When considering the judgements of the courts in high profile case law, is the opinion of a lawyer enough, or should one be engaging the assistance of a psycho-analyst?

The late Lord Devlin made little secret of the fact that a subliminal factor in judgements was a reality to be taken into account. In his book, The Judge (Oxford University Press, 1981, pp. 90-91), he wrote that "stretching the law or moulding the facts to fit the law is the time-honoured method by which the judge consciously or unconsciously – probably half-consciously, and not permitting too acute an analysis – makes room for the aequum et bonum." He referred to "?the unconscious biases which any man may have and which he cannot eradicate because he does not realise that they are there." He considered that such biases worked in favour of the justice of the case, and he stated that "once a judge has formed a view of the justice of the case, those facts which agree with it will seem to him to be more significant than those which do not."

More recently, a majority of four out of five Law Lords, in the case of Nagarajan -v- London Regional Transport (Times Law Report, 19 July 1999), added strength to the notion of a subliminal factor in decision making when giving their opinions in proceedings brought under the Race Relations Act 1976. It was stated by Lord Nicholls (Lord Steyn concurring and Lord Hutton and Lord Hobhouse agreeing with both), "that an employer might genuinely believe that the reason why he rejected an applicant (for a job) had nothing to do with the applicant’s race, but after careful investigation an employment tribunal might decide that the proper inference to be drawn from the evidence was that, whether the employer realised it at the time or not, race was the reason why he acted as he did." Lord Brown-Wilkinson, dissenting on the conscious motivation issue, did not understand how one could victimise someone "?subconsciously". He stated that "if it was right that the statutory test was subjective, any factor relied upon had to be consciously present in the defendant’s mind."

Lord Brown-Wilkinson may well have the efficacy of statutory application on his side, but the majority of their Lordships may have struck the chord of human relationships in showing an understanding of the powerful effects of the subliminal factor on each and everyone of us, including, of curse, the judiciary; as indeed Lord Devlin had previously demonstrated so effectively in his book.

The Law Lords, together with the Appeal Court judges, are dealing with the cutting-edge of legal development and are, therefore, likely to be even more vulnerable than other judges to the effect of any subliminal influence. This inference cannot now be denied because the majority of four have shown us, in their opinions Nagarajan -v- London Regional Transport, that it is a factor in any human decision-making process. Thus, when high profile cases are being considered one has, at least, to think about the powerful subliminal factor which may be seeping through into the judgement. One can ask oneself about the extent to which the Appellate judiciary is wearing an unseen political cloak, by subliminally importing their own sense of the moral values and concepts of the day, instead of simply searching for the true meaning of the common law or statute law. Some support for the basis of this article can be found on a fairly regular basis in legal commentary in the press, and elsewhere as commentator after commentator depicts the significant changes taking place in the law of this country, not as a result of a political statute book emanating from an elected chamber, but as a result of judgements of the Appellate Courts.

It is essential that a fair balance is maintained between the vital ladder of development of the common law, and the potentially invidious "unconscious biases which any man may have"? filtering in, virtually undetectable, except by inference, to judgements. Their Lordships have opened wide the door for a closer look at the subliminal factor in their own opinions and also the other judgements of the courts. Now it is legitimate to search for evidence of its effect. Now is the time for the involvement of the psycho-analyst.