Now that courts are becoming more transparent and even allowing in the TV cameras, how important is it that all the barristers in open court should ‘look the part’ by wearing wigs and gowns?
People have certain expectations about what goes on in court. Sometimes, as explored in my earlier post on this blog, those are mistaken: we do NOT bang gavels in the courts of England and Wales. Nor do we ‘approach the bench’ or shout ‘objection’ at every opportunity, however dramatic all that sort of thing might look on TV. But one thing we do – and some people think we do it very well indeed – is dress up in wigs and gowns and strangle ourselves with stiff high collars tied with bands.
Looking the part
A High Court judge recently said that when the Court of Protection sits in open court, so that members of the public can attend if they wish, the barristers should all be wearing wigs and gowns as they do in most other courts, as a ‘visible symbol of transparency’.
The suggestion by Mr Justice Hayden, in an interview in the Law Society Gazette, has sparked renewed discussion about the role of wigs and gowns in the administration of justice.
Some of those who commented on Twitter thought robes were intimidating for the lay parties; others that clients would find them reassuring, a sign that the case was being dealt with properly. For some, however, the whole business of robing up seemed ridiculous and anachronistic.
The debate is not confined to the civil courts. In his recent memoir of life at the criminal bar, William Clegg QC says:
‘Some judges think the wig gives them an air of authority, but if you need a wig to exercise authority over your court then you are not much of a judge. I think that justice is better done by the judge’s words rather than what he has on his head. The thought that you have to put part of a horse on your head to appear in a criminal trial is absurd.’
Nevertheless, I can’t help noticing that Clegg chose to call his memoir Under the Wig, so he obviously thought there was some marketing value in the old horse hair. As a QC he not only wore a wig himself but also a silk coat in court, as well as the customary barrister’s black gown and a wing collar as stiff and starchy as the best. Whether or not he thought it gave him an air of authority, when cross-examining witnesses for the prosecution, he undoubtedly ‘looked the part.’
The tradition of dressing up in court has a long and more varied history than perhaps we realise, as a booklet accompanying Middle Temple Library’s recent exhibition of Legal ‘Fashion’ explained.
Judges have been wearing special forms of headgear and robes since the Middle Ages. In 1635, the judges sitting in Westminster issued a ‘solemn decree’ prescribing the different types of robe to be worn. These became known as the Judges’ Rules and formed the basis for all subsequent judicial dress. According to Ede & Ravenscroft, who supply them,
‘Today's High Court Judges wear the same ceremonial dress or black court breeches, black stockings and black patent leather court shoes with cut steel buckles, and scarlet cloth robe as stipulated in the original Judges' Rules of 1635.’
This is the ‘full fig’ (along with full-bottomed wig) that the judges wear as they troop to the Lord Chancellor’s Breakfast to mark the start of the legal year, and is also the apparel in which they are seen in the official photographs used in the popular press – particularly to accompany stories about ‘top judges’ being out of touch, soft on crime, unaware of the identity of a popular beat combo, etc.
What they wear in court has gone through a number of changes, though. The most recent, about ten years ago, was not to everyone’s taste. The new High Court judge’s robes designed by Betty Jackson were opposed by 40% of the judges who were expected to wear them, and were described by one critic as being like ‘Star Trek’ costumes.
In the case of barristers, rules on the type of apparel they could wear date back at least to Elizabethan times. But the current style of gown, made of black cloth or ‘stuff’, dates back to the 18th century. At around the same time wigs started to be worn by judges and barristers purely as a mark of their profession, rather than in accordance with the gentlemanly fashion originally brought over from France with the Restoration of Charles II in the late 17th century. The design of wigs was revolutionised in the early 19th century, when Humphrey Ravenscroft patented new low maintenance white horsehair designs for judges and barristers in the various designs still used today.
Solicitor advocates also wear gowns, of a slightly different design; and since 2008 have been permitted to wear wigs in the same circumstances as barristers, if they wish: see Practice Direction (Court Dress) (No 4)  1 WLR 357. Moreover a solicitor can ‘take silk’ and thus wear the same court and ceremonial dress as a barristerial QC.
Majesty, Mystery and Mockery
Traditionally judges have declined to hear barristers if they appear before the court inappropriately dressed. When a judge told a barrister ‘I cannot hear you’, it didn’t mean the old buffer was deaf. It meant he disapproved of the fact that the barrister wasn’t wearing a proper waistcoat or she had too much makeup on. Nowadays, judges are more likely to take barristers and solicitors to task over the state of their bundles, or the bloated voluminosity of their skeleton arguments, than how they’re dressed.
However, the practice persisted long enough to catch one unfortunate solicitor advocate, whose court gown was criticised by a Crown Court judge as looking ‘like something out of Harry Potter’. After the road traffic case in which he was appearing had concluded, the judge, His Honour David Wynn Morgan, reprimanded Alan Blacker, who went under the title Lord Harley when appearing in court and had attached colourful ceremonial St John Ambulance ribbons and medals to his gown, saying ‘If you ever appear before this court again dressed as you are I shall exercise my right to decline to hear you.’
There is something rather comical about this incident, and there was no shortage of mockery on legal Twitter at the time. But while both he and the judge may each have thought he was upholding the majesty of the law and his role in it, the fact remains that for many the very practice of wearing medieval costume in court only serves to alienate the public. It imports the notion of a sort of legal priesthood, guardians of the mysteries of the law, which ordinary mortals cannot safely be allowed to play with. In these days of increasing numbers of litigants in person, and the development of online courts where fancy costumes are as useful as having ‘a good face for radio’, it seems less and less appropriate. If the UK Supreme Court can uphold the majesty of the law without anyone being robed up for it, you wonder for how much longer the less senior courts can maintain the tradition, or how much it really contributes to open justice and transparency.