Bench pressed

Judges are generally constrained in talking to the press and most are reluctant to do so for fear of being accused of weighing into political rows. But the scale of the problems has moved some to speak anonymously to the Gazette airing their concerns over the impact of increased work and low morale.

Judges who have broken rules to take this risk cannot be depicted as a handful of malcontents. Comprehensive figures confirm that. The last judicial attitudes survey, published in February 2021, was completed by 99% of judges. It found that 69% felt they were respected less by society than five years ago. Most (56%) said working conditions were worse than two years ago and two-thirds of all salaried judges felt their pay and pension entitlement did not adequately reflect the work they do. As the Gazette went to press, government announced a 3% pay increase for the judiciary – with inflation running at 9% in the year to June, a hefty real-terms pay cut.

Many in the salaried judiciary said they might consider leaving the bench early over the next five years, including one in three female judges and 31% from an ethnic minority background.

Attempts by the Ministry of Justice to save money by reducing the number of judges’ ‘sitting days’ left courts sitting empty and ensured a backlog of cases. That was true even before the pandemic struck, making the situation worse. With sitting days reduced, fewer judges had been recruited.

The lord chief justice, Lord Burnett of Maldon, has said on several occasions that one of the biggest constraints in reducing the backlogs more quickly is ‘a shortage of judicial resource’. In plain English, there are just not enough judges. The Commons cross-party public accounts and justice committees have raised the same concern.

The latest statistics were published last week by the MoJ. At 1 April 2022, there were 3,470 court judges and 1,753 tribunal judges – up slightly on last year, from 3,314 and 1,711 respectively. But the figures are still well down on 2012 – the earliest year for which data is available. Then there were 3,575 court and 2,060 tribunal judges. Over the same period, the number of magistrates has crashed by 50%, from 25,710 to 12,506.

The shortage of judges in the criminal courts tends to get the most attention, largely due to publicity over the ongoing strike by criminal barristers. Burnett warned last November that the judiciary was struggling to provide judges to do all the work in Crown courts, particularly in London and the Midlands.

While recorders – part-time judges who remain in legal practice – were being encouraged to sit more frequently, Burnett highlighted the fact that reliance on senior barristers reduces their capacity to act as advocates in the most serious matters, as Crown courts tackle a backlog of almost 60,000 cases. The LCJ added that recently retired circuit judges were being encouraged to sit in the Crown court, and High Court judges were being deployed more often. But he also noted that a recent circuit judge recruitment exercise had fallen short by 12 criminal court judges.

In its report on court capacity, published in April this year, the justice committee highlighted shortages in other areas in a range of civil law jurisdictions, including family courts and employment tribunals. Its report flagged up Lord Burnett’s concerns in November 2020 about the number of judges in the county and family courts, which he said were ‘well under-strength’, noting that two recruitment competitions had not produced enough new recruits.

The committee called on the government, judiciary and Judicial Appointments Commission (JAC) to work together to address the problem. In response, the MoJ said it was working to fill the vacancies, highlighting a recruitment drive that started in 2021 for up to 1,000 judges and tribunal members, and a 2022/23 programme for another 1,100. It said that recorder recruitment – posts for part-time, fee-paid, circuit judges – had met or exceeded the original vacancy request in each of the last three years, and noted that there are 30 more deputy High Court judges than in 2017.

Since 2017, the pool of fee-paid judges in the courts has increased by 12% and the cadre of deputy district judges is 27% larger.

The ministry accepted that recruiting enough salaried judges had been ‘challenging’, but highlighted action taken to mitigate this, including increasing the judicial retirement age in March 2022 to 75, and looking to recruit 80 circuit judges and 125 recorders during the year.

If there are shortfalls, officials will extend the number of days that criminal recorders can sit, from 30 to 80. Where there is a business justification, this can be raised to 180 days a year. They will allow circuit judges to sit in retirement and deploy some judges ‘off circuit’; and some district judges will be allowed to sit in the Crown court. It has been suggested these plans bypass the JAC and give some an unfair advantage when applying for permanent promotion.

Following an advertising campaign, the MoJ told the Gazette, as of 3 April 33,580 individuals had expressed an interest in joining the magistracy. It hopes to recruit 4,000 magistrates over the next few years.

Staying on

'The unfairness is mainly to the public whose criminal justice system is creaking at the seams and needs all the help it can get'

Vince McDade, retired deputy district judge

Vince McDade, who sat as a part-time fee paid deputy district judge in the magistrates’ courts for 20 years, dealing with criminal cases, is among those who believe that retired judges are not being used enough in some jurisdictions. He retired last year, after reaching 70, and says his request to extend his tenure for up to two more years was refused.

McDade is critical of officials for choosing to wait for up to a year for younger, newly recruited judges to be ready to sit. ‘There seems little doubt that I am being discriminated against because of my age,’ he tells the Gazette, describing his treatment as ‘gross unfairness’. But, he adds: ‘The unfairness is mainly to the public whose criminal justice system is creaking at the seams and needs all the help it can get.’

Responding to his complaint, a spokeswoman for the judiciary stated that the ability to sit in retirement is ‘not automatic and is subject to business need’ to fill ‘short-term demands in exceptional circumstances’.

Speaking this month at the annual judges’ dinner hosted by the Corporation of London, Burnett again highlighted the shortage of judges. Due to recruitment difficulties, he voiced concern that the judiciary is becoming over-reliant on part-time judges, whom, unlike their salaried colleagues, are ‘something else first and part-time judges second’. Burnett suggested that one reason for the lack of salaried judges is because the job has become more onerous.

