Judicial Appointments and Retirement Process

Question 1:

Explain how judges are appointed and when they must retire in England and Wales. Discuss whether these appointment and retirement processes are effective in achieving judicial diversity.

ANSWER 1:

The Constitutional Reforms Act of 2005 has radically reformed the judicial appointment procedures in the United Kingdom. The method of appointment of judges to the High Court Bench is a matter of practice and convention.

All judicial appointments follow a fair and open competition. Judges are appointed by Her Majesty the Queen upon recommendation from the Prime Minister and the Lord Chancellor. The basic appointment criteria to be satisfied by all potential applicants is to be citizens of the United Kingdom, the Republic of Ireland or a Commonwealth Country. There is no upper or lower age limit for appointments. An independent body called the Judicial Appointments Commission was established in 2006 for the selection and recommendation of candidates for appointments to the vacant positions. Its Commissioners select and recommend the candidates to the Lord Chancellor who has the discretion to either accept or deny the recommendation or to seek a review for the same. The Commission is under a statutory duty to ‘encourage diversity in the range of persons available for selection for appointments’ in which way it ensures a wide pool of candidates who are then appointed strictly on merit. Important features of judicial appointment procedure are as :

INVITATION: Appointments of Justices of the Supreme Court, Heads of Divisions and Lord Justices of Appeal are by invitation. All such invitations are made by the Lord Chancellor who also reserves the right to appoint a candidate who has not made an application. Applications for filling up vacancies in High Court are also invited through public advertisement.

CONSULTATION: Consultation is an important feature of the judicial appointment procedure in the United Kingdom as all appointments are made after consultation with wide range of senior judges and senior legal practitioners.

RECOMMENDATION: The Appointment of the Justices of the Supreme Court, Heads of Divisions and Lord Justices of Appeal are on recommendation by the Prime Minister to Her Majesty The Queen who makes the formal appointment. The recommendation of the Lord Chancellor is also sought who follows recommendation of an independent selection panel chaired by Lord Chief Justice. However, for the appointment of the Justices of the High Court, the Queen receives recommendation directly from the Lord Chancellor.

APPOINTMENT: By letters patent, Her Majesty the Queen appoints qualified persons as Justices of the Supreme Court, Heads of Divisions, Lord Justices of Appeal and Justices of the High Court.

All potential candidates are required to have a right of audience for a given number of years, as statutorily prescribed, to satisfy their eligibility for the respective positions. For example, in case of the Justices of the High Court, the Statute requires a minimum 10 –year right of audience in the High Court in England and Wales, to be satisfied by the candidate, or it must have been a Circuit Judge for at least two years before taking up the position. In case of District Judges (Magistrate’s Court), minimum 7-years of right of audience has been prescribed.

As the head of the judiciary in England and Wales, the Lord Chief Justice plays a very important role in encouraging judicial diversity while acting in furtherance of his statutory mandate. For the said purpose a High Level Judicial Diversity Committee of the Judges Council has also been established that undertakes a range of targeted initiatives towards achieving diversity with special focus on gender, ethnicity and social mobility in order to encourage wide range of candidates. Towards this end, the judiciary also extends special training programmes for potential candidates belonging to non-traditional backgrounds. At the level of Tribunals, the passing of Tribunal Courts and Enforcement Act 2007 (TCE) is a remarkable step, for it has expanded the range of possible applicants for judicial appointments by reducing the number of years of legal qualification as an eligibility criterion. Such initiatives have together paved the way for upholding a diverse judicial system in the United Kingdom.

ANSWER 2:

JAY’S LIABILITY

Keeping in view the factual context of the situation created by Jay, it would be pertinent to assess his liability under civil law for negligence. The starting point of such determination would be putting back Kay into the position she would have been in, had Jay not acted negligently. Damages are calculated for those sums which would not have been incurred “but for” the negligence of Jay.

However, for liability in negligence at Common Law to be founded, it must be established that:

Jay owed a duty to Kay;

Jay breached the duty owed to Kay;

Jay’s breach of duty caused Kay to suffer recoverable loss (damage);

Jay could reasonably foresee such damage.

In order to further test whether an actionable claim in negligence has arisen against Jay, each element of negligence may be individually tested.

For negligence to be established it is necessary that Jay owed Kay ‘a duty to take reasonable care’ not to inflict damage. Such a duty exists under Common Law when the damage which occurs is ‘foreseeable’; there is a sufficient ‘proximate’ relation between the claimant and the defendant and it would be ‘just, fair and reasonable’ to impose such a duty.

Having established that while cycling on the local high street Jay was under a duty of care towards other cyclists/pedestrians/by passers on the road like Kay, now it is to be analysed whether Jay breached such a duty. This is analysed on the basis of probability of harm, the seriousness of harm, the defendant’s activity and cost of failed precautions in the backdrop of criteria to exercise ‘reasonable care’.

Next is whether such a breach caused any loss to Kay. What is to be shown is that ‘but for’ Jay’s carelessness, Kay would have suffered no loss. This is called the test of foreseeability and causation. Undoubtedly Jay’s case also satisfies the said criteria as Kay was ordinarily driving slowly and had Jay not collided into her, her bike, laptop and camera would not have been damaged.

Thus Kay can succeed in a claim for damages against Jay as:

Jay’s act did in fact caused the damage;

On account of such damage Kay has suffered a loss and

The damage in law is not too remote a consequence of Jay’s wrongdoing.

KAY’S LIABILITY

Act of Kay is one which is squarely covered by the provisions of the Criminal Damage Act of 1971. Criminal Damage constitutes an offence against a property committed without any lawful excuse with an intent to destroy or damage such property or being reckless as to whether the property is destroyed or damaged. This is often called the ‘simple’ form of criminal damage.

The actus reus of such an offence is in destruction or damage of property, belonging to another’, which in the present case has been caused to Jay’s phone by Kay. Further, property is damaged if it is rendered imperfect or inoperative.

Coming to the mental element of criminal liability, Kay’s state of mind can be best understood by differentiating the two forms of Mens Rea i.e. Intention and Recklessness.

Crimes may be committed either intentionally or recklessly. “Intention” conveys the highest level of culpability of an offender. Having no specific meaning, the concept of intention has evolved over time in Common law and is understood as direct, i.e. wanting a particular result, or indirect/oblique based on foresight or knowledge. One cannot be said to have actually intended a result unless it can be proved beyond any reasonable doubt that it was the actual purpose to bring about the result (direct) or the virtually certain risk was actually foreseen.

Recklessness on the other hand can be best understood from the subjective definition given by the House of Lords in G [2003] UKHL 50 as under:

“A person acts recklessly within the meaning of s.1 of the Criminal Damage Act 1971 with respect to –

i. a circumstance when he is aware of a risk that it exists or will exist;

ii. a result when he is aware of a risk that will occur; and it is, in the circumstances known to him, unreasonable to take the risks.

In view of the above the test is whether Kay was aware of the risk, i.e. Jay’s phone would be damaged by her throw, and yet she unreasonably took it. Thus Kay can be said to be reckless of the harm to Jay’s phone.