It is not a struggle to find high-calibre candidates for the High Court or the hundreds of courts and tribunal posts, fee paid and salaried, for which we select each year. So why does the JAC need to be working so hard to encourage people to apply to be judges, when so many are applying already?
By statute, the JAC has a duty to encourage a wide range of candidates to apply and, practically, the more strong candidates there are, the higher the standard of those who are ultimately selected. It is therefore our policy to help candidates to undertake the necessary preparation and to apply at the appropriate time for the correct level of post for them.
The JAC regularly runs seminars targeted at groups in the profession, usually with a JAC Commissioner, a senior JAC official and a serving judge available to answer questions about every stage of the process. We are planning a series of regional events with the Bar Council this year.
Knowing how popular the South East Recorder exercise would be we ran a joint seminar with the Bar Council before Christmas, just ahead of the advertisement. Recorder appointments are traditionally seen as a first rung on the judicial ladder, so we were aware of just how popular the selection exercise was likely to be, particularly since it was the first in the South East since 2005–06. The seminar was, in fact, so oversubscribed that a second breakfast seminar was arranged at short notice. A similar event with the Law Society was moved to a bigger venue to accommodate the demand. The seminar raised a number of concerns that are addressed below.
Candidates are about to sit the Recorders South East exercise qualifying test to decide who will be shortlisted to attend the selection day. I know, from unsuccessful candidates in past exercises, and from talking to people who had been asked to be their referees, that some may be questioning the reliability of the written test which we now normally use for larger exercises up to and including circuit judge level, as a method for deciding who to shortlist.
We took this decision because these tests provide more objective evidence of candidates’ abilities, irrespective of their specialism within the legal profession. The written test requires candidates to analyse case studies, identify issues and apply the law, which for some exercises may be a hypothetical statute. It principally tests intellectual capacity, but also provides evidence of a candidate’s ability in other areas of competency. They are designed to be stretching because being a judge is stretching. The tests are carefully prepared. They are set and marked by serving judges. A JAC commissioner oversees each test to ensure it is “fit for purpose” and a fair way of selecting candidates for interview.
The information pack for candidates always makes clear where shortlisting will be by means of a test. The Recorder tests are designed so as not to require jurisdictional knowledge. Each test is tailored to the post it is testing, but candidates can prepare by reading the details in the application pack carefully, and to practise one of the past examples on the JAC website (www.judicialappointments.gov.uk), to get an idea of the time pressure involved. There is not a pass mark as such—the cut-off point for the shortlist is the mark which produced the right number for the selection day. For this reason, we do not publish the marks—each test is different.
If they are shortlisted, what should candidates expect on selection day? The process will vary depending on the post, but for Recorders South East there will be an interview and role play, designed so that candidates can demonstrate the required qualities and abilities and whether they can maintain their performance under challenge and pressure.
Panel members assess all the information about each candidate, including references, before agreeing which candidates best meet the required qualities. The panel chair then completes a report, providing the overall panel assessment, which is presented to commissioners who make the final recommendations to the Lord Chancellor.
The JAC attempts to complete its part of the process as speedily as it can, because it is aware of the importance of the decision for the candidates. This can typically take between four and six months, but inevitably there is a period of time after recommendations go to the Lord Chancellor, and a further period of time from the date the Lord Chancellor approves the recommendations and the date successful applicants are appointed. Candidates may have to wait until a post comes up. We are working with our partners, the Ministry of Justice, the judiciary, the Courts Service and the Tribunals Service, to try to reduce these time lines.
Not being shortlisted does not make anybody a failure, and nor does it mean they were wrong to apply. Many successful candidates in other exercises had applied unsuccessfully in the past, and an unsuccessful application is not held against a candidate in any way. It is important to stress there are other ways to get “fee paid” experience. The Tribunals Service, for example, offers clearly transferable skills and experience, along with being a fulfilling career path in its own right. Mr Justice Hickinbottom, one of the latest High Court appointments, began his judicial career as a fee paid parking adjudicator before becoming a Recorder. There is a work-shadowing scheme run by the Judicial Office (see www.judiciary.gov.uk/workshadowing) which candidates may wish to consider.
There are further ways to prepare for applying. Some keep a “scrapbook” of examples of their experience (not always from court) to illustrate the qualities the JAC is seeking. In addition, judicial referees can be helped by, say, being sent a copy of a skeleton argument that was used in a case argued before them and solicitors can send to barrister referees examples of past instructions.
Fielding the best
The JAC is grateful to the Bar Council for the work it is doing with us to help encourage strong candidates, and to the judges who are giving their time and wisdom to help explain the job to those considering following in their footsteps. We believe our processes ensure the best judges are appointed from those who apply. We want to keep working together to help make sure that the best candidates apply for the right posts at the right time in an effective way.