Changes in Judicial Appointment Process in England and Wales

This article discusses the changes in the judicial appointment process in England and Wales after the introduction of the Judicial Appointment Commission. It explores the role of the Commission in selecting judicial officers based on merit and promoting diversity. The article also highlights the criticisms and challenges faced by the Commission in ensuring a diverse judiciary.

English Legal Systems

Table of Contents
Question 1.............................................................................................................................................2
Question 2.............................................................................................................................................4
References.............................................................................................................................................8
1

Question 1
After the introduction of the Judicial Appointment Commission, the judicial appointment
process in England and Wales has been changed. The Judicial Appointment Commission is
an independent and non-departmental body. The Judicial Appointment Commission was
created under the Constitutional Reform Act of 2005. The Judicial Appointment Commission
is responsible for selecting judicial officers for England and Wales. Before the creation of the
Judicial Appointment Commission the judicial officers were selected by the Lord
Chancellor1. The judicial officers those selected by the Lord Chancellor faced the criticism of
lack of diversity in terms of ethnicity, age, gender and of being from the narrow background.
The Judicial Appointment Commission selects candidates for judicial offices on merit.
Section 63 of the Constitutional Reform Act of 2005, states that meritorious candidate with
sound character will be selected for judicial offices. Section 64 of the Constitutional Reform
Act of 2005, states that reasonable measure to be taken to encourage diversity. The
appointment of the judicial officers is important in order to ensure an independent and
accountable judiciary.
The Judicial Appointment Commission was created with a view to making the appointment
system more transparent. Before the Constitutional Reform Act 2005, the Courts and Legal
Services Act 1990 and the Tribunals, Courts, and Enforcement Act 2007 were to be consulted
before the appointment of the judges. After the Constitutional Reform Act 2005 the Lord
Chancellor still have the power of recommending individuals to the queen but can no longer
take part in recruitment and selection process of the judicial officers 2. A consultation paper
was issued by the government of Britain which clearly states the fundamental principles
regarding the appointment of the judiciary. The main intention was a separation of power
between the executive, legislature and judiciary. The appointment of judges should be on
merit to ensure highly competent and impartial judiciary. An impartial judiciary will avoid
unfair discrimination. The Constitutional Reform Act 2005 has brought transparency in the
appointment of judges. The Constitutional Reform Act 2005 has proved its efficiency and
effectiveness in the appointment of judges by delivering high-quality judges. The Tribunals,
1 Judiciary, 'Constitutional Reform' (Judiciary.uk, 2019) <https://www.judiciary.uk/about-the-judiciary/the-
judiciary-the-government-and-the-constitution/constitutional-reform/> accessed 8 April 2019.
2 Lori Hausegger, Troy Riddell and Matthew Hennigar, 'Does Patronage Matter? Connecting Influences On
Judicial Appointments With Judicial Decision Making' (2013) 46 Canadian Journal of Political Science.
2

Courts and Enforcement Act 2007 had laid down the qualifications required to become a
judge3.
The Tribunals, Courts and Enforcement Act 2007 had reduced the minimum period required
to become a judge. The Tribunals, Courts and Enforcement Act 2007 had laid down five
qualities and abilities required by a judicial officer. The five core qualities and abilities are
intellectual capacity, personal qualities like sound judgment, ability to deal fairly,
communication skills and efficiency. The Judicial Appointment Commission is under the sole
responsibility of appointing the judicial officers of England and Wales. The Constitutional
Reform Act 2005 has laid out various procedures for selecting the judge's4. Under the
Constitutional Reform Act 2005 a vacancy request is made by the Lord Chancellor to the
Judicial Appointment Commission. A selection panel is appointed by the Judicial
Appointment Commission. The panel will take the required steps to fill the vacancy. After
selection, the Lord Chancellor may accept or reject the selection in case of rejection the
selection panel can select another candidate or the reconsider the same candidate or can
appoint anyone on Lord Chancellor’s recommendation.
In case the Lord Chancellor is of view that the candidate selected by the selection panel is the
right one he will recommend the queen for the appointment of that person selected by the
selection panel as a judicial officer. However, the Judicial Appointment Commission is also
not free from criticism as there stays strong criticism regarding the profession issues, gender,
and ethnicity of the judges. Section 64 of the Constitutional Reform Act of 2005 encourages
diversity but the judicial members are from the narrower sections of the society5. Despite the
coming in force of The Judicial Appointment Commission total representation of the women
and ethnic minorities are considered low in the judicial offices. Moreover, the senior judicial
appointment of barristers has limited the composition and size of the judiciary. The press has
criticized the Judicial Appointment Commission on grounds of failure to create diversity in
the judicial offices. The Judicial Appointment Commission was set up to ensure the
appointment of women and ethnic minorities but only male white barristers educated at
independent schools are being appointed as judicial officer6.
3 Rebecca Huxley-Binns, Unlocking The English Legal System (4th edn, Routledge 2014).
4 Law Teacher, 'An Advanced Analysis On Does The Selection Process Of The Judiciary' (Lawteacher.net, 2019)
<https://www.lawteacher.net/free-law-essays/constitutional-law/analysis-of-the-judiciary-selection-process-
law-essay.php> accessed 8 April 2019.
5 Paul Mendelle, 'Why Juries Work Best | Paul Mendelle' (the Guardian, 2010)
<https://www.theguardian.com/commentisfree/2010/feb/21/juries-work-best-research> accessed 8 April
2019.
6 Kate Parlett, The Individual In The International Legal System (6th edn, Cambridge University Press 2011).
3

