I CAN’T SEE YOU
If a judge says, “I can’t see you,” it probably means that you have not enabled your video link. It used to have a different meaning. “I can’t see you” was coded language for “You are inappropriately dressed for court”. A variation on this occurred when a District Judge asked a white-suited solicitor for “just one Cornetto, please”.
In the higher courts, counsel must wear a wig, gown, bands and wing collar or collarette, but this may be about to change. Amongst the many social consequences of Covid-19, changes to courtroom attire may seem insignificant, but they are of interest to legal historians. On 23rd March 2020 the Court of Appeal Criminal Division issued guidelines to advocates appearing by way of remote connection. They need not robe but should wear business attire. Judges sitting in court will continue to wear conventional court dress, but when the entire hearing will be remote everyone including the judiciary will be in business attire. Advocates are asked to consider the backdrop: a palm beach will be met with more than just a corny Cornetto joke.
This recent guidance needs to be seen within its historical context. We tend to use the words gown and robe as if they were interchangeable; but a gown is an open garment whilst a robe is closed. Perhaps gowning room would not have the same alliterative ring as robing room.
In a forerunner to Practice Directions, rules about judicial dress were issued in 1635 which set out the type of cloth and colour to be worn on different occasions and in different seasons. It did not take long for criminal judges to ignore these rules and wear black silk gowns. Bands replaced Elizabethan ruffs in 1680. Black gowns were first worn by counsel in 1685 to mourn the death of Charles II. Judicial and Bar wigs were introduced at around the same time, but it was not until 1770 that the short bob wigs that we wear today were first worn in court.
When the Court of Appeal was established by the Criminal Appeal Act 1907, judges chose to wear the black silk gowns still worn today.
When the Crown Court was established by the Courts Act of 1971, it was decided that judges there would wear a scarlet tippet over their shoulders. Judges at the Central Criminal Court chose to be different and decided to wear a black silk gown.
Changes to judicial attire in civil cases were made in 2008. In the same year, solicitor- advocates were permitted but not required to wear wigs in the Crown Court. The Criminal Practice Direction [2015] EWCA Crim. 1597, XII, maintains wigs as an option but not a requirement for solicitor-advocates: “They may wear short wigs in circumstances where they would be worn by Queen’s Counsel or junior counsel”.
The highest court in the land is one of the least formal. The overriding objective of the Supreme Court Rules is to secure that the Court is accessible, fair and efficient (UKSC PD 1.1.3). “Provided that all counsel in the case agree, they may communicate to the Registrar their wish to dispense with part or all of court dress. The Court will normally agree to such a request” (UKSC PD 6.6.8).
I am not aware of any case in the Supreme Court where court attire has been worn, but advocates should be aware of the American maxim: “The attorney wearing polyester bears the burden of proof”.
Useful advice for solicitors not appearing as advocates but attending virtual hearings is contained in “The Virtual Workplace – 50 Tips for Effective Video Conferencing” by Andrew King (April 2020, free on Kindle but readers are requested to make a donation to the NHS). The technical tips are outwith the scope of this article, but on the subject of clothing the author recognises the psychological effect of dressing as if you were in court. He also advises against becoming too relaxed and warns against commenting on another person’s appearance. He recounts the story of a silk whose comments on a judge’s cardigan were not terribly well received.
It is too early to speculate on whether the changes brought about by Covid-19 will lead to permanent change, but one conundrum will always remain: why is the usher the only person in the magistrates’ court who wears a gown?
Neil Corre is a barrister at Redbourne Chambers.