‘Reasonable Doubt Changed Everything’: A Conversation with Sir Anthony Hooper
For nearly a decade, Sir Anthony Hooper has been one of the most influential international figures working inside Ukraine’s judicial reform. A retired judge of the England and Wales Court of Appeal, he helped design and implement some of the country’s most consequential integrity checks — first within the Public Council of International Experts, then on the Ethics Council. Few foreigners have seen the inner workings of judicial reform here as closely as he has.
In this interview, Sir Anthony reflects on the ideas and decisions that shaped the reform from within: the “reasonable doubt” test, the limits of the vetting, and the crucial role of civil society. He also discusses the difficult questions raised by international involvement in judicial selection, and the painful debate over how to assess judges who issued decisions against the Maidan protesters.
This conversation is the first in Halyna Chyzhyk’s original project, “Reasonable Doubt,” created in partnership with the civic organization “Holka.”
“The reasonable doubt test changed everything”
HC: In your interview with The Sunday Times in 2020, you mentioned that your most significant achievement since retiring from the bench was your work with the PCIE. What makes your work in Ukraine stand out as your most significant achievement among these?
SAH: A great deal of my post–retirement work has been training judges – helping them better understand money laundering, corruption, and the proceeds of crime. But training rarely gives you a tangible result. You might hope that six months later a judge makes a decision showing they understood what you explained, but you’ll probably never know.
The PCIE – and later the Ethics Council – were different. Here, I could see tangible results. And the first thing I want to stress is the reasonable doubt test.
When I arrived in Ukraine, as far as I could understand, unless you could prove a candidate was corrupt, they would be appointed. The Public Integrity Council could raise serious concerns, but the High Qualification Commission of Judges did not properly investigate them. There was no real questioning, no written questions – and, above all, no understanding of what the standard of proof actually was.
What was needed – not just in Ukraine, but anywhere – was a very low threshold: if the appointing body has a reasonable doubt about a candidate’s integrity or professionalism, the candidate should not be appointed. That was my idea from the very beginning. It was accepted by my colleagues, by the HQCJ, by the parliament, and even in Moldova. To me, this was a huge, tangible result – one that will help Ukraine for a very long time.
Written questions transformed the process. They helped us filter out trivial matters and focus on what required real scrutiny. The ban on last-minute documents prevented candidates from overwhelming us, and the rapporteur system made the work far more disciplined. Together, these innovations changed everything.
I believe the HACC has been a great success. There are problems, of course, but so far I have not seen any suggestion that HACC judges are corrupt. My sense is that many people in Ukraine saw that involving outside experts genuinely helped change a system that needed change.
HC: Do you think these achievements will be preserved once the panels are composed only of national experts?
SAH: If Ukraine were to abandon the reasonable doubt test, written questions, the ban on last–minute documents, then we would be back where we started.
“Without civil society, the process simply would not have worked”
HC: The full–scale Russian invasion began just days after the Ethics Council started interviewing candidates for the High Council of Justice. Looking back, how do you think the war affected the process? Would the outcomes have been different had there been no invasion?
SAH: Speaking personally, I didn’t feel that we lost anything because of the war or because we had to move online. COVID had already taught us that we could use Zoom or Teams, and I conducted interviews from South Africa, England, and the United States. Once we adjusted, it worked well.
For example, I would keep two screens open: one with the interview, and another with my email. If a candidate gave an answer that raised a legal point, I could immediately email the lawyer assisting me and get a very quick response. So, overall, I felt the system functioned effectively even online.
HC: But for a foreigner who doesn’t speak Ukrainian, you already rely on interpretation, and in–person interviews help with catching nuance – even assessing credibility. Was that harder online?
SAH: You can’t get away from translation. It’s inevitable, and yes, you sometimes miss things. But it also slows the pace, which can be useful: while the interpreter speaks, you can rethink your next question. So I didn’t see it as a serious obstacle.
And I’m not a great believer in the idea that by simply looking at someone you can tell whether they are lying.
HC: Besides the full–scale war, could you share some of the toughest challenges you encountered during your time at the Ethics Council?
SAH: I think the weakness in the system – and it still hasn’t been resolved – is the amount of information available to panel members about candidates. We didn’t need more – but only because of civil society.
Without civil society, this process simply would not have worked. Ukraine has an exceptionally active civil society that has been following judges and candidates for years and knows a great deal about them. Combined with the Secretariat’s work, that gave us all the information we needed to assess people properly.
Obviously, we missed things. I’m sure we did. But that is precisely why the reasonable doubt standard is so important. We never said: “This person is corrupt” or “He took money.” Not once. What we did say was: There is a reasonable doubt about whether his lawful income is consistent with his lifestyle.
