Although they play the role of “referee” during trials and hearings – especially in adversarial systems – at the heart of the judicial system sit magistrates, judges and coroners.
This part is focused on the people. The next part will focus on the court system itself.
A Welsh Justice System XII: A Welsh Court System
The final piece of this chunk of articles on the judiciary and independence focuses on the structure and make-up of...
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Who should be allowed to be a judge?
Lay magistrates aside, judges are usually appointed from the legal profession as legal executives, solicitors or barristers who’ve practised law for a minimum of five years.
In terms of personal qualities, prospective judges are normally expected to be able to demonstrate knowledge of the law, sentencing and proportionality – not being too lenient or too strict – good communication skills and an ability to command authority.
Promotions to more senior judicial positions – such as a judge in a Crown Court – would be based on merit and experience. Judges (and magistrates) are normally expected to retire at age 70.
By and large, you wouldn’t expect these requirements to change in Wales.
As to where we could make changes, while judges do need to pass tests when applying, Wales could opt to introduce a formal, regulated qualifying examination for all prospective (professional) judges similar to those used for barristers and solicitors.
Given longer life expectancies, we could increase the mandatory judicial retirement age to 75 and introduce a minimum application age for a full-time judge (30-35) to guarantee they have appropriate legal experience (this would be lower for lay magistrates if we decide to keep them).
The application process itself, the qualifying criteria and the training of judges could be overseen by the Law Council (Part X).
A full-time judge would also need to be one of the public offices where Welsh citizenship ought to be required. Though any citizen of a foreign country who’s practised law in Wales to the extent where they would meet the minimum requirements to apply to become a judge would likely be Welsh by naturalisation anyway.
Judicial Appointments: Options for Wales
Next, how to shortlist and appoint prospective judges.
A judicial appointments committee – This is the most common means by which judges are selected and appointed globally. In England and Wales, the Judicial Appointments Commission (JAC) is responsible. The easiest option would be to create an equivalent panel appointed by the Law Council (Part X). The panel would include members of the public, senior judges/presidents of the different courts and representatives from the legal professions. They would meet whenever vacancies arise or a judicial position needs to be urgently filled.
Judges are appointed by a civilian review board – Similar to what was suggested for police accountability (Part VIII), a panel made up of members of the public would shortlist and select judges who’ve successfully cleared the application process. They would meet whenever vacancies arise or a judicial position needs to be urgently filled.
Parliamentary appointment/indirect election – This happens in some jurisdictions where local councils appoint magistrates. Using the same principle, councils – or a board made up of members from councils within a judicial district – could appoint magistrates/district judges and circuit court judges. The Senedd would be responsible for appointing higher court judges. This could impact judicial independence.
Direct election – This option would only really work for district judges because they would have a specific territory to operate in. It would have to be a national-level election for more senior judges like a Welsh Supreme Court or Appeals Court. All judges would have to go through multiple elections to get promoted and become politicians in doing so. While elections work for lawmakers and governments it can be discounted for judges as being neither practical nor respectful of the judiciary’s independence.
All in all, my preference would be an appointments panel followed by a confirmation hearing with the relevant Senedd committee, and finally a formal appointment by the head of state (whoever and in whatever form that may take).
If there’s a single senior judicial position to be filled (such as on a supreme or appeals court) and only one sitting judge is deemed to be experienced or capable enough to fill it – or it only attracts one application – then the position could be filled without contest if agreed jointly by the appropriate appointments body, the Law Council and the Attorney General. Aside from that, all other appointments would be by fair and open competition.
