An Adequate System

An Adequate System Date: October 16, 2023 Lecture: Professor David Ormerod Introduction To demand experience, we need to think these things: 1) Is it illogical to require experience as a prerequisite to the roles? 2) Sufficient experience can be developed 3) At first instance via ticketing system 4) On appeal by block sitting in wings of CACD Mismatch Of Experience And Expectation Why do we tolerate such a mismatch? 1) Crime has always been assumed to be easy enough to pick up? 2) KB judges are such exceptional lawyers that we trust them to pick it up? 3) Appointment processes focus too much on practice area not intended area of judging? A Working but Sub-Optimal System 1. It Works But is made to work by: a. PKBD ensuring that KBD judges are given only trials they can manage b. Registrar ensuring that KBD judges are not over taxed by S 31 2. Produces Exceptional Criminal Judges In KBD And CACD But scheme is not designed to maximize the likelihood 3. No One Complains a. Ignores burden on KBD judge in high profile case b. Ignores burden of counsel trying murder before "Shipping J" Options For Reform More Training 1. Currently - An intensive course for new HCJ 2. No doubt more training would help, but: - Is it likely? - Can it equate to judicial experience? 3. What an opportunity! - Integrated with appointments, bespoke to needs to judge, continuing in post to support experience being gained New Specialist Court Within KBD 1. KBD judges with proven expertise and a desire to try crime - Enhanced criminal training could be made available - Greater transparency of allocation - Regime of allocation of cases and s 31 based on experience 2. Has many benefits of new Division... but not all? A New "Division" How to assess the "need" or relative merits? 1. Specialized - May promote: accuracy of outcomes, better quality judgments, greater consistency and efficiency, more authoritative statements of law. - Risks: narrowminded "isolation and insularity" of specialist judges; over confidence; "clannishness" with the specialist bar; stagnation of law for want of cross fertilization; costs in establishing court structure Benefits Of A Full New Division 1. Enhances likely rectitude of decision making 2. Better quality of decision making 3. Promotes just outcomes 4. Efficiency gains at trial and on appeal 5. Greater transparency 6. Enhanced confidence: a. Of KB judges b. Counsel c. CACD d. And defendant 7. Redistribution of crime related work from the KBD a. 2 judge Admin Court for crime? b. 2 judge CACD for simple cases? 8. Career path for the Criminal Circuit Judges a. Some already have CACD experience and murder tickets b. Younger appointed, longer serving and no promotion prospects Tradition Not much "inclination" in this jurisdiction to "see that cases in a particular field are allotted to [High Court] judges with experience in that field.". (Page 21) "Crime would require a criminal division of the High Court at least as big as the Family Division....... I need not pursue this for no one has suggested anything of the sort.". (Page 45) Judges Can "Pick Up Crime" - Many have experience of crime in their common law practice - But not all - increasingly now the HCJ appointments are from public law - Even for those who did once do some crime, it was probably minor crime 30 years ago. Practical Concerns 1. Recruitment Eligible pool of Circuit Judges with CACD experience 2. A criminal judicial mindset takes hold Crime is a wide enough discipline 3. Costs of additional appointments Balanced by fewer KBD judges 4. Statute S7 Senior Courts Act permits creation 5. Defining boundaries ? What is a criminal case is a well-worn issue The Unity of Law? 1. Is a Criminal Division overspecialisation? 2. Benefits of cross fertilisation of ideas But: a. Is it ever judge led? b. Does that happen below the supreme court? 3. KB judges are quick learners But skills from "experience" matter more Conclusion Whatever the solution the systems and institutions should not adopt approaches to recruitment and deployment that reinforce an assumption that crime is easy.