A crisis in the judiciary: Joshua Rozenberg on the High Court’s failure to staff its benches

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Rumour has it only 19 of this year’s 25 vacancies were filled

Not enough people want to become judges. Or, at least, there are not enough people coming forward who are good enough to join the High Court.

There were precisely 100 High Court judges in post this month at the start of the legal year. With a complement of 108, the court is eight judges short — or nine given that Mr Justice Peter Smith has, in effect, been suspended on full pay for more than a year. Contrary to my prediction at the time, Smith failed to stand down in the spring and a disciplinary panel is preparing to consider complaints against him at the end of this month.

The High Court has been running below full strength for some time now. Last year, there were 14 vacancies and six posts were left unfilled. In his latest annual report, the outgoing Lord Chief Justice said that he and his senior colleagues continued to be immensely concerned about the “serious loss of morale across the judiciary and continuing dissatisfaction over working conditions, the volume of work, and pay and pensions”. Lord Thomas of Cwmgiedd added that any failure to address the problems of pay and pensions would have a serious impact on morale and on recruitment.

So, will the High Court ever be fully staffed?

“It is not uncommon for there to be a time lag before newly appointed judges take up office,” I was told by the Judicial Appointments Commission (JAC). “There will be more announcements in the coming months.”

But how many? The word on the street is that 19 appointments were approved after the JAC advertised “up to 25” vacancies earlier this year (screenshot below). Only 13 names were announced during the summer, with 12 of those judges joining the High Court on 2 October (the beginning of the legal year).

Screenshot via JAC’s website

And the JAC has already established another High Court selection exercise, with applications to be lodged by the middle of November. Again, there will be “up to 25 vacancies” across all three divisions of the High Court.

This is the second time the JAC has announced that no part-time judging experience will be needed. But, as it adds from what must be bitter experience, any solicitor or barrister who is only now thinking of putting in an application before the deadline next month has probably left it too late to demonstrate transferable skills.

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In fact, pretty much all 13 new High Court judges appointed in August and September have some judicial experience. Four were promoted from the lower ranks: Julian Goose QC, who was a senior circuit judge specialising in crime; Clare Moulder, a former Linklaters partner who sat in commercial, immigration and criminal cases; Gwynneth Knowles QC, who was a judge of the upper tribunal; and Peter Lane, a former tribunal judge who has now been appointed president of the Upper Tribunal (Immigration and Asylum Chamber).

Some of those who have come straight from the bar are strikingly young: Matthew Nicklin QC, former joint head of chambers at the media set 5RB, is 46. Julian Knowles QC, formerly an extradition and public law expert at Matrix Chambers, is 48. So is Sara Cockerill QC, a shipping specialist. And some are significantly older: Martin Spencer QC, who was at Hailsham Chambers, is 61. Jonathan Cohen QC is 66 but hardly a new boy, having sat part-time in the family division since 2005.

While Cohen has a distinguished judicial ancestor, several new judges are state-educated and were the first in their families to study at university. Akhlaq Choudhury QC was born in England to parents from Bangladesh and educated at a comprehensive near Glasgow. David Williams QC went to a comprehensive school in Leighton Buzzard. Simon Bryan QC’s education in Blackpool was state-funded.

Others demonstrate that there is more to life than being a lawyer: Amanda Yip QC, from Liverpool, had three children before she was 30 and is a strong supporter of flexible working at the bar.

So: nine men, four women; nine practitioners, four full-time judges (including, for the first time, tribunal judges); 11 barristers, two solicitors; one person of Asian descent. All things considered, quite a diverse group?

More broadly, Lady Hale is now president of the Supreme Court and Lady Black of Derwent has joined her on the bench, along with the first Welsh-speaking justice, Lord Lloyd-Jones. Lord Justice Singh is now in the Court of Appeal. Time for the JAC to rest on its laurels?

Not according to Graham Gee, a professor of public law at the University of Sheffield and Erika Rackley, a professor of law at the University of Birmingham. The two academics have recently edited a series of essays called Debating Judicial Appointments in an Age of Diversity, based on a conference they arranged.

Some of the contributors to their book speak from a position of great authority.

