The Judiciary in England and Wales - Essay Example

?Effects of Lack of Diversity on the Impartiality of the Judicial Officers Outline i. Introduction ii. The Judiciary in England and Wales as It Is iii. Challenges of Independence and Impartiality of the Judiciary iv. The Judiciary in England and Wales as It Ought To Be v. Conclusion Introduction Everyone seeking legal recourse when their rights are infringed on or when they are the accused person seeks to be assured of proper administration of justice. As such the quality of administration of justice should conform to the minimum requirements as stipulated by Article 14, paragraph 1 of the International Covenant on Civil and Political Rights to the effect that ‘a competent, independent and impartial tribunal established by law’should pursue such a noble task. This is echoed by Article 6, paragraph 1 of the European Convention on Human Rights. Such a right to an independent and impartial tribunal contains both objective and subjective elements. The objective element entails separation of powers within the constitutional structure of the country. The subjective element entails avoidance by the tribunal of any semblance of dependence. Consequently, the members of the tribunal should avoid any act, attitude or comment which may lead to doubts among litigants as to the independence of the tribunal. Such avoidance is also part of the necessary impartiality of the judiciary.1 The Judiciary in England and Wales as It Is It has been observed that a judiciary that does not reflect society‘s diversity will ultimately lose the confidence of that society. Such is the replication of England‘s judiciary which has earned the decription of “pale, male and stale” to mean a white, male-dominated bench. This is backed by the fact that women and ethnic minorities are barely represented in the judiciary despite relentless efforts for more diversity in judicial appointments. For instance, Baroness Brenda Hale is the only female justice out of the 12 places in the Supreme Court of England.2 In similar breath, Rabinder Singh became the first Sikh, a non-white, to be appointed a High Court judge of England and Wales.3 This is happening in the midst of heated debates as to how and when to strike a balance between diversity and judicial selections based on merit. Such is the argument of the President of the Supreme Court, Lord Phillips, who favours judicial appointments based on merit over diversification. However, this school of thought has faced strong opposition with some arguing that merit is a non-issue or better yet an excuse not to effect judicial diversity speedily.4 Consequently, the lone-rangers in the judiciary such as Hale have called for more women and ethnic minority judges in the courts. She further terms the lack of diversity on the Bench to be a constitutional issue. While addressing the House of Lords Constitution Committee, Hale argued that judicial officers would approach issues differently based on their background, and that a lack of diversity could also change the substantive results of cases. Therefore, as such resistance to diversity among judges is considered to be misguided. She in turn suggests that some cases require diversity of perspectives and life experiences in order to get the best results. A case in point is in child-birth and rape matters where she suggests that the gender of justices would matter in how the cases are determined. Challenges of Independence and Impartiality of the Judiciary Judges are subjected to various kinds of pressure aimed at compromising their ability to dispense justice in an impartial and independent manner. For instance, the independence and impartiality of the judiciary is compromised when they are appointed by the Executive or Legislature or even where they are elected. This is further exacerbated by lack of tenure where they are employed on temporary contracts and are poorly paid thus they become susceptible to corruption they may also be publicly be criticised by the other arms of government in order to intimidate them. They also often include arbitrary detentions and direct threats to their lives including killings and disappearances.5 Despite the judiciary being disproportionately white and male they make judgments affecting women and other minorities thus it is seen as an instrument of oppression. In essence therefore, there is bias as absence of diversity creates a judicial partiality to the values of the overrepresented groups. It has thus been argued that English judges are neither entirely objective nor neutral in their decisions because their decisions often reflect their own political outlook and attitude. Judges, just like everyone else, are the product of historical circumstance, personal experience, and accidents. Life experience and perception are inextricably bound to race, ethnicity, and gender. Thus, judicial impartiality is not the absence of experience but rather the presence of human experience coupled with an open mind. Subsequently, an independent and impartial judiciary is tainted with the experiences that each judge brings to the bench.6 The appointment process in England has been so secretive as to make analysis of the factors affecting the