The five new judges – Douglas Fairley QC, Anna Poole QC, Sean Smith QC, Robert Weir QC and Sheriff Peter Braid – can expect salaries of up to £215K a year, will gain the terms “Senators of the College of Justice” and will sit in the Court of Session & High Court of Justiciary.
The latest round of judicial appointments – announced one day after Holyrood MSPs discussed claims by Lord Carloway - that raising issues of judicial transaprency may cause him difficulty in recruting judges for the Court of Session and the High Court – come after a raft of judicial appointments in the past few months.
In September, the Judicial Office announced the appointment of seven Summary Sheriffs who can expect a salary of £110,335 per annum - Patricia Prycem Charles Lugton, Roderick Flinn, Sukhwinder Gill, Michael Higgins, Hugh McGinty and Colm Dempsey - to various courts around Scotland.
And in August – the Judicial Office announced the appointment of eight full time Sheriffs who can expect £140,289 a year - Paul Reid, Tony Kelly, Sara Matheson, Joseph Hughes, Fergus Thomson, Colin Dunipace, Mhari Mactaggart and Jillian Martin-Brown - on the recommendation of the First Minister.
Lord Carloway (real name Colin John Maclean Sutherland) – who earns £234K a year - also refused to give evidence at the Justice Committe, and demanded to know of questions in advance should he have to address further queries from MSPs who have been investigating a cross party backed petition calling for a register of judicial interests – Petition PE1458: Register of Interests for members of Scotland's judiciary - originally filed at Holyrood’s Public Petitions Committee in October 2012.
Lord Carloway's letter to Margaret Mitchell MSP states “I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”
Among the new appointments to the Court of Session after a closed shop Judicial Appointments Process - is Anna Poole QC – who sat part time as a UK First-tier Tribunal judge (Social Entitlement Chamber) from 2014 and recently took up a judicial position as a salaried judge of the Upper Tribunal of the Administrative Appeals Chamber on 30 April, 2018.
However, a biography published by the Judicial Office for Anna QC as part of the judiciary’s announcement of the new judicial appointments – omits key details of Ms Poole’s representation of the Scottish Government, Crown Office & Procurator Fiscal Service (COPFS), the Scottish Police Authority (SPA) and others, in cases and issues which have been of significant public interest and concerns – and would be expected to be entered in a register of judges’ interests – if one existed.
Details of Ms Poole’s previous legal representation of one controversial public authority were revealed in papers obtained from the Scottish Police Authority (SPA) via Freedom of Information reques.
The information disclosed by the Scottish Police Authority reveals the same Anna Poole QC was engaged by the SPA to provide 'supplementary legal advice' for the controversial Police Regulator's successful attempt to block a request from former board member Moi Ali for access to information.
The Scottish Police Authority initially did not disclose the identity of the QC in response to the FOI request - and only did so after a review was requested of their decision to keep Ms Poole’s identity a secret.
The Scottish Police Authority eventually revealed it had also shared parts of the legal advice with the Scottish Government - who were also criticised by MSPs for their role in poor management at the Scottish Police Authority.
The SPA can also confirm that legal advice was sought from DLA Piper, Solicitors, in relation to a request for information from Ms Ali.
The cost of this legal advice came to a total of £5,875.08 (inc VAT). Parts of this legal advice procured by the SPA was shared with the Scottish Government.
In addition, the SPA obtained supplementary legal advice in relation to this issue. The cost of this supplementary legal advice came to a total of £4,800.00 (inc VAT).
The information contained in the legal advice procured by the SPA as aforesaid is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002.
Sections 36(1) of the Freedom of Information (Scotland) Act 2002 is not absolute exemption and as such, the public interest in disclosing the information must be weighed up against the public interest in maintaining the exemption.
Section 36(1) Public interest considerations favouring disclosure:
Disclosure would provide an understanding around the decision making in relation to the above matters.
Section 36(1) Public interest considerations favouring non-disclosure:
Disclosure of the information requested could prejudice the effective operations of SPA. SPA staff have to be able to discuss certain matters behind closed doors, with an expectation of privacy in those discussions. If that expectation were to be eroded it may affect the free and frank exchange of views and as such inhibit decision making.
