ìDescribe the Ways in which Judges are Appointed, Selected and Trainedî
Written by Paul Powlesland
Although the question around which this essay is based uses the term ìJudgesî,
it is important to differentiate between superior and inferior judges, as there
is a large difference in the way they are appointed selected and trained.
Superior judges sit in all courts above and including the High Court. Inferior
judges sit in all courts below and including the crown court. The ways in which
inferior and superior judges are appointed selected and trained are very
different, so each one will be looked at separately. However, the criticism of
the ways in which they are appointed, selected and trained are similar, so the
criticism will be looked at together.
Appointment and Selection Of Judges
For this part of the essay, it is worth bearing in mind which part of the
question refers to which type of judge. Superior judges cannot (usually) apply
for the job; they must be invited and as such are appointed. Inferior judges
have to apply for their jobs and as such are selected. The largest recent change
to the appointment and selection of Judges was as a result of the Courts And
Legal Services Act (1990). Due to this, solicitors could become superior judges
and academic lawyers (those who have qualified as a Barrister or Solicitor, but
never practised) could also be appointed. In addition this act provided for
promotion from one level to the next, thus making it clearer how people move up
the judicial ladder.
Superior Judges
The most important thing about the appointment of superior judges is that it is
by invitation only (except in the High Court where you can apply, but many are
still invited). The system of appointing judges had for many years been shrouded
in secrecy. However, some light was shed on it in 1986, when the Lord
Chancellor, Lord Hailsham produced a leaflet called ìJudicial Appointments.î In
this document, it was revealed that the Lord Chancellorís Department keeps files
on potential candidates, which include opinions on them from existing judges and
people in the legal profession. These files are secret and as such candidates
cannot see what is written about them, leaving errors to remain uncorrected. Due
to this secrecy, this system has had a lot of criticism (see criticisms below)
and has raised questions about the Lord Chancellorís large involvement with
judicial appointments. The Law Lords are appointed from those who hold ìhigh
judicial officeî, for instance as a judge in the Court Of Appeal, or who have
had rights of audience in the Supreme Court for 15 years. In addition, because
the House Of Lords is the final appellate court for Scotland and Northern
Ireland, Law Lords can be appointed from those who have held high judicial
office in those legal systems as well. The appointment of Law Lords, is a
process that is actually carried out very differently than it is supposed too.
The Law Lords are supposedly appointed by the queen after being nominated by the
Prime Minister. However, in reality it is believed (because the process is so
secretive we do not actually know) that the Lord Chancellor draws up a shortlist
in order of preference and the Prime Minister chooses from this list. Usually,
the Lord Chancellorís first choice is appointed, but on at least on occasion Mrs
Thatcher overrode Lord Hailsham (the then Lord Chancellor) and nominated the
second choice. Although in theory solicitors could become a Law Lord, the
Appellate Committee is still the preserve of barristers. Likewise no woman has
yet been appointed as a Law Lord. To be appointed as a Lord Justice Of Appeal,
you must be a High Court Judge or have a 10- year High Court qualification
(however most of those appointed had been a High Court Judge). Like with the Law
Lords, the Queen on the advice of the Prime Minister appoints Lord Justices of
Appeal. It is also assumed (although not proven) that then Lord Chancellor will
have a large role in the suggestion of candidates to the Prime Minister. As with
Law Lords, the changes in the Courts and Legal Services Act (1990), which allow
solicitors to become superior judges have not yet filtered through to the Court
of Appeal, as no solicitor has yet been appointed as a Lord Justice Of Appeal.
This could be due to the selection procedure, because it is based on views
expressed by current judges. As such, these judges might try to get people
similar to themselves (in this case Barristers) appointed. However, this view is
undermined by the fact that three women have been appointed as Lord Justices of
Appeal.
To be appointed as a High Court Judge you must have either
had right of audience in the High Court for ten years, or have been a circuit
judge for two years. Due to the High Court being lower in the hierarchy than the
two already mentioned, the effects of the new judicial appointment provisions in
the Courts and Legal Services Act (1990) have begun to filter through. The first
solicitor to be appointed as a High Court judge was Sir Michael Sachs and the
first academic lawyer to be appointed was Brenda Hale QC. This lower status in
the hierarchy is also reflected in the appointments procedure to the High Court.
Since 1998 High Court judgeships have been advertised, so people can apply as
well as being invited. It is hoped that this will mean there is a wider
cross-section of society on the judiciary, as less emphasis is placed on the
recommendations of existing judges, who would tend to recommend people like
themselves. Another difference between appointments at the High Court and those
above is that High Court judges are appointed by the queen on the direct advice
of the Lord Chancellor, instead of having to go through the Prime Minister.