Sir Tom Legg was permanent secretary to the Lord Chancellor from 1989 to 1998 and, in his day, was effectively a one-man JAC. He has some interesting reflections on merit although I’m not persuaded by his suggestion that we should restore a political element in the appointments process. That still exists, as we saw when Liz Truss, as Lord Chancellor, excluded the judges’ favourite for appointment as Lord Chief Justice this year. There is speculation that Truss was doing the Prime Minister’s bidding.

Other contributions are alarmingly bland.

Christopher Stephens CBE, who chaired the JAC from 2011 to 2016, writes mainly about competency frameworks and ad hoc selection panels, about appraisals and performance metrics. Stephens admits he “would like to have seen greater numbers of diverse, non-traditional candidates joining the judiciary, particularly at more senior levels — not only from its four key target groups but also from other pools of talent such as academia, the employed bar, chartered legal executives and government lawyers”. But he does not seem to have found a way of recruiting them.

Are there any? Gee and Rackley certainly think so; and they have summarised their proposals in a freely-available post. In summary, they say:

  • The JAC must do more to ensure that the judiciary is not merely paying lip-service to diversity but actually pursues policies that will lead to faster change.
  • The JAC should take more “ownership” of the selection process for senior appointments rather than simply endorsing the judges’ favoured candidates.
  • The JAC should continue to scrutinise and improve its own processes.
  • Overall, the JAC should supply more forceful leadership on diversity. It should have greater confidence in its ability to contest the preoccupations of ministers, a self-interested legal profession and an embattled judiciary.

But what does that mean in practice? Surely merit is the only criterion for appointment?

According to Gee and Rackley, some judges still cling to a traditional understanding of merit that places a premium on advocacy skills, experience at the bar and experience in a part-time fee-paid judicial role. The authors want more appointments to be made on the basis of potential.

Judicial skills, they say, are not limited to the technical legal and advocacy abilities associated with excellence at the bar. They include communication, management and leadership skills that are needed for a successful career as a solicitor. The JAC should therefore resist the judiciary’s insistence on part-time judicial experience. This not only favours long-serving barristers, they argue. It also reinforces traditional understandings of merit.

On this basis, we can see the JAC’s “no judicial experience necessary” boast as a sign of strength rather than of desperation. And its warning that solicitors have probably left it too late to join the judiciary next year now reads more like a counsel of despair.

In their book, Gee and Rackley chart the tensions between Stephens, as chair of the JAC, and Thomas, as Lord Chief Justice.

“Inside the JAC,” they write, “it was felt that the Lord Chief Justice was second-guessing many of its decisions… For their part, some senior judges felt that the JAC lacked an effective strategy for encouraging judicial diversity while others complained that its selection processes made too many onerous demands of the senior judiciary.”

Gee and Rackley are quite right to say that the JAC should do more to publicise the improvements it has introduced already. Like other underfunded arms-length public bodies, the JAC has compromised its independence by outsourcing its media relations to the Ministry of Justice press office. When I first asked, the press office told me there were not 100 High Court judges holding office on 2 October but 100.5.

100.5? Did the reference to 0.5 of a judge mean that one judge was working for 50% of the normal working hours? If so, who was it?

We can’t tell you, said the MoJ press office. “On both counts this is personal information agreed between the individual and their head of division, and therefore it would be inappropriate to share this.”

That’s absurd. I can see that a judge working half-time for medical reasons — perhaps while recovering from illness — might want that fact to be kept confidential. But the fact that a judge was permitted to work part-time — if that is what this means — is something the judiciary should be proud of.

It also increased the headcount by half a judge. Or it did until a correction arrived. It seems there were two half-judges in the High Court last year. One has recently retired and the other has now reverted to full-time working.

The failure to recruit enough permanent judges means that the High Court will continue to rely on lawyers sitting part-time. Some of those may be practitioners of the highest calibre who don’t want to give up the day job. Others may be among the 100 applicants for the High Court bench who didn’t make the grade this time (or, no doubt, in previous years).

But there is one thing about this I find reassuring. If the JAC’s standards had been lower, it would have been perfectly possible to appoint another eight judges from those applicants. Had diversity had been the sole criterion for appointment, I imagine it would have been possible to make an even more diverse selection than the 13 whose names have so far been announced. Rightly, the JAC was unwilling to recommend candidates who did not merit appointment.

