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Can criminals be judges?

Freemasons, extremists, even members of the Garrick Club can be appointed to the bench


This article is taken from the May 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

I am not, and have never been, a member of the Garrick Club. I make the declaration in case I ever decide to apply for a judicial appointment since, according to a recent open letter by a group of lawyers, membership of the men-only Garrick “is fundamentally incompatible with the core principles of justice, equality and fairness, particularly for senior members of the judiciary”.

Though this debatable assertion has no basis in law, at least four of the Garrick’s judicial members — Sir Keith Lindblom, Sir Nicholas Cusworth, Sir Nicholas Lavender and Sir Ian Dove — have resigned from the club, a line-up more than enough to constitute a very satisfactory Divisional Court.

On the other hand, Lord Richards of Camberwell and Sir Julian Flaux have decided to stay put, no doubt having joined the Garrick to undermine the Establishment from the inside, as Simon Case almost put it.

What does disqualify the aspiring judge from a place on the bench? As far as the senior courts of England and Wales go, statute provides little guidance. An aspiring High Court puisne, for instance, must be a barrister or solicitor who either has been a circuit judge for two years or fulfil the “judicial-appointment eligibility condition on a 7-year basis”, a formula which simply means that they should have been engaged in some sort of law-related activity, broadly construed.

This means that appointment to the superior courts, once the preserve of barristers in private practice, is now open to members of the employed bar, to solicitors and even, sad to relate, to legally-qualified legal academics, though chartered legal executives remain barred from anything higher than a district judgeship.

The latest High Court advertisement on the website of the Judicial Appointments Commission furnishes a few more titbits. Candidates “should be of exceptional ability”, be at least five years away from statutory retirement, and not be a sitting MP (although it is more accurate to say that a High Court judge is disqualified from sitting as an MP). Crucially, they also have to be willing to engage in play-acting in front of a selection panel.

Other requirements have come and gone, some of them surprisingly recently. For instance, religious nonconformity has not been a bar for judicial appointments since the 19th century — the first Roman Catholic judge in England since the Glorious Revolution was appointed in 1863, the first Jewish judge a decade later.

It became obvious that no nefarious conduct could be attributed to Masonic judges

But Lord Jowitt, Clement Attlee’s Lord Chancellor, for a time refused to promote Roman Catholics to the High Court, on the ground that they allegedly could not grant civil divorces because of instructions from the Pope. He confessed that he “cannot understand and have no sympathy with the Catholic point of view” and told a colleague that the recent pronouncement of the Bodily Assumption of the Virgin Mary “fills me with despondency”, though denied being “an embittered Protestant”.

Later on, though not a religious bar per se, Tony Blair’s government required all prospective judges from magistrates upwards to declare whether they were Freemasons before they could be appointed, a rule scrapped in 2009 when it became obvious that no nefarious conduct could be attributed to Masonic judges.

One-time political extremism is not necessarily a bar to preferment either, at least in the recent past. Sir Frederick Lawton was both a communist and a fascist in his twenties (not an uncommon trajectory), eventually becoming a prospective parliamentary candidate for the British Union of Fascists. On the outbreak of the Second World War, he broke with the far right, enlisted in the Army, and eventually made it to the Court of Appeal.

Lawton’s former views could arguably be dismissed as youthful folly, but those of Sir Stephen Sedley are harder to defend, since he held them for much of his adult life. He was appointed to the High Court in 1992, despite having been a prominent member of the Communist Party of Great Britain for decades, even serving on its “Theory and Ideology Committee”.

Unlike Lawton, he could not plead ignorance, having joined the CPGB in 1958, two years after the violent Soviet suppression of the Hungarian uprising. Reviewing Animal Farm in 1984, Sedley accused George Orwell of “a virulent and often unreasoning anti-communism”. Literary criticism’s loss was the judiciary’s gain.

Although good character is a must, the JAC is at pains to underscore that a previous conviction is not an absolute bar to appointment to the bench, although it obviously makes it more difficult.

Conviction for “offences related to driving under the influence … will mean that it is unlikely that the JAC will allow your application to proceed”. Russell LJ, convicted of drunk driving in 1960 and later promoted to the Lords, would not have received similar leniency today.

Other jurisdictions have been even more forgiving. It might be thought that a conviction for incitement to commit murder would be disqualifying under all circumstances, yet Dr Fritz Krause KC was appointed to the Supreme Court of South Africa in 1923, notwithstanding a conviction for this crime at the Old Bailey in 1902, whilst he was a paroled prisoner-of-war in England. History does not record whether he ever frequented the Garrick Club.

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