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The JAC has drafted a “competency framework” which lists “behaviours” which an applicant must instance — with those examples, of course. So a candidate must provide accounts of their acting with integrity, being fair, demonstrating independence of mind, attentiveness, courtesy, resilience and so on. (One might think that anyone who can provide examples of his own integrity is ipso facto unsuitable for the Bench.) It is fortunate that people of talent are willing to undergo this infantilised process, but they are ever fewer. The leading legal journalist Joshua Rozenberg has referred to a “misconceived appointments system”; many agree.

In the context of the present crisis, it is almost by-the-by to suggest that selection by quango is fallible and, in the minds of many observers, frequently productive of less good judges than the Lord Chancellor’s fiat, for all that our process-mad society holds the former to be superior because more transparent. Announcements of new appointments are not infrequently greeted among barristers with disbelief or bemusement. But in circumstances where the number and quality of candidates volunteering for judicial office are declining, the JAC cannot be blamed if the best candidates available (assuming it chooses them) are sometimes not good enough.

Relatively little seems to have been written by judges on the consequences for them of the Blair reforms, as opposed to the reforms themselves, no doubt in part because judges are a loyal, discreet and publicly uncomplaining bunch, whose own preference for anonymity is antithetical to becoming part of the story themselves. Few serving judges are willing to go on the record, although present and former Chief Justices have been critical of the relegation of the role of Lord Chancellor in particular (for example Lord Judge’s essays in The Safest Shield). Even retired judges have an understandable preference to speak unattributably. But no one can dispute that the judiciary is voting with its feet.

So what, finally, is it that is so unattractive about being a senior judge these days? What are the factors that Lord Thomas has referred to as “very substantial deterrents to joining the Bench”? Why do judges feel, in his words, “not valued or appreciated for their work”?

People often talk of the unwritten covenant between society and its servicemen. There used to be a similar bond between society and the judges. They were not employees, still less civil servants, but (as stated) office-holders under the Crown. Until the mid-1990s, they were often not appointed until about the age of 60 (thereby giving them time to accumulate a self-employed person’s pension), and they retired after 15 years having earned in full an index-linked pension based on half final earnings. This was seen as a very important part of the overall remuneration package. Cushy? Not compared with the sort of earnings which most of them could have commanded and which they renounced for good. Other intangible elements of the covenant were the loyal support of a Lord Chancellor who would know them personally, the joining of a cadre of motivated high-achievers and the assurance that, barring some gross misconduct, they would be left alone to get on with the job of judging cases. And now?

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December 20th, 2016
2:12 PM
Paul Leslie's posting is wholly inappropriate. His complaints arise from matters nothing to do with what Jonathan Gaisman has so pertinently written about and he does not begin to justify his comment that "most of this article is utter nonsense and even dishonest in parts". That is unsurprising: the article is on the ball and palpably honest.

Paul Leslie
December 15th, 2016
2:12 PM
Unlike most Standpoint articles this piece is not only utter nonsense but also dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are" - what vigorous defence? With the full complicity of many senior and more junior judges - sometimes even without recourse to legislation which tramples the rights of the accused - more and more cases are coming to court where there is no proof even that a crime has been committed Especially since the deplorably one-sided report by Robin Auld, the only defence for the unjustly accused against prosecution is not the lack of solid evidence but a belief by the DPP that there is not a more than 50% possibility of conviction. As far as victims of miscarriages of justice are concerned they have to jump through expensive hoops and demonstrate their innocence "beyond reasonable doubt". Even when, as in the case of Victor Nealon, this can be conclusively demonstrated - including by invoking the proof (I am aware that absence of evidence is not always proof of innocence, but not in this case) that his DNA was completely absent, whether on the victim's clothing or elsewhere at the scene of the crime - there are any number of highly placed judicial functionaries to bring forward specious arguments to deny justice to the wrongfully convicted. See and other relevant articles.

Paul Leslie
December 15th, 2016
2:12 PM
Unusually for a Standpoint article most of this article is utter nonsense and even dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are." - and the complicity of so many senior and more junior judges in the serious erosion of the fundamental principle of the presumption of innocence and the contemptible curtailing of compensation for the wrongly convicted? The wrongly convicted have to jump through expensive hoops to have a chance of being compensated and to demonstrate that they are innocent "beyond reasonable doubt". Take, for example, the case of Victor Nealon case where the absence of his DNA at the scene of the crime demonstrates conclusively that he could not have been guilty the high ranking judicial functionaries involved found a way to deny him any form of retroactive justice (I am aware that absence of evidence is not always a proof of innocence, but not in the case of this poor man who served seventeen years in prison following a deplorable miscarriage of justice). In a country where the judiciary is attached to the right of a fair trial someone who is acquitted or wrongly convicted and only belatedly let out of prison should not pay for justice to be properly served.

Angela Brown
November 25th, 2016
7:11 PM
The selection process for judges seems to be built around a framework of desirable competencies and behaviours, as frequently used by HR professionals. A much better indicator of capability and potential is performance in relevant current and previous roles, when available, which it surely is in the case of recruitment to the judiciary.

November 23rd, 2016
2:11 PM
I entirely agree and particularly enjoyed the excoriation of Falconer. It seems a shame to bring the Article 50 case into it though. However unfair some of the press criticism may be it is not a case of the courts stepping in to restrain a tyrannical legislative majority or overbearing executive, but of the courts being exploited by a disaffected minority to try to frustrate the result of a referendum. Perhaps it was the right decision from a legal point of view but lawyers should not be surprised that non-lawyers look askance at the outcome.

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