However, in reality this makes little difference, due to the enormous amount of
influence the Lord Chancellor has on appointments of Lord Justices Of Appeal and
Law Lords anyway. One of the biggest problems involved in appointing High Court
judges, is that the salary is not enough to attract the top Barristers that are
needed. For example, a top QC could expect to earn £500,000+ a year, but the
salary of a High Court judge is £125,000. This problem has been exasperated by a
judge now having to serve 20 years for a full pension, compared to the previous
15. So, Superior judges are appointed only after being invited for a position,
except in the High Court where they can apply as well. To assist with these
invitations, the Lord Chancellor keeps secret files on all prospective
candidates, much of it opinions from existing judges. Superior judges are
appointed by the queen either on the advice of the Prime Minister (for Law Lords
and Lord Justices Of Appeal) or the Lord Chancellor (for High Court judges.)
Finally, the appointment of superior judges is just beginning to be effected by
the Courts and Legal Services Act (1990), with solicitors and academic lawyers
being appointed for the first time in the High Court.
Inferior Judges
Unlike superior judges, inferior judges (with the exception of recorders) can
apply for a specific post. This is mainly due to the reform of the procedure for
appointing Circuit and District judges in 1995, which was done to counter
criticisms that the process of judicial selection was too secretive. As a result
of these reforms, positions of Circuit and District judges are advertised in
newspapers and interviews are conducted by a panel that includes an existing
judge, an official from the Lord Chancellorís Department and a layperson. This
panel then makes a recommendation to the Lord Chancellor, but here the secret
ìbackstairsî culture of judicial appointment comes in again. This is because the
Lord Chancellor does not have to accept this recommendation and Lord Mackay (the
previous Lord Chancellor) stated that ìthe opinions of leading judges and
lawyers will continue to be sought and have considerable weight in reaching the
final decision.î As opinions will still be taken from leading figures in the
legal system, the selection process will still not be seen as fair. However, it
has been stated by the Lord Chancellor that appointments would be made
ìregardless of gender, race, religion, and sexual orientation.î Despite this,
this cannot work with the current system, because existing judges are unlikely
to recommend someone who is black or gay, because they would tend to recommend
people like themselves.
To be able to be appointed as a Circuit judge, it is necessary to have had rights of audience for ten years, or have been a Recorder. The Courts and Legal Services Act (1990) has also made it possible for District judges or chairman of an employment tribunal to be promoted to circuit judge if they have served for at least 3 years. However, the usual route to becoming a Circuit judge is through being a recorder first. To be able to apply for a job as a recorder, the applicant must have practised as a Barrister or Solicitor for at least ten years. The procedure for appointment as a Recorder is slightly different to that of a Circuit judge, because an applicant must apply by general application without knowing if there is a job available, because specific advertisements for jobs are not placed. In all other respects, including interview by a panel, the appointment of a Recorder is the same as with a Circuit judge. District judges (both those in the County Court and Magistrates Court) need to have practised for seven years either as a Barrister or a Solicitor. The appointment procedure is the same for District judges, as Circuit judges.
In conclusion, inferior judges can apply for positions, rather than being
invited like superior judges. For the majority of positions advertisements are
placed in the press for these jobs, as a result of reforms that have tried to
make the appointment process of inferior judges more open. However, there are
still many criticisms of the way both superior and inferior judges are selected
and appointed.
Criticisms of the Ways Judges are Appointed and Selected
The main criticism of the way that judges are selected and appointed is the
secrecy surrounding it. The system of the Lord Chancellor keeping files on
prospective candidates that include the opinions of other judges, Barristers and
Solicitors has been widely criticised. The constitutional reform group Charter88
has criticised it as ìsecretiveî and ìlacking clearly defined selection
criteria.î I would have to agree with this view, because the whole process is
secretive, as the person who the file is on is not allowed to view the file and
no reasons are given if a person is (or is not) appointed. In addition, although
Lord Hailsham did issue a document explaining the appointments system, no actual
selection criteria were mentioned and so Charter88ís other criticism would seem
to be valid.
In addition to this culture of secrecy, it is said that this type of selection process, based on recommendation of current judges and lawyers leads to people recommending people they know and who are similar to themselves. The fact that judges and lawyers are recommending people they know can be backed up by a study in 1997 commissioned by the Association of Woman Barristers, that found there was a ìstrong tendencyî for judges to recommend candidates from their own chambers. Their evidence shows that of the High Court judges appointed over 10 years (1986-1996), 28.8% came from chambers that represent just 1.8% of the total numbers of chambers in England and Wales.