In response to the request for review of the decision to keep the QC’s identity a secret, the Scottish Police Authority disclsoed the identity of Anna Poole QC as a provider of ‘further legal advice’.
The SPA’s Information Management Team stated: Having carried out a review of the initial response I am satisfied that the information contained in the legal advice procured by the SPA is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002, we therefore uphold this part of the response.
I can advise that Miss Anna Poole QC was instructed to provide further legal advice.
In response to a second FOI request, the Scottish Police Authority disclosed further information revealing they had shared the legal advice with the Scottish Government.
The Scottish Police Authority disclosed the following: The SPA can also confirm that legal advice was sought from DLA Piper, Solicitors, in relation to a request for information from Ms Ali.
Parts of this legal advice procured by the SPA was shared with the Scottish Government.
In addition, the SPA obtained supplementary legal advice in relation to this issue.
The information contained in the legal advice procured by the SPA as aforesaid is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002.
Sections 36(1) of the Freedom of Information (Scotland) Act 2002 is not absolute exemption and as such, the public interest in disclosing the information must be weighed up against the public interest in maintaining the exemption.
Section 36(1) Public interest considerations favouring disclosure:
Disclosure would provide an understanding around the decision making in relation to the above matters.
Section 36(1) Public interest considerations favouring non-disclosure:
Disclosure of the information requested could prejudice the effective operations of SPA. SPA staff have to be able to discuss certain matters behind closed doors, with an expectation of privacy in those discussions. If that expectation were to be eroded it may affect the free and frank exchange of views and as such inhibit decision making.
And your further response of 13th November:
I can advise that Miss Anna Poole QC was instructed to provide further legal advice.
The SPA are the owner of the legal advice shared with the Scottish Government, and therefore we are not required to seek permission should we wish to disclose to a third party.
The Scottish Government did not advise of any further disclosure.
The information access request by former SPA Board member Moi Ali - who resigned from the Scottish Police Authority after raising concerns regarding the SPA's lack of transparency - came prior to hearings hearing of the Scottish Parliament's Public Audit & Post Legislative Scrutiny Committee (PAPLS)
Video footage of Ms Ali raising concerns during an SPA Board meeting - concerns which ultimately led to the Scottish Parliament's investigation of the Police Authority which provides oversight of Police Scotland, can be found here: Scottish Police Authority 15 December 2016 meeting Governance framework discussion
Issues raised by Moi Ali in relation to the Scottish Police Authority were taken on by the Scottish Parliament’s Public Audit and Post Legislative Scrutiny Committee, leading to hearings and ultimately, the resignation of the SPA's Chairman Andrew Flannagan, and the exit of Chief Executive John Foley which is covered in more detail here: GONE EXEC’IN: Scottish Police Authority Chief Executive takes early retirement with pay-off, following resignation of ‘Kremlin’ Chair Andrew Flanagan - discredited board & Vice Chair who backed secretive top duo remain in posts.
A full report on the resignation of Andrew Flanagan, Chair of the Scottish Police Authority, can be found here: GONE KREMLIN: Chair of Scottish Police Authority resigns, lingers in office ‘until replacement found’ for discredited Police watchdog – focus now moves to ‘collective amnesia’ board who failed to support transparency crusading colleague
Video footage of a key hearing by the Public & Post Legislative Scrutiny Committee held on 20 April 2017 can be found here: Scottish Police Authority - Public Audit and Post-Legislative Scrutiny Committee - Scottish Parliament: 20th April 2017
A full report on the PAPLS meeting of 20 April 2017 can be found here: POLICING SECRETS: Former Scottish Police Authority board member Moi Ali invited to give evidence at Holyrood, after MSPs accuse SPA bosses of running Police watchdog like Kremlin ‘secret society’
A further appearance of current and former board members of the Scottish Police Authority before Holyrood’s PAPLS Committee on the 11th May2017 - established evidence in relation to a sequence of alarming events at the SPA - giving MSPs significant cause for concern of how the SPA Chair was in effect, personally running the Police watchdog as a “secret society”. Video footage of this hearing is available here: Public Audit and Post-Legislative Scrutiny Committee - Scottish Parliament: 11th May 2017
A full report on the PAPLS hearing of 11 May 2017 can be found here: UNFIT AUTHORITY: Chair of Scottish Police Authority “is not fit to continue on any public board” – says former SPA board member in evidence to Holyrood’s Public Audit Committee scrutiny of Police watchdog
Writing to the Convener of the Justice Committee – Scotland’s top judge Lord Carloway - claimed that raising the issue of a register of judges’ interests would create difficulties in recruiting judges, yet the day after Holyrood MSPs discussed Carloway’s letter, the Judicial Office announced five new judges for the Court of Session.
