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When judges change their minds

A former president of the Supreme Court on judicial fallibility

By David Neuberger  

Only since the 1960s have judges felt empowered to overturn rulings by their predecessors. Photo:  DAVID LEVENSON/ALAMY STOCK PHOTO

Sixty years ago, judicial infallibility was an accepted myth in many quarters—especially (and unsurprisingly) among the judges. The law lords (precursors of the Supreme Court justices) could not reconsider a ruling on a legal point reached by their predecessors, whose decision was treated as writ in stone. Lord Denning opposed suspect convictions being reviewed because it would acknowledge that courts occasionally get things wrong. This attitude changed with the decline of deference. In 1966, the law lords announced that they could change their minds— since then the top UK court has done so on a number of occasions. And growing concern about wrongful convictions led to parliament setting up the Criminal Cases Review Commission in 1995 to enable past miscarriages of justice to be put right.

Judicial fallibility is nothing to be ashamed of. Judges are human, and so they make mistakes from time to time. And, although the extent of fallibility should not be exaggerated, it is unsurprising when you think about it. Cases should only get to court because they raise difficult points, often points on which reasonable people could differ. The Court of Appeal exists because trial judges sometimes go wrong, and the Supreme Court exists because the Court of Appeal sometimes goes wrong. On quite a few appeals, the judges themselves disagree with other members of the same panel. And, quite apart from this, particularly in the present and fast-changing world, a legal principle which accorded with previous values or practices can become anachronistic, and so appeal courts adapt and develop the law.

When deciding a difficult case, a judge’s mind will often change as appreciation of the facts and arguments develop. Whether the ultimate answer is reached with confidence or diffidence depends on the issue and on the character of the judge. When I was a trial judge and a decision of mine was overturned by the Court of Appeal, I never knew whether it was more annoying to think, “Yes, they’re right; I got it wrong,” and to indulge in a mixture of intellectual self-flagellation and attempts to justify my mistake, or to think “No, they’re wrong; I was right,” and to feel a sense of moral outrage and a hope that the law lords would reinstate my decision.

It is also true that a judge may come to think that one of his or her own decisions was wrong. In the Supreme Court, I sat with four other Justices on two different appeals (about a year apart), each of which involved considering whether an earlier decision of mine in the Court of Appeal was right. We unanimously agreed I had been right in one case, and wrong in the other. I felt a little but not very embarrassed about my reversal, and a little but not very smug about my vindication. I like to think that these were realistic reactions: a judge should always be as detached as possible, but it is unrealistic to expect a total absence of personal amour-propre.

I encounter some surprise when I say that, when I was in the Supreme Court, I wrote or agreed with judgments which I now think are wrong. But I must have sat on over 250 Supreme Court cases, and the idea that even the cleverest judge in the world with brilliant colleagues would get 250 consecutive cases right is little short of ludicrous. It is never pleasant to think that one has perpetrated an injustice—particularly if one is a judge. But any fair-minded judge has to be ready to undergo such feelings—and the feelings are nothing like as bad as those of the wrongly losing party. So, too, any appeal court judge will have had the experience of disagreeing with colleagues after exchanging draft judgments. Some try and persuade their colleagues to change their minds and feel cross if they fail. I very rarely tried, partly because I thought my draft judgment should speak for itself, partly because I normally felt there was no plainly right answer, and partly because I believed that each appellate judge was ultimately there to reach their own conclusion.

Only relatively few judgments in the UK courts are wrong, and many that are “wrong” have much to be said for them: judging a case normally involves weighing up competing arguments, and right is rarely anything like 100 per cent on one side. The reason people go to court is to put an end to their dispute by getting a clear answer one way or the other. Part of the price of doing so is that the judge must come to a firm conclusion one way or the other, and therefore has to reject one party’s case, even though it may have been supported by plausible arguments. The best that we can expect of our judges is that they are competent, fair, intelligent and honest, and that they do their best to reach the correct decision. In this country, we are lucky enough to have a judiciary whose members live up to this demanding expectation.

This article features in Prospect’s new legal report in partnership with the Bingham Centre for the Rule of Law, Jones Day and the City of London Corporation

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