How to become a new sheriff

Back in the day, when I started treading the boards in 1975, sheriff were like gods. Now I know from my own experience and the passage of time, they are only human.

Ex-Harrovian Sheriff John Belford Wilson Christie was one of the first I appeared before. He was very calm and polite and only got a bit tetchy when Perth Races were on and he needed an early finish to perform judicial functions in respect of jockey violations at the Scone track. Rumour had it that he was chauffeur-driven to the court each day from his policies in Cupar in his Bentley. Times have changed a wee bit since then.

Taking the Queen’s shilling was a mysterious process involving a tap on the shoulder from the Lord Advocate of the day. Many were advocates chosen perhaps for their political affiliations. They could be readily seen around Parliament House, young men in their early 30s with little practice, and caught the eye of the Lord Advocate as he paced up the Great Hall as the others stood warming themselves at the fire until perhaps a brief emerged.

Others seemed to have been driven from the bar because of certain character flaws, with the rejoinder “You’ll never take silk!” This group clearly did not enjoy life in the inferior court and would often be rude and demanding. I always found if you stood up to them and quoted a bit of law it did divert their minds back to the task.

I was always pleased that I was appointed a sheriff at the first competitive interview board. Pre-JAB there was no complicated form to fill in, and apart from the redoubtable Barbara Duffner, “the lady from the Post Office”, I knew all of my inquisitors.

Mrs Duffner did ask the most pertinent question. As an ex-fiscal my knowledge of the criminal law was assumed, “but what did I know of civil law?” “Well,” I replied, “I’ve been sued by John Renton Mowbray.” “Haven’t we all!” replied Sheriff Principal Gordon Nicholson, and the interview seemed to go alright after that.

From fiscal to sheriff

Coming from the Fiscal Service bureaucracy, I had been interviewed several times for promoted posts. Later I became a board member and finally a board chair. Most solicitors and advocates did not have that experience, and some may have appeared “flat” at interview, as you have to sell yourself and talk of your experience: nowadays, most of the JABS members, being lay persons, are unlikely to be aware of your prowess in the heritable court.

For a while very few PFs became sheriffs. Len Lovat, who was an excellent senior fiscal in Glasgow and became very much admired and respected on the bench at Hamilton, blotted his copybook early on when cross-examining the accused in a jury trial: see Livingstone v HM Advocate 1974 JC. Mind you, the most effective cross-examination I have seen came from the bench in summary trials by Sheriffs Irvine Smith and Graham Cox.

By the late 1990s I had gravitated to senior management in COPFS. Yet another public sector financial crisis loomed and the meeting was brought up to date by the chief accounting officer. Trouble was, we had all been in the service too long, had worked our way up the increments and we now took up 90% of the budget. The meeting received the news in silence and gloom descended.

“I have an idea to solve this problem: get the Lord Advocate to make us all sheriffs!” Everybody thought I was daft, but it did sort of come to pass. Some were appointed in the last old-style rounds in 1999, then I and a few others were appointed from 2001 onwards.

Eventually this board morphed into the Judicial Appointments Board for Scotland, when put on a proper legislative footing by chapter 3 of the Judiciary and Courts (Scotland) Act 2008. A lay chair was appointed and the majority of the Board are non-lawyers. I think that is a better, fairer system.

Diverse enough?

At s 14 of the Act diversity is enshrined as a principle, and there is a Board member to champion it. There will never be universal agreement about JABS appointments. Some are put off by the process and the competency-based application form, which is counter-intuitive to all except HR professionals who want to box you into 500 words for ease of processing.

I have however been struck by the way in which solicitors from far flung parts of Scotland have made excellent appointments, whereas in the past these candidates would never have had a look-in when three quarters of appointees came from the Edinburgh-Glasgow corridor. Diverse appointments have been made too, so JABS can hold its head up high against the other 100 Scottish boards and quangos. In part this has been achieved by the outreach roadshows run by JABS and the Law Society of Scotland to inform would-be applicants. I have in my time taken some potential applicants on the bench with me to see if they would actually like the job.

No criticism is implied of any of the successful candidates, but there are still too few women appointed: only 12 out of the 32 appointments. We know that there are about two thirds women law graduates, that this has been so for some years and a majority of the solicitors' profession is female, but numbers in the judiciary seem to be stuck about 20-35%.

The majority have lengthy experience in COPFS; by contrast very few specialist defence agents have been appointed in recent years. I learned much appearing before Sheriff Bill Christie, who had defended criminal cases for many years from the inception of modern legal aid in the 1964 Act. He was a very fair man. He presided at Kirkcaldy for many years, knew the geography of his sheriffdom like the back of his hand, and recognised many of his customers from past occasions, but was able to shut this out of his mind. This was at the time when many cases were based on “special knowledge confessions”, and he took great care over the circumstances which emerged.

If the case was well defended and there was a consistent line throughout, he was slow to convict, but otherwise was a robust sentencer. It taught me to look at the strengths and weaknesses of a case and not be bowled over by any misplaced optimism about what might have been in the Crown papers but somehow was not satisfactorily adduced.

For those considering applying...

I wish the new tranche well. I understand more appointments are to come. They will need to be able to type their own opinions, run a paperless “simple” procedure proof off three screens and take the definitive note while keeping order.

Online evidence is the way ahead, but some witnesses just present flat – perhaps like unsuccessful judicial candidates. With all this technology installed, the project to have tape recording available in all summary courts seems to have stalled. At least they will have the advantage over referees in that there can be no action replays. It still is a good job and one worth doing well.

So what advice can I give young lawyers who seem touched by a desire to become a sheriff at an early age?

1. Get a broad experience. My time as an ex-officio Council member of the Law Society of Scotland was invaluable, as was work with charities.
2. Even if you don’t appear on both sides of the table, understand how the other side works and respect those who do it well.
3. Find a sheriff you can chat to about how you are progressing and whether you should seek extended rights or go to the bar.
4. I was saddened to hear of the death of Sheriff Bert Sheehan. He was my mentor. I had no shreival aspirations until almost the millennium after 25 years in practice, but with Bert’s advice and subtle hints I was able to tell the Board, career PF or no, I wanted to become a “flexible judicial resource” in the sense that I wanted to learn about all of the work, as inevitably you get cases about an area of which you know little. It is the lawyer’s job to inform the bench, or increasingly nowadays the party litigants. I think the Board liked that management-speak phrase which I had made up for the occasion!