Judicial Appointments Process in the UK

Discuss how judges are appointed and discuss whether there is sufficient diversity within the judiciary.

Appointment of judges is based on the post. The Judicial Appointments Commission is an independent body that handles judicial appointments, providing law dissertation help. Appointments are through open competition. The Commission selects candidates and recommends them to the Lord Chancellor (Courts and Tribunals Judiciary, 2020). The Commission must select candidates based solely on merits. They should be of good character. Once the selections are received, appointments are made based on the type of the posts. Deputy District Judges and most of the members of the tribunals are appointed by the Lord Chancellor. Unpaid judges selected by local Advisory Committees are appointed by the Lord Chancellor. Heads of Division and Judges and Senior Judges of the Court of Appeal based on recommendation of a selection panel convened by the Commission are appointed by the Queen (Kogan Page Editorial, 2018, p.525). Scotland and Northern Ireland have separate court structure and they follow their own appointment procedures. The whole of UK is under the jurisdiction of the Supreme Court. A special committee comprising three judicial appointments bodies from around England and Wales, Northern Ireland and Scotland recommends a name to Ministers. Justices are appointed by the Queen based on advice from the Prime Minister (Kogan Page Editorial, 2018, p.526).

They intention of maintain diversity in the judiciary could be seen when the Judicial Appointments Commission should have regard to the need to encourage diversity while selecting candidates. The Chairman of the Commission being a layperson is a testimony to that effect. Even judges on the Judicial Appointments Commission are not in the majority and they do not act in a representative capacity (Courts and Tribunals Judiciary, 2020). The following judiciary diversity statistics of 2019 shows diversity (Ministry of Justice, 2019). The question is, however, whether it is sufficient.

Although the attempt to increase diversity could be seen, it may be argued to be not enough given that that the 2019 data does not show encouraging signs in higher courts (Court of Appeal and Supreme Court). Diversity reforms seem to have only been effected in the lower courts, which is the result of the Constitutions Reform Act 2005. However, (Sommerlad, 2017) argues that despite existence for a long period of time a number of qualified female and BAME male lawyers, the progress is arguably slow at the lower courts and not seen in the higher courts. The root cause may lie in the social structure to be understood with the co-evolution of legal professional systems and gender and race culture system, which favours white male authority (Sommerlad, 2017).

Sarah must establish that Mark had a duty of care to sterilize the tattoo equipment. Sarah must show that Mark was at fault. Sarah being his regular customer Mark was in a relationship with Sarah where his carelessness carries legal consequences (Horsey & Rackley, 2013, p.55). The neighbour principle laid down by Lord Atkin provides that “you must take reasonable care to avoid any act or omissions that you can reasonably foresee would be likely to injure your neighbour” (Donoghue v Stevenson [1932]). Lord Wilberforce further elaborated that there must be a sufficient “relationship of proximity” between the parties (Anns v Merton London Borough Council [1978]). There should be a reasonable contemplation on the part of the wrongdoer that his carelessness may likely cause damage to the claimant, in which case there is a duty of care (Horsey & Rackley, 2013, p.58). Applying the third stage of the test laid down in Caparo Industries plc v Dickman [1990], it is “fair, just and reasonable that the law should recognise a duty on the defendant to take reasonable care not to cause that damage to the claimant” (Horsey & Rackley, 2013, p.61). In the current case, Mark owed a duty of care towards Sarah. It was reasonable foreseeable that the failure of Mark to sterilize the equipment could cause damage to Sarah. Sarah being a regular customer of Mark establishes their relationship was proximity. Thus, it is fair, just and reasonable that Mark should have taken reasonable care not to have caused the infection to Sarah. Mark breached this duty of care and for the infection caused, Sarah can claim for damages for medical bills (Lim Poh Choo v Camden and Islington AHA [1980]).

In case of intentional torts, the term “intention” may signify the required target of intention. If what was intended was harm, it must be established that the defendant intended to cause harm to the claimant (Wilkinson v Downton [1897]). In case of battery, the target is simply physical contact. Intention may also signify the level of intention. In OPO v Rhodes [2015], it was held that the subjective intention that harm should be caused and the degrees of likelihood will be relevant as the evidence of intention (Steele, 2017, pp.30-31). Recklessness is a concept applicable to unintended conduct. It falls between intentional tort and negligence. It covers torts such as “gross negligence” or “wanton misconduct” (Steele, 2017, p.128). Reckless conduct “involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result” (Best & Barnes, 2007, p.131). Recklessness is an element necessary to prove intentional torts. There is a purposeful disregard of a high probability of a resulting consequence (J. D. Teller, 2016). The defendant must have foreseen the risk of harm and must have ignored the risk while committing the reckless conduct (DPP v Parmenter [1992]).

In the current case, the court will consider all these aspects of state of mind of Tom while determining whether he intended to cause harm to Fin. Tom must understand that even if he did not mean any harm to Fin, his conduct would be still be considered an intentional tort. The court will determine various aspects such as what Tom intended determining the level of intention or whether he intended to harm Fin. Also, Tom would be considered reckless in using the equipment on Fin causing the unintended harm to Fin. Tom should have foreseen the risk involved in his conduct as he does not have any skills to make tattoos. There was a risk involved that resulted to injury, which he should have known, but ignored.

The underlying lesson derived from the feedback was to understand the concept of the subject matter in question. Understanding of the subject matter helps in analysing any question in hand and directing self to the appropriate and applicable law or principle. The feedback also helped in understanding research strategies, methods or structure and applying them appropriate specific to the question in hand. The feedback helped in organising the thought process involved in approaching a problem or research question in hand. It helped in formulating the structure of the answer to a question. In this regard, the most important take away from the feedback was to understand a problem, identify the issue in hand, identify the applicable law or principle, and apply the law or principle to the question in hand. Once a subject matter is understood, the challenge lies in applying applicable law or principle to come to a conclusion. The feedback helped to meet this challenge.

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Bibliography

Anns v Merton London Borough Council [1978]

Best, A. & Barnes, D.W., 2007. Basic Tort Law: Cases, Statutes, and Problems. Aspec Publishers.

Caparo Industries plc v Dickman [1990]

Donoghue v Stevenson [1932]

DPP v Parmenter [1992]

Horsey, K. & Rackley, E., 2013. Tort Law. Oxford University Press.

J. D. Teller, E., 2016. The Self-Help Guide to the Law: Negligence and Personal Injury Law for Non-Lawyers. Teller Books.

Kogan Page Editorial, 2018. British Qualifications 2018: A Complete Guide to Professional, Vocational & Academic Qualifications in the United Kingdom. Kogan Page.

Lim Poh Choo v Camden and Islington AHA [1980]

Sommerlad, H., 2017. Judicial diversity: Complexity, continuity and change. In G. Gee & E. Rackley, eds. Debating Judicial Appointments in an Age of Diversity. Routledge.

Steele, J., 2017. Tort Law: Text, Cases, and Materials. Oxford University Press.

Wilkinson v Downton [1897]