'If you’ve been in silk or a partner in even a decent high street firm, they have better IT and admin support than in the courts'

Sir Bob Neill, chair, Commons justice committee

Judges who spoke to the Gazette suggest there are other reasons why many, particularly women and those with caring responsibilities or disabilities, remain part-time. It allows them the flexibility to combine the work with their personal circumstances.

The state of the courts and reduction in court staff – whose number fell by 20% between 2010/11 and 2019/20 – is another contributing factor here. Sir Bob Neill (pictured above), chair of the justice committee, says that the dilapidated state of the courts and maintenance backlog mean many courts are ‘not nice places to work’.

He adds: ‘If you’ve been in silk or a partner in even a decent high street firm, they have better IT and admin support than in the courts.’ Urging the ministry to do more to improve the courts and increase the pay of ‘underpaid’ court staff, Neill says: ‘There needs to be a greater sense of urgency and getting the basics right.’

Pensions

Meanwhile, a long-running battle over pensions has also taken its toll. Barrister and part-time judge Dermod O’Brien QC spent 14 years fighting the MoJ – with trips to the Supreme Court and the Court of Justice of the European Union – before securing a ruling that it was unlawful to deny judicial part-timers pension rights.

A group of 200 judges led by High Court master Victoria McCloud, and including six High Court judges, including Sir Rabinder Singh, who now sits in the Court of Appeal, pursued a four-year legal battle over transitional arrangements for pension reforms. In 2019 the Court of Appeal said these gave rise to unlawful age discrimination.

With its hand forced by the litigation and a 2018 review by the Senior Salaries Review Body, the MoJ agreed a new pension scheme.

Lord Burnett said that the implementation of the pension reforms in April removes ‘one of the greatest impediments to recruiting salaried judges’.

Ministers claim that the reform resulted in a 17% uplift in remuneration for district judges and 20% for circuit judges – but judges maintain it only reinstates sums that had been previously removed.

Discrimination claims

Pensions are not the only area where judges have felt compelled to litigate to fight for their rights. After a 10-year fight, last year Claire Gilham, a district judge who says she was bullied, ignored and undermined after speaking out about the impact of cuts to the justice budget, settled her claim against the MoJ for harassment and disability discrimination. The ministry had claimed that the employment status of judges meant that they were not entitled to whistleblowing protections enjoyed by other workers. But in 2019 the Supreme Court ruled that judges were protected by whistleblowing legislation.

Crown court judge HHJ Kalyani Kaul QC, meanwhile, is suing the lord chief justice and MoJ, claiming that senior judges failed to support her and bullied her after she raised complaints about ‘disrespectful, discourteous, unprofessional, and rude’ barristers appearing before her in a trial. Kaul claims she suffered depression, anxiety, and post-traumatic stress.

The Bar Standards Board found both of the defence barristers guilty of misconduct, fining one and suspending the other for four months, for acting in a rude and unprofessional manner towards the judge.

Initially, ministers and the senior judiciary denied that they owed judges a duty of care, but earlier this year the government accepted that it does.

The admission came amid growing complaints of bullying among the judiciary, in the wake of which a group of judges led by Kaul launched the Judicial Support Network. In addition, as revealed by the Gazette, the GMB union has set up a branch for judges and around 50 have joined.

Stuart Fegan, senior organiser for the GMB southern region, says that judges have come on board due to issues around health and safety, wellbeing and promotion, as well as discrimination on the grounds of race, sex, and disability.

The union’s aim, he says, is to get judges defined as ‘workers’ so that they enjoy the same protection as other professions, as well as having the right for their trade union to have an input into policies that affect them.

A spokeswoman for the judiciary insisted that any instance of bullying or discrimination is a matter of ‘very serious concern’ and any sufficiently particularised claim will be investigated thoroughly.

The lord chief justice, she said, has a ‘statutory responsibility for the welfare of the judiciary, which he takes very seriously’.

Not only have judges had to fight for their rights, but some also feel that they have to fight for appointments, in a system they consider to be too laborious, lacking in transparency and stacked against them. Judges who spoke anonymously to the Gazette have been vocal about the ‘discriminatory’ appointments process, which they claim disadvantages some groups, particularly those from ethnic minority backgrounds and solicitors.

Though the old ‘tap on the shoulder’ system has been replaced by the JAC, some suggest that the statutory consultation scheme – the process by which the JAC seeks views before making a recommendation for appointment – merely replicates the old tradition. Law Society president I. Stephanie Boyce is among the JAC’s critics. She says: ‘We have called for an end to statutory consultation in recruitment – which some refer to as “secret soundings”,’ which is ‘incompatible with a modern, diverse and inclusive recruitment process’ (see guest column, p14).

The Gazette has learned of two judicial reviews arising from the consultation scheme. A JAC spokesman confirmed that one had been ‘withdrawn by consent’ and said the body is contesting the other.

Following a review of the scheme, launched last July by the JAC, the body concluded that ‘evidence-based statutory consultation can support the selection panel in assessing candidates’. There was ‘no direct evidence’ that it disproportionately affected recommendations for appointment for any group.

Some sitting judges disagree and have called for the JAC to be abolished and replaced with a body that is more independent.

Meanwhile the lord chief justice and MoJ have a shared ambition to create ‘One Judiciary’, to bring the courts and tribunals closer together and make better use of resources. One Judiciary is also designed to demonstrate that judges, whether they sit in courts or tribunals, are part of a single judicial family. Such a move is unlikely to placate those judges who are considering leaving the bench – they want to see investment in the justice system, more court staff and demonstrable proof that the senior judiciary support them and will stand by them when they report problems.

In a speech earlier this year, the lord chief justice said criticism from the criminal bar made his role feel like being the ‘only lamp-post in a town with many dogs’. The judiciary used to be a dog that didn’t bark – but not any more.  

 

Catherine Baksi is a freelance journalist