1.10

It has been said before, but it is important to restate, that while the Lord Chancellor aspires to a more diverse judiciary, he can only appoint judges from the pool of lawyers with the relevant amount of experience. The average length of legal experience of all those appointed through open competition in 2000/2001 was just under 21 years (Annex H). Figures from the Bar Council and Law Society (Annex G) show that 14.4% of barristers and 15.4% of solicitors with over 15 years' legal experience and 10.8% of barristers and 10.9% of solicitors with over 20 years' legal experience are women. Of those barristers who have declared their ethnic origin, 5.4% of those with over 15 years' legal experience and 4.4% of those with over 20 years' legal experience are of ethnic minority origin. There are no comparable figures for solicitors but of all currently practising solicitors 5.8% have declared themselves to be of ethnic minority origin. It is true that these figures can only be taken as an indication of the size of the likely pool of candidates because they include those who for a variety of reasons are not eligible or interested in appointment, but they show that the proportions of appointments to women and ethnic minority applicants compare well with these figures for the profession. They also show how misleading it can be to make assumptions about the numbers of women and ethnic minority judges or the fairness of the judicial appointments system when these figures are taken out of context.

1.11

This problem was demonstrated towards the end of 2000 when the Institute of Employment Rights published a book "Human Rights at Work". One chapter included a survey of the British judiciary which concentrated on Circuit Judges and the higher judiciary, only about 20% of judicial appointments (excluding the appointments to tribunals), but it led to press reports which stated inaccurately that "91% of all new judicial appointments" since the 1997 election have been men or that "women account for just 7% of all judges". As can be seen from the last three Annual Reports, women have actually accounted for 26.3% of all appointments by open competition. Asat 1 April 2001, nearly 14% of judges, excluding those in tribunals, were women (Annex G). Statistics for tribunals are not, as yet, as comprehensive as for other members of the judiciary. Amajor exercise to improve such statistics is underway and will hopefully mean that more accurate information can be given in next year's Annual Report.

That does not mean that the Lord Chancellor is complacent. He recognises that more needs to be done. In May 2000 he announced that research would be commissioned into the pool of candidates for judicial and silk appointments to enable estimates to be made of the proportions of women and ethnic minority practitioners who might, on the best information available, come through successfully in say five and ten years' time. These estimates would not be quotas or targets. A statistical methodology has been developed to calculate projections based on the numbers of women and ethnic minority solicitors and barristers and the size of the part-time judiciary. Information has been provided by the Bar Council and Law Society about the profession and the database in Judical Group has been used to provide information about the existing composition of the part-time judiciary. However, the data on which any projections are based is not complete and, as the number of appointments in many cases is very small, particularly in relation to the appointment of ethnic minority lawyers, and appointment levels fluctuate considerably from one year to the next, any estimates of the position in five or ten years' time must be treated with great caution.

1.13

Projections have been calculated on a limited number of appointments and assume that the percentage of successful candidates as a proportion of the eligible population remains the same as it is at present. The projections therefore provide an indicator of the increase in the number of women and ethnic minority lawyers being appointed due simply to the increased number in the relevant pool. The projections on that basis show that the percentage of women appointed from the Deputy District Judge competition in 2005 may be 38% and in 2010 the figure may rise to 42%. The picture is similar for the District Judge competitions in 2005 and 2010 where the figures are estimated to be 38% and 45% respectively. Figures for Recordership and the Circuit Bench are lower; women may account for 20% of appointments for both competitions in 2005 and 24% and 25% respectively in 2010. For appointment as Queen's Counsel the projections are that women may comprise 17% and 20% of appointments in 2005 and 2010. Unfortunately, it has not been possible to produce reliable and meaningful projections for ethnic minority appointments due to the lack of relevant data and the small numbers involved.

1.14

These are the best calculations that can be made currently using the information available and the methodology developed. They will be reviewed regularly to take account of emerging trends and improved statistical information and further alternative methodologies will be considered.