Merit must never be diluted in order to meet diversity targets. We just need to search more widely for the best judges.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. You can read his previous Legal Cheek articles here.

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The fact is being a judge is just not as prestigious as it used to be. Sure the money’s not bad but statutory retirement ages knock people out of the judiciary long before their time (look at Lord Neuberger) which you wouldn’t get in private practice


Worth pointing out that Lord Neuberger chose to retire, not that he had to.


Hardly; he only went one term before he would’ve been required to retire: having first been appointed in 1996, his statutory retirement age is 70 and he was born in January 1948 so would’ve had to go at Christmas like it or not. There are now almost no judges left who were appointed in 1995 or earlier and still have a statutory retirement age of 75, maybe 4 or 5.


Joshua, if I was your editor I would have told you to read the stenographer’s report of the Smith British Airways case and to take a different editorial line about recusal applications being made to shift Judges when litigation is going unfavourable for a party, and then I would see what you came back with.

See page 11 of the transcript, if I recall.

You can find it trailing back through the Legal Cheek article links.

After I had given you that instruction, i would have asked the question….you are not a client journalist are you ?

Joshua Rozenberg

What’s a client journalist?


Client journalists tend to have a patron. They may have been given a slot in the media generally, or the*newspaper* in question, to serve the patron, or, once in post, they will serve the patron. The patron will have a jigsaw of influence of which the client journalist will provide a piece or two at a key time and there will be reward reflecting the patron’s prestige.

Sometimes client journalists will just publish copy from the patron.

Omissions in lines of inquiry, judgment calls which do not reflect the true weights in the scales would be things to be mindful of.

One tends to associate patrons with political lines but the Peter Smith story looked very interesting when one compared the stenographer’s report versus the editorial line taken by some.

One could imagine it being put to Smith in his disciplinary hearing that an eminent legal journalist had suggested he should stand down, which is why I made the comment above.

There is still time to turn your influence towards his point of view, and I am sure you would get a publisher.

In the appeal from High Court to Court of Appeal by the parties on the ground of recusal, unless I am very much mistaken, Smith is not entitled to appear or comment.

His view does not get heard. Have you approached him for an interview or comment, for example, to redress the balance ?


Mate, you have asked questions you don’t know the answer to after making a number of accusations and assumptions.

You are unlikely to come out of this looking as clever as you think you are.


I know I am clever. And I know it is obvious I am.


Course you are, princess.

Joshua Rozenberg

Thanks. I’m glad I don’t meet your definition of a client journalist.

I have been seeking a response from Peter Smith J since I first wrote about him more than 10 years ago. Nothing had arrived when I last checked my email (nearly a minute ago, now).


That is a pity, because I think it would be a good battle to read or watch on tv / YouTube.

How would one approach him please, just in case he may respond more favourably to me ?

Joshua Rozenberg QC

You could start by giving your name.


Thanks Joshua.

If I could start by giving you my name, what would the middle and the end look like.

Rather than have you ask for my name, I thought you might say something like “contact the RCJ and ask to speak to his clerk”.

But I would like to approach him, so I am open minded about giving my name. Noting that you and a Legal Cheek journalist or two are the only ones who ever do.

Any thoughts please ?


Are you sure you’re not PeterPete Smith yourself? You have suspiciously strong opinions about this and your tone is very different to that of a normal LC poster.

Or in LC speak, “Hi Peter!”

Joshua Rozenberg

Try a letter addressed to Sir Peter Smith at RCJ Strand WC2A 2LL.


Thanks Joshua,

I have just read your April 2017 – expect Smith’s retirement announcement – legal cheek article. I think that contains a tipping point. Your coverage of the letter to the Chair of BA states that he stated that he was a Judge, and not just any Judge.
You give the impression that he mentioned to the Chair of BA in his letter of complaing that he was the Judge allotted to a BA class action….if he said that , that is bad. But if he stopped short of that then the media are bad for not correcting the wrong impression they have given. (The letter is not disclosed by legal cheek)
I see from the detail of his letter to Blackstones (which legal cheek did reproduce) that he had a lot of support at that time. I don’t want to waste my time trying to get involved now if he did add to the BA chair that he was trying a class action, but if it is a valid point of view that you overplayed the narrative in a culture where there is no editorial challenge, then I will approach him.