appointment or lack of it of ethnic minority and women judges extremely difficult if not impossible to examine in any systematic and valid academic way. This has however been partly cured by the establishment of the Judicial Appointments Commission vide the Constitutional Reforms Act of 2005. The Commission is bound by a statutory duty to ensure that they observe diversity in the selection and appointment of judicial officers. Britain and Wales has therefore learnt from the American judicial system which seeks to introduce and follow major policy initiatives to increase diversity in the judiciary and to reduce the overtly political nature of judicial appointments. Further, they introduced merit selection commissions at both the federal and state levels.7 Diversity in the judiciary will not result into economic benefits to the court system as is the case in other professions. Diversity is however is an element of the delivery of justice which legitimizes the judiciary amidst the diversity of the society. To that effect, a judiciary that operates in a diverse society must itself be diverse in order to fulfill its function of delivery of justice. Moreover, since fairness is a key measure of the judicial system, the judiciary’s law making role requires it to be in touch with society as a whole in order to both create the appearance and the reality of fairness in judgements. Therefore, diversity needs to be considered an integral part of what is meant by merit for appointment. This is also extended to the juries who must represent a reasonable cross section of the society in order to deliver justice as has always been the norm in practice.8 There are factors that affect judicial diversity such as influences of judicial selection systems and the judicial self-governing bodies exerting control over the judicial profession. Judicial appointments are made from the experienced legal professionals after substantial period of time in practice thus not providing equal opportunities for career progression. Further, minorities are likely to be appointed to lower courts as opposed to the highest echelons of the judiciary. The judiciary is drawn from a very narrow social sector having been privately educated and come from top notch universities. Further, there is a pool for judicial appointments which is majorly dominated by barristers as solicitors are sidelined and they look at the education backgrounds of the candidates.9 The Judiciary in England and Wales as it Ought To Be Judicial independence is important since a free society only exists so long as it is governed by the rule of law. This in essence is the rule that binds the governors and the governed and it is administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought. This can only be achieved through the competent and impartial application of the law by the judges. Judges must therefore be and be seen to be independent. Such independent is two-fold to include independence from the dictates of the Executive Government and independence from any influence that might end, or be thought reasonably to end, to want of impartiality in decision making.10 Consequently, public interest in the independence of the judiciary is very paramount and this is normally informed by the integrity of the judges and in the impartiality and efficiency of its processes that sustain the judicial system of a country. Judges therefore have both an individual and collective responsibility to uphold such high standards for the public to hold the judiciary in high esteem. This image is to be upheld by judges through what they do in both public and in private.11 Thus as pertains to qualifications and selection, persons to be appointed to the judiciary shall be individuals of integrity and ability with appropriate training or qualifications in law. Further, any method of judicial selection should safeguard against judicial appointment for improper motives and should be void of discrimination against a person on the grounds of race, colour, sex, religion, political opinion, national or social origin, property, birth or status. However, that candidate must be a national of the country concerned and this is not considered discriminatory.12 Further, the concepts of ‘independence’ and ‘impartiality’ are closely related but yet separate and distinct. Impartiality refers to the state of mind or attitude of the tribunal in relation to the issues and the parties in particular. It thus connotes absence of bias, actual or perceived. Independence on the other hand connotes both a state of mind or attitude in the actual exercise of judicial functions and a status or relationship to others, particularly to the executive branch of government that rests on objective conditions or guarantees.13 Impartiality is essential to the proper discharge of justice and it applies to the decision itself ant to the process by which the decision is made. Independence is therefore a precondition and prerequisite for impartiality. Thus a judge could be independent but not impartial but a judge who is not independent cannot be impartial. Impartiality should be an attribute to be possessed by every judge as it is a core attribute of the judiciary. It must exist as a matter