1.15

The projections that have been developed so far, and any that may be published in the future, are compatible with and presuppose appointment on merit. They should be seen in the context of the makeup of the legal profession (see paragraph 1.10) and the Lord Chancellor's initiatives to create a more diverse judiciary. These initiatives include efforts to encourage women and ethnic minority practitioners to apply in greater numbers and to make the Lord Chancellor's commitment to equality and diversity well known within the legal profession, the judiciary and beyond.

1.16

The Lord Chancellor is also committed to equality of opportunity in the appointments process for both branches of the legal profession. The charge is often made that the majority of those appointed are barristers. It is true that the majority of appointments at the most senior levels are made to barristers but, in both 1998/99 and 1999/2000 overall more solicitors than barristers were appointed to judicial appointments. In 2000/2001 (see Annex H) the proportions of barristers (including QCs) and solicitors appointed were similar at 38.5% and 36.8% respectively. Atthe higher level the position is changing. The appointment of the first solicitor to be appointed directly to the High Court Bench was mentioned in last year's Annual Report. Mr Justice Lawrence Collins took up his appointment on 1 October 2000. It is hoped that more solicitors will join him in due course. The Lord Chancellor believes, however, that The Law Society's continued boycott of the consultation process for appointments can only be a disservice tosolicitor applicants. He hopes that The Law Society will reconsider and rejoin the consultationprocess.

1.17

The Lord Chancellor is also keen to encourage both sides of the profession to look at appointments other than those seen as the traditional routes for barristers or solicitors. As at 1 April 2001, there were only 24 barrister District Judges out of a total of 419; and only 142 solicitor Recorders out of 1,361. The Lord Chancellor encourages both sides of the profession to look at the full range of appointments, including those in the tribunals. Recent changes, such as the implementation of the Human Rights Act 1998, have meant that more than ever there is a need for good quality candidates to apply for all posts. This is particularly true of the District Bench where the civil procedure reforms have created new opportunities with an increase in the jurisdiction of District Judges and an enhanced case management role.

1.18

Full details of the Lord Chancellor's approach, current policies and aspirations for equality and diversity in the appointments process are available in a booklet which can be obtained from Judicial Group or on the Lord Chancellor's Department website at www.lcd.gov.uk.

1.19

The three parts of the appointments procedure are application, consultation and interview. Each candidate is judged against the criteria for appointment at each stage of the procedure. Given the strong competition for relatively few vacancies, it is very often the case that 'unsuccessful' candidates are considered suitable for appointment, but are not among those who are assessed to be the best. The successful candidates are those who best demonstrate that they meet the selection criteria - first in their application forms, next in the light of the information obtained in the consultation process and finally in the interview. An example of the full criteria for appointment is given in Annex A. In summary the criteria are:

• legal knowledge and experience
• intellectual and analytical ability
• sound judgment
• decisiveness
• communication and listening skills
• authority and case management skills
• integrity and independence
• fairness and impartiality
• understanding of people and society
• maturity and sound temperament
• courtesy
• commitment, conscientiousness and diligence

1.20

Advocacy is not included in these criteria as the Lord Chancellor has made it clear that he does not regard advocacy experience as an essential requirement for judicial office.

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Applications

1.21

For all but the most senior appointments (i.e. to the Court of Appeal and above) and appointments as deputy High Court Judges, there are open advertised competitions for professional judicial appointments. Prospective applicants are invited to contact Judicial Group for an application pack either through advertisements in national newspapers, the ethnic minority press, legal journals or other appropriate publications, or by letters sent to all eligible candidates (e.g. all part-time office holders when a full-time vacancy occurs in the same jurisdiction). Each application pack contains an application form, a job description, the criteria for appointment (paragraph 1.19) and information about who will be invited to provide assessments of the applicants (see below). The application packs for some competitions are also on the LCD website. Candidates are able to explain on the application form how they think they meet the criteria for appointment.