It is also widely believed that judges recommend people like themselves, which
is leading to a dominance of white, publicly educated men within the judiciary
and stopping women and ethnic minorities from entering the judiciary. This view
is held by Helena Kennedy QC who said ìthe potential for cloning is
overwhelming.î While this may not be enough evidence on its own (Kennedy is well
known for standing up for womenís rights within the English Legal System and for
her book Eve Was Framed, thus she could have a biased view), it is backed
up by a comment from someone involved in the system at the highest level. In
1992, Lord Bridge (a retired Law Lord) commented on a TV programme that judges
tend to look for ìchaps like ourselves.î This seems to reinforce Kennedyís view
and when combined with the above statistical evidence, it shows that the system
there is a tendency in this system for ìcloningî and this needs to be removed,
in order to make a fairer selection process that makes a judiciary that is more
representative of society.
The last criticism of the current system is the Lord
Chancellorís large role within it. He is directly responsible for the
appointment of all inferior judges and has a large role in recommending
candidates for superior judgeships to the Prime Minister. This large role in
judicial appointment is a problem, because the Lord Chancellor is essentially a
political appointment, as the Lord Chancellor is a cabinet minister appointed by
the government. As such he could be swayed by political factors when making his
appointments. Critics of the current Lord Chancellor, Lord Irvine, point to
the fact that shortly after he was given the Lord Chancellorship by the Prime
Minister, he made the Prime Ministerís wife, Cherie Booth QC a recorder. While
this may not necessarily be an act of political cronyism (Cherie Booth QC is an
expert Barrister in her field) it certainly does not help the Lord Chancellor to
look political neutral and fair in his appointments.
Although there are many criticisms of the current method of
judicial appointments, many people defend the system, saying reforms have been
done. The biggest change they point to is the Courts and Legal Services Act
(1990). As a result of this act, appointment to superior judgeships was opened
up to solicitors and a system of promotion from one level to the next was
provided. In addition, those in favour of the current system point to the
reforms of 1995 as further evidence of the reforms within judicial appointments.
These reforms meant that inferior judgeships are advertised and candidates can
apply for a post instead of having to wait to be invited.
However, many who are critical of these reforms have labelled them as ìwindow
dressingî (English Legal System By C. Elliot and F. Quinn) because the Lord
Chancellor has stated that the opinions of current judges and lawyers will
remain important. The introduction of a Judicial Appointments Commission to act
as a ìwatchdogî on judicial appointments has also been given as an example of
reform to the judicial appointments procedure. However, many people believe that
the powers given to it do not go far enough. While the two sides disagree to
some extent as to their opinion of the current system, most people within the
legal profession would agree that change is necessary. The law reform group,
Justice, recommended the introduction of a committee comprising representatives
of the Bar, the Law Society, academic lawyers and lay people, who would have
responsibility for judicial appointment. The Lord Chancellor would work
alongside this committee, but crucially would not have the power to make
appointments without. This type of model has also been recommended by the
pressure group Charter88, the Law Society and the association of Women
Barristers. Although a Judicial Appointments Commission has recently be
introduced, the groups listed above believe it does not have enough powers, as
it is a watchdog and does not have any actual powers.
In conclusion, the current system of judicial appointments
has been criticised because it is too secret and tends to perpetuate white, male
dominance within the judiciary. In addition, recent reforms have been criticised
for not going far enough. To try and make the judicial appointments system
fairer, many would like to see a committee that would be responsible for
appointments.
Training of Judges
Although new judges will have had many years of experience as a Barrister or
Solicitor, they receive surprisingly little training for their new role,
considering the importance of what they do. What training they do receive is
from the Judicial Studies Board set up in 1979 as a result of the Bridge Report.
This report is important, because it sums up in simple terms the most important
objective of Judicial training as ìTo convey in condensed form the lessons,
which experienced judges, have acquired from their experienceÖî It is worth
bearing this in mind while considering judicial training, as it underpins what
judicial training is about.
Inferior Judges
Most of the training that judges receive is concentrated at the lower parts of
the judiciary, namely recorders. This is quite sensible, because it gives the
novice judge the basic training they need to step onto the judicial ladder and
then the experience they gain on each level of the judiciary then acts as their
training for the next level. This is especially so, given the clear system of
promotion from one level to the next, brought in by the Courts and Legal
Services Act (1990). It also reflects the main objective of judicial training as
outlined by the Bridge Report (1979) (see above). The actual training given to a
recorder consists of a one-week course run by the Judicial Studies Board and the
shadowing of an experienced judge for a week. Then, after only a fortnight of
training they will sit to hear cases (although from time to time there will be
one day courses, for instance on the effect of new legislation.) Another form of
training now given to circuit judges and recorders is human and racial awareness
training. Racial awareness training is a course designed to ìmake [judges] aware
of what might be unintentionally discriminatory or offensiveî (English Legal
System By J. Martin). Human awareness training explores the ìperceptions of
parties representing themselves, witnesses, jurors, victims and their families
and tries to make judges aware of other peopleís viewpoints.î (English Legal
System By J. Martin).
