Choosing our judges: could we do it better?

The recent revelation that a majority of practising Queen’s Counsel have no interest in seeking appointment to high judicial office, and certain anonymous comments to the press made in response, highlight a growing sense of disquiet within both the solicitor profession and the Faculty of Advocates as to the practices and procedures of the Judicial Appointments Board for Scotland, and the lack of attraction of judicial office. The Times reported that one courageous lawyer commented that some of the Board’s decisions, especially in the case of sheriffs, were “difficult to fathom”. 

When it was set up in 2001, the intention was that the road to judicial appointment would become more open and transparent, and that the former perception that lazy or inept lawyers would whisper in the ear of the Lord Advocate on the golf course, then be whisked onto the shrieval bench in some rural court where their misdeeds would not be known in Edinburgh unless wholly egregious, would end. Instead, only the finest minds of the most patient, courteous and tolerant persons would be seen on the Scottish bench. No more would young agents fear the wrath of ill-tempered bullying men, frustrated by everything that came before them but bolstered (in all but one notorious case from the far north) by security of tenure.

In the new sunny era of the JAB, the contributions of lay members would help to ensure that appointments, through a transparent application process, of those previously unfairly prejudiced would truly reflect the nature of a modern diverse Scotland.

The present

The issues affecting applications for appointment as senator appear to have diverged in recent years from those in respect of sheriffs and summary sheriffs. Many silks practising in the fields of commercial and public law have incomes far in excess of a senator, and it is reported that the majority now see little or no attraction in taking a substantial cut in income, then facing regular criticism in the media for decisions made based on law, in return for a title and some impressive robes. In contrast, the regular reductions in legal aid income and cases coming before the lower courts mean that there are usually around 20 applications for every shrieval vacancy. 

Fifteen years after the first round of Board appointments, can we really say that the new system has generated results radically different from its predecessor? In fairness, it must be noted that a majority of sheriffs and senators manifestly deserved their appointment, and acquit themselves admirably in practice, both under the former system and the new one. However, the experience of practitioners in some jurisdictions is that the personal failings that blighted some courts in days gone by have returned. Genuine judicial rudeness, as compared with robust criticism, particularly to less experienced agents and party litigants, is not rare. In sentencing matters, appeal cases are reported where sheriffs have not understood or not applied some basic statutory requirements, and explanations of verdicts post-trial are not always of the greatest clarity. 

In the past year or so, virtually every solicitor to whom I have spoken has had at least one horror story of judicial ineptitude or misbehaviour. That some appointees appear to have difficulty conducting themselves appropriately in court must be a concern to all court users, and this raises the question of how, in a system designed around robust testing of applicants’ knowledge, ability and temperament, appointments are still made of those with deficiencies in one or more of these.

The application process

It might be thought that the sole criterion for appointment to judicial office is a thorough knowledge of the law in the court to which appointment is sought, while holding the respect of the bench and bar before whom one practises. That, though, would be too simple. One of the most remarkable changes from the old system is that applications for judicial office are now expressly decided by “competition”, as if deciding whether to rule on admissibility of evidence in a jury trial or determining which parent is awarded residence in a family proof can be equated with which “celebrity” dances the best paso doblé. The process thus pits applicants against other applicants, of whose career and achievements they know nothing. 

As is now universally known, prospective sheriffs and senators start by filling in an application form. After the standard recitation of CV and declaration of no matters of professional concern, the applicant writes a series of short essays of less than 300 words giving examples of how their experience fits them for office.

Two points arise. First, the examples chosen (about which details may be brief) must be ones that impress the Board, none of whose members were present at the time. It is their interpretation that governs, and there is no mechanism by which ambiguity may be clarified. Next, the whole point of this exercise is for the candidate to demonstrate his or her suitability; this gives rise to the perception that the candidate who blows their own trumpet will be favoured over one who expressly regards appointment to judicial office as a duty best undertaken with humility. The Board states: “it is important that applicants understand how big a step they would be taking”. Woe betide anyone foolish enough to presume that the completion of the form itself indicates this.

Much may hinge on interpretation of words and phrases. Professional services designed to assist applicants in completing the form in the Board’s preferred style are now offered. This, I suggest, is not a positive step. Each judge is seeking to sit alone based on their personal merits, and the suggestion of a preferred style of answer, and of what examples of experience are most likely to be favoured, perhaps operates against the applicant of great ability but also strong individuality. The other notable factor at this stage is the absence of provision of solid evidence of either broad legal knowledge or an ability to cope with the more difficult circumstances that occur regularly in court. There is a presumption that candidates can demonstrate this adequately within the set maximum; if that can truly be achieved, of which I am not convinced, there remains no mechanism by which its accuracy can be tested during the application process. Most applicants will surely not provide false or misleading examples, but whether their perception of their ability conforms to objective reality may not emerge until after appointment.

What is most notable is the attrition rate based on the written application. Before any external testing of legal knowledge and judicial temperament, on most rounds over 80% of applications are rejected, often without JAB staff offering any direct response based on the application itself. Accepting that the Board draws its membership from various disciplines, and assesses applications against set guidelines, the selection criteria for interview appear opaque. The Board in larger rounds offers only “generic feedback”. It sometimes appears that answers are marked on a different basis to that contained in the question. Examples are key, but whether an example is a good fit with the Board’s criteria is impossible to ascertain. 