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Consultation about candidates for judicial office

1.22

The consultation process remains the most controversial and misunderstood part of the judicial appointments system. It has been criticised by some as a system of "secret soundings" and this criticism has often been taken up by the press. For example, Marcel Berlins wrote in "The Guardian" on 11 December 2000 that: "those consulted by the Lord Chancellor submit their comments in confidence, and candidates often have no idea why they have been rejected; nor do they have any realistic opportunity of challenging what has been said or thought about them".

1.23

It is true that assessments are submitted in confidence but that is nothing unusual in a recruitment system. References are usually sought whenever a person applies for a job and the contents of those references are often not disclosed to the applicants. The Lord Chancellor believes that the assessments should remain confidential to ensure the fullest and frankest expression of views but he has stipulated that any allegation of professional misconduct made about a candidate in the course of consultation should be disclosed to the candidate and that he or she should be allowed to respond. Such comments are excluded altogether if they are discriminatory in nature, are non-specific or the consultee refuses to allow the allegation to be made known to the candidate. Candidates do, therefore, have the opportunity to respond to allegations of professional misconduct made against them. The Lord Chancellor has also emphasised that comments should not be based upon hearsay and that if they are based upon reports, then the source of the reports should be identified by the consultee. Nor is it true that applicants are left unaware of the substance of the other comments made about them if they want to know. For more information see the section on feedback in paragraph 1.36.

1.24

The consultations are extensive and systematic. As an indication of the size of each consultation exercise, 4020 consultees were asked for assessments of the 687 Recorder applicants in 2000/2001. As mentioned in last year's Annual Report, Sir Leonard Peach noted that: "Many other bodies are less systematic in seeking views on those whom they recruit or promote and the Department has created an organised and widespread approach for collecting information".

1.25

Applicants are generally told which judges and members of the profession will be consulted automatically and in addition each applicant can name up to six people who can also assess their suitability. The provision of these additional assessments allows the Lord Chancellor to build up as full a picture as possible of the skills and qualities of each applicant, particularly those applicants who may be less well known to the consultees whose views are sought automatically. These "automatic" consultees are asked to assess only those candidates they know well enough to be able to form a view against the criteria for appointment. There is a need to continue the automatic consultation despite suggestions that it should be discontinued. Applicants are unlikely to nominate consultees who are not going to give at least broadly favourable opinions. The wider structured consultation, focussing on the specific criteria for appointment, enables the Lord Chancellor better to evaluate the merits of the candidate. While comments from nominated consultees are taken fully into account as part of the selection process, these are appointments of constitutional significance and the Lord Chancellor accordingly believes that it is in the public interest that the automatic consultation arrangements should continue, to ensure that he has as much evidence as possible on which to decide who the successful candidates should be.

1.26

All consultees, whether general or nominated, must assess each candidate's suitability against the criteria for appointment (paragraph 1.19) and each assessment must be fully supported by detailed comments. Unsupported assessments, assessments which are not related to the criteria or which demonstrate bias or prejudice will be disregarded. The more particularised the assessments are, the more help they are in the selection process. Assessments should preferably reflect personal and recent experience; where they are based on reports, the source of those reports should be identified. No single person's view about a candidate, whether negative or positive, is decisive in itself.

1.27

Annex B is an example of the consultees' assessment form used for the Recorder competition. Different forms are used for different competitions but the principle is the same for each. The assessments on the Recorder form consist of a marking on a scale which rises from 5 to 1, on the extent to which a candidate has demonstrated the criteria for appointment - 1 indicates that, in the opinion of the consultee, the candidate has very well demonstrated the criteria, 5 indicates that the consultee believes the candidate has not demonstrated the criteria. Consultees are also asked to provide an overall marking, on the same numerical scale, as to a candidate's suitability for appointment - 1 indicates that a candidate is exceptionally well fitted for appointment, 5 indicates that the candidate is unsuitable for appointment. For each mark the consultee is asked to provide substantive comments. Consultees providing assessments on a number of candidates for a particular appointment are advised that, if appropriate, they may rank the candidates or provide a list of their top five. Consultees are advised that for candidates whom they believe show promise but are not yet ready for appointment, overall marks should be indicative of current levels of suitability for appointment but that appropriate qualifying comments may be added. A brief note is required of consultees, to advise on the context in which they know the candidates they are assessing e.g. the regularity with which candidates appear before them, or the basis of their knowledge and experience of the candidate's professional qualities as otherwise obtained.

