Letter: judicial appointments – more debate

Not having felt the need to join the judiciary, I do not have an axe to grind in my commenting on the anonymous contributor’s thoughtful article “Choosing our judges: could we do it better?” (Journal, February 2018, 18). It is not without significance that nowadays one generally speaks of appointing an individual to the shrieval bench rather than of elevation. This is undoubtedly because the current selection procedure for appointing sheri s is analogous to that of appointing an applicant for a job in the civil service.

One major flaw in the current procedure for appointing sheriffs, as rightly pointed out by your contributor, arises from the fact that applicants can readily and at moderate expense buy coaching to prepare them for much of the procedure, in the manner of many university students who buy online tuition. However, perhaps the most serious procedural flaw is the modus operandi of the Judicial Appointments Board inasmuch as, instead of embarking on an appraisal by endeavouring to dig out real talent, it begins with a process of elimination, what your contributor felicitously calls “this draining of the pool”, whereby, for example, I am told that applicants who have unsuccessfully defended a court action for a tradesman’s exorbitant invoice, or who have a spent conviction for an unremarkable parking offence, are eliminated ab initio. Apropos of the latter example, one of the very finest sheriffs before whom I, as a solicitor, conducted a multitude of civil and criminal cases, had a previous conviction for throwing stones that broke the stained-glass window of a church when he was a young man.

I question whether your contributor is right in saying that “The names of applicants must remain confidential,” whilst at the same time alluding favourably to “the robust confirmation hearings we see in American judicial appointments”. Et separatim and a fortiori, as we long-in-the-tooth practitioners used to plead, the making public of the identities of candidates for public office would bring with it the benefits which would be associated with the naming of persons charged with sexual offences, namely, increasing the likelihood of skeletons in the cupboard being brought to light.

Your contributor says that “the system applicable to England & Wales” is, in certain respects, superior to our own. This leads me to think that by analogy we ought perhaps to take another leaf out of the Anglo-Welsh book and introduce civil court sheriffs and criminal court sheriffs. My more radical suggestion is that we adopt the system that exists in many civilised nations in the West, that is to say, the system under which the judiciary is a distinct branch of the legal profession with its own separate career path.