of fact and as a matter of reasonable perception. If the contrary is perceived, that perception is likely to leave a sense of grievance and of injustice, thereby destroying confidence in the judiciary. The perception of impartiality is therefore measured by the standard of a reasonable observer. The perception of a judge not being impartial may arise in such ways as through a perceived conflict of interest, the judge’s behaviour on the bench or their assertions and activities outside the court.14 The European Court of Human Rights has explained about the two aspects to the requirement of impartiality. First, the tribunal must be subjectively impartial whereby none of its members should hold any personal prejudice or bias. As such personal impartiality is to be presumed unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint by offering sufficient guarantees to exclude any legitimate doubt in this respect. It must thus be determined whether irrespective of the judge’s personal conduct; there are ascertainable facts that may raise doubts as to his impartiality. Consequently any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw.15 A judicial officer should therefore perform their judicial duties in devoid of favour, bias or prejudice. This thus ensures that just is not only done but it is manifestly seen to be done as viewed by a reasonable observer viewing the matter realistically and practically. Bias may manifest either verbally or physically through slurs, demeaning nicknames, negative stereotyping, threatening, intimidating or hostile acts suggesting a connection between race or nationality and crime and irrelevant references to personal characteristics. Bias or prejudice may further manifest in body language, appearance or behaviour in or out of court and in the abuse of contempt powers of the court. However, a judge’s personal values, philosophy or beliefs about the law may not constitute bias. As such the judge must maintain a distinct balance. Such judges should avoid unjustified reprimands of advocates, insulting and improper remarks about litigants and witnesses, statements evidencing prejudgments and intemperate and impatient behaviour, constant interference in the conduct of the trial and ex parte communications. In addition, out of court judges should avoid deliberate use of words or conduct that could denote an absence of impartiality. For instance, frequent recusals should be avoided and in case of a conflict of interest such a judge should disqualify themselves.16 Conclusion Judicial independence and judicial diversity are necessarily intertwined. It has thus been suggested that the problem of racial bias in the judiciary is best addressed by promoting judicial independence in general, rather than judicial diversity in particular. To that extent, if a legal system puts in place an independent judiciary then such a system shall not need a diverse judiciary since the independent Bench will adjudicate without being influenced by prejudice. Inversely, by appointing a diverse Bench it will not affect the judiciary’s independence. Notwithstanding the foregoing sentiments, diversity represents some form of affirmative partiality, prejudice or understanding to dependent variables.17 The likes of Lady Hale have suggested on the way forward as regards means of incorporating diversity in the judiciary. They talk of positive action, a US-style scheme for "judges' marshals" or judicial assistants, and schemes where judges would encourage students from minority backgrounds to pursue judicial careers. This may be effective considering many of the barriers to greater judicial diversity are systemic. It has thus been suggested that there should be more diversity of sexual orientation and disability among judges since judges have a unique role they place as arbiters of the rules of society in accordance with the Equality Act of 2010.18 All in all, quality should not be diluted but it has been argued that diversity increases the quality of judicial decision-making in its most traditional sense. Different judges from different backgrounds potentially bring different viewpoints to the table and thereby alter the outcome of cases, as well as ensuring that our justices remain those most qualified on whatever definition of merit is used. Those opposed to judicial diversity are misplaced and offensive to the highly qualified people of minority status that are unable to access positions in the Supreme Court. Moreover, since fairness and equality are central values of the law the courts should reflect this to ensure that the upper echelons of our judiciary are accessible to the best candidates, regardless of their background, and ensuring our judiciary is reflective of our society.19 BIBLIOGRAPHY 1. Dr. Cheryl Thomas. Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of Research, Policies and Practices. The Commission for Judicial Appointments, (2005). Retrieved March 21, 2012 from http://www.cja.gov.uk 2. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers. Chapter 4, pp 114-115. Retrieved on March 21, 2012 from http://www.ohchr.org/../training9add1.pdf 3. Roger Tan. Judicial Diversity creates Confidence (2011). Retrieved March 20, 2012 from Read More