In addition to this training, new training is needed when the
legal system is changed or reformed. A good example of this is the new training
needed due to Lord Woolfís reforms of the civil justice system, which call for
District Judges to be ìactive case managersî, supervising timings and costs. New
training is being given to judges to help them take on their new role as a
result of these reforms.
Superior Judges
It has already been mentioned that most of the judicial training is concentrated
at the bottom, of the judicial hierarchy (Recorders and Circuit judges). As
such, there is no compulsory training given to superior judges, although High
Court judges are invited to attend the courses run by the Judicial Studies
Board. Other than this, there is no other training given to superior judges.
This is because they are higher up the judicial hierarchy and it is felt that
the training they have is from their career as a Barrister or Solicitor and from
the experience they have from their time lower down the judicial hierarchy as an
inferior judge.
Criticisms of the Ways Judges are Trained
The first and foremost criticism of the ways that judges are trained, is the
lack of it. Considering the importance of the work they do, judges actually
receive very little training. Although people in favour of the current system
would point to the fact that all judges appointed are experienced lawyers,
critics argue that being a judge involves very specific and different skills.
For instance, being a good lawyer does not mean they have any experience of
summing up to the jury or sentencing and it does not mean they have the sound
judgement necessary to be a good judge.
In addition, this lack of training is made even worse if a
judge has not had experience in the field of law in which they are passing
judgement. For example, a Recorder may not have practised in the criminal courts
as a lawyer, but after two weeks of training, may hear a criminal case that
could involve a substantial loss of liberty. Despite all this, those defending
the current system say that a lot of training can be accomplished in a week and
one off training days to refresh this training supplements this. In addition,
judges do not need to learn too much about summing up and what to say in a
trial, because it is all provided for them. The Judicial Studies Board gives
every judge a handbook called ëThe Criminal Bench Bookí, that contains scripts
of what judges have to say within it. All they have to do is memorise this,
tailor it for their case slightly and it is done, how much training do judges
need to do that? However, although this might alleviate somewhat the need for
training in what to say in court, training still needs to be given in how to
judge a case and in sentencing. It is also generally agreed that more training
needs to be given to judges, but how should this be done?
Some people believe that the best way to address many
problems in the judiciary, including training and the problems surrounding
appointments, is through the introduction of a career judiciary, as is seen on
the continent. In this system, to become a judge is a career choice and
people are trained to be judges (rather than having to become a Barrister or
Solicitor first). This means they have the specific skills needed to be a judge,
rather than having to rely on the small amount of training given to judges in
the English Legal System. However, while this proposal might sound good, it is
probably too radical a change on the English Legal System and I believe it would
compromise the independence of the judiciary. Less radical proposals put forward
include that by Helena Kennedy QC, who suggests that judges might benefit from
sabbaticals in which they could ìstudy the practises of other jurisdictions and
the work of social agencies and reform groups.î Lord Woolf has also proposed
that judges should receive training in information technology, so that they can
make more use of computers in their work. I believe this is a very good idea,
because on a college visit to the Old Bailey, a college student had to help a
judge operate his computer so he could carry on with a trial, not a very good
thing in a world that is increasingly reliant on computers.
Overall, I believe the best way of improving judicial
training is not through large sweeping changes, but through a gradual increase
in amount and diversity of training. A previous head of the Judicial Studies
Boards, Henry J, also agreed with this when he said an increase in training
should be ìa gradual response to obvious needs, rather than the beginning of
some kind of judicial training college, as seen in other legal systems.î
Conclusion
In conclusion, the division of the judiciary between superior and inferior
judges has a large impact on the ways they are selected, appointed and trained.
For instance, you can apply for the post of an inferior judge, but you must wait
to be invited for a post as a superior judge. In addition, judges receive most
of their training when they join the judicial hierarchy as an inferior judge.
Superior judges receive little, if any training. There are many criticisms of
the ways in which judges are selected, appointed and trained. With regards to
training, it is that there is to little. This could simply be improved with the
gradual introduction of more training before and during becoming a judge. With
regards to selection and appointment however, the problems are much larger and
more deeply rooted within the system. The policy of the Lord Chancellor
appointing people secretly on the advice of current judges and lawyers has got
top be ended. Only when this is done, will the English Legal System have a
fairer system of judicial appointments and thus a judiciary that better reflects
the population whom it is there to serve.
November 2002
Bibliography ...
… Martin J. -ëThe English Legal Systemí- Hodder & Stoughton (2002)
… Elliott C. & Quinn F. ñëThe English Legal Systemí- Longman (1999)
…
www.jsboard.co.uk