Privately, I might suspect that someone bought an expensive apartment with illicit money – but you would never hear me say that publicly. What I would say is: You bought this apartment. You put it in your son’s name. You say your father paid for it. None of this makes sense.
Another weakness concerns previous judicial decisions. For an outsider to read a judgment and conclude that no reasonable judge could have reached it — that is an extremely high threshold.
HC: And some decisions had to be viewed in a wider context — especially those from the Maidan period. How did you think about them?
SAH: They had to be, yes. Civil society argued that any judge who continued serving during those three months, and who issued decisions against protesters, should automatically be dismissed. I found that difficult. I studied the documentary that reconstructed those days; I tried to understand the context. But I struggled to say that a judge in the middle of civil unrest should simply walk away and refuse to do his job.
Looking ahead, I would like to see more systematic analysis of past decisions, with civil society helping identify cases that genuinely cast doubt on a judge’s integrity. The HCJ and HQCJ already have the information they need, but a small unit dedicated to reviewing “outrageously wrong” decisions could be useful.
Judicial independence means judges cannot be punished for an error. But when a decision is so unreasonable that it suggests something improper, consequences must follow.
HC: The Ethics Council’s task was to evaluate all HCJ candidates and determine whether any raised reasonable doubts about their integrity or professional ethics. The HQCJ Selection Commission took a different approach – instead of vetting the worst candidates, they focused on identifying the best, a so–called “positive selection” approach. If you had the chance to design such a process yourself, which approach would you take?
SAH:I thought the HQCJ Selection Commission approach was unlawful. That’s not what we were asked to do. Our task was to look at all candidates and decide whether we had a reasonable doubt about their integrity, professional ethics, and, in some cases, professionalism. I’ve heard the arguments for positive selection put forward very eloquently, but I still don’t believe it was lawful in this context.
That said, the HQCJ Selection Commission faced a real problem: they had far too many candidates. And that is something that needs to be addressed – you cannot properly evaluate hundreds and hundreds of people.
“No one is above the law”: Money, power and the real meaning of independence
HC: Given your background in a common-law country with a strong democratic tradition, what were the biggest things that surprised or impressed you about Ukraine’s judiciary?
SAH: What has always worried me about Ukraine is that too many people simply do not feel constrained by basic standards of honesty. Not everything we saw was corruption; some of it was a complete failure to meet ordinary standards of honesty.
Take some of the Ph.D. cases. A candidate claimed to have written an academic article he hadn’t written – someone else had. Judges receive, what, an extra 15% salary if they obtain a Ph.D.? I find that extraordinary. How does a full-time judge have the time to write a Ph.D. – often hundreds of kilometres away from where they live and work?
Back in the PCIE days, we saw a case where a judge had almost certainly committed a criminal offence. We could only state that there was a reasonable doubt – which meant he could not move forward in the competition. But as a sitting judge, he faced no consequences at all: no investigation, no disciplinary action. The fact that he is probably still on the bench worries me.
When designing future reforms, one question must be: what happens when a panel does find a reasonable doubt? It is not a dismissal. But where there are strong indicators of criminal conduct, the case should trigger an automatic review by a disciplinary body of the HCJ.
HC: Where do you think judicial independence comes from? Is it something that can be achieved simply through transparent, merit-based appointment procedures? Does removing political influence automatically make judges independent?
SAH: I don’t think any system – Ethics Council, reasonable doubt, interviews – can, by itself, guarantee judicial independence. Judicial independence has two dimensions. One is money: money paid for a decision. When senior judges of the Supreme Court are arrested for taking that kind of money, one feels shocked and appalled – as everyone does.
The second dimension, which is far more difficult, is power. It’s not a perfect term, but I call it power corruption: doing what the government wants you to do in cases where the executive has an interest. Criminal cases are particularly vulnerable. And how do you ensure independence when the government applies direct or indirect pressure? I don’t think any interview-based system can address that. It is nearly impossible.
That said, reducing political influence in judicial appointments is crucial. Ukraine has gone a long way in this direction. My ideal system is one in which politicians are kept out of it as far as possible.
HC: And more broadly – can the judiciary ever be truly independent if the parliament is weak or influenced by autocrats or oligarchs?
SAH: Of course it has an influence. One hopes judges will remain independent, but the broader climate matters enormously. Judicial independence requires strong civil society, strong democracy, strong media – transparency at every level. If that is missing at the top, it inevitably affects the courts.
HC: Historically, this idea has been around for a long time. Would its earliest expression be Magna Carta in 1215?
SAH: Yes. It established the principle that no one is above the law. Unfortunately, oligarchs – and others – still regard themselves as being above the law. And too often, they get away with it.
“There are too many King Johns in the world today”
HC: When you were invited to join the selection process for HACC judges, did you agree immediately, or did you take some time to consider the offer?