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Interviews

1.28

For all appointments up to and including the level of Circuit Judge selected applicants will be asked to attend a formal interview. A panel consisting of a serving judge, a senior official and a lay person consider each candidate's application against the criteria for appointment and shortlist those that appear to be the best candidates for interview.

1.29

Prospective applicants are often concerned about being interviewed. Indeed for many their last interview experience was when they applied to join their chambers or firm. This part of the Report, therefore, is meant to give a basic overview of what candidates might expect. The structure and questions asked depend on the nature and level of appointment, but in general each interview lasts for about 45 minutes to an hour. The interviews are conducted by the same, or similarly constituted, panels as those who compiled the shortlist. The assessments received through the consultation process help to inform the interview panel; but the panel members make their own assessments by asking questions which further test how well each candidate demonstrates the criteria for appointment. The interview therefore provides a further opportunity for the candidate to demonstrate the qualities and skills needed to be a judge.

1.30

The chairman, normally a member of the Judicial Group or a senior Lord Chancellor's Department official with appointments experience, explores the candidate's professional background and reasons for applying. The judicial member of the panel then asks questions that seek to assess the extent of a candidate's legal knowledge and professional skills and experience (including experience of part-time judicial service, if applicable). These can include questions about general legal developments and legal issues which have been highlighted in the media. For some appointments there are also practical questions, such as at Recorder interviews where there may be a sentencing exercise. For a number of tribunal appointments questions are based on a pre-prepared case study and for District Judge appointments in addition to delivering a judgment on a case study which is considered in advance, candidates sometimes have a 'box work' exercise (i.e. the non court based paper work which is part of a District Judge's duties). There are not necessarily right or wrong answers to the majority of questions asked. The panel members are looking to see whether the candidate has sound instincts and the right approach to the sort of problems they might face when sitting. Some candidates have less actual experience of the particular jurisdiction than others and allowance is made for that.

1.31

The lay interviewer asks questions that seek to assess a candidate's skills, abilities and personal qualities. He or she tries to assess how well the candidate keeps in touch with people and social issues. Towards the end of the interview the chairman may ask questions further to explore matters raised as a result of questions asked by the other panel members, as well as questions relating to any of the criteria for which the candidate has not been given the opportunity to demonstrate his/her qualities. The interviewee is then given the opportunity to ask questions and the chairman concludes by checking that nothing of significance has changed since the application form was completed which might be an obstacle to an appointment. Information about interviews is given in the guide for applicants in each application pack.

1.32

After the interview the candidate is rated against each of the criteria. Each member reaches an independent conclusion and then views are debated and an overall assessment reached. The rating for each candidate takes account of the assessments made against the criteria - from both those automatically consulted as part of the competition and those nominated by the candidates.

1.33

As mentioned above, in interviews the lay member concentrates particularly on those criteria which relate to a candidate's personal qualities: integrity and independence; fairness and impartiality; understanding of people and society; maturity and sound temperament; courtesy; commitment, conscientiousness and diligence. The lay interviewers play a full and active part in the shortlisting and interviewing of candidates and are meant to bring the perspective of the lay court user and the wider public to the interview process.

1.34

During 2000/2001, the terms of appointment of 49 lay interviewers expired. Of these, 39 were re-appointed. In addition 1 lay interviewer died and another stood down because of an appointment to a tribunal. There were no new appointments. As at 31 March 2001, the number of lay interviewers was therefore:

1.35

As explained in last year's Annual Report, the current lay interviewers are all members of the Lord Chancellor's Advisory Committees on Justices of the Peace. A review of the appointment procedures has been undertaken with the aim of widening the field of selection of lay interviewers. However, no new appointments have been made as yet as none have been required. Next year's Annual Report will include details of any new selection procedures and resulting appointments.

