The Weight of Justice: Lord Carswell and the Legacy of Diplock Courts

Few judges have openly discussed the immense pressure of presiding over serious criminal cases without a jury. Among those who did was Lord Carswell, who served as Lord Chief Justice of Northern Ireland before his appointment to the UK’s highest court in 2004. His insights, gleaned from an interview in 2005, offer a rare glimpse into the complexities and burdens of “Diplock courts” – a system born out of necessity during a period of intense conflict.

The Rise of Diplock Courts in Northern Ireland

In the early 1970s, Northern Ireland faced escalating terrorist activity. Juries in some courts began to refuse to convict individuals charged with terrorist offenses, even when presented with strong evidence. This breakdown in the judicial process led to the introduction of Diplock courts, named after Lord Justice Diplock, who headed the committee that recommended the change. These courts allowed judges to try terrorist cases without a jury, a measure intended to ensure that justice could be served in the face of intimidation and fear.

Lord Carswell’s Experience: A Heavy Responsibility

Lord Carswell described the experience of judging without a jury as “exceptionally testing” and “very tiring.” He emphasized the lack of “catharsis” that comes with a jury verdict, noting that after a trial, the judge is left alone to grapple with the weight of the decision. Unlike jurors who deliberate together, or appeal court judges who consult with colleagues, the non-jury trial judge operates in isolation.

“Unless it’s a very obvious case, the judge has to head through all the evidence, go through all the arguments, do any necessary reading or research and then write a judgment — with nobody else to lean on,” Lord Carswell explained.

Appeals and the Standard of Justice

Despite the unique challenges, Diplock courts offered a potential advantage for defendants. The reasoned judgments provided grounds for appeal without the need for initial permission, potentially placing them in a stronger position than those convicted by a jury who typically require depart to appeal. Lord Carswell expressed confidence in the fairness of the system, stating, “I would like to think that there was no decision by any judge sitting alone that was not correct in terms of guilt or innocence.”

The Good Friday Agreement and Beyond

Lord Carswell similarly addressed the difficult situation of seeing individuals he had convicted released under the terms of the 1998 Good Friday Agreement. He stated that judges accepted these releases as outside their purview, focusing on their role in upholding the law at the time of conviction. “The judges feel they have done their job,” he said, “This is somebody else’s doing and they’re not going to lose sleep over it.”

Judge-Alone Trials in England and Wales

Lord Carswell also weighed in on the potential for judge-alone trials in England and Wales, particularly in complex fraud cases. He acknowledged the arguments for and against the practice, noting that juries sometimes struggle with the intricacies of such cases. He favored a system where judges would sit with a panel of assessors, rather than preside alone, believing this would provide a more balanced approach.

A Legacy of Security and Service

Throughout his career, Lord Carswell faced significant security risks, including a bomb threat early in his judicial service. Despite these challenges, he remained committed to upholding the law and serving the people of Northern Ireland. Robert Douglas Carswell, Baron Carswell, PC KC, passed away on May 4, 2023, at the age of 88, leaving behind a legacy shaped by his dedication to justice and his willingness to confront difficult decisions.

Sources:

• Diplock courts – by Joshua Rozenberg
• Robert Carswell, Baron Carswell – Wikipedia
• CARSWELL, Rt Hon Lord PC (1934-2023) – Google Groups
• Tribute to Lord Carswell – Judiciary NI