Lord Carloway’s letter in full: Lord Carloway's letter to Margaret Mitchell MSP
I refer to your invitation of 25 June to give evidence to the Committee in relation to the proposal for a judicial register of interests. This is a matter that has been the subject of parliamentary consideration for number of years, with the petition being lodged in 2012. Since then there have been a number of exchanges between the Petitions Committee and both my predecessor, Lord Gill, and myself. Both Lord Gill and I have given oral evidence to the Petitions Committee on this matter. For your convenience, I attach copies of the letters that Lord Gill and I have sent to the Petitions Committee, and also the transcripts of our oral evidence.
I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee's valuable time.
If, however, after consideration of everything that has gone before, it emerges that there are new substantive issues, I would be happy to address them. I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.
FIVE NEW COURT OF SESSION & HIGH COURT OF JUSTICIARY SENATORS FOR LORD CARLOWAY:
Five new Scottish judges have been appointed and will take up position next year.
Her Majesty the Queen, on the recommendation of First Minister, has appointed Douglas Fairley QC, Anna Poole QC, Sean Smith QC, Sheriff Robert Weir QC, and Sheriff Peter Braid as Senators of the College of Justice.
Douglas Fairley QC and Anna Poole QC will take up appointment on 13 January 2020; Sean Smith QC will take up appointment on 17 February 2020; Sheriff Robert Weir QC will take up appoint on 6 April 2020; and Sheriff Peter Braid will take up appointment on 22 June 2020.
Douglas Fairley QC
Douglas Fairley was educated at Hutchesons' Grammar School and Glasgow University. He graduated in 1989 with a First Class Honours LL.B. After combining a legal traineeship with part-time work as a professional orchestral clarinettist, he then worked as a solicitor for six years between 1992 and 1998. He called to the Bar in 1999, specialising in commercial and employment litigation. He has served as an employment judge in both Scotland and England (2009-2011), and as an advocate depute (2011-2015). He took silk in 2012 and, since 2015, has continued to work on a wide range of high-profile civil cases.
Anna Poole QC
Anna Poole was educated at Madras College, St Andrews and Oxford University. In 1996 she qualified as a solicitor (England and Wales) at Linklaters in the City of London, then as solicitor (Scotland) at Brodies. She called to the Scots bar in 1998. She became a QC in 2012, after serving as First Standing Junior Counsel to the Scottish Government. She sat part time as UK First-tier Tribunal judge (Social Entitlement Chamber) from 2014, and as arbitrator for MIB cases. In 2018, she was appointed UK upper tribunal judge (Administrative Appeals Chamber), sitting in Edinburgh and London. She is Chancellor of the Dioceses of Edinburgh and Argyll and the Isles.
Sean Smith QC
Sean Smith was educated at Flora Stevenson’s and at Broughton High School, Edinburgh. A graduate of Glasgow University, he was a fellow and lecturer in law at Emmanuel College, Cambridge between 1991 and 1996. He was admitted to the Faculty of Advocates in 1999, and took silk in 2012. He has been Standing Junior Counsel, variously, to the Scottish Government, to HMRC, and to the Office of the Advocate General. Between 2017 and 2019 he served as advocate depute.
Robert Weir QC
A graduate in both history and law, Sheriff Weir served his traineeship with Maclay Murray and Spens, Solicitors, before being admitted to the Faculty of Advocates in July 1995. He served as an advocate depute between 2005 and 2008, took silk in 2010, and was appointed a floating sheriff of South Strathclyde Dumfries and Galloway, based at Hamilton Sheriff Court, in April 2015. He has served as a temporary judge of the Court of Session since March 2017, and took up a position as a resident sheriff at Edinburgh Sheriff Court in April 2018, sitting as one of the specialist sheriffs in the All Scotland Sheriff Personal Injury Court.