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Feedback to unsuccessful applicants

1.36

The feedback system whereby unsuccessful applicants can discuss why they have not been shortlisted for interview or appointed after interview was covered by Sir Leonard Peach in his report. He described it as "most impressive" and added "I am unaware of any other organisation or Department which offers a facility of this kind and has a take up on such a large scale." At feedback interviews, which are conducted either over the telephone or at face to face meetings, unsuccessful candidates are given the substance of all the assessments received during the consultation and, if applicable, the interview panel's assessment. The only information withheld is anything which might reveal the identity of the individual consultee. Candidates are told, therefore, the content of the assessments made about them.

1.37

More than 800 feedback interviews were conducted during 2000/2001 (621 of which were recorded plus an estimated 200 for unsuccessful tribunal applicants). The Lord Chancellor and his officials are keen to encourage unsuccessful candidates to avail themselves of feedback. The fact that a candidate is unsuccessful one year does not mean that he or she will not be successful the next. Indeed, statistics from the Recorder competition in 2000/2001 show that of the 90 candidates appointed, 47 had applied at least once before. Feedback may help a candidate to consider how to approach future applications.

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Career interviews

1.38

In addition to feedback, staff in the Judicial Group are also happy to discuss with individuals their career aspirations and development. Again, these interviews can be either in face to face meetings or over the telephone.

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Work shadowing

1.39

The work shadowing scheme has been running for more than two years since its launch in March 1999 and is proving to be very successful, both in terms of the numbers taking part and the feedback from all involved. The scheme allows lawyers the chance to shadow a Circuit Judge or a District Judge for up to five days to find out what it is like to sit judicially before deciding whether or not to apply for a judicial appointment.

1.40

The scheme is administered jointly by Judicial Group and the Court Service. Applications are received by Judicial Group (contact details are in Annex I) who arrange for each applicant to be security cleared. They are then passed to the nearest Group Manager's Office of the Court Service to the area requested by the applicant. The Group Manager's Office then liaises direct with the applicant to allocate him or her to one of the authorised shadow judges. The aim is for each shadower to observe as many as possible of a judge's main duties, including, as appropriate, preparing for trial, case management, presiding over court proceedings, hearing actions, sentencing, determining applications and giving judgements.

1.41

Within Judicial Group the administration of the work shadowing scheme is separate from the sections dealing with Recorder and Deputy District Judge appointments. The work shadowing section do not tell their colleagues in the appointments sections who has or has not shadowed a judge. This is a deliberate policy to avoid the scheme being seen as something an applicant should be seen to have done. The scheme is intended to give an insight into the workings of the courts and the tasks of judges to those who are not so familiar with them, for example, to civil practitioners or those with less advocacy experience who want, or who think they might want, to apply to be a Recorder in the Crown Court. A practitioner who appears most of the time in the criminal courts and also wants to apply as a Recorder in the Crown Court may not therefore gain much further insight.

1.42

The following chart shows the number of work shadowing applicants during 2000/2001. The last year has seen an increase in the number of solicitors applying to shadow both Circuit and District Judges so that by April 2001, 64% of applicants have been solicitors. The proportion of women shadowing in both years has been similar at just over one third of all applicants each year. The proportion of ethnic minority shadowers was 9% in 1999/2000 and 7% in 2000/2001. By far the most popular length of time to shadow a judge remains five days. Action will be taken to consider the most effective means of publicising the scheme, especially to those under-represented in thejudiciary.

1.43

In addition to those listed above, a number of practitioners who know particular judges have made their own arrangements to shadow those judges. Neither Judicial Group nor the Group Managers' Offices are involved with such arrangements. There are no objections to practitioners organising their own shadowing in this way.

