My reaction to the article “Bench marking” (Journal, February 2020, 18) was initially one of concern, leading to incredulity and ultimately despair. The article acknowledges that there has been widespread objective criticism of the workings of the Judicial Appointments Board. Formally and anecdotally across the profession, those criticisms are withering, and many recent appointments have been treated by experienced professionals with a mixture of mirth, shock and in some cases disbelief.
Applying the objectivity of a solicitor of more than 40 years’ experience, much of it in the sheriff court, my view is that the quality of many appointments, both of sheriffs and summary sheriffs, leaves much to be desired. Perhaps that view is unsurprising given the continuing mantra emanating from the Board, that diversity is all. In a modern Scotland, no one should criticise genuine attempts to create an inclusive and diverse bench reflective of society.
Diversity, however, is not the holy grail, the search for which should transcend all other relevant and fundamental characteristics required to be displayed by those appointed to judicial office, and many have come to the view that the quality and suitability of candidates has been sacrificed on the altar of political objectives of diversity and inclusion. Whilst those goals are welcome in a general societal context, they are not benchmarks by which applicants should be appointed as sheriffs.
The calibre of sheriffs and their ability to oversee the litigation process goes to the heart of our judicial system. Sound sheriffs are the bedrock of the effectiveness, efficiency and relevance of the sheriff court. With another wave of appointments now due, there is a fortuitous opportunity to rebalance.
The chairman says that in furtherance of the diversity objective the Board is looking to recruit from in-house solicitors. I do not demean those practising in-house, and have during my career had many dealings with highly competent lawyers both in the public and private sectors. To attribute to those lawyers, however, the type of experiences and skillsets which are fundamentally required of a sheriff is misguided unless the necessarily compacted and limited training they receive will be sufficient to ground them fully in the plethora of complex and challenging rules of evidence and procedure and gift them the ability hitherto born only through experience of addressing the credibility and reliability of witnesses giving evidence.
Such experience, knowledge, talent and ability are the keys in determining just outcomes. To consider candidates without that experience is, frankly, at best ill-judged. Perhaps the most worrisome comment of the chairman in explaining the Board’s approach, explaining what sort of experience an in-house solicitor might have to offer, is: “For example, they have been a school governor”. To imagine that governorship of a school, however important that may be, properly prepares one for judicial office, beggars belief. I implore the Board and those making application to focus on whether candidates truly have the skills, experiences, talents, temperament, overall knowledge, character and ability to discharge the judicial function upon which our whole rule of law is so dependent.
Please let’s not add more opportunities to hold the profession in general and the workings of the Board in particular to more public opprobrium.
Graeme McKinstry, chairman, The McKinstry Company, Ayr
PS Using the lawyer’s phrase ”for the avoidance of doubt”, I am not a disappointed failed applicant.