Please could you quickly look over your notes on the letter to the Chair and let me know if Smith did mention the class action to him.


The problem with the JAC’s recruitment process is precisely the mania for competency criteria and other associated HR-speak. None of which have anything to do with an actual ability to do the job.
In addition, the process is still based on people who spend all their time in court and militates against not only solicitors but also the employed bar. I have just about given up applying for a judicial role because of the practical impossibility of making the JAC understand that in-house employed lawyers have just as much to offer.


Another aspect of this is the restrictive nature of entry into the profession at the bottom end. One or two judges will be academics or solicitors, but for the foreseeable future on the High Court bench, recruitment will be 95% barristers. When there are fewer and fewer opportunities for good people to get into the bottom half of the Premier League sets and make a living, the pool of potential recruits will shrink.


I think some progress is being made but we are still circa 20 years away from a true cross section of society on the bench.

My fear is the continued closure of courts may reduce to fit the dwindling number of judges as opposed to numbers on the bench increasing.


Excellent piece


One of the highest ranking female judges interviewed me for pupillage. First question: what are your childbearing aspirations. I answered that I had gynaecological issues. I got the job and told her on my first day that I was pregnant with triplets. I blame myself for the lack of diversity. (But I did get appointed to the judiciary!)

Just Anonymous

JR, I’d like to know what you think about this specific claim from Gee and Rackley:

“The JAC should therefore resist the judiciary’s insistence on part-time judicial experience.”

Personally, I find this absurd. Part time judicial experience is probably the best objective evidence a candidate could give as to their aptitude for a judicial career. Why should it be downplayed?

Joshua Rozenberg

Good question. I’d say it’s highly desirable, given the difficulty of sacking a High Court judge with no judgment. But I wouldn’t make it compulsory.

Frustrated Writer

Alex had finished his latest career conundrum rework, and watched with delight as the comments came rolling in. He was so proud of his idea that he began eyeing up the damp, grimy walls in the office for a place he could frame and hang a copy of the article. The obvious candidate spot was immediately behind Tom, where Alex had spotted a number of mysterious indentations in the wall. That would be killing two birds with one stone, Alex reasoned, as not only would it display his triumph, but also if the landlord inspected, the frame would hide the damage. Although it was only a modest sum, when the day to move offices finally came, Alex really needed his deposit back. The only problem with that was that Tom would have to turn to look at the article, and Alex assumed he would be doing that so often he may hurt his neck. The last think he needed was a worker’s injury claim on his hands. He had enough litigation against him as it was.

The cheap phone on Katie’s desk began to ring loudly, breaking Alex’s train of thought. Katie was working on her next big Amal scoop, and was desperately trying to work Judge Rinder into it. Him blocking her on all forms of social media didn’t help. She had her earphones in as usual with the tinny sound of Lady Gaga was audible to Tom and Alex. A fancy donut box sat unopened and untouched next to her.

On hearing the phone, Katie angrily pulled on her earphone cord, popping the buds from her ears, muttering profanities under her breath. She hated being disturbed mid flow. She would need another coffee to get back in the groove again. “Yes?” Katie boomed aggressively into the cordless handset.

Without saying anything further to the caller, Katie cupped her hand over the phone and turned to Alex, who was still seated on the sofa. “Call for you Alex.”

Alex groaned. He thought he knew who it was, but had to be sure. “Who was it? Were they asking for money? Did they sound eastern European?”

Katie shrugged. “I didn’t ask. It was a woman”. She held the phone handset out insistently.

Alex sighed and took it off her. Raising it to his ear he immediately heard the sound of quiet chatter and typing, indicating a call centre of some description. “Hello?” he asked, tentatively, not knowing what to expect.

“Good morning is that Mr Aldridge?” the caller asked in a phoney enthusiastic tone. The voice was of a young woman, and judging by the strength of her accent she had never set foot outside of Mumbai. Alex was a little relieved it wasn’t a loan shark.

“Yes. Who’s this?” Alex replied.

“Good. My name is Anima. I’m calling from Advanced Debt Solutions on behalf of Edge Hill University. Mr Aldridge, sir, may I call you Alexander?”. The answer was wooden and well-rehearsed.

“Alex is fine” he said, suspiciously. Alex’s palms began to sweat and heart raced. What could this be? The university name sounded familiar, but he didn’t think that he owed them anything. Could he have done something when he was out of it?

