Judiciary Flashcards
Selection and Appointment - Qualifications required for each level of judicial appointment
Set out in the Tribunals, Court and Enforcement Act 2007
Justices of the supreme court
- Hold high judicial office or have held superior court qualification for at least 15 years
Lord justices of appeal
- Existing high court judge or at least 7 years qualification
High court judges
- Barrister or solicitor for 7 years or a circuit judge for 2 years
Circuit judge
- Barrister or solicitor for 7 years, recorder, district judge or tribunal judge
Recorder
- Barrister or solicitor for 7 years
District judge
- Barrister or solicitor for 5 years
Selection and Appointment - Selection
Supreme court judges are selected like all other judges
- Organised by the Judicial Appointments Commission
- Selected by a mixed panel of judges law people and lawyers
- All appointments are advertised
- Aim is to diversify the judiciary
- Candidates apply and provide references
- There are interviews to assess attitude and aptitude
- Lord Chancellor has limited power to object the selection
- Applicants for higher appointments are expected to show competence at a lower level
Selection and Appointment - Training
- Conducted by the Judicial Studies Board
- For superior judges training is voluntary
- For inferior judges training is compulsory - 1 week course dealing with sentencing, running a criminal court and human awareness
- Inferior judges have to shadow and experienced judge for 1 week before sitting themselves
- 1 day courses are run from time to time to update judges on major changes in the law
Selection and Appointment - Role of judges at first instance
In all courts:
- Ensure the hearing is carried out fairly and preside over the court
- To decide questions of law
In criminal cases:
- Magistrates’ court - decide both verdict and sentence and preliminary matters e.g bail
- Crown court - sum up for jury and sentence if appropriate
In civil cases:
- Decisions made by a single judge
- Decide verdict and award; in small claims help parties put their case
- Act as case manager, deciding track, holding preliminary hearing to clarify issues, keep parties to time limits, may be responsible for running court office
Selection and Appointment - Role of judges in appeal courts
- Review hearing at first instance; decide whether the law was correctly decided and whether hearing carried out properly
- Decisions are made by three or more judges sitting together
- Decide whether result is wrong or unsafe
- Can revise sentence or award
- Can decide issues of law in important cases
- Can clarify or amend the law where appropriate
- May be involved in judicial review in the Divisional High Court
- May be reviewing situations in relation to the Human Rights Act 1998
Selection and Appointment - Background of Judges (Before the changes in appointment)
- Were originally only appointed from the ranks of barristers and appointed on recommendation of Lord Chancellor with secret soundings
- There were still very few women or ethnic minorities
- Supreme Court Judges - Over 80% went to public school and oxbridge and came from wealthy backgrounds
Selection and Appointment - Background of Judges (Since the changes in appointed)
- Appointments from applications and based on merit
- All vacancies are advertised and require applications
- Positive steps to diversify the judiciary - more women and ethnic minorities being encouraged to apply
- Promotions from current inferior judges to more senior positions
- Judicial Appointments Commission should lead to greater diversity
- More women and people from ethnic minorities are now being appointed but is at the lower ranks of judges
- Will take many years to diversify the judiciary to any great extent
Selection and Appointment - Tenure of Judges
- Senior judges have security of tenure under the Act of Settlement 1701 and cannot be removed except by the monarch following a petition to both houses of parliament
- Superior judges can be asked to resign
- Inferior judges can be removed by the Lord Chancellor and the Lord Chief Justice for incapacity or misbehavior but must comply with the set procedures (Constitutional Reform Act 2005)
- Recorders are only appointed for a period of 5 years but must be reappointed unless there is a good reason
- Judges retire at 70
Selection and Appointment - Separation of powers - Montesquieu
French political theorist - three arms of the state
- Legislature: makes law - Parliament and the Queen
- Executive: Puts law into effect and administers nations affairs - Ministers and their departments
- Judiciary: Interprets and enforces law - Judges
All three must be independent from each other otherwise it will be easy forone person or a group to take complete control
Selection and Appointment - Separation of powers - Independence to the judiciary
- Giving security of tenure to the judiciary (in Act of Settlement 1701)
- But judges do try to implement intention of Parliament in statutory
- Judges cannot question legality of legislation
Selection and Appointment - Separation of powers - Controls are exercised by:
- Judiciary providing a check on executive through judicial review
- The executive providing a check on the higher judiciary
- Judiciary can be thought to limit legislature through statutory interpretation
- Legislature has some control over the terms of judges; employment e.g employment, payment and retirement age
- Legislature can amend a law if a minister has been held to be acting ultra vires (beyond ones legal power or authority)
Selection and Appointment - How judicial independence is maintained
- Judges cant be sued on what is said or done giving them freedom to come to an unpopular decision, this can be criticised in appeal courts
- Judges keep free from politics by convention - Law lords can only take part in relevant debates
- Judges sometimes have to take decisions that have a political element
- Independently appointed on merit on past record, tests and references but there is a political element for superior judges despite reforms
- Secure tenure - Must be a motion of Parliament to remove superior judges and good reason for inferior judges. Recorders’ contracts must be renewed except for good reason but can be eased out
- Financially secure - Salary set independently, have pension provision but this is now comparatively low in level as judges have to work 20 years to gain a full pension
- Judges must not have any personal interest in a case they are hearing (Pinochet case)
- Judges appointments commission should lead to more independence
Selection and Appointment - Should we have a career judiciary - Advantages
- Judges will be younger as they will not have worked as an advocate first
- Will have trained for longer in judicial skills - at present there is minimal training on human awareness, sentencing and presiding over a criminal court
- Greater scope for specialisation
- Able to concentrate on decision-making skills
- Selected for judicial skills - not all good advocates become good judges
Selection and Appointment - Should we have a career judiciary - Disadvantages
- Being younger may not be an advantage as judges will lack life experience
- Less experience of court practice and barristers’ techniques
- Less experience of dealing with clients and possibly human awareness
- Loss of advocates habit of independence
