Letter to Sir Leonard Peach on appointments to Silk

44-(0)113-243-3277
44-(0)113-242-1285
DX 26401 Leeds Park Square
email: malswiftqc@aol.com

25^th August 1999

Sir Leonard Peach
Lord Chancellor’s Dept
Selbourne House
54-60, Victoria Street
London

DX 117000 London SW1

Dear Sir Leonard,

Scrutiny of Judicial Appointments and Queen’s Counsel Selection Procedures

I would like to comment on the procedures for selecting the best candidates for Silk (and also Assistant Recorders) with particular reference to the knowledge of the candidates on the part of certain of the consultees. These comments are from a Circuit perspective.

High Court Judges

Nowadays High Court Judges (including Presiding Judges) see little of the Junior Bar/Solicitor Advocates (for these purposes I shall call them all "Juniors"). Most cases tried by them when sitting in crime tend to involve Silks so that at most the Judge will see a little of the performance of the led Junior. He will seldom try a case in which Juniors are involved in their own right. In civil cases, the chances are that he will see more of Juniors but will in the main see led Juniors. In family cases, he will see a good deal more of Juniors. Similarly in the Chancery and Commercial Courts.

It is the luck of the draw in case listing whether a Junior has a case listed before a High Court Judge.

Consequently, the High Court Judge’s knowledge of candidates will be scanty and likely based on reports rather than on personal experience. His overview of the candidates will be inevitably selective.

Senior and other Circuit Judges

These Judges are likely to have much more knowledge of the Juniors. However they are inevitably limited to commenting on those Juniors who appear in the few Courts in which these Judges sit. They consequently are unable to compare the Juniors they see with others around the Circuit who do not happen to practise in every Court Centre. They do not therefore have an overview of all the candidates. If Circuit Judges who are to be consulted were to sit more widely around their Circuits, matters would improve. I assume that Senior Circuit Judges consult their colleagues in the Court centres in which they sit.

Circuit Leaders

On the smaller Circuits, a conscientious Leader will probably know most of the candidates very well and will have seen many in action. He will also have received reports on them. Provided that the Leader is able to be objective in his assessment of the candidates, his overview is probably the most comprehensive of any consultee. For this reason, and understandably, the views of the Leader are given considerable weight.

General

Some ad hoc discussion takes place between the above consultees (but mainly limited to inter-Judge communication and to exchanges of views between Leader and Presiding Judges). Senior Silks are not (so far as I am aware) consulted directly (save that the Leader will ask their views on certain candidates).

Suggestions

1. Discussions on a more structured basis between Judges, the Leader and Senior Silks on the Circuit. I have in mind a round the table meeting. This would enable the consultees on Circuit to present the Lord Chancellor with their individual recommendations having taken into account the views of other consultees in circumstances which would help to overcome bias or lack of objectivity. This may lead to more balance and to views being expressed with more comprehensive reasoning to support any recommendation. It might improve objectivity in the material presented to the Lord Chancellor. It would have to be done in strictest confidence.
2. Improvements to the Court Service structure to enable more Judges to sit around their Circuits and thus obtain a better knowledge of the candidates. Extra expense will no doubt prohibit this idea.
3. Return to the days when High Court Judges tried cases involving Juniors. This is probably wishful thinking.

Yours faithfully,

Malcolm Swift QC

Leader - North Eastern Circuit