“Thank you Alexander” Anima responded, ignoring his request. “I’m hoping for just five minutes of your time today if I may. I have been asked to contact you by Edge Hill. They have advised me that you entered into a sponsorship contract with them on 17 June 2016. Do you recall that, Alexander?” The voice was so robotic that Alex doubted the caller would pass the Turing Test.

“Um, I think so” Alex replied. His memory was hazy. He vaguely recalled being in a room of enthusiastic Liverpudlian people, but could not recall a contract. Around that time he had a particularly nasty Russian mob enforcer on his case looking for repayment, and he had been so desperate for cash he had ended up with more sponsorship deals than Manchester United, and all similarly with organisations he hadn’t heard of. Alex couldn’t remember a vast majority of them, let alone promise that he had honoured them.

“Good” Amina said. “Edge Hill has asked me to check in with you. They have seen that you have written some articles on their rival universities, including Kings College and Bristol, sir, and in accordance with the contract, they wanted the same for Edge Hill. They have tried to call several times, written to you, emailed you and even Tweeted but you have not responded sir”.

Alex kept his cool. After the past few years, he had learned to deal with far more intimidating people than Amina. She hadn’t even threatened the integrity of his knee caps yet. This was baby stuff. “Yeah, that’s fine, I can get one of my staff to write that. We’ll even make up a student’s name for it”. He looked at Katie. “I’ve got just the girl”.

Katie, despite putting her earphones back in, snapped around to return Alex’s look on her being mentioned. Her eyes were wide with evil intentions and she started omitting a growling sound. Tom’s sixth sense was triggered and he hunched behind his monitor, desperate to stay out of the way. “Sorry, I meant I have just the highly valued non-gender specific human, who is every bit as equal as me, who, as a man is inherently evil and oppressive” Alex said rapidly, being careful to remember the exact form of words Katie had insisted he use. He hoped it was correct, he had never before had to recall something he had been forced to learn whilst in a headlock.

“Thank you Alexander” Amina continued. “Edge Hill will monitor you. Please be sure to post the article within a time period starting today and terminating no later than 10 business days thereafter, in accordance with clause 3.2 of the contract. If you fail to do so, Edge Hill must insist you kindly return the full sponsorship fee”.

Alex was concerned at the last part. “What was the fee again?”

“Please Alexander bear with me for one moment”. Alex heard swift typing sounds, before a response was given. “Thank you Alexander for your kind patience. The fee you will recall was £17 and a case of something called Special Brew sir”. She emphasised the word ‘Special’ as if saying the phrase for the first time.

There was no way Alex could afford to return the fee. He would have to sell all the equipment in the Legal Cheek offices and would still be well short. There wasn’t much of value left. He had recently pawned the only real camera they had, meaning Katie had to use her own iPhone for her video interviews. The back camera on that had long ago broken, so she had to take selfies with interviewees. That’s what she said, anyway. Alex thought she must enjoy doing that.

“No problem” Alex responded.

“Alexander, is there anything else you would like to raise today?” Amina asked.

“No”. Alex was brief as he was keen to get off the call now.

“Then I will put you through to a short survey about your experience today, and kindly wish you a good day sir”. With that, Alex’s ear was blasted by hold music which sounded like a six year old trying to play Beethoven’s Fur Elise on a 1980s Casio keyboard. He immediately hung up. He had no time to waste, there were many articles to write. Alex knew it would be too obvious to allow the articles to start talking about random universities no one had heard of, he would have to be more subtle. The series would have to be lengthened and reduced in quality gradually to fit this one in as cover.


Tremendous! Inserting the social media blocks and payment in booze. You really do respond to requests!


This certainly has a lot more meat on the bone than the usual LC offering, but Rozenberg seems to be have become swept along by the desire to demonstrate his piety towards the demi-God of Diversity (reinforced by the ritual of having a free kick at Liz Truss, the PC equivalent of a dozen Hail Marys). He appears to sympathise with those who are critical of the importance attached by the present judiciary to prior part-time judicial experience, because it “reinforces traditional understandings of merit”. The article then tries to have it both ways by assuring us that “Merit must never be diluted in order to meet diversity targets” but unless you have explained what the new, non-traditional definition of “merit” is, this is meaningless.

