower court. There are also opportunities in a further four months' training to study and work in a variety of institutions concerned with law and administration, in public and private companies and to undertake research. Italy and Belgium follow similar judicial education programmes.

13.5.19 The German system provides a unified training for the bar and judiciary. Judges are chosen from those who must distinguish themselves on the programme. Training lasts five and half years and includes study in courts and tribunals and with firms of lawyers. In Scandinavian countries prospective judges have a "judicial apprenticeship" under a judge as a clerk or assistant.

 

Lessons Judicial Education Programmes Convey :

13.5.20 There are few issues which emerge from consideration of judicial education programmes functioning in different countries which are relevant for structuring the training in India . There is absolutely no doubt that judicial education and training are indispensable for better judicial administration. There is also no doubt that there must be organizational and individual commitment from the side of judges to the need for such education in order to justify the utilisation of time and resources. Furthermore, it is desirable and necessary to keep the control of such training with the judiciary lest there should arise possibilities of jeopardizing judicial independence through executive influence. At the same time judicial education and training are too complex for judges alone to organize and administer. Judges may not have sufficient knowledge of their own weaknesses and of education techniques to deliver effective programmes. As Judge Oxner said : "while judicial control over curriculum cannot be decried, a mechanism that funnels to the judges the public and professional perceptions of weaknesses in the judiciary is important to ensure these issues are before the curriculum committee -. Another technique to counteract judicial insularity is to add to the judicial institute structure advisory groups on topics of special interest - family violence, tribal rights, gender bias, human rights issues etc."

13.5.21 Many of the problems revealed in the role of a judge are responded to by the curriculum of many of the programmes offered in judicial education. Starting with sentencing and updating of laws, judicial education curriculum moved into computer programme for judges, human rights issues, judicial ethics, judgment writing, conduct on and off Bench, media relations, case flow management, contemporary social problems and technological advances (particularly in medicine and health). A curriculum committee must be prepared to continuously justify the choice of topics in successive programmes.

13.5.22 Besides educational programmes, judicial education centres need to develop self-study materials as well as audio and video tapes to supplement judicial libraries. Information packages of printed orientation material, bench books and standardized judicial materials are useful and inexpensive tools in judicial education.

There is need for constant evaluation of the programmes in terms of objects, content, materials, method and impact.

 

Continuing Judicial Education :

13.5.23 For organizing continuing judicial education, the principles and standards promulgated by the National Association of State Judicial Educators, U.S.A. are of great value. They suggest instruction in five major areas :

(a) Legal Ability : updates on law, court rules and court procedures; in depth analysis of complex legal issues; examination of judicial decision-making practices and philosophies; and effective opinion writing through identification, analysis and clarity in expressing legal issues, reasoning and conclusions.

(b) Comportment and Demeanour : judicial code of conduct; fostering fairness through the recognition and elimination of bias or prejudice; cultural awareness; decisiveness; and judicial temperament.

(c) Judicial Management Skills : case management; effective trial and jury management; settlement skills; personnel management; skills to cope with the growth of litigation and the increasing complexity of legal issues and proceedings; and, when appropriate, court system planning administration.

(d) Contemporary and Inter disciplinary Issues : updates on scientific and behavioural sciences relevant to any judicial practice; knowledge of contemporary social issues; and the law and humanitics.

(e) Personal Development : revitalisation and re-dedication to public service; awareness of the need to maintain high levels of personal well being; and stress management.

13.5.24 There are however a number of new initiatives setting different trends in judicial education. One such trend is to organize judicial education on important subject matter thrown up by major changes in legislations, land mark judicial decisions or social upheavals. Family violence, drug problem, child abuse etc. provide such subject-matter trends influencing judicial education programmes.

The increased awareness of human rights and social demand for fair deal from courts irrespective of gender, race etc. create need for another organizing principle for judicial education. The programmes thus evolved are designed to promote a change in judge behaviour in interaction with parties, victims, witnesses and attorneys.

13.5.25 Finally, an issue of considerable significance conveyed by experiments in judicial education is the need to train judicial education faculty. The principle that judges teach judges is unexceptionable; but judges have to be trained to do the teaching. For this Faculty Development programmes are to be introduced incorporating better understanding of adult education principles and appropriate instructional methods. Topics for such programmes would include : characteristics of the adult learner, assessing learner needs, developing learning objectives, structuring a course, participatory learning techniques, and evaluating learning. Typically, such a programme allows the participants an opportunity to practice applying the principles they have learned. They might make a short presentation which would be videotaped and then critique by their peers and evaluated by an expert in adult education.

There is a wealth of knowledge and experience in developing judicial education programmes already available in many countries, particularly the United States of America . Co-operation and exchange among the institutions involved in different countries can do a great deal to advance the cause and the process of educating the judges of the future.