Page 71 - Judicial Diversity Update report

shepherd non-traditional candidates, the biggest group of them solicitors, into
the senior courts.

3.19. While there is now a clear intention to recruit senior judges from beyond the
Bar, the two roles by which most aspirant judges gain the sitting experience (‘the
flying hours’) to be appointed to the senior judiciary – Recorder and Deputy
High Court Judge – have not changed.

3.20. Arranging to sit as a Recorder or as a Deputy High Court judge is
straightforward for most barristers. However different working patterns and
obligations to clients of solicitors mean that it will rarely be possible for
them. This – in addition to the published success rates – is arguably why
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solicitors gravitate towards the lower fee-paid judiciary, where they can sit for
a day at a time. Other solicitors opt to leave practice altogether to take an entry-
level salaried judicial position, with the expectation that they will be able to be
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promoted to higher office. The statistics indicate that this is a poorly founded
expectation.

3.21. There is a tension at play. On the one hand the JAC merit criteria appear to
require candidates to demonstrate judge-craft skills – how to control parties and
proceedings, deciding actions by findings of facts and evaluating law, being
able to deliver judgments with confidence, etc. Aspirant senior judges must
have the requisite ‘flying hours’ as a Recorder or Deputy High Court Judge to
demonstrate these. And yet those judges who are salaried in lower courts,
developing these skills through full-time sitting – albeit often with lower value

156 A solicitor’s duty to their client often includes being available for frequent and immediate
communication, whereas a barrister’s engagement is more controllable as set-piece interactions for
specific intervals. This means that most solicitors are unable to take themselves away for weeks at a
time as is required to sit as a Recorder or a Deputy High Court judge.
157 Sir Edward Murray and Dame Sarah Falk were both recruited directly from their law firms, where
they were consultants while undertaking fee-paid sitting, as a Recorder and UT judge respectively.
‘Edward Murray’, Judicial Appointments Commission, available online at
https://www.judicialappointments.gov.uk/case-study/edward-murray-recorder-crime; ‘Mrs Justice
Sarah Falk,’ Judicial Appointments Commission, available online at
https://www.judicialappointments.gov.uk/commissioner/mrs-justice-sarah-falk-judicial. Dame Clare
Moulder and Sir Peter Lane left practice for salaried roles in the tribunals. ‘Mrs Justice Moulder’,
Courts and Tribunals Judiciary, available online at https://www.judiciary.uk/publications/mrs-justice-
moulder/; ‘High Court Judge Appointment (Queen’s Bench Division): Lane’, Courts and Tribunals
Judiciary, available online at https://www.judiciary.uk/announcements/high-court-judge-appointment-
queens-bench-division-lane/.

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