Opinion: Judge not….

Graham Ogilvy

SLN editor Graham Ogilvy ponders the seemingly intractable problems in recruiting new judges to the Scottish judiciary.

So, the results of Lord Carloway’s survey of QCs aimed at finding out why the bench is no longer seen as the pinnacle of a legal career, first reported upon in this publication, are out. And, lo and behold, they reveal that only six per cent of respondents intend to apply to become judges.

It is doubtful that money is the main issue. A guaranteed senatorial salary of £181,000 with paid holidays, and a generous pension remains an attractive package – even to high earning advocates whose headline figures are published before deductions of VAT, Faculty fees, indemnity insurance, sickness insurance, etc – and that is before they pay for their own pensions and take unpaid holidays.

Many candidates already enjoy financial security after successful careers and others, (more especially in days gone by), may be independently wealthy.

The position of judge was once taken by individuals who relished the intellectual challenge and felt that they could contribute to the continued development of the law by bringing decades of experience and knowledge to bear. Many, particularly civil practitioners, took a cut in income to become a judge. The relative social isolation that went with the role was compensated for by the respect, not to say, prestige that was afforded to those who had reached the very top of the legal profession.

That respect has long gone, sacrificed on the altar of dumbed-down populism which has seen the foremost judges of the United Kingdom denounced as ‘enemies of the people’ in newspapers owned by an elite of foreign-domiciled billionaires eager to denounce judges as, irony of ironies, elitist. Increasing judicial salaries to £300,000, as has been suggested, would merely play into their hands and still not solve the problem.

The disgraceful profiling of the English High Court judges who deliberated on the early stages of Brexit set a new low. Would Lord Rothermere (Daily Mail), Rupert Murdoch (Times and Sun), the reclusive Barclay Brothers (Telegraph) or Richard Desmond (Express) care if their neurosurgeon was a gay fencing champion? Why was it relevant to the reporting of a court case?

Sadly, Scotland has not been immune to the trend of vilifying and pillorying of judges. It is a trend that is bolstered by the constant media misreporting of court cases. Apart from the mistakes and errors to which we are now accustomed, the Lord Advocate’s guidelines on court reporting are routinely ignored. These were once taken seriously and newspapers felt obliged to provide a thorough coverage of court cases with daily updates.

Now, court cases are ‘topped and tailed’. The prosecution is reported in glorious technicolour and then little else is revealed until the verdict and sentencing. Justice is not being seen to be done. Too often the defence is not properly reported thus feeding the populist narrative that judges are weak and out-of-touch.

There is little Lord Carloway can do to reverse this state of affairs with here-today-gone-tomorrow politicians seeking to garner support by demanding judges reveal their financial interests or by denouncing sheriffs as ‘rugby-playing toffs’.

It is a truly worrying situation and the outlook is bleak.

But it is not helped by the perceived transformation of what was once a professional vocation into a mere ‘job’.

A perceived lack of judicial independence is also reported as a disincentive to becoming a judge with candidates fearing that they will become straight-jacketed and expected to implement and process a politically approved judicial agenda.

That is something where perhaps Lord Carloway could make a difference.

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