Don’t worry, I am not pitching to sell the judiciary a new Court Recording and Transcription (CRT) system.
The Recorders I am referring to are the English Recorders: appointed barristers that sit as judges for 30 days a year. They generally handle simpler (not simple) and less serious matters. Generally, one starts off in the Crown Court, which is the highest criminal court of first instance, and then moves on to other areas. Unless, I suppose one has a specialty. My friend, Andrew Leong (PJ/Selangor represent), was appointed a recorder back in 2018 but was immediately assigned to hear family law matters. That was probably because family law is his specialty.
Recorders are appointed by the Queen upon the Lord Chancellor’s recommendation, ‘after a fair and open competition by the Judicial Appointments Commission.’ Senior and distinguished barristers are usually appointed to the position. Their appointment is for five years and is often extended for a further five. Recorders are remunerated. One needs at least seven years’ standing at the Bar before being eligible for an appointment.
Recordership is said to be the first step up the judicial ladder to being appointed a circuit judge, that is a full-time judicial appointment. Circuit judges make up the bulk of judicial appointments and handle most of the run-of-the-mill work. The more complex and difficult cases are heard by the High Court.
Hong Kong introduced a similar position in 1994 and seems to be the only other country presently to practice it.
I think this is a legal position that is worth experimenting with to see whether it can actually work and be a permanent feature of our administration of law. Because there are many benefits to be reaped both by the bar and the bench.
Firstly, it will allow senior and distinguished lawyers an opportunity to try out sitting as a judge without having to give up their full-time practice. It will also give those with ambitions for judgeship to pick up valuable experience prior to a fuller appointment later. Giving up 30 days of legal practice is far easier than a career in legal practice.
Appointed lawyers will be better able to empathise and understand judicial concerns. Sometimes some things are best learned by sitting in someone else’s seat. I’d like to think that could provide the scaffolding for building a better working relationship between the bench and bar.
Secondly, it allows the judiciary to talent-scout those lawyers interested in judgeship. The judiciary will have actual performance and materials on which to consider whether a lawyer is suitable for a further or fuller appointment. It will not have to rely on hearsay or recommendations. Now, it can see for itself. For those the judiciary considers of potential, it can give feedback to the lawyer about what to improve to be seriously considered.
Thirdly, the appointed lawyers can take off some of the caseloads from the full-time judges. Like the recorders, they should not hear difficult, heavy and complex cases which are usually long and manifold of applications. They would hear the usual sort of cases that can be dispensed with quicker in the sessions or high court depending on their seniority.
Since appointed lawyers are expected to be experienced and competent, they should be able to hear and decide the assigned cases reasonably quickly. They would be familiar if not well versed with their area of law. There should be less need for submission of the law. Assuming they are appointed to hear cases within their specialty. They should be able to quickly grasp the facts and detect inconsistencies. And they should be able to ship out a judgment as quickly as they would an affidavit.
I concede this is all theory. But I would like to imagine that is what we could expect out of an experienced and competent lawyer.
Fourth, I would like to think that if the right appointments are made, it would ultimately improve the administration of justice. The point of it all is the benefit of the litigants and the administration of justice. But we don’t know unless we give it a go.
As to what such a position is to be called.
If it is taken up, I will leave that to those in charge of it. It’s a very important thing and should not be left to the likes of me. This is an issue worthy of a committee.
My only request is that they find something suitable and do not content themselves with a literal translation of the word recorder in Malay.
