Clicking on your daily Scottish Legal News email one morning, you see that the Judicial Appointments Board for Scotland, or JABS as it likes to be known, is recruiting again. This time it’s for a Summary Sheriff appointment in your area. Interesting. You’ve been slogging away in a busy court department for twenty years, and think you might make quite a good sheriff, certainly as good as the bunch you see in court every day. Maybe you just might consider trying for it? OK, you haven’t spent all your leisure time playing golf with the right sort of people, but the days when that kind of thing was important have all gone, haven’t they? Nowadays the process of picking sheriffs is independent, open, diverse, and transparent, yes?

So, you download the application form. At first it’s all plain sailing – what is your name, did you manage to get a law degree, etc. You’re liking this more and more. Then you go over to the next page, entitled “Self-Assessment”, and see for the first time the list of qualities that you need to prove you have, with examples. Your spirits droop slightly. This is going to take some time. You take a deep breath and start on Criterion 1, “Knowledge of the Law.” Nothing too difficult here – do you have a high level of expertise in at least one area…good working knowledge of evidence…natural justice…court procedure… yadda yadda. You rabbit on about the proofs/trials you’ve done, all of which you won, naturally.

Heartened, you go on to Criterion 2, “Interpretation and Application of the Law”. The first two qualities you must demonstrate are:

• Ability to analyse complex legal problems and apply the law correctly.
• Ability to analyse and interpret case law and statute.

You frown. What is the difference between these two things? Are JABS worried that you might “Know the Law” (see Criterion 1), be able to get straight to the heart of the knottiest problem, and apply the law correctly, but at the same time be unable to follow a law report? Perhaps you’d better mention some really tough cases you’ve handled, fully explaining the nature of the complexities and your brilliant analyses of them. Ah, but you’re only allowed 300 words, aren’t you? No room for that. So you trot out some more of your old cases, occasionally saying “and this was complex”. You can’t really do anything else.

Criterion 3, “Mind-set and Motivation”, at first seems a bit of a relief. Perhaps you can spare the unfortunate person who will have to read your application any more of your tedious court reminiscences, and talk about yourself. JABS want to know that you:

• Are committed to the role and to public service
• Are committed to fair and impartial administration of justice.

No problem there. You believe in judges and courts. They’re important. As is fairness and impartiality. You give some examples of how much you approve of judges, courts, fairness, and impartiality. You silence the sarcastic little voice inside your head which asks if anyone applying to be a sheriff has ever said anything else. But then you run up against the next question, in which JABS want to know if you are capable of:

• Acting with humility and common sense.

Well, you’re quite clear that you’ve got common sense. It’s just that it’s hard to think of an example of it, particularly one that doesn’t reveal your contempt for the fools around you who failed to show any, which might contradict the “humility” bit. And of course you’re very humble. That’s why you want to sit in a huge chair higher up than everyone else and get called “my lord”. But you make a stab at a bit of humblebragging, and hope it’ll do.

Turning to Criterion 4, “Exercising Judgment”, you note that the first matter to address is whether you are:

• Impartial and open-minded and seen to be fair to all.

Hang on, didn’t we cover that in Criterion 3? Is this the old cross-examination ploy of asking the same question repeatedly in the hope of tricking the witness into giving a different answer? You don’t fall for it, and again assure JABS that once on the bench you will not turn into Roland Freisler. You give an example of the many occasions when you have not behaved like Roland Freisler. After that, they want to know if you are:

• Able to analyse and assess evidence and arguments.
• Able to reason in a clear and rational way.

Sigh. We’re back to Criteria 1 & 2 again. Frankly, you’re beginning to run out of examples (and of course you wouldn’t dream of making anything up, would you?), but you dredge up a few more cases. This time, instead of saying “and this shows my ability to analyse complex legal problems and apply the law correctly”, you say “and this shows my ability to analyse and assess evidence and arguments.”

Wearily you drag on through Criteria 5, 6, and 7, “Managing Work Efficiently”, “Communicating Effectively,” and “Working with Others”. JABS appear to be looking for Superjudge, the sort of person who at the age of six tossed aside Green Eggs and Ham in favour of Stair’s Institutions of the Law of Scotland, before mediating in their parents’ divorce. In their efforts to describe such a person JABS wring the thesaurus dry, falling ever more madly in thrall to tautologous word pairings, so you must show that you are diligent and hardworking, that you inspire respect and confidence, listen with patience and respect, treat people with respect and sensitivity, are even tempered and consistent, understand people and society, etc., to say nothing of allowing people to give their best, being able to work under pressure, able to modify your communication style to meet the needs of different court users.……on and on it goes. By the time you finish the form you have heaped so much praise on yourself that you feel slightly sick. However, you attach an example of written work as requested, and after a few final tweaks, you hit send. Your application vanishes into cyberspace. An email comes back saying that you will now go through a Preliminary Sift – but frankly you feel as if you have already been through a preliminary mangle.