The issue of diversity in judicial offices are facing a major challenge. Most of the judges are
white, middle-aged males, Oxbridge educated and has no knowledge about the multi-cultural
impact on society. The present selection procedure of the judiciary in England and Wales is
also not free from flaws because the candidates selected by the Judicial Appointment
Commission is solely on the basis of merits and no guidelines have been laid down for
promoting diversity in the judicial offices. Encouraging diversity in judicial offices is the
biggest challenge. To command public confidence in judiciary transparency and
accountability should be brought which will bring an end to the biases. Processes, systems,
and culture should be created that are needed to ensure fairness and transparency in the
modern judiciary. The role of the Judicial Appointment Commission is not to appoint but to
select and recommend to the Lord Chancellor, who can accept or reject such
recommendations but cannot select an alternative candidate. The Judicial Appointment
Commission consists of fifteen members including the chairman7. The other members are
senior representatives of the legal profession. The diverse make-up of the commission can
bring independence and expertise to the commission. The judiciary must uphold the values of
justice. The government could adopt more convenient alternative ways for creating a diverse
judiciary with competent members that will ensure separation of powers and an independent
judiciary.
Question 2
In jury trial, a jury decides a lawful proceeding. In serious criminal cases, a jury trial is
followed. The United States make use of jury trial even in non-criminal cases. The jury trials
have a profound impact on American civil and criminal procedure rules. A jury trial is of no
importance in countries where the common law system does not exist. Earlier juror acts as
witnesses providing information but gradually become adjudicators in both criminal and civil
case. The jury began to gain importance during the reign of Henry II. In the English legal
system, the jury is considered a fundamental part. These days only a minority of the cases are
tried by the juries8. The jury system plays a very vital role in ensuring that the criminal justice
system works for the public in general. The jury system promotes a healthy criminal justice
system. Lord Delving has stated that jury trial is an instrument of justice and a lamp that
7 Baroness Usha Prashar, 'Judicial Appointments: A New System For A New Century | Centre For Crime And
Justice Studies' (Crimeandjustice.org.uk, 2007) <https://www.crimeandjustice.org.uk/resources/judicial-
appointments-new-system-new-century> accessed 8 April 2019.
8 M. Cherif Bassiouni, International Criminal Law (6th edn, Martinus Nijhoff 2009).
4

