There are various qualities required of a judge which will be difficult to assess during the current appointments process, a process which is also prejudiced if behind-the-scenes influence is deployed

This is an important question and the members of the Judicial Appointments Boards for both Scotland (“JAB”) and the rest of the UK will be able to provide answers. But as with all systems for appointments to any position, the candidate appointed may not turn out to be a “good appointment”. I should make it clear that I am not casting aspersions on JAB or suggesting that any appointments made are suspect. Nor am I suggesting that interviews be abandoned. They are, perhaps, the best we can do.

On its website, under the heading “What we're looking for”, JAB lists the following: knowledge of the law, interpretation of the law, working with others, communicating effectively, exercising judgment and managing work efficiently. Under “Mindset,” it lists principles: independence, impartiality, integrity, propriety, equality, competence, diligence.

One thing which an appointing body will not discover, because it may not be discoverable by an interview, is whether the candidate will suffer from an incurable disease – “importantitis”. There are people who might have seemed well balanced, but on becoming for example, a professor, or head of section, or a sheriff principal, regards those not so elevated as somehow inferior and ends up treating them accordingly. Invariably, these “important” people see their new position as one of power rather than one with responsibilities. The judicial oath, “to do right by all manner of people”, makes no mention of power. Judges have power: everyone knows that. So why demonstrate that that is how you see the job?

Apart from not being able to identify “importantitis”, JAB, while doing its best to identify whether the candidate fulfils its criteria under “What we're looking for” and “Mindset”, will take a risk, as all interviewers do, and hope that all will be well with any appointee. Interviews will not necessarily identify someone who can work with others, or communicate effectively, or that the person will be impartial, act with propriety, treat people equally and be both competent and diligent. There are other things which make a person a good judge, and again, interviews will not necessarily identify a candidate who has not got them.

Also desirable

What else makes a good judge? The following, I suggest, are important, and may not be identifiable during any appointment process.

  1. The judge must be an upholder of the law, whether in statute or as laid down by a superior court. That seems fairly obvious. It follows that the judge's personal views are irrelevant and the judge is required to decide the issue in accordance with the law, not as the judge would do if given a free hand. All judges will have views, e.g. on abortion, withdrawing treatment from the terminally ill, and the utility of prison sentences. In the case of sheriffs, a community-based disposal can be imposed in summary cases to avoid a jail sentence, which the sheriff may feel would do no more than give the public a rest, but if the offender does not comply, the sheriff may have to bite the bullet and impose a custodial sentence. The judge in solemn proceedings who allowed a personal antipathy to imprisonment to influence the decision might be failing the public if someone found guilty, say, of a very serious assault were give a community-based disposal, unless there were other mitigating factors. Furthermore, the judge has to have in mind the public perception of what is appropriate, and also the reputation of the judiciary.
  2. The judge has to reach a decision having regard to the submissions by the parties and not decide the matter by going off on “a frolic of his own”. If the judge, in the course of deciding the issue, discovers say a statutory provision, or a decision, to which parties have not referred, the correct course of action is to put the case out so that the court can be addressed on the new material.
        However, even if there is no new material, the judge must give careful consideration to the submissions and decide the case on that basis, and not in the way that the judge would decide, if there was a clean sheet. In Scotland, we pride ourselves on system based on principle and not precedent and the judge must think about the principle involved. That approach may lead to the decision and the judge will state the principle which was applied.
        The judgment may, of course, take a number of different forms. In a civil case, the decision may be written with the pursuer in mind to demonstrate, e.g. how badly the judge feels the pursuer was treated. The decision may be written for the defender to show that, unfortunately, the defender has identified a badly drafted statute but, because its terms seem clear, amendment is for Parliament. The decision may be written for an appeal court because the judge was faced with little in the way of precedent, or one other case which the judge thought was wrongly decided. In a criminal case, a custodial sentence may be imposed because of the accused's record, but it might be imposed to send a message to others who might be tempted to become involved in similar offending. An interview will not identify someone who would indulge in “frolics”.
  3. The judge must behave properly, however sorely tried, say by a party litigant. Even some lawyers may try a judge's patience! “You have said this three times and I am still not convinced.” Nothing wrong with this, but, “You have said this three times. Are you so dense that you cannot see that your point is not accepted? Get on with it and stop wasting my time, which, sadly, you do all too often.” Whatever, the judge might feel, the latter outburst would best be left unsaid! Whoever the litigant is, it is essential that that litigant can see that the playing field is level and that the bench will listen carefully and be courteous, accepting that the litigant, even if represented, is in a strange environment. That strangeness should not be exacerbated by the demeanour of the person on the bench.
        Behaving “properly” will include knowing when not to deal with a case, e.g. because the judge knows one of the parties. A register of interests which discloses a shareholding in the Left Bank of the Clyde, or membership of the New Town Darts Club, will not assist in determining whether one is sufficiently well acquainted with a litigant to make it appropriate to decline to sit. Would this come out at interview? No, because one has to leave it to the judge's common sense.
  4. The judge must be able to communicate well, not only in writing but also to litigants in the court/tribunal. The communication in a legal debate is different from the communication when the judge has to address litigants, albeit through their representatives. The legal debate may be conducted by those who are familiar with legal terminology, even in Latin, but one would avoid using, say, “res judicata” to a litigant, even if represented. “Raise what?” An interview can identify someone who communicates well with the panel, but the panel will be people who have a measure of intelligence and, sadly, some of the litigants do not. Party litigants often have a “view”, and no matter how the judge tries, the “view” will remain; and, of course, an appeal court may be exposed to the “view,” because the inferior court did not understand it, or was not prepared to accept it.