Peter Braid
Educated at George Watson’s College, Sheriff Braid graduated from Edinburgh University in 1980 with first class honours, winning the Lord President Cooper prize for best student. He entered the solicitor branch of the profession, becoming a partner in Morton Fraser in 1985 and a solicitor-advocate in 1995, dealing predominantly with commercial litigation. He was appointed as a sheriff in 2005 and currently sits in Edinburgh. In 2015, he was appointed as one of the first appeal sheriffs in the Sheriff Appeal Court, and as a designated Personal Injury sheriff.
NEW SHERIFFS IN COURT
Paul Reid is a law graduate of the University of Strathclyde. In 1985 he started as trainee then assistant and latterly associate with Jno. Shaughnessy Quigley and McColl, Glasgow. He is a founding partner of Fleming and Reid, Solicitors Glasgow. He enjoys Rights of Audience before the High Court of Justiciary, the Court of Session and the Supreme Court. In 2009 he was appointed a part time Sheriff. He has previously held membership of the Scottish Civil Justice Council. He is presently a member of the Scottish Legal Aid Board.
Tony Kelly was appointed Summary Sheriff of Glasgow and Strathkelvin in 2016. A law graduate of the University of Strathclyde, he started his traineeship in 1990 with Messrs. Hannay, Fraser & Co, Solicitors, before becoming associate and then partner. Between 1997 and 2016 he worked with Taylor & Kelly, Court Solicitors in Coatbridge. He was granted Rights of Audience as a Solicitor Advocate in both the Court of Session and High Court of Justiciary in 2012. He was a First-Tier tribunal judge in the Social Entitlement and Immigration and Asylum Chambers. Mr Kelly is a visiting Professor in Human Rights in the University of Strathclyde and a Legal Member of the Parole Board for Scotland.
Sara Matheson graduated in law from Aberdeen University and qualified as a solicitor in 1992. She became accredited as a specialist in child law in 2005 and in family law in 2008. Ms Matheson was appointed as a Convenor of the Additional Support Needs Tribunal in 2008 and was a founding partner of MTM Family Law in 2012. She was President of the Glasgow Bar Association in 2008 and was appointed as a Summary Sheriff at Airdrie in 2016.
Joseph Hughes is a law graduate of Edinburgh, Glasgow and Strathclyde Universities. Since 1986 he has been Managing Partner of J C Hughes Solicitors Glasgow. From 2004 he was appointed to the Mental Health Tribunal for Scotland, Health and Education Chamber, Pension Appeals Tribunals for Scotland, Scottish Solicitors Discipline Tribunal, NHS Tribunal for Scotland, Police Appeals Tribunal, Housing and Property Chamber, General Regulatory Chamber (Charity), Institute and Faculty of Actuaries Disciplinary Panel, Scottish Housing Regulator Appeals and SFA Disciplinary Judicial Panel. Mr Hughes has also held a number of non-executive, public and charitable positions.
Colin Dunipace is an Honours graduate of the University of Strathclyde. He began his career in 1988 with Barrowmans in Cumbernauld before establishing Dunipace Brown, Solicitors in 1993, where he remains a partner. He was granted extended Rights of Audience as a Solicitor-Advocate in the High Court in 2002. Mr Dunipace was a Council and Board member of the Law Society, and became a part-time Stipendiary-Magistrate in 2010 before appointment as a part-time Summary Sheriff in 2016. Since 2013 he has sat on various Tribunals, including as a fee-paid Judge of the Immigration and Asylum Chamber and being a Board Member of the SCCRC.
Fergus Thomson is a law graduate of the University of Edinburgh. He trained with Bell & Scott WS and qualified as a solicitor in 1996. He worked initially as a banking solicitor, with Dundas & Wilson and Maclay, Murray & Spens, and subsequently in litigation with DLA Piper. He also worked in structured finance with Bank of Scotland. He was called to the Bar in 2004. A Writer to the Signet and Fellow of the Chartered Institute of Arbitrators, Mr Thomson is currently an Advocate in primarily civil practice.
