LEADING ARTICLE : Is the judge up to the job?

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The Independent Online
Many of us remember spending Sundays sitting indoors being subjected to tedious homilies about God's truth, while outside the world was full of possibilities. Well, if you go on to become a judge, then perhaps, like Mr Justice Ian Kennedy, you may be given a chance to get your own back. Last Friday, he sent the Sunday school teacher David Whitehead to prison for four months, for perverting the course of justice - and then sent his wife, a cub scout mistress, down for two months for good measure. Woe betide any sweetshop owners or park keepers who cross Mr Justice Kennedy's path when he is in this mood.

Revenge is the charitable explanation for Friday's extraordinary sentence. Depriving three small children of their previously unblemished parents - because they told a silly lie - is a strange thing to do. It outraged the quiet fellow burghers of Brockenhurst, who tied yellow ribbons to various parts of the village. Clearly, other judges agreed with them. Yesterday, Mrs Whitehead had her sentence "commuted" to 50 hours' community service. "Thank you," she said. "You're welcome," replied Lord Justice Swinton-Thomas.

Mr Justice Kennedy is (in the words of the cliche) no stranger to controversy - in fact they seem to get together pretty frequently. Both his conduct in court and his sentencing have caused a lot of comment. Many wonder how it is possible for a sensible man in a responsible position to make such ghastly mistakes. Is it possible that he just is not a very good judge? Does not the Whitehead case suggest that it would be a good idea to monitor our judges, to make sure that they are up to the job?

Over the years, various suggestions have been mooted for bodies to carry out such scrutiny. Judicial Performance Commissions and Judicial Standards Committees have been recommended and rejected. Two years ago, the Royal Commission on Criminal Justice argued for an "effective formal system of performance appraisal". But like all the others, this notion foundered. Responding to the Royal Commission, Lord Chief Justice Taylor said: "Any formal appraisal system, such as may be appropriate in industry or the Civil Service, would clearly endanger the fundamental independence of individual judges, not only from the executive, but from each other."

This has a very familiar ring. It has been said by doctors about their performance. It has been said by television producers. It has been said by senior police officers and by teachers. All professions maintain that their work - uniquely - cannot be subjected to measurement or scrutiny without fear of compromising integrity. And yet when it happens, the world does not explode, nor the heavens gape. Instead, they - and we - discover an immensely useful tool for measuring, clarifying and improving performance. So too, in the judiciary, it is quite possible to imagine a form of performance review that would leave independence untouched, while telling us what we need to know about how judges are doing. After that, we can get started on Sunday school teachers.