About two months later, a letter arrives by email, giving the result of the sift. Whatever sieve JABS used, you went straight through it and into the dirt. You will not be progressing to the next stage. Oh. But then, you see a paragraph headed “Feedback”. Ah. This is where the famous transparency of the system is going to come in, isn’t it? This is where you will be told exactly why you weren’t good enough, isn’t that right?

Well, no. The letter is in a standard form which has gone out to all the unsuccessful applicants. It says: “The Board is unable to provide individual feedback. The paragraphs below comment on the main features that the Board looks for in applications and some of the shortfalls in applications not passing the sift stage [sic]. In reading the following, you may feel that you did indeed cover what was required, and may wonder what more you should have done. We ask you to bear in mind that the process is competitive, with only 21 applicants going forward to the next stage.”

This is a bit like getting a bank statement with a covering letter saying “Hi! Here’s your bank statement! You’re in the red. Well actually, it may be somebody else’s bank statement and you aren’t in the red, but before you grab the phone, please remember that we have thousands of customers. We can’t possibly promise to send you the right bank statement. Just be grateful you got any bank statement!”

You glance through the letter. It is, to put it politely, unhelpful. Or to put it bluntly, it is a page and a half of meaningless drivel. It tells you that too many applicants were merely “aspirational” (perhaps a little hard to avoid when asking people who are not yet sheriffs how they would behave if they were sheriffs). Too many applicants failed to provide examples, which is barely credible given the number of times the form asked for examples to be provided. Applicants needed to show some “key achievements” (although this was one of the few things the form didn’t ask for). Applicants had to possess a range of unspecified “personal attributes”. Regarding your written work, the letter mysteriously states that “the particular form is far less important than its substance” (so if your legal argument was rubbish, just screaming “But it was in a really nice font!” won’t save you). All you can take from the letter is that somehow you weren’t quite the right type.

You return to the daily grind with a feeling of vague irritation, of having banged your head on a glass ceiling. Of course, you’re not going to make a fuss. Much too embarrassing to be known as the person who applied to be a sheriff and failed, as JABS well knows. But when you think about the process you have just been through, the words “independent, open, diverse, and transparent” do not immediately spring to mind. Could this be because the criteria on the application form are so vague and general, so unquantifiable and subjective, that anyone could pass and anyone could fail? A dozen reasons could be found to justify any decision at all, if JABS were in the business of justifying themselves. Anybody with about 10 or 15 years’ experience of dispute resolution work will make a decent fist of filling the form in, and with the available space being so limited it is likely that all the applications look very much the same. How then is the decision really made about who passes and who fails? And then there’s that refusal to give individual feedback, and the shifty decision letter, attempting to deflect enquiry and cover vagueness with yet more vagueness. Or could your cynicism spring from your appearance in front of a newly appointed sheriff last week, when you could not help thinking that his elevation was due, as Lytton Strachey said, “less through merit than through a superior faculty for gliding adroitly to the front rank”?

When you were a law student sitting your exams, you were not asked: “If we were to ask you a really complicated question about agricultural law, do you think you would be able to answer it?” Still less were you then failed on the basis that some wholly unaccountable people, for reasons you will never find out, say that they believe you would not have been able to do so. If this would be unacceptable as a basis for awarding law degrees, why is it acceptable as a basis for selecting judges?

It’s not as if it would be hard to devise a system which really was independent, open, diverse, and transparent. There would be a simple application form, to ensure that applicants had the basic qualifications. It might be made a requirement, for example, that they must have attended the Judicial Work Shadowing Scheme to ensure they had a realistic picture of judicial life. There would be no vacuous self-assessments. All applicants would go on a course featuring training, mock trials and proofs, a mock “busy morning in court”, and written judgments. At the end of the course a decision could be made based on actual knowledge, and with the all-important individual feedback to the unsuccessful. No doubt it would be a lengthy and expensive process, requiring some real work on the part of JABS. But until something like it is devised, the judicial appointment process is destined to be something of a, well, disappointment.

If there was a proper selection procedure you’d be only too happy to apply again, wouldn’t you…and sit all those exams…and have to impress a panel of hard-faced judges watching you cope with a mock trial…and write long judgments…perhaps you’ll just go and brush up your golf.

This article first appeared in the Journal of the Law Society of Scotland