Mhari Mactaggart is a law graduate of the University of Glasgow. She started as a trainee and became a partner with Robert Carty & Co in 1985. Ms Mactaggart then joined Milligan Mactaggart & Perkins Solicitors as a partner before becoming a senior partner with Mhari S Mactaggart Family Law Practice in 1996. Ms Mactaggart was appointed Part-time Sheriff in 2005. She went on to join Hamilton Burns WS in 2008 as a Consultant and Head of Family Law Team and in 2016 was appointed a Summary Sheriff in Ayr.
Jillian Martin-Brown was appointed as a summary sheriff in Tayside, Central and Fife in 2016. She has particular responsibility for the Problem Solving Court in Forfar. Prior to her appointment, she was a solicitor in private practice, representing the Scottish Prison Service at fatal accident inquiries throughout Scotland. She later worked as an advocate, developing particular expertise in the fields of personal injury and medical negligence. She was appointed as Standing Junior Counsel to the Scottish Government and served as an ad-hoc Advocate Depute for the prosecution service.
The Judicial Appointments Board for Scotland is an independent advisory public body with the role of recommending individuals for appointment to judicial offices within the Board’s remit including judge of the Court of Session, chair of the Scottish Land Court, sheriff principal, sheriff, and summary sheriff.
The First Minister has statutory responsibility for making recommendations to Her Majesty the Queen and is required by statute to consult the Lord President of the Court of Session before making her recommendation.
Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland's Judiciary.
10 comments:
A lot going on here.
From google searches of the names it is apparent the court is being stacked by the Scottish gov.
I commend you on your attention to detail and publication of the freedom of information material.
how is it everyone in the Crown office is being made a judge?
does no one think this is corrupt and one sided?
There is a news story you need to read in the Law Society website will post over a few comments due to word count
https://www.lawscot.org.uk/members/journal/issues/vol-64-issue-08/the-judicial-disappointments-board/
The Judicial Disappointments Board (a tale for wannabe sheriffs)
One solicitor finds the Judicial Appointments Board for Scotland process less than transparent and helpful, and wonders how applications can really be distinguished at the preliminary sift
19th August 2019
Clicking on your email alerts one morning, you see that the Judicial Appointments Board for Scotland, or JABS as it likes to be known, is recruiting again. This time it’s for a summary sheriff appointment in your area. Interesting. You’ve been slogging away in a busy court department for 20 years, and think you might make quite a good sheriff, certainly as good as the bunch you see in court every day. Maybe you just might consider trying for it? OK, you haven’t spent all your leisure time playing golf with the right sort of people, but the days when that kind of thing was important have all gone, haven’t they? Nowadays the process of picking sheriffs is independent, open, diverse, and transparent, yes?
So, you download the application form. At first it’s all plain sailing – what is your name, did you manage to get a law degree, etc. You’re liking this more and more. Then you go over to the next page, entitled “Self-Assessment”, and see for the first time the list of qualities that you need to prove you have, with examples. Your spirits droop slightly. This is going to take some time. You take a deep breath and start on criterion 1, “Knowledge of the Law”. Nothing too difficult here – do you have a high level of expertise in at least one area… good working knowledge of evidence… natural justice… court procedure… yadda yadda. You rabbit on about the proofs/trials you’ve done, all of which you won, naturally.
Heartened, you go on to criterion 2, “Interpretation and Application of the Law”. The first two qualities you must demonstrate are:
Ability to analyse complex legal problems and apply the law correctly.
Ability to analyse and interpret case law and statute.
You frown. What is the difference between these two things? Are JABS worried that you might “know the law” (see criterion 1), be able to get straight to the heart of the knottiest problem and apply the law correctly, but at the same time be unable to follow a law report? Perhaps you’d better mention some really tough cases you’ve handled, fully explaining the nature of the complexities and your brilliant analyses of them. Ah, but you’re only allowed 300 words, aren’t you? No room for that. So you trot out some more of your old cases, occasionally saying “and this was complex”. You can’t really do anything else.
