TUESDAY 9 DECEMBER 2003

HH MICHAEL BRODRICK, HH SHAUN LYONS, DJ JEREMY COCHRANE AND DJ MICHAEL WALKER

  Q380 Chairman: In terms of career structure, do you have any anxiety that we might go to the position of a number of continental jurisdictions where you become a judge as a career without really having passed through either advocacy or, indeed, academic law teaching?

  His Honour Judge Brodrick: I would be very strongly against that. My view is that you do need a sufficient degree of experience as an advocate, particularly if you are going to become a judge in a criminal case, because you have to deal with things very often the instant they happen and if you get it wrong you end up discharging the jury and you are wasting a great deal of public money. There is a danger in appointing the too young and too inexperienced because, if you make a substandard appointment, for the best of reasons you are stuck with that candidate perhaps for 25 or 30 years, and all you can do is shunt them into a backwater where they do the minimum amount of harm. There is a real risk that one seriously substandard candidate will wreck the chances of improving diversity because the media will get hold of it, it will be published all over the place, and I think it will do a lot of damage.

  District Judge Cochrane: I have an anxiety about the concept of career judiciary. I am a district judge and have been for 21 years. I view it as the very best job in the legal world, and I am concerned that my job will be devalued and under-valued by a concept of career judiciary. I have no difficulty with someone wishing to move on and become a Circuit or High Court judge, so be it, but certainly they should be appointed younger—there is no reason why they should not be appointed younger. I do not view it as promotion but applying for a different job. I do believe, however, that you need some time in life as well as in practice—seven years from admission or call as the case may be—but in real terms our lives seem to present us with problems all our lives and I think the young man or woman of 28, 30, 32 does have difficulty in fully understanding the machinations of the people who are eventually going to appear before them. I think you need to learn a little bit about life, become fractionally cynical—or realistic, depending upon your viewpoint.

  Q381 Keith Vaz: I want to ask you about process, and how the information is gathered about candidates under the present system and any future system we might have. Obviously a file is prepared at Selbourne House and some of you may be asked your opinion about the suitability of candidates for a particular post. Is there anything we can learn from that experience? Is there anything we need to change—not in the grand vision of things, what the Lord Chancellor wants to achieve with the changes, but in the actual practical detail which could well affect whether somebody is appointed?

  His Honour Judge Brodrick: Can I just give a brief historical sketch? I have been a judge for 16 years and the system has changed radically in the course of that period. To begin with I would be seen by I think it was the number two in the Lord Chancellor's Department, probably once every two years for about an hour; we would go through lists of potential candidates; I would give oral comments and a few days later the typed-up version would arrive; I would make any necessary corrections and send it back. Now that probably does qualify as "secret soundings". The system has now changed completely. In those days most of the power probably resided with the presiding judges. Now, you have automatic consultees, for example, resident judges, because they are senior and they see a lot of people. You get a form which is broken down into all the categories set out in the consultation paper, and you are asked to provide evidence-based comments, so if you reply, "This candidate is an excellent choice for a judge, very clubable, etc, etc", I believe that will carry no weight at all. It is completely worthless and the person filling in a form in that way is wasting their time. What I like is for a candidate to give me a list of their significant cases where they have appeared before me and I can then, if necessary, go to my notebook and can refresh my memory about that person's performance and give evidence-based comments. I do not think they qualify as secret soundings because one expects in any appointment process that references are private, so that people can speak with complete frankness. These people have to appear before me in the following weeks.

  Q382 Keith Vaz: One of the problems is feedback. A lot of people are turned down and especially amongst the minority community. You correctly said not enough put themselves forward and they cannot get the high quality references they need to get to first base. Do you think the feedback currently given is enough under the new system, whatever that system should be, and should we have more interchange of information once you have not been successful to help you apply again?

  His Honour Judge Brodrick: My difficulty in answering that is I have never been the subject of that system because it was not in place. For example, I was applying for silk and getting turned down because they wanted me to become a circuit judge.

  His Honour Judge Lyons: Consultation is essential. For permanent appointments you have to sit in a temporary appointment and it would be quite wrong for those who view your temporary work not to say whether you were suitable for full-time. I have some doubts about the breadth of consultation at the moment and its concentration. I also have some doubts about the point that it is called in, particularly for first appointments. I regard it as essential: it must be structured, tightly controlled and I personally would have no objections to an open system, although I suspect I stand-alone on that.

  District Judge Walker: I am going to defer to Judge Cochrane because he has been intimately involved in the appointments process for many years and I have not but I will just mention a couple of things before I do. The process is already under a great deal of change. There is, for instance, now a work shadowing scheme where someone who is thinking of possibly applying for a deputy appointment can sit in with a judge for 1-5 days, very often for a week, and experience the work first-hand from the judge's point of view.[1]

  Q383 Keith Vaz: How do people find out about this system? Is it publicised?