shows freedom9. In the criminal justice of England and Wales, jury trial plays a very
important role. The existence of the unwritten constitution of England has made the
constitutional position of jury trial vulnerable. The jury trial is governed by the ordinary act
of the parliament that can be amended at any time.
The government can anytime abolish or alter the jury trial. The political barrier has stopped
the government from abolishing the jury trial. The present-day jury trial is governed by the
Juries Act 1974. A jury trial has been limited to serious criminal offenses. Juries occasionally
try civil cases as well. The Juries weigh up the evidence in deciding a particular case. The
judges give direction to the jury regarding the particular case law, which the jury apply to the
facts of the cases to reach a verdict. In the criminal cases, it is for the jury to decide whether a
person is guilty or not and the judges will announce the sentence10. In the civil cases, the jury
has to decide the number of damages that is to be awarded. Juries are important in the
criminal justice system. There are three categories of criminal offenses Summary offense,
indictable only and triable either way offenses. Summary offenses are minor offenses. The
most serious offenses are known as indictable only offenses. The less serious offenses are
known as triable either way offenses. The jury can only try serious kind of offenses in which
the accused pleads guilty. The jury has no such role to play like 95% of the cases are least
serious11. Defendants opt for crown court trial as there are more chances of acquittal in front
of a jury than a magistrate. There is an acquittal rate of 40% in jury trial. In recent years the
government has reduced the use of jury trial in criminal cases to save money.
The Criminal Law Act of 1977 has significantly reduced the power of the jury. The power of
magistrates regarding the pronunciation of sentences has increased while in turn has reduced
the number of cases to be tried by the jury. The Criminal Justice Act 2003 states that the
judge can alone decide a case when there is a possibility that the jury can tamper with the
evidence or the case involves complex financial arrangements. In civil cases the erosion of
juries had started by the middle of the nineteenth century12. The judges have the right to
refuse a jury trial in a particular case. In the present scenario, the use of the jury system in
civil cases is almost obsolete. The Supreme Court Act 1981 has specified that jury trial is to
be followed in the cases of libel and slander, malicious prosecution, false imprisonment, and
9 Jury System, 'The Jury System | Criminal Law' (Lawteacher.net, 2018) <https://www.lawteacher.net/free-law-
essays/criminal-law/the-jury-system.php> accessed 8 April 2019.
10 M. Cherif Bassiouni, International Criminal Law (6th edn, Martinus Nijhoff 2009).
11 Jordan J Paust, International Criminal Law (5th edn, Carolina Acad Press 2013).
12 Trial by jury, 'Is ‘Trial By Jury’ As Effective In UK?' (Lawteacher.net, 2018) <https://www.lawteacher.net/free-
law-essays/constitutional-law/is-trial-by-jury-as-effective-in-uk-law-essays.php> accessed 8 April 2019.
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fraud. However, in those above-mentioned cases also jury trial is not permissible if the trial
required examination of documents and any scientific investigation. The property
qualification is the criteria for determining the eligibility of the jury system. The jury system
is mainly criticized for being male-dominated, middle-class and middle-minded. The jurors
are twelve in number13. Any person above the age of eighteen years can act as a juror unless
that person is excluded by some specific reasons. Any person who is a permanent resident of
the United Kingdom and is within the age group of eighteen to seventy years can act as a
juror.
The Juries Act 1974 has clearly stated about the persons who cannot act as jurors they are the
members of the legal profession, the judiciary, mentally ill, member of the clergy, any person
who is related with the administration of justice and any person who has criminal records.
There are certain categories of person who though is eligible can refuse to serve as a juror
they are members of parliament, doctors and army professionals. The jurors are selected
randomly from the electoral register. Jury system lacks diversity and does not sufficiently
represent the communities. A Central Summoning Bureau has been established for the
purpose of summoning the juries14. The Central Summoning Bureau summons the juries and
deals with their excusal and deferral. Any person who is summoned as a jury has to attend the
crown court. The jurors can be challenged by both the parties for any cause. A juror can also
be challenged on the ground of ineligibility. The selection of the jurors does not depend on
gender or ethnic origin. The prosecution can request the juror to stand by the crown15. A
judge can discharge a person from acting as a jury if he thinks that the person acting as a jury
is unable to discharge his duties properly. The verdict of the jury must be free from any
external pressure. Due to several amendments, the jury system has suffered a setback and is
of negligible importance nowadays.
13 John J Kirton and Jelena Madunic, Global Law (5th edn, Ashgate 2009).
14 Findlaw, 'What Is The Role Of A Jury In A Criminal Case? - Findlaw' (Findlaw, 2019)
<https://criminal.findlaw.com/criminal-law-basics/what-is-the-role-of-a-jury-in-a-criminal-case.html> accessed
8 April 2019.
15 Kenneth S Gallant, The Principle Of Legality In International And Comparative Criminal Law (3rd edn,
Cambridge University Press 2009).
6

References
Bassiouni M, International Criminal Law (6th edn, Martinus Nijhoff 2009)
Duff A, The Boundaries Of The Criminal Law (4th edn, Oxford University Press 2010)
Findlaw, 'What Is The Role Of A Jury In A Criminal Case? - Findlaw' (Findlaw, 2019)
<https://criminal.findlaw.com/criminal-law-basics/what-is-the-role-of-a-jury-in-a-
criminal-case.html> accessed 8 April 2019
Gallant K, The Principle Of Legality In International And Comparative Criminal Law (3rd
edn, Cambridge University Press 2009)
Hausegger L, T RiddellM Hennigar, 'Does Patronage Matter? Connecting Influences On
Judicial Appointments With Judicial Decision Making' (2013) 46 Canadian Journal of
Political Science
Huxley-Binns R, Unlocking The English Legal System (4th edn, Routledge 2014)
Judiciary, 'Constitutional Reform' (Judiciary.uk, 2019) <https://www.judiciary.uk/about-the-
judiciary/the-judiciary-the-government-and-the-constitution/constitutional-reform/>
accessed 8 April 2019
Jury System, 'The Jury System | Criminal Law' (Lawteacher.net, 2018)
<https://www.lawteacher.net/free-law-essays/criminal-law/the-jury-system.php> accessed
8 April 2019
Kirton J Madunic, Global Law (5th edn, Ashgate 2009)
Law Teacher, 'An Advance Analysis On Does The Selection Process Of The Judiciary'
(Lawteacher.net, 2019)
<https://www.lawteacher.net/free-law-essays/constitutional-law/analysis-of-the-judiciary-
selection-process-law-essay.php> accessed 8 April 2019
Mendelle P, 'Why Juries Work Best | Paul Mendelle' (the Guardian, 2010)
<https://www.theguardian.com/commentisfree/2010/feb/21/juries-work-best-research>
accessed 8 April 2019
Parlett K, The Individual In The International Legal System (6th edn, Cambridge University
Press 2011)
Paust J, International Criminal Law (5th edn, Carolina Acad Press 2013)
7

Prashar B, 'Judicial Appointments: A New System For A New Century | Centre For Crime
And Justice Studies' (Crimeandjustice.org.uk, 2007)
<https://www.crimeandjustice.org.uk/resources/judicial-appointments-new-system-new-
century> accessed 8 April 2019
Trial by jury, 'Is ‘Trial By Jury’ As Effective In UK?' (Lawteacher.net, 2018)
<https://www.lawteacher.net/free-law-essays/constitutional-law/is-trial-by-jury-as-
effective-in-uk-law-essays.php> accessed 8 April 2019
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