Criterion 3, “Mind-set and Motivation”, at first seems a bit of a relief. Perhaps you can spare the unfortunate person who will have to read your application any more of your tedious court reminiscences, and talk about yourself. JABS want to know that you:
Are committed to the role and to public service.
Are committed to fair and impartial administration of justice.
No problem there. You believe in judges and courts. They’re important. As is fairness and impartiality. You give some examples of how much you approve of judges, courts, fairness, and impartiality. You silence the sarcastic little voice inside your head which asks if anyone applying to be a sheriff has ever said anything else.
But then you run up against the next question, where JABS want to know if you are capable of:
Acting with humility and common sense.
Well, you’re quite clear that you’ve got common sense. It’s just that it’s hard to think of an example of it, particularly one that doesn’t reveal your contempt for the fools around you who failed to show any, which might contradict the “humility” bit. And of course you’re very humble. That’s why you want to sit in a huge chair higher up than everyone else and get called “my lord”. But you make a stab at a bit of humblebragging, and hope it’ll do.
A bit of repetition
Turning to criterion 4, “Exercising Judgment”, you note that the first matter to address is whether you are:
Impartial and open minded and seen to be fair to all.
Hang on, didn’t we cover that in criterion 3? Is this the old cross-examination ploy of asking the same question repeatedly in the hope of tricking the witness into giving a different answer? You don’t fall for it, and again assure JABS that once on the bench you will not turn into Roland Freisler. You give an example of the many occasions when you have not behaved like Roland Freisler.
After that, they want to know if you are:
Able to analyse and assess evidence and arguments.
Able to reason in a clear and rational way.
Sigh. We’re back to criteria 1 and 2 again. Frankly, you’re beginning to run out of examples (and of course you wouldn’t dream of making anything up, would you?), but you dredge up a few more cases. This time, instead of saying “and this shows my ability to analyse complex legal problems and apply the law correctly”, you say “and this shows my ability to analyse and assess evidence and arguments”.
Wearily you drag on through criteria 5, 6, and 7, “Managing Work Efficiently”, “Communicating Effectively,” and “Working with Others”. JABS appear to be looking for Superjudge, the sort of person who at the age of six tossed aside Green Eggs and Ham in favour of Stair’s Institutions of the Law of Scotland, before mediating in their parents’ divorce. In their efforts to describe such a person JABS wring the thesaurus dry, falling ever more madly in thrall to tautologous word pairings, so you must show that you are diligent and hardworking, that you inspire respect and confidence, listen with patience and respect, treat people with respect and sensitivity, are even tempered and consistent, understand people and society, etc, to say nothing of allowing people to give their best, being able to work under pressure, being able to modify your communication style to meet the needs of different court users... on and on it goes.
By the time you finish the form you have heaped so much praise on yourself that you feel slightly sick. However, you attach an example of written work as requested, and after a few final tweaks, you hit send. Your application vanishes into cyberspace. An email comes back saying that you will now go through a preliminary sift, but frankly you feel as if you have already been through a preliminary mangle.
Standard rejection
About two months later, a letter arrives by email, giving the result of the sift. Whatever sieve JABS used, you went straight through it and into the dirt. You will not be progressing to the next stage. Oh. But then, you see a paragraph headed “Feedback”. Ah. This is where the famous transparency of the system is going to come in, isn’t it? This is where you will be told exactly why you weren’t good enough, isn’t that right?
Well, no. The letter is in a standard form which has gone out to all the unsuccessful applicants. It says: “The Board is unable to provide individual feedback. The paragraphs below comment on the main features that the Board looks for in applications and some of the shortfalls in applications not passing the sift stage [sic]. In reading the following, you may feel that you did indeed cover what was required, and may wonder what more you should have done. We ask you to bear in mind that the process is competitive, with only 21 applicants going forward to the next stage.”
This is a bit like getting a bank statement with a covering letter saying “Hi! Here’s your bank statement! You’re in the red. Well actually, it may be somebody else’s bank statement and you aren’t in the red, but before you grab the phone, please remember that we have thousands of customers. We can’t possibly promise to send you the right bank statement. Just be grateful you got any bank statement!”