SAH: I had no hesitation at all. I looked at the legislation – Ukrainian laws are never written in a way that makes them easy to understand – but I worked through it and thought, “This looks like a good thing.” So I said yes immediately.
Later I was interviewed for the job, as you remember. Some people claimed I had been chosen for the PCIE because I was too old to cause any trouble. But when I was recommended for the Ethics Council, they knew they were not getting someone who would simply roll over. By then my reputation was well established.
Had I known I would end up conducting more than 200 interviews, I might have thought twice — but at the start, I had no doubts. And it was exciting; I had never done anything like it.
HC: And once the work began in earnest, did you find that the role of the EC was broader or more complex than it had seemed at first?
SAH: During my four years with the Ethics Council, my understanding of our task changed. At the beginning, I thought our role was simply to keep out judges about whom there was a reasonable doubt regarding their integrity.
Sir Anthony Hooper and Galyna Chyzhyk, at the Court of Appeal of England and Wales (from a personal archive)
Photo provided by the author
As we went on, I saw another side to the work: making sure that good people also went forward. There were candidates who were clearly reform-minded, and sometimes my colleagues had questions or hesitations about their integrity. To my mind, in some of those cases there really was no reasonable doubt – these were good people, and they should go forward.
HC: Do you think that you’ve succeeded with that?
SAH: I don’t know. You can look at the list of people now in the HCJ, and many of those you would have wanted there are indeed there.
But there will always be disagreements. I remember one candidate whom I thought was the best I had ever seen. He went through – and then civil society said, “This man isn’t so good.” In work like this, 50 percent of people will always be displeased. It’s like judging: one party will always be irritated or angry with you.
HC: One of the earliest controversies concerned Judge Holnyk, who had publicly criticised her colleagues. During the interviews, the Ethics Council concluded that her explanations raised a reasonable doubt about whether she met the integrity criteria. This decision surprised many Ukrainians at the time.
Looking back with the experience of three more years of interviews and decisions, do you think the Council might have reached a different conclusion today?
SAH: I cannot say whether I would reach a different conclusion today. It is a reasonable-doubt test. One advantage of such a test is that you can have another go. We interviewed several candidates twice: in some cases we found no reasonable doubt the first time and reasonable doubt the second; in others, the reverse. Reasonable doubt is a very low standard. The fact that there is reasonable doubt today does not necessarily mean there will be one tomorrow – and vice versa.
HC: There’s been a lot of talk in Ukraine about extending the mandate of international experts in judicial selection commissions, as well as in anti-corruption and law enforcement bodies. What’s your take on this? Do you think we really need another five, ten, or even twenty years of international involvement? Do you feel that Ukraine is capable of selecting honest professionals on its own?
SAH: That is a very difficult question. I hope that with the reforms – with a new HCJ – Ukrainians will eventually be able to take this work over without international experts. That is my hope.
But I cannot say whether there is yet enough public trust for the process to work properly in their absence. I simply do not know. What I do know is that international experts played a very big role in what we achieved – I have no doubt about that. And how long this should continue is for the Ukrainian people to decide.
As for the new HCJ – I simply hope it is working well. If it is not, I have wasted a lot of time.
HC: I remember our visit in April 2019 to Temple Church in London, when we stopped at the tomb of William Marshal, the Earl of Pembroke. You remarked then that there are “too many King Johns in the world today.” What did you mean by that?
SAH: There are far more of them now – leaders who believe they can act as they please. Too many people in positions of power still think they are above the law.
HC: Do you think democracy is threatened in the world? In the United States? UK? In Ukraine, where it’s not strong?
SAH: I do think democracy is threatened. People often believe problems can be fixed easily, so they vote for those who promise dramatic change. Some – like Trump – have no intention of delivering; others try and discover how hard it is. Around the world, the rule of law is weakening. Russia’s invasion of Ukraine shows how fragile the international order has become. Yet I still believe democracy will survive. The real danger is that many countries have handed too much power to oligarchs and moguls – the Elon Musks of this world.
HC: In your 2016 interview, you’ve told that being a judge, was the hardest, but at the same time, still very excited, the most exciting work you’ve done. What made it hard, and what made it exciting for you?
SAH: Cases are hard. Easy cases settle; they rarely reach court. Criminal cases are especially tough: you may be sending someone to prison for years, and you constantly ask yourself whether the outcome is right.
And yet judging is exciting: you are reaching decisions, making real choices. I enjoyed my time as a judge, but I don’t miss it, because it was very stressful. Very stressful.
HC: If you will be invited in the future to join another exciting project in Ukraine. Will you say yes?
SAH: I would want to wait until the war is over – until Ukraine has won, whatever “won” may mean. None of us knows. And I am becoming an old man. There is a limit.
Special for “Dzerkalo Tyzhnya”
Supported by the European Endowment for Democracy (EED)