1.44

A full evaluation of the scheme was carried out at the end of 2000. Responses were sought from every applicant who had completed their shadowing, every judge who had been shadowed, all the Court Service Group Manager's Offices and Court Service Headquarters. Of those who responded, all the applicants believed that the scheme's objectives had been met and that their personal objectives had also been met. Comments made included: "extremely valuable experience"; "the whole experience made me more determined that this is a route down which I would like to pursue my career path"; "I found it totally fascinating and very rewarding." Most people were very satisfied with the work of Judicial Group, Group Managers' Offices and court staff. One applicant said they "could not have been more polite or helpful. They score 100% in my book". Others said that all involved had been efficient and helpful. Another applicant said "my experience of the scheme is such that it could not be improved upon".

1.45

Every judge who responded believed the scheme is a useful and valuable initiative and the vast majority were also happy with the way the scheme is administered. A few judges commented on the effect on their workload. As a result Judicial Group liaised with the Court Service to authorise more shadow judges to ensure that individual judges are not shadowed too often. The comments of the Court Service were also favourable. Any suggested changes were to the internal administration of the scheme and have been implemented.

1.46

Judicial Group will continue to monitor the effectiveness of the scheme. For the future, consideration is to be given to the feasibility of extending work shadowing to other appointments, such as to District Judges (Magistrates' Courts) and to tribunals.

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Judicial Training

1.47

The Judicial Studies Board (JSB) is a non-departmental public body funded by the Lord Chancellor's Department. It was set up in 1979 to provide training for Crown Court judges. In 1985 its remit was extended to cover the provision of training in civil and family jurisdictions and the supervision of the training for lay magistrates and judicial chairmen and members of tribunals. The JSB is chaired by Lord Justice Waller and Board members include judges, a practitioner, an academic, a lay magistrate and a representative from each of the Lord Chancellor's Department, the Home Office and NACRO (the National Association for the Care and Resettlement of Offenders). The JSB operates through five executive committees (Criminal, Civil, Family, Magisterial and Tribunals committees) and one advisory committee (Equal Treatment Advisory Committee - ETAC). ETAC operates four working groups, which are concerned with, respectively: race and ethnic minority issues; gender and sexual orientation; unrepresented parties and children; and disability.

1.48

In December 2000, ETAC issued the second section of the Equal Treatment Bench Book, a guide to judges on all aspects of equal treatment in courts and tribunals. This guidance comprised material on gender and sexual orientation; unrepresented parties and children; and disability. Like the sections on race published at the end of 1999, the new sections provide practical information for judges on issues likely to condition the way people approach the court process. The guidance was sent to all full-time and part-time judges and is also available through the JSB's website (see below), to be consulted by practitioners, teachers, students and members of the public.

1.49

During the year, ETAC also published a 16-page leaflet, entitled "Race and the Courts", for distribution to Tribunals and Magistrates' Court Committees. A companion leaflet, entitled "Equality before the Courts", comprising the key points contained in the new sections of the Bench Book, is also planned for the forthcoming year.

1.50

The JSB runs induction courses which all newly appointed Recorders, Deputy District Judges and Deputy District Judges (Magistrates' Courts) (formerly Acting Stipendiary Magistrates) (see paragraphs 3.56, 3.80 and 3.95 respectively) are required to attend before being authorised by the Lord Chancellor to sit judicially. Newly appointed office holders are also required to undertake a period of sitting-in with an experienced judge and a period of supervised sitting and, if they are to hear criminal cases, they must also visit local prisons and the National Probation Service for England and Wales.

1.51

The JSB also runs continuation seminars which judges normally attend on a three-year cycle, and specialised seminars covering, as necessary, new legislation. During the past year the JSB has run specialised seminars on Pension Sharing on Divorce and the new scheme for Ancillary Relief for the District Bench. (Ancillary relief is the technical term for the financial arrangements made by couples when they divorce.) There was also a major programme of seminars on the Human Rights Act 1998 which commenced in January 2000 and concluded in September 2000. These were attended by judges at all levels from the Court of Appeal to Deputy District Judge.

1.52

The JSB Annual Report 2000/2001 was published in June 2001. For further information contact:

Judicial Studies Board
9th Floor
Millbank Tower
Millbank
LondonSW1P 4QU
Tel: 020 7217 4708
Fax: 020 7217 4779
email
website: www.jsboard.co.uk