Introduction

The case titled Special Case under section 27 of the Court of Session Act 1988 by the Faculty of Advocates and the Judicial Appointments Board for Scotland (Court of Session) ([2025] CSIH 5) addressed a critical issue concerning the eligibility criteria for appointment to the office of sheriff in Scotland. The primary parties involved were the Faculty of Advocates (First Party) and the Judicial Appointments Board for Scotland (Second Party). The central legal question revolved around whether the required continuous 10-year period of legal qualification is interrupted by a period of devilling (pupillage), which typically lasts nine months, when a solicitor transitions to become an advocate.

Summary of the Judgment

The Scottish Court of Session, presided over by Lord President Lord Malcolm and Lord Pentland, delivered the judgment through Lord Carloway. The court examined whether the nine-month devilling period, undertaken by a solicitor to qualify as an advocate, interrupts the mandatory 10-year continuous legal qualification required for appointment as a sheriff under Section 14(1)(b)(ii) of the Courts Reform (Scotland) Act 2014.

The Judicial Appointments Board for Scotland (JABS) had previously deemed an applicant ineligible for the sheriff position on the grounds that the devilling period interrupted the continuous legal qualification. The Faculty of Advocates contested this interpretation, arguing that removal from the solicitors' roll for devilling should not disrupt the continuity of legal qualification.

After thorough legal analysis, the court concluded that the devilling period does indeed interrupt the continuous 10-year legal qualification required for sheriff appointments. This decision upheld the JABS's interpretation, determining that the applicant did not meet the eligibility criteria as stipulated in the Act.

Analysis

Precedents Cited

The court referenced several key precedents to support its decision:

• In Re JR222 [2024] 1 WLR 4877: Emphasized the purposive approach in statutory interpretation, highlighting the importance of context and legislative intent.
• R (O) v Home Secretary [2023] AC 255: Reinforced that the primary source for statutory interpretation is the clear and ordinary meaning of the words used.
• R v McCool [2018] 1 WLR 2431: Expanded the definition of absurdity in legal contexts to include unworkability, impracticality, and unfairness.
• Mykoliw v Botterill 2010 SLT 1219: Discussed the implications of statutory interpretation leading to absurd results.
• R (Burkett) v Hammersmith LBC [2002] 1 WLR 1593: Highlighted the necessity of clarity and predictability in legal language.
• R (N) v Lewisham LBC [2015] AC 1259: Addressed the role of settled practice in statutory interpretation.

Legal Reasoning

The court employed a purposive approach to interpret Section 14(1)(b)(ii), focusing on the legislative intent behind the Courts Reform (Scotland) Act 2014. The primary objective was to ensure that the 10-year continuous legal qualification requirement served its intended purpose without introducing absurd or unfair results.

Key points in the legal reasoning include:

• Definition Clarity: The court examined the definitions of "solicitor" and "advocate" as per the Courts Reform (Scotland) Act 2014 and related legislation, confirming their clear and unambiguous meanings.
• Legislative Intent: By referring to the Policy Memorandum and Explanatory Notes, the court identified that the intent was to consolidate existing provisions without altering their substantive requirements.
• Absurdity Principle: The court found that interpreting devilling as interrupting the 10-year period would lead to absurd outcomes, such as disqualifying highly experienced legal practitioners from sheriff appointments.
• Settled Practice: While recognized, settled practice was not given precedence over the clear statutory language unless ambiguity was present, which the court determined to be the case here.
• Human Rights Consideration: The court analyzed potential violations of Article 14 of the European Convention on Human Rights but concluded that no such breach occurred.

Impact

This judgment establishes a significant precedent regarding the interpretation of continuous legal qualification requirements for judicial appointments in Scotland. The decision clarifies that transitional periods, such as devilling, do not necessarily interrupt the continuity of legal qualifications if such an interpretation aligns with legislative intent and avoids absurd outcomes.

The ruling has broader implications for legal practitioners transitioning between roles, ensuring that their accumulated experience remains recognized even during periods of professional development or transition. Additionally, it upholds the principle that statutory interpretation should prioritize purpose and practicality over rigid adherence to literal meanings that may lead to unjust results.

Complex Concepts Simplified

Devilling

Devilling refers to the period of practical training and mentorship that a solicitor undergoes to qualify as an advocate (the Scottish equivalent of a barrister). This period typically lasts around nine months and involves hands-on experience in legal proceedings.

Continuous Legal Qualification

This concept mandates that a candidate for a judicial position, such as a sheriff, must maintain an uninterrupted period of legal practice (as a solicitor or advocate) for the ten years immediately preceding their appointment.

Purposive Interpretation

Purposive interpretation is a method of statutory interpretation where courts seek to understand and implement the law's intended purpose rather than adhering strictly to the literal wording.

Absurdity Principle

This legal principle suggests that if a literal interpretation of a statute leads to unreasonable or illogical outcomes, courts should adopt an interpretation that avoids such absurd results, aligning with the lawmakers' probable intent.

Settled Practice

Settled practice refers to long-established interpretations or applications of a legal provision by authorities or courts. While influential, it does not override clear statutory language unless ambiguity exists.

Conclusion

The judgment in [2025] CSIH 5 serves as a pivotal reference for interpreting eligibility criteria for judicial appointments in Scotland. By affirming that a period of devilling does not disrupt the continuity of legal qualification, the court emphasizes a balanced approach that honors both legislative intent and practical fairness.

This decision not only upholds the integrity of the appointment process but also ensures that experienced legal practitioners are not unjustly disqualified due to procedural transitions. The ruling underscores the judiciary's role in fostering an equitable legal landscape, where statutory provisions are interpreted in a manner that promotes justice and aligns with the underlying purpose of the law.