Wearing a Wig

In 1973 Sir Bernard Sugarman addressed this topic in an Article in Volume 47 of the Australian Law Journal at page 39 et seq. One of the areas of special interest to him at that time was the response of the young male barristers whose hair was long in accordance with the trend. Sir Bernard said:

“It may perhaps be forecast, for instance, that when the generation of young men, who maintain with almost religious fervour their “right” to wear their hair as long as they please, begin to make their presence felt in the courts, the topic of wigs will have to be re-opened in order that it may become a matter for consideration whether they too should be made subject to the same rule as was applied in 1922 by the King’s Bench Judges (Darling and Horridge JJ dissenting) to women barristers namely that they were to wear barristers’ wigs “which should completely cover and conceal the hair”. It not, may not women’s lib reasonably complain of discrimination.”

The tradition of wearing special regalia (robes and wig) dates back to as early as 1600. The rationale is explained in a Consultation Paper provided by The House of Lords and issued by the Lord Chancellor which said that “Court dress was useful in disguising the judges and barristers from public recognition”. In assessing this “useful anonymity” it was suggested that “(w)igs and robes supposedly obscured differences of gender, race and age, creating an edifying sameness among all the participants. Under this assertion the judicial garb makes it more difficult for a criminal defendant to recognize and possibly seek revenge upon, any barrister or judge involved in prior court proceedings. The actual validity of this argument is unproven, but the judicial wig and robe do help to maintain the conformity of the opposing barristers as officers of the court and consequently reinforces their detachment from their lay client. Thus the barrister’s judicial garb portrays to the judge and jury a sense of indifference facilitating a more objective and honest setting in which to decide a case.”

Another view put forward from the same source was that “traditional judicial garb imbued in a lay person a sense of solemnity and dignity of the law. This was regarded as particularly useful in criminal trials, where respect for authority may be lacking. Traditional garb sends a powerful if not forthright message to all participants in a proceeding: “The panoply and especially the wigs, might seem a little ridiculous to foreign visitors but English people tend to be impressed rather than amused.” By setting a highly authoritative tone, the barristers’ attire commands a high level of professional respect for their  skilled advocacy and the proceedings.”

A Law Reform Commission paper in New South Wales in the 1980’s echoed similar sentiments. At 10.14 this passage appears:

“The Bar Association says that barristers ‘should be required to wear the same dress so as to avoid distraction as a means of reducing the personal quality which one counsel may have to the prejudice of his opponent. A good looking advocate should not have, thereby, an unconscious advantage. A wig serves to conceal what may be otherwise regarded as an unattractive or conversely an overly attractive feature. Gowns do the same to multi-farious clothing choice, covering the garish, the vulgar, the ill-taste and the superb raiment of a person of wealth and taste’ ”.

Paradoxically the commission at 10.26 reported:

“ … Moreover, the wearing of wigs can increase the likelihood of some witnesses being so overwhelmed by the formality and strangeness of court proceedings that the accuracy and comprehensibility of their testimony is impaired.”

In 1977, Sir Garfield Barwick, then Chief Justice of the High Court of Australia said:

“I think the day will come when wigs will go. That is a matter of time. I doubt whether the day will come when robes will go … I think there is value in at least the robe.”

Thirty-two years later his prediction, even in his own court, has not been fulfilled, and is no closer, in my view, to being fulfilled in the future.

That said, it is true the Association issued some directions as to the proper manner of wearing judicial garb. The rule about wearing a wig when walking to court is honoured in the breach, sadly, members, apparently, feeling embarrassed in wearing it in the street. I cannot see any cause for such feelings.

Members of the force, do not carry their hats, caps or whatever. Indeed, they are not properly dressed without headgear. The bar is in the same position.

More importantly, I think barristers should hide their hair as far as possible under their wigs. Some wear the wig popped on top of a mass of hair. That detracts, both from their appearance and from the effectiveness of court regalia. It looks decidedly odd.

So it is over to the members and the Association!

James Crowley QC