Starting Out on a Judicial Career: Gender Diversity and the Appointment of Recorders, Circuit Judges, and Deputy High Court Judges, 1996–2016
| DOI | http://doi.org/10.1111/jols.12059 |
| Date | 01 December 2017 |
| Published date | 01 December 2017 |
| Author | Michael Blackwell |
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 4, DECEMBER 2017
ISSN: 0263-323X, pp. 586±619
Starting Out on a Judicial Career: Gender Diversity and the
Appointment of Recorders, Circuit Judges, and Deputy High
Court Judges, 1996±2016
Michael Blackwell*
This article is a quantitative study of those who are appointed
Recorders and Circuit Judges, and who are authorized or appointed as
Deputy High Court Judges. It considers the period 1996±2016, being
the twenty years that straddle either side of the creation of the Judicial
Appointments Commission (JAC). A key focus is the gender diversity of
these appointments and how this has changed over time, including
whether the transfer of appointments to the JAC has made a difference
to gender diversity or whether increases in the proportions of female
judges are attributable solely to a changing demographic among the
pool of lawyers from which such judges tend to be appointed. Who are
appointed to these positions is significant both because of the
importance of the positions themselves, but also because they comprise
the pool from which, as a practical reality, the Senior Judiciary is
appointed.
OUTLINE
This is an empirical study of Recorder, Circuit Judge, and Deputy High
Court Judge appointments during the period 1996±2016. These appointments
are important both because of the volume of cases heard by these judges, and
also because these appointments provide an important gateway to member-
ship of the senior judiciary. The gender breakdown of these appointments is
generally considered important for reasons that include democratic legiti-
586
*Law Department, London School of Economics and Political Science,
Houghton St, London WC2A 2AE, England
m.c.blackwell@lse.ac.uk
My thanks to Sir Ross Cranston, Katrin Hohl, Linda Mulcahy, and Michael Zander QC
for their comments on earlier drafts.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
macy, equal opportunities, and (most contentiously) decision making.
1
Despite the importance of these appointments, no previous empirical study
has been undertaken into whether the changes made to the appointments
process during this period (including the establishment of the Judicial
Appointments Commission (JAC) in 2006) have made a difference to the
gender diversity of who is appointed; or whether (as Lord Sumption, a
Justice of the Supreme Court and former JAC Commisioner, argues) any
changes to who is appointed is purely a function of the changing composition
of the legal profession and that only positive discrimination would made a
difference.
2
This article comprises seven sections, including this introduction. The
second section discusses the significance of Recorders, Circuit Judges, and
Deputy High Court Judges. The third section details various changes in
appointment processes and practices that have been made during this period.
The fourth introduces the sources of data on which the empirical analysis is
based. The fifth presents descriptive statistics with regard to relevant judicial
appointments during the twenty years of this study. The sixth section
considers whether and to what extent the various changes to the appoint-
ments process considered in the fourth section can be thought to have
impacted upon the gender composition of the judicial offices considered in
this article. The final section is a conclusion.
WHY THESE APPOINTMENTS ARE IMPORTANT
The appointment of Recorders, Circuit Judges, and Deputy High Court
Judges is important because of the large volume of cases heard by these
judges: predominately in the Crown Court and County Courts, but also
substantial numbers in the High Court and Court of Appeal. Between 1997
and 2005 there were on average 111,118 judicial sitting days each year
across the Senior Courts of England and Wales (the Court of Appeal, High
Court, and Crown Court), of which 90,760 (82 per cent) were sitting days by
the judges considered in this study. These sittings were mainly in the Crown
Court where these judges accounted for 95 per cent of all such sitting days,
587
1 B. Hale, `Equality and the Judiciary: why should we want more women judges?'
[2001] Public Law 489. Writing in 2001, Brenda Hale expressed herself `more than
a little sceptical' of some arguments that diversity would make a difference to the
substance of decision making: id., p. 501. However, in her evidence in 2011 before
the House of Lords Select Committee on the Constitution, she suggested a
difference can be made, citing R. Hunter et al. (eds.), Feminist Judgments: From
Theory to Practice (2010) as evidence: see Select Committee on the Constitution,
Judicial Appointments Process: Oral and Written Evidence (2012) Q222.
2 J. Sumption, `Home Truths about Judicial Diversity' (Bar Council Law Reform
Lecture, 15 November 2012) 3.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
compared to 37 per cent of sitting days in the High Court and only 7 per cent
of sitting days in the Court of Appeal.
3
Many readers will be aware of the role of Circuit Judges and Recorders
(who exercise a similar jurisdiction on a salaried and fee-paid basis respec-
tively), but may be less aware of the role of Deputy High Court Judges.
There are two categories of Deputy High Court Judges.
4
One category is
certain existing judges, mainly
5
Recorders and Circuit Judges, who are
authorized to sit in the High Court under section 9(1) of the Senior Courts
Act 1981 (`section 9(1) authorizations'). The other category allows for any
person who meets the statutory qualification
6
for appointment as a puisne
judge of the High Court to be appointed as a deputy High Court Judge under
section 9(4) of the Senior Courts Act 1981 (`section 9(4) appointments').
Thus section 9(4) appointments are always fee-paid, while section 9(1)
authorizations are fee-paid if they relate to Recorders, but a mode of the
exercise of a salaried appointment if they relate to Circuit Judges.
Who are appointed to these judicial offices is also important since they
provide a gateway to membership of the senior judiciary. It has been
government policy since the 1970s that in order to be appointed as a full-
time judge, it is necessary to have had part-time judicial experience first,
7
although not necessarily in the same sort of judicial role as the full-time
appointment. Of the 208 High Court judges appointed since 1996, 155 (75
per cent) were Recorders immediately prior to their appointment and 30 (15
per cent) were Circuit Judges immediately prior to their appointment (of
whom all but one were Recorders prior to becoming Circuit Judges). Of the
23 (11 per cent) High Court judges appointed since 1996 who were neither
89
588
3 Statistics cited in this paragraph are calculated from annual reports of Judicial
Statistics (1997±2005) and Judicial and Court Statistics (2006±2015). Indeed, of the
judges considered in this articl, only Circuit Judges could possibly sit in the Court of
Appeal: Senior Courts Act 1981, s. 9.
4 Hisorically it appears that only section 9(4) appointments were styled as Deputy
High Court Judges, but contemporary usage includes section 9(1) authorizations.
The Senior Courts Act 1981 refers to section 9(4) appointments as being `deputy
judge[s] of the High Court', but suggests no similar title for section 9(1) authoriza-
tions. Similarly, literature by the Lord Chancellor's Department only referred to
section 9(4) appointments as `Deputy High Court Judges': Lord Chancellor's
Department (LCD), `Senior Judicial Appointments' (1995) 2. However, the practice
of the JAC is to refer to both section 9(1) authorizations and 9(4) appointments as
Deputy High Court Judges: see, for example, the joint section 9(1) protocol by the
JAC and Judiciary of England and Wales or the JAC's webpage on Section 9(1)
authorizations: .
5 Since changes made by the Crime and Courts Act 2013, effective from 1 October
2013, certain tribunal judges listed in s. 9(1ZB) Senior Courts Act 1981 can also be
so authorized.
6 Currently the statutory requirement is either (i) satisfying the judicial-appointment
eligibility condition on a 7-year basis; or being a Circuit judge who has held that
office for at least 2 years: Senior Courts Act 1981, s. 10(3)(c).
7 P. Darbyshire, Sitting in Judgment: The Working Lives of Judges (2011) 65.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
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