Could it just possibly be that the “traditional understandings of merit” are worthy of respect? After all, we constantly reassure ourselves that the quality of our judiciary is second to none, so why are the views of this impressive cadre of judges to be dismissed with impatience? it has long been recognised that the best barristers do not necessarily make the best judges and I have no desire to limit appointments to the High Court bench to QCs from half a dozen sets, but how does expecting candidates to show some aptitude and commitment though having sat as Deputy High Court judges interfere with widening access to the bench? The best way of opening up the High Court bench to non-traditional candidates, whilst also ensuring no compromise on quality, is to encourage non-traditional candidates to dip a toe in the water through a part time appointment. Such experience would give suitable candidates the confidence and track record to apply for full time posts, so the problem lies further back in the pipeline, not at the level of appointment as full time High Court judges. Christopher Stephens at the JAC is damned with faint praise for his efforts; it would be useful to know why he found it difficult to widen the pool of successful candidates – is there really a structural impediment to solicitors or employed lawyers taking up part time posts?

I suspect much of the problem is rooted in wider social developments: people are having children later in life and don’t want to give up on their peak earnings when they still have children to support through what seems to be an ever lengthening period of study necessary to become employable. This collides with the desire to appoint judges at a younger age than before so as to provide prospects for promotion before hitting the mandatory retirement ages.


I think there are structural difficulties in recruiting employed solicitors to part time positions. I was made redundant when I was appointed despite the firm stating that they supported my application. It depends on what level you are within a firm as to how your appointment is accepted. Also very difficult applying for jobs where you have to ask for additional unpaid leave to be able to sit and no one covers your work whilst away sitting.


Obviously it’s time to make judges a protected class in employment dismissal law!


It would be good sport to have opposing barristers present a case of legal argument, procedure and witness testimony in “lab conditions”. E.g. provide bundles to participants and film the proceedings. Then let anyone write a judgment. Include some High Court, Court of Appeal and Supreme Court judges in the study, but anonymise their judgements.

This way we can see the gigantic shortfall between the great and the dross, if it exists (I doubt it does).

If the gap does not exist afterall then we can all sing and dance.


1. The (effective) requirement to have sat part-time is particularly restrictive given that there have been just two Recorder competitions in the last 5 years. The current one will appoint just 150 people from the 2200 who applied, nearly 12 months after the application deadline. None of them will sit until about this time next year. There hasn’t been a meaningful fee paid tribunal competition in 5 years but 250 are shortly to be appointed. There’s a bulk of people without relevant part-time experience.

2. For those who do have part-time experience there comes a point where you either have to appoint them full-time or stop them sitting. If we don’t have more part-time vacancies then stop those who became a Recorder in the 1990s on a nod and a wink from sitting. They don’t want to be in the full time Judiciary so let them make way for those who might. (I’m aware the Thomas LCJ was in favour of this but it didn’t come to pass)

3. Competence / HR speak. It’s a pain but I’d rather it than the old system and I don’t know of one better. I had a JAC interview in which I didn’t use my former advocacy experience as an example at all, nor did it come up. I now work in-house and do no advocacy at all.

4. Two questions for Joshua Rosenberg if you are still reading the comments.
A) Any truth in the rumour that despite there being no requirement to have sat previously in a JAC appointed role for the 116 Circuit Judge vacancies (a first for this role) they haven’t managed to recruit 116?
B) Any idea when the other 9 HCJs are being announced?

Joshua Rozenberg

I asked about circuit judges, knowing that they had little expectation of recruiting the number they needed (background here: They said “There are currently 596 Circuit Judges holding office.
An open competition for Circuit Judges which launched in March 2017 has not yet concluded – the Judicial Appointments Commission will report on outcomes in due course.”

Other High Court judges will be announced as vacancies arise, they say.

Joshua Rozenberg

I’m now told that the two Chancery judges who operated a job-share were Mr Justice Warren and Dame Sonia Proudman. She’s the one who retired on 2 October.


The silly person you quoted in the article saying he’d love to see more chartered legal executives in the senior judiciary. Did this expert not know that we are limited to DJ at the highest despite being just as qualified as solicitors?

Joshua Rozenberg

You would have thought so, given that he ran the JAC. Maybe he was calling for the law to be changed.

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