Hundreds of state prosecutors could be free to become judges under top-level moves to end a ban on Crown Prosecution Service employees entering the judiciary, The Times has learnt Baroness Scotland, QC, the Attorney-General, and Sir Ken Mac-donald, QC, the Director of Public Prosecutions, are both strongly in favour of the changes, saying that it would make the judiciary more diverse by widening the pool of women and ethnic minority lawyers who could be judges.

Sir Ken, who heads the CPS, said: “I think to exclude prosecutors from the judiciary is increasingly artificial. There are many able people here who would make excellent judges. I am keen on finding a way to achieve this. Of course in other countries – in the States, Canada and Australia – prosecutors can become judges without any difficulty.” At present, Crown prosecutors are barred from becoming part-time judges (recorders) who sit on criminal trials – the first crucial stepping stone to becoming a judge.

The chief reason is the sensitivity about preserving judicial independence from the state and a concern that salaried prosecutors, who have seen cases only from the Crown point of view, would be unsuited to being judges and too “prosecutorial minded”. But growing pressure to make the judiciary more diverse is fuelling the case to allow prosecutors to apply for the Bench.

Women and ethnic minorities are strongly represented in the Crown Prosecution Service: at the end of last month the CPS employed 3,088 lawyers, of whom 1,686 were female. Ethnic minority lawyers make up just under 15 per cent of all staff.

Lady Scotland said: “In terms of diversity, the CPS is an extremely good story.” About 45 per cent of senior prosecutors are women. Just over 26 per cent of chief Crown prosecutors are female, and 15 per cent of chief Crown prosecutors are from ethnic minorities.

She said that she strongly backed efforts that are being made to increase the numbers of women judges, adding: “I am very willing to work with the judiciary and Lord Chancellor to make sure there are as many opportunities for women as possible.”

That included prosecutors being eligible to be judges in criminal trials, she added. “With proper safeguards and training, I hope there will be a way,” said Lady Scotland. Solicitors in private practice who became qualified as higher-court advocates could then become recorders and, from there, trial judges. “But CPS prosecutors don’t have that opportunity and I would like them to.” Those in favour of the move also argue that lawyers who do nothing but defence work can apply to be judges.

They also point to the trail-blazing appointment of a former DPP, Sir David Calvert-Smith, as a High Court judge, although he had first to return to the Bar for some months so that the move was not direct. Soundings several years earlier about his precedessor, Dame Barbara Mills, being similarly promoted were firmly opposed.

The decision will be for ministers. But the strong backing of the Attorney-General is key – although the judiciary also must be brought on side. Sir Ken said: “We would have to secure the confidence of the judiciary, whose views obviously are extremely important.

“But I think the idea that if you work for a prosecuting authority you couldn’t, in future, be a fair judge is undermined by the fact that many barristers who have spent their careers doing nothing but prosecuting have become judges, without difficulty, including Treasury counsel at the Old Bailey. No one suggests that they can’t become fair judges.”

Sir Ken accepted that a key difference is that CPS prosecutors are salaried employees. But he said: “They are lawyers, members of professional bodies, and once they have become recorders or judges they have taken a judicial oath. The idea that they can’t be true to that oath is an odd one.”

The judiciary, he added, should be as diverse as possible – racially diverse, diverse in terms of gender and in terms of the areas of legal practice that people were specialised in.

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