You glance through the letter. It is, to put it politely, unhelpful. Or to put it bluntly, it is a page and a half of meaningless drivel. It tells you that too many applicants were merely “aspirational” (perhaps a little hard to avoid when asking people who are not yet sheriffs how they would behave if they were sheriffs). Too many applicants failed to provide examples, which is barely credible given the number of times the form asked for examples to be provided. Applicants needed to show some “key achievements” (although this was one of the few things the form didn’t ask for). Applicants had to possess a range of unspecified “personal attributes”. Regarding your written work, the letter mysteriously states that “the particular form is far less important than its substance” (so if your legal argument was rubbish, just screaming “But it was in a really nice font!” won’t save you). All you can take from the letter is that somehow you weren’t quite the right type.
You return to the daily grind with a feeling of vague irritation, of having banged your head on a glass ceiling. Of course, you’re not going to make a fuss. Much too embarrassing to be known as the person who applied to be a sheriff and failed, as JABS well knows. But when you think about the process you have just been through, the words “independent, open, diverse, and transparent” do not immediately spring to mind. Could this be because the criteria on the application form are so vague and general, so unquantifiable and subjective, that anyone could pass and anyone could fail?
A dozen reasons could be found to justify any decision at all, if JABS were in the business of justifying themselves. Anybody with about 10 or 15 years’ experience of dispute resolution work will make a decent fist of filling the form in, and with the available space being so limited it is likely that all the applications look very much the same. How then is the decision really made about who passes and who fails? And then there’s that refusal to give individual feedback, and the shifty decision letter, attempting to deflect enquiry and cover vagueness with yet more vagueness. Or could your cynicism spring from your appearance in front of a newly appointed sheriff last week, when you could not help thinking that his elevation was due, as Lytton Strachey said, “less through merit than through a superior faculty for gliding adroitly to the front rank”?
What if...?
When you were a law student sitting your exams, you were not asked: “If we were to ask you a really complicated question about agricultural law, do you think you would be able to answer it?” Still less were you then failed on the basis that some wholly unaccountable people, for reasons you will never find out, say that they believe you would not have been able to do so. If this would be unacceptable as a basis for awarding law degrees, why is it acceptable as a basis for selecting judges?”
It’s not as if it would be hard to devise a system which really was independent, open, diverse, and transparent. There would be a simple application form, to ensure that applicants had the basic qualifications. It might be made a requirement, for example, that they must have attended the Judicial Work Shadowing Scheme to ensure they had a realistic picture of judicial life. There would be no vacuous self-assessments. All applicants would go on a course featuring training, mock trials and proofs, a mock “busy morning in court”, and written judgments. At the end of the course a decision could be made based on actual knowledge, and with the all-important individual feedback to the unsuccessful. No doubt it would be a lengthy and expensive process, requiring some real work on the part of JABS. But until something like it is devised, the judicial appointment process is destined to be something of a, well, disappointment.
If there was a proper selection procedure you’d be only too happy to apply again, wouldn’t you… and sit all those exams… and try to impress a panel of hard-faced judges watching you cope with a mock trial… and write long judgments… perhaps you’ll just go and brush up your golf.
The Author
The author is a practising solicitor
@ 21 November 2019 at 14:44
Thanks.
Not much use writing up an article if the evidence is not posted along with it ... also must credit the Scottish Police Authority for identifying their QC and the costs of legal advice taken by SPA under Andrew Flanagan in an effort to block release of material requested for the PAPLS investigation.
This is information which should be in a register of judges' interests as the content and participation may be relevant to any cases assigned to this judge in the future.
@ 21 November 2019 at 17:04
Thanks, very interesting.
I am aware of this article although on last reading the article was on the journalonline.co.uk website, and there was a comment by Sheriff TAK Drummond which I have a record of along with the original article.
Monday Lord Carloway: Drop that petition because I cant get judges
Tuesday MSPS: Need more evidence
Wednesday Lord Carloway: Takes on £2million quids worth of new judges
Thursday Everyone: WTF?
Let's hope some of the new appointees are more honest than their 'elders and betters' - although I doubt it.
Court of session should now be called the Court of Sturgeon appointed by the Lord Lackey himself Lord Faraway
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