Judgment day
While the judicial appointments system has improved over recent years, Stephen Ward finds that many practitioners believe the process still has a long way to go before it can be called fair and open
Brian O'Neill, a barrister newly appointed as a recorder, recalls a dinner with a solicitor colleague.
'I asked him why he had never applied to be a judge.
He said it was because he didn't think he would get it.'
Mr O'Neill reckons that if more solicitors applied, more would be appointed.
But the story shows that while judges at all levels are already chosen in a more open, competitive and transparent way than a generation ago, the present system of selection is not universally seen to be fair and open to talent.
This explains why the Lord Chancellor, Lord Irvine, has promised to streamline the selection procedure which has recently restarted the circuit bench competition after a year-long freeze to review the system (see [2003] Gazette, 27 March, 1).
The present system already has strengths.
John Lafferty, a partner with London criminal and litigation firm Edward Fail Bradshaw & Waterson and recently promoted to the rank of recorder, says he found the process open and fair from beginning to end.
'Even if I had not been appointed, I would have had no problem with the procedure,' he says.
Self-assessment is the first part of the application, with candidates explaining in writing how they match the criteria laid down for the job, including analytical ability, sound judgement, decisiveness, communication, listening and case management skills.
Mr Lafferty says the procedure is objective, and any applicants can make sure they sell themselves well on the form.
'I put myself in the position of being an advocate for somebody else, only on my own behalf,' he says.
Then there are the comments of referees supplied by the candidate, which similarly match the candidate to the list of qualities.
His nominated referees were three barristers who knew him well as he had briefed them on cases.
After officials sift the applications and consult with various judges and other senior lawyers - not of the applicant's choice - come the interviews for what are seen as the strongest candidates.
He says the interview was very fair - and took place in the unstuffy surroundings of the Lord Chancellor's Department (LCD) office block in Victoria in an ordinary meeting room.
However, other solicitors still feel disadvantaged.
Barbara Cahalane, strategic policy adviser at the Law Society, says: 'The improvements that have been made have been grafted onto a system that was devised in an age when only members of the Bar were eligible, when the pool of barristers was small and all were known to the judiciary.'
While all appointments are open to solicitors with the required experience, the appointment system is still perceived by many to be geared to the Bar.
Ms Cahalane says solicitors question features of the application forms - for all levels of appointment - which enquire into their level of earnings, or assume that consultees will be members of the judiciary.
Similarly, solicitors ask why, if advocacy experience is no longer a condition for appointment, the majority of senior lawyers automatically consulted are still members of the judiciary.
And Ms Cahalane says the higher up the judicial ladder you go, the greater the prominence given to so-called 'secret soundings', and the greater the likelihood that a barrister will be known to these senior legal figures, but a solicitor will not.
Some of the procedures are due to become more transparent and rigorous.
Following the review, the LCD said that while Lord Irvine intends to continue with the consultation system, it will reduce the numbers of senior lawyers automatically consulted, as well as giving applicants the chance to draw attention to aspects of their work and practice which they feel might reduce their visibility to the consultation community.
The LCD says wider use of appraisal systems and assessment centres will, in time, change the nature of the consultation process.
In fact, the LCD is still formally evaluating a pilot of an assessment centre used for district judge selection last year, and reactions seem to have been universally favourable.
District Judge Jeremy Cochrane, the new president of the Association of District Judges, is in charge of training district judges for the Judicial Studies Board, and he was asked to take part in the pilot day as one of the assessors.
He was struck by the benefits professional human resources consultants could have on the process.
They were called in by the LCD to run the pilot assessment day.
The candidates performed a role play, taking the part of the judge, while actors played the claimant and the defendant.
Judge Cochrane says: 'The role plays were real situations facing district judges, where one party is representing his or herself, and is opposed by a professional advocate.
They were situations faced by district judges on a daily basis, not artificial situations we would come across only very infrequently.'
The assessors too were thoroughly taught in advance how to assess performance fairly and efficiently.
Judge Cochrane adds: 'We were given tough training, put through the hoops, and it was quite an eye-opener - it made all of us rethink our positions.
I believe that at the end of our training we were able to see our way forward much more clearly.'
He would like to see all people who sift applicants, and conduct interviews, receive a similarly thorough training.
One of the district judges chosen through the assessment centre, Deborah Wright, a partner in Hertfordshire firm Pictons, says: 'I felt nervous going into the three role plays, then I realised everybody was doing exactly the same thing, and I had the feeling it was fair as I was doing it.'
Might the assessment centre replace the consultation and referees altogether, as the Law Society would like? Judge Cochrane says: 'One would hope it would be possible in a forward-looking arrangement to remove the consultation process if not entirely, then very substantially indeed.'
He notes that in industry, references are usually used only in the final stage in the process.
However much the system is modernised, and however confident solicitors eventually become about its fairness in judging them against barristers, there will still probably be a difference in applications for part-time posts.
Georgina Kent, a barrister who sat as a recorder for the first time this spring, says there was only one solicitor in her intake, but she says the main obstacles - whatever the selection system - could be a solicitor's career structure.
Being a part-time judge fits with the self-employed status of a barrister more easily than with a solicitor.
She says the age she applied - her mid-30s - is when solicitors are expected to be working flat out for partnership and showing full commitment to their firms.
Ms Cahalane says this is a potential problem for partners too.
If they apply to be judges, they can be seen as no longer committed, and affected by the syndrome known as 'career blight'.
'There is anecdotal evidence that some firms actively discourage solicitors from applying for appointment,' she says.
Mr Lafferty says his firm is supportive, but agrees it would be harder for more junior solicitors who have less control over their time.
He pays his judicial salary into the firm's pot, along with his fee-earning the rest of the year.
His fellow partners believe he is adding value through the experience he gains to make his own work more efficient, and the advice he can give to less experienced solicitors in the firm, based on his knowledge of how a case is likely to go in court and what will be effective before a judge.
He says: 'I earn lower fees as a judge, but I make it up the rest of the year.'
However, City firms may be less accommodating.
Stephen Ward is a freelance journalist
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