Openly gay British judge describes inquisitorial vetting process

by on January 26, 2009  •  In Judiciary

From The Times of London:

Britain's first openly gay judge has spoken out for the first time about his "bizarre and depressing" experience of applying for judicial appointment. Sir Adrian Fulford, a High Court judge who handles terrorism cases, said that his first application to be an assistant recorder (part-time judge) in 1994 "caused real consternation".

He told a meeting on diversity hosted by the Bar's south-eastern circuit that he believed his application to be the "first time the Lord Chancellor's Department had had to deal with someone who was applying for a judicial position as an openly gay man or a lesbian, someone who made no secret of the fact".

Sir Adrian said that the normal interviewing process in the early 1990s was completely "set aside" and a "special tribunal of men in grey suits whose names I think I never knew was convened". 

"What followed was somewhat bizarre and depressing. The underlying theme was that I should simply withdraw my application. This was presented by questions to the effect of: Do you really have to pursue this?"

When he insisted that "I would not be putting myself through this rather unpleasant process unless I really wanted to be a judge, they then directed their focus, in a somewhat dramatic way, on what may or may not happen behind my closed bedroom door".

Sir Adrian was asked whether his role as junior counsel to Ann Mallalieu, QC, in the House of Lords' "sado-masochists" appeal [the Spanner case], meant that he was a "sado-masochist or had some kind of unspeakable sexual interest".

"I protested that the briefs barristers accept have nothing to do with who they are (think of all those murder trials) and that in any event, I was conventional to the point of innocence under the duvet, but it seems extraordinary that such a question could be put without any possible foundation."

The new Judicial Appointments Commission has its cumbersome aspects and some complained of pitfalls, he said. But it is "in most respects incalculably better than the old system" that "in its implementation, preserved the judiciary, for far too long, as the private fiefdom of a very narrow kind of white, heterosexual male".

Sir Adrian predicted that in the "not too distant" future, the judiciary would reflect more realistically the composition of the legal professions, which in turn were undergoing radical transformation. The old tap on the shoulder system might have been quicker and produced a highly competent judiciary but the judges' perspective was always at risk of being far too narrow and the appointments system itself "was palpaby unfair".

With a little courage, he said, seismic change was possible. There used to be many cold shoulders ("there still are a few") but many colleagues showed a "true generosity of spirit" – including the new Lord Chief Justice.

Sir Adrian was appointed to the High Court bench in 2002 – the first time an openly gay barrister was so promoted. Then in 2003 he was elected to serve on the International Criminal Court. The only other openly gay judge is Sir Terence Etherton, who last September became the first such judge to go to the Court of Appeal. He was appointed to the High Court in 2001 and then announced his own civil partnership in The Times in 2006.

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