  District Judge Walker: It is simply a matter of contacting the department and they will arrange for you to sit at their local court or whatever. Very often it is arranged locally. Someone might express to a judge the idea that they would like to know more and they are encouraged to work-shadow. Interestingly the figures more recently suggest that increasingly the ethnic minorities are taking advantage of that scheme. The other process under change is that with deputy district judges we now have an assessment centre process. That, interestingly, has shown an increased number of applicants from females and ethnic minorities and, indeed, in terms of appointments an increased number of female and ethnic minority appointments.

  Q384 Keith Vaz: But you have to have litigation experience to become a part-time deputy district judge, have you not?

  District Judge Walker: Yes, but not necessarily in the field where you eventually would sit, and that is where the work-shadowing scheme has proved a great bonus.

  Q385 Chairman: It sounds as though the work-shadowing scheme could be usefully written up in the legal press.

  District Judge Cochrane: It has been publicised in the past, and in Derby where I sit for many years we have had young and trainee solicitors sitting with us—not work-shadowing but just sitting in. I do not agree that you need litigation experience. I have been involved in appointments for some time and some few years ago an admiralty specialist in the City of London who earned a huge sum of money wanted to perform a public service and put himself forward to be a deputy district judge and he was appointed. He was an office worker in the sense that he dealt with big cases behind closed doors. So far as the appointments process is concerned, I personally do not like the concept of consultation. Certainly for first-time appointments, recorders and deputy district judges, I cannot see that consultation is appropriate. In the event that I am an applicant, a solicitor practitioner who does not appear in court often, I apply to become a recorder and if there is consultation the barrister applicant who appears in court regularly is going to have the advantage over me immediately, and that seems to me to be unfair. However, dealing with the appointments process, it has changed over the years. Michael has mentioned the assessment centre. We have gone further than merely that, and I do not imagine you will want the detail of it, but for appointments to the deputy district bench now, the sift is carried out before references are taken. There is no consultation.

  Q386 Keith Vaz: Who does that?

  District Judge Cochrane: There has been a new process this year which is replicating what happened in industry. Officials from the DCA will carry out the preliminary sift and then a sift team, comprising one district judge, one lay person and another official, will go through and moderate. I will not go through the exact detail—you have not the time, but there is a sift with no references, and then references are taken. That in a way is a bit silly because there should be the interview process first and then references, but this has been an innovation in the last two years and we, the district judges, as always have innovated and we have pressed for this and I believe it is the way forward. Furthermore, as regards encouraging people to apply, the Law Society and Bar Council have done their bit. I went six weeks ago to a minority lawyers" conference in London; I was asked to spend a Saturday and asked if I would write a role play to encourage ethnic minority people to come, so I went to Law Society Hall and did my role play and I suggested in the talk-up afterwards that people should contact a friendly district judge and go and sit in with them, and about half a dozen people came to me later and said who should they contact and I told them, and one lady from London was going to come and sit with me in Derby. Unfortunately she does not return my calls now, but there we are!

  Chairman: Ann Cryer has just joined us so perhaps I could mention that she is a magistrate on the supplementary list and not sitting.

  Mrs Cryer: I am on the supplemental list at Bradford, and therefore not sitting.

  Q387 Ross Cranston: I was just going to take issue with Judge Broderick about the need to have a wealth of experience in terms of appointment. I remember when I was thinking of becoming an assistant recorder in the early 1990s, I spoke to Lord Goff who was one of the great judges of the 20th Century, and he reassured me and he said, "The first summing up to a jury I ever heard was the one that I gave myself". I think that the approach of encouragement is to be commended, but I am just wondering whether that is the policy of the Judges Council and of the Association of District Judges because I think it would be a good thing if you were all out there doing that as a matter of policy, encouraging women and ethnic minority candidates.

  District Judge Cochrane: It is not a policy of the Association of District Judges, but we have done it for years. I think all of us are active. As far as women are concerned, it is significant how the numbers have increased. At the last Deputy District Judge Induction Course, the percentage of females was 35.56 and over the past four years it has gone up and it is gradually increasing. I nearly said "unfortunately", but that would be inappropriate and I should not preface it with that word, the number of barristers becoming deputy district judges is also increasing. But women are increasing in number. I cannot pretend I know whether ethnic minorities are increasing in number because although I have been a director of training for deputies for some years, I do not keep statistics. I do notice the number of women.

  Q388 Ross Cranston: I am supposed to ask you some questions about the Judicial Appointments Commission and its composition. Now, one view of the world says that the judicial slot should be mainly High Court judges and maybe one representative of the other judiciary. You, in your submission, have taken a different view and I am wondering if you can just talk us through that and, in particular, the point about who should be there. Should they be nominated by the bodies, whether it be the Bar Council, the Association of District Judges or whatever or the High Court judiciary, or should they simply have that background and then be selected in the ordinary way that is now done in Civil Service applications, by Nolan principles and so on? Those are the two issues.

