With regard to Joshua Rozenberg’s article (JAC of all trades: should ministers pick judges?, 6 January), I would like to make the following observations. The judiciary must retain its independence from the government. Greater ministerial involvement in the appointment of judges is to be avoided at all costs.

Her Honour Carolyn Mellanby_

Her Honour Carolyn Mellanby

However, I see no evidence that the JAC, ‘although nominally advisory… has become de facto an appointing body, and one controlled by the judges’. Many of the judges to whom I have spoken over the years have been mystified by some of the appointments. They have not received feedback regarding why the candidate for whom they have conscientiously spent hours preparing a reference has failed to be appointed. They are at a loss as to what they could have done better to promote, mentor and bring to the attention of the JAC a highly suitable and worthy candidate.

I experienced a tortuous journey through the appointment process from 2007 to 2018. I was first appointed as a district judge (magistrates’ courts). As a solicitor in private practice, I made three applications. Then I was appointed as a circuit judge in the family court (three applications). In between, my two applications to become a recorder both failed. I was left disheartened, angry and embarrassed.

My experience of the appointment/application procedure was far from transparent. It was a mystifying and confusing process which was confounding at every turn. There was an ever-changing raft of tests, screening, comprehension tests and sifting processes which did not appear to properly assess my wisdom, longstanding professional experience and all that I had to offer. For example, in the last competition the ‘five-year rule’ was included for the first time. I had submitted my application at the age of 64 but the process was so slow I had reached 65 by the time of interview. There was a suggestion that my case should ‘go before the commissioners’ as I would not qualify for appointment at the age of 65. Where did that rule come from? Not only did the goalposts keep moving but it seemed the JAC had lost sight of the pitch altogether.

My referees were similarly confounded. I was extremely embarrassed and felt obliged to apologise for the time they had undoubtedly wasted in preparing reference after reference in support of my various applications. I assume many of these never saw the light of day at the JAC because I had fallen at the first hurdle. Did the JAC keep them on file and see if I had improved?  On one occasion, I was shortlisted but then not appointed as ‘time expired’; and forced to reapply all over again with a fresh application and fresh references.

I recently retired at the age of 70. The retirement age has been raised to 75 (another moving of the goalposts). I now feel able to speak out without compromising my career or that of the people for whom I have agreed to be a referee. I have provided references for the worthiest of candidates. I have encouraged outstanding deputy district judges, barristers  and solicitors who have impressed me as having the special qualities required, particularly within the family courts. I resigned from the official mentoring scheme because I was defeated by the application process. I felt unable to mentor a candidate when I, myself, was failing so miserably in the competition for circuit judge. I should add that I have declined to provide references when I considered the candidate unsuitable or ‘not ready’ to become a judge.

I remain deeply troubled by the selection process. I refer particularly to legal advisers. There are difficulties in recruiting to some judicial offices (especially family judges). Many high-earning barristers and solicitors at the top of their game are unattracted by the remuneration and pension terms. The suitability of legal advisers with the qualities and skills  they can bring to the bench are largely overlooked or, worse still, ignored.

Maybe the time has come for the establishment of a recognised, identified career path towards appointment as a judge, with an honest ‘job description’ of the qualities and necessary life skills required for the particular judicial office. It should not be a criterion to have been involved in some high-profile or reported case, nor a requirement to have had the financial resources to apply for and obtain silk.

There are many legal advisers who have years of experience in the law, of people skills and of dealing with and working alongside advocates (often of junior calibre, but by no means always). On a daily basis they are honing and observing their courtroom skills of teamwork, diplomacy, reading a situation, coping with large volumes of documents, dealing directly with troubled and distressed members of the public, advising – and dare I say it, if not writing judgments, certainly helping magistrates to put into writing their facts and reasons. Most decisions are not appealed and withstand the scrutiny of the higher courts. They see and learn judgecraft every day. I fear these invaluable skills are not properly assessed in the selection process, nor are they qualities that are present in many of the successful candidates.

Legal advisers are proving difficult to retain given their low salary, poor career prospects, low morale and, at times, lack of respect and appreciation of their breadth and depth of experience. They are neither encouraged nor supported to apply for judicial office. This cannot be right. While I acknowledge there have been some  appointments to the judiciary of former legal advisers, they are few and far between. I question if the JAC and the selectors have any idea what skills and qualities many legal advisers have and what a missed opportunity this is.

 

Her Honour Carolyn Mellanby retired in 2022 (Family Court). Formerly: court usher; deputy chief clerk/legal adviser (barrister); magistrate Seychelles; county prosecutor/ CPS; solicitor private practice; deputy district judge (magistrates’ courts); district judge (magistrates’ courts)

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