It has stated that candidates “must… provide evidence that they have thought carefully about the role of sheriff and how things they have done make them suited to the role”. It is not immediately clear how an applicant provides evidence of thoughts. Much of the process requires the applicant cherry-picking edited highlights from a long career, turning them into examples of judicial aptitude, and then trusting that the assessors will perceive them in the same way. It is not clear that there exists verified independent evidence that this helps identify the best candidates. As only those that are deemed to have passed this process are appointed, there is no comparator against which the judicial ability and temperament of unsuccessful applicants may be tested.

References from suitably qualified persons with knowledge of the applicant’s skills and temperament are no longer required. Few can ever have felt it prudent to submit an application for the bench without having at least some judicial support or approval from senior colleagues, so the value of references not directed to a specific skillset was questionable.

The interview

After this draining of the pool, the barely one-in-five applicants that remain have their practical legal knowledge tested for the first time by being provided with written case studies on which they will be tested at interview. While in no way resembling the robust confirmation hearings we see in American judicial appointments, this, I suggest, is the first true test of judicial aptitude, and should probably be offered to a much greater proportion of applicants (I recognise this creates a major increase in the JAB’s work). Prior to interview, candidates prepare two answers (one civil, one criminal) based on the practices of the court to which they seek appointment, and a major part of the interview is questioning on their reasoning and conclusions. 

While the exercises and questions are clearly and rightly designed to test both knowledge and the ability to think on one’s feet, the questioning is fairly brief, and the examples not necessarily representative of everyday court practice. It is also not clear to what extent this part of the process affects the final decision. From the practitioner’s perspective it would appear utterly crucial, but as the lay members do not participate in legal questioning, I wonder whether the perceptions of demeanour and confidence are not as key in the final decision as the legal knowledge demonstrated.

The interview then proceeds to more wide-ranging questions asked by all members. The reader might think this is designed to give a rounded picture of ability and aptitude, but many interviewees have commented that they did not feel it really gave the panel a full picture of them and what they could bring to the post of sheriff. Some of the questions are wholly non-specific, while others (the precise questions must remain confidential) present hypothetical scenarios that are both rarely encountered and shorn of the level of context that might enable a candidate with regular court experience to address the issue as comprehensively as possible. Again, there must be a concern that it is the perception of the questioners and the type of answers they seek that will determine suitability, rather than the quality of the answer.

I presume that the purpose is to test ability to react to both the expected and the unexpected, but the interview process should also be the applicant’s opportunity to demonstrate their personal skills and abilities. Those to whom I have spoken tend to state that the highly structured form of the interview did not really offer such opportunity.

Following interview, successful candidates are selected, advised of appointment; their names are made public; then after some additional days of training and sitting in court with experienced sheriffs, they take their places on the bench.

At this stage, regrettably, problems have increasingly begun to emerge. A significant percentage of appointees have demonstrated a lack of judicial temperament. Some seem to find the exercise of sentencing surprisingly daunting, despite it being part and parcel of the job. Others struggle to treat court users, both qualified and parties, with even basic courtesy. While there have been some excellent appointments in recent years, many regular court practitioners perceive the general quality of appointments as no higher than under the previous opaque system. Both systems saw some truly gifted persons ascend the bench, along with some whose ability and aptitude was rather less apparent.

The future

Fifteen years after the first Board appointments, it cannot be acceptable to see those with limited judicial aptitude finding themselves on the bench. How, then, can the process of appointment be improved so that those appointed have the confidence of their colleagues, of the bars whose members practise before them, and of the public who appear as litigants, witnesses and observers?

I suggest that two matters require to be given greater prominence in the selection process. The first is demonstrable breadth of legal knowledge in the court over which one intends to preside; for example, it does little for public confidence when a newly appointed sheriff appears unaware of basic sentencing principles in a road traffic prosecution. The requirement to demonstrate knowledge by undertaking a written examination occurs much earlier in the system applicable to England & Wales, and a far higher proportion of candidates are invited to sit this. That will increase the workload of the Board (and, marginally, the small cost to the public purse), but might weed out those whose perception exceeds their actual ability. At present candidates provide only one piece of written work during the entire process, and I submit that much greater reliance on candidates demonstrating broad legal knowledge by means other than self-assessment would enhance the general quality of appointments.

The issue of greatest concern is that of temperament, and the ability to issue decisions of all types, displaying clear knowledge and understanding of the legal and factual issues, in a manner appropriate to the dignity of the post. The switch from law agent to judge can be a daunting one; a newly appointed sheriff immediately finds him or herself exposed as the decision-maker in a manner alien to that of a practitioner, and the learning curve can be steep. However, everyone who has completed the application form must be deemed to have given this their fullest consideration. In my view, key to a successful elevation to the shrieval bench is that the person appointed already holds the full respect of the bar and bench before whom they practise; this is regrettably not wholly true of all recent appointments. Critical thinking has been tested in the application process, but external evidence of court temperament is not sought at any stage. This, I suggest, is unfortunate. It does the reputation of justice no favours when an applicant with a masterful CV turns out to use the courtroom as a forum for bullying and offensive behaviour. 

Surely in a modern inclusive state, if we are truly to appoint the best candidates, the system must be more robust. Candidates should be selected based on rigorous testing of legal ability, and on their ability to demonstrate strong judicial temperament. The names of applicants must remain confidential, so “soundings” from their local court are simply not feasible. Instead of reverting to taking references from applicants, perhaps a more focused approach to external assessment by serving sheriffs and judges at a later stage in the process might ensure a higher quality of appointees.

This is manifestly a personal view. I hope, though, that it may provoke lively debate within the profession.