  His Honour Judge Lyons: Perhaps I could start, and I that know my colleagues, if I miss anything important, will jump in, firstly, to discuss the overall composition of the body and its balance. We were concerned to see both in the Government paper and in the suggestions of other people who have given evidence to you that they believe a majority of lay members is both important and appropriate. In a time of change for the Constitution, because we are getting rid of one system, it does not mean that there are not precedents and guidance for the new one. We do not start with a clean sheet of paper. All the European and Commonwealth guidance, to which this country subscribes and supports, makes it clear that there should be a majority of judicial people on a commission. This is solely for the independence issue. Of course they also bring their expertise as judges to help with selection issues. If one looks, for instance, at mainland Europe and indeed to those countries currently seeking accession to the European Union, the only country which appears not to have at least 50%, and the vast majority have a majority of judges, is Bulgaria and it may be, and Mr Soley has already mentioned surprise by some European countries about our system, that they might be also surprised if we lined up with Bulgaria and not with others.

  Q389 Chairman: And Scotland?

  His Honour Judge Lyons: Well, it is a balance there, yes.

  Q390 Ross Cranston: There is a Council of Europe recommendation, is there not, that commissions should have a dominance of judges?

  His Honour Judge Lyons: That is right. It also goes on in most of the guidance to say that the judges who are on the Commission should be selected by other judges and also that judges should have a say on the selection of the non-judicial members. I think that sums up the various pieces of guidance. Having said that, the Judges Council's view is that we have a unique opportunity in this country to strike an unusual balance: five judges representing the five tiers, and it says "nominated by the Lord Chief Justice", but in fact what lies behind that is that we on the Council would expect to produce our candidate to him and so would the district judges; two lay selected by Nolan principles, and I have no difficulty whatsoever; and then two who cross the boundary, magistrates and tribunal members, both lay and judicial. They can provide, as it were, the balance within that committee, so looked at in one sense there is a majority of judicial and looked at in the other sense there is a majority of lay. There would also be one barrister and one solicitor, nominated by whatever process their supporting bodies choose to follow. It seems to me there that the 30,000 lay judiciary we have in this country provide us with a perfect opportunity for squaring what may seem to be a very awkward circle.

  Q391 Ross Cranston: When you sit as a circuit judge on appeal with two justices, how often do those justices disagree with your view?

  His Honour Judge Lyons: On law, never. On sentence, I frequently submit myself to their views.

  Q392 Ross Cranston: That is the problem, is it not, that lay people may well be dominated by the judicial view of things?

  His Honour Judge Brodrick: Well, my experience of sitting with magistrates is most emphatically not and if you try to dominate them, you are (a) not doing your job properly, and (b) you are likely to achieve entirely the opposite reaction to the one you want. They are very independent and they are very determined and rightly so. I would make it clear to them that they are fully entitled to overrule me on any question of fact or sentence.

  His Honour Judge Lyons: I entirely support that. I perhaps should declare an interest in another role. I am the Chairman of the Middlesex Advisory Committee. We are the fourth largest Bench in the country. I do a lot of training and discussion with them and they are fully aware that on matters of sentence, they are the equal of a judge and they use it.

  Ross Cranston: Well, it is good to hear.

  Q393 Mr Soley: Could I just clarify what sounds an interesting structure which you are describing. You would perceive the lay magistrates as being seen as lay people?

  His Honour Judge Lyons: Yes.

  Q394 Mr Soley: Very clearly?

  His Honour Judge Lyons: They are.

  Q395 Mr Soley: I understand that, but many people seeing them sitting in their judicial role will see them as being of judicial function.

  His Honour Judge Lyons: Well, I do not see that as necessarily a disadvantage. The committee that we have suggested has a lay chairman and we think that entirely right and proper. It then has five permanent judges and six other members. They are two entirely lay, one solicitor, one barrister, in other words two lawyers, and then two who are lay judicial, the tribunals and the magistrates. Although that particular composition does not meet the European and Commonwealth guidelines because there is a minority of judges, we believe those lay judicial office-holders could swing it to seven/six were they to go that way, but they bring with them not only their judicial responsibilities and experience, but also their wide experience as members of the lay public.

  Q396 Mr Soley: Just to clarify one part there, on the description you have just given you described two people as entirely lay members.

  His Honour Judge Lyons: Yes.

  Q397 Mr Soley: How were they chosen for that?

  His Honour Judge Lyons: They would be chosen—I hate to use the word—no doubt from the public and perhaps sometimes categorised as "the great and the good", but they would have to be selected rather as the current Judicial Commission is, people who are eminent in their own field, with experience of management and personnel work, and they would be selected on Nolan principles by a commission.

  Q398 Mr Soley: With the proposal that the Lord Chancellor's role goes, who should be responsible for judicial independence?

  His Honour Judge Lyons: Well, this is extremely difficult. The changes that are taking place at the moment are so wide-ranging that I do not think anybody fully understands them yet. What we are perfectly clear about is that when you shed an unwritten Constitution with its checks and balances, there has got to be a statutory settlement. Judicial independence should be in a statute and should be the responsibility of the entire corpus of ministers, not just one minister. No doubt the law officers will help the Cabinet if they should be straying in the wrong areas. We also believe that the Lord Chief Justice must become officially the head of judiciary, that he must be known so and must assume a very large number of the roles currently conducted by the Lord Chancellor. That is part of discussions which are continuing at the moment.

  Q399 Mr Soley: So you certainly do not see the function devolving to the minister responsible for constitutional affairs?

  His Honour Judge Lyons: No.