As I said, it is no criticism of the JAB if it is unable to identify in a particular candidate all the qualities needed for a good judge and the bad qualities which a judge might acquire. Their task is not easy and the members will, without doubt, do their best to ensure that those appointed are the best of the applicants, and will be “good” appointments.

Openness undermined

The current system replaced the so-called tap on the shoulder, and thus is heralded as being more open and transparent, even if much more expensive. One could justify the expense if it could be demonstrated that JAB appointments are superior to those of the past. That is impossible to show. Therefore, we fall back on the advantage of having lay people involved. Thus, having lay people means, for many, that there is openness and transparency.

However, that too is in doubt, and this is not a reflection on JAB. There is said to be at least one case where a First Minister (to whom JAB makes its recommendations) decided to appoint someone who was on the list of those whom JAB thought should not be appointed, and without doubt, cogent reasons would have been given. There is a documented example of blatant and inappropriate involvement of the civil service in Scotland. In Lord Hope's Diaries (UK Supreme Court 2009-15), he narrates being asked by a sheriff principal for a reference for appointment as a senator. Lord Hope states that he had been told by the sheriff principal of an approach by a civil servant (who he names), who had been the head of the Scottish Justice Department and was “encouraging” the sheriff principal to apply. Despite his saying that he was content to remain in his then post, and indeed, was rather older than your average candidate, the pressure was there.

As Lord Hope points out, this was not a whim on the part of the civil servant. Why the approach was made, we will probably never know. What would have happened had the sheriff principal resisted the overture, one will never know, but as the civil servant seemed to have “an agenda”, it is not improbable that had the sheriff principal thereafter wanted, say, an extra sheriff, or additional court space, these requests might have fallen on deaf ears. “Would like to help, but no money. I am sure you understand.”

The fine-sounding statements about openness and transparency were and are intended to suggest that the system for judicial appointments is to be free from interference by civil servants. The previous system, whatever its perceived failings, was not open to this kind of interference. Clearly, as Lord Hope narrates, there was interference, and there may be other examples of “We think you should apply to be a…”. Other examples or not, one has to wonder what reason a senior civil servant would have to be seeking to influence who would apply. It is likely that this same civil servant would have been involved in discussions about the composition of JAB. The non-transparent back door to JAB, if not fully open, is certainly ajar.

The task of JAB is difficult enough, trying as it must to identify those who fulfil its criteria, who will hopefully make good judges and possess the qualities I have mentioned, without having those who should keep their snouts out of the trough intentionally sticking them in. What gives a civil servant, or anyone else who is not a member of JAB, the right to decide who would be a suitable candidate and then put pressure on such a person to apply, or to ignore the recommendations made by JAB who, after all, will have seen the candidates' references, the CV, and assessed how well or otherwise they did at interview? Answers, which must be both open and transparent, on a postcard please.

The Author

Douglas J Cusine, retired sheriff

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