Friends in high places

'Diversification' is a buzz word very much in vogue at the moment. It is important to have a diverse profession, a diverse judiciary, and presumably diverse participants in the whole jolly thing, without whom we are all twiddling our thumbs and fiddling with paperclips. Curiously, everybody feels that they are on the wrong end of diversification, except for (almost) the very people without whom we are all twiddling our thumbs and fiddling with paperclips.

In Counsel magazine last month it was reported that barristers and solicitors who have responded to a survey on judicial appointments perceive prejudice in the manner in which appointments to the judiciary are made. Certain erroneous views are reported by the British Market Research Bureau, including one that apparently you have to know a High Court judge before applying for appointment. This is a very odd one indeed '“ but extraordinarily widely held. It seems a strange thing to think genuinely that nobody can be a judge unless they have the support of a red dressing-gowned person, professionally or socially. It also seems to be easily countered by simply visiting the JAC website and checking out a few application forms. There is no question that asks you to name your red judge or instruction that knowing one is required. Imagine if it was '“ they are busy enough people as it is, without a mass of mid-life lawyers scrambling over the benches or sidling up at parties and other events to touch the ermine sleeve for advancement.

Reassuring people that it is an open process is of course a good idea and very important. But we all do have to take a bit of responsibility to find out what it is all about and how to go about applying. It is easy to fold one's arms and say that it is only for people who went to a public school and are white and male. This is a rather silly attitude because it does confound the evidence of one's own eyes in court that many of the judges are not male (or men disguised as women). If on the other hand the response is 'Well, I don't go to court very much' then that response may say more about your suitability than the absence of a titled friend.

Nobody's happy

But all of that is understandable. The establishment does rather look as if it is made up of establishment people. What is more interesting about the research is that those people who might be thought by others to be the shoe-in candidates (white, male, middle class) themselves think that they are on the wrong end of diversity. So, nobody is happy; that cohort think that they are disadvantaged because they are not female.

To a degree then the JAC could take some comfort in the fact that if that lot are worried that they no longer stand a fair chance, then the process is already a long way to being held to be truly diverse. Perhaps in the end everybody should stop worrying about everybody else, decide if they really want an appointment, give it their best shot and see what happens, and stop worrying about High Court judges, gender, class, education and so on.

With this in mind we could all take a leaf out of the defendants' book. These are the people on the business end of what we do. They do the time while the rest of us go home. Rarely have I had a client (or a witness) who has railed against his verdict or sentence on the basis that the court was not sufficiently diverse. Nobody has slagged off the judge on the grounds of his colour or background. Almost everybody accepts that the court is the court, treats everybody the same, and, if the sentence is too long or the verdict goes the wrong way, whatever else it may or may not be, it is not a diversity issue. The blame is directed towards the witnesses who they say have lied, or capricious fortune, or co-defendants who have grassed them up or dobbed them in it. With one exception: the upper/upper middle classes.

The only people who cut up about the court and it all being unfair and biased are the ones who think that courts are not for them but are reserved exclusively for what, presumably, they like to think of as 'the lower orders'. It is intensely shaming to be lectured and sentenced by one of your own: perhaps rather like being banned from John Lewis '“ the shame of it '“ out of the club. The angriest, personally vindictive and abusive responses to the judiciary doing its job that I have experienced are from the ones who, well, have friends who are High Court judges. The sense of 'it's not fair', 'it's not really breaking the law' or 'can't I just give the money back and forget all about it', and 'do I really have to stand in the dock?' belongs to them.

So, two things emerge: first, that perhaps the really effective deterrent for people is to find that they are sentenced by the people they count as their friends and equals; and secondly, that there is nothing like the middle classes for moaning.