Judiciary

Question 1

Facts about judges P85

Answer 1

Their main role is to make decisions in respect of disputes, they must do this in a fair and unbiased way applying the law. There are superior judges those in the High Court and above and inferior judges those in the lower courts. This affects training, work and the way they hold office.

Question 2

Who are superior judges P85

Answer 2

Superior judges are those in the SC, COA and the High Court. They are the Justices of the SC, the Lord Justices of Appeal in the COA and High Court judges (also known as puisne). They sit in the three divisions of the High Court, judges in the Queen Bench Division also sit to hear cases in the SC. The Head of the Judiciary is the Lord Chief Justice.

Question 3

Who are inferior judges

Answer 3

They include Circuit Judges who sit in both the Crown and County Court.
Recorders are part time judges who normally sit in the Crown Court but some hear cases in the County Court.
District judges who hear small claims and other matters in the County Court. District Judges in the Magistrates Court and tribunal judges.

Question 4

Qualifications and selection of judges P86

Answer 4

The relevant qualifications for different judicial positions was set out in the Courts and Legal Services Act 1990 and amended by the Tribunal, Courts and Enforcement Act 2007. Based on legal qualifications and legal experience for a number of years. The selection of judges was done by the Lord Chancellor, which was secretive and not independent from political influence. The System was changed by the Constitutional Reform Act 2005 which created the Judicial Appointments Committee to deal with appointments. Normally still involved with High Court, COA and SC judges, however the lower courts are now completely seperate. This was changed in the Crime and Courts Act 2013 where it was transferred to the Lord Chief Justice.

Question 5

The Judicial Appointments Commission P86

Answer 5

The key features for appointing judges are: appointments are solely on merit, the Commission is solely responsible for assessing merit and selecting those to appoint, no candidate can be appointed unless recommended by the Commission, they must consult with the Lord Chief Justice and a judge of equivalent experience before recommending a candidate.

Question 6

Judicial qualities and the process of selection P86 and 87

Answer 6

Important judicial qualities are intellectual capacity, ability to understand and deal fairly, authority and communication skills and efficiency etc. Important they are of good character you cannot have a criminal conviction, however minor motoring offences are ok if you don’t have too many.
The process of selection is all candidates have to fill in an application form, have to have between 3 and 6 references. For judicial appointments below have to do an online test, to test their ability to do a judicial role. Applicants are then short listed and these candidates will be interviewed, which may include taking part in a formal structured discussion. They are then recommend to the Lord Chancellor and are appointed by the queen to keep it separate from government.

Question 7

What is the training of judges P87

Answer 7

Carried out by the Judicial College which was set up in 2011. There are three main elements to the training: knowledge of subjective law, evidence and procedure, the acquisition and improvement of judicial skills and social context within which judging occurs.
All new judges have to go through an induction programme (residential course of 3 to 5 days. New judges at the lower levels are assigned an experienced judge to act as a mentor. When judges are promoted they have to do an induction course for that level.
Experienced judges get continued education which is a mixture of residential and non-residential courses and e-learning. This will include things such as the effect of new legislation and human awareness so they are more aware of other people’s view points.

Question 8

What is the role of Justices of the Supreme Court P87

Answer 8

They hear about 100 cases a year, they are appeals and can be either criminal or civil but normally civil because it involves complicated law like tax law. They must sit as an uneven number panel and the minimum of 3. The BREXIT case in Dec 2016 had an unusual 11 judges because it was so important. Case can only appeal if there is a point of law involved. Any decision they make is a precedent for all lower courts.

Question 9

What is the role of the Lord Justices of Appeal P87 and 88

Answer 9

Their work is concerned with appeals. Sit in both the criminal and civil division (criminal and civil cases). Their work load is much heavier than the SC. They normally sit in a panel of three but in rare occasions for important cases they sit in a panel of 5. Their decisions become precedents which all lower courts must follow.

Question 10

What is the role of High Court Judges P88

Answer 10

Their main function is to try cases. It’s called first instance because it’s the first time the case is heard by court. They will hear evidence from witnesses, made a decision on the law and decide which side has won. If the claim is for damages then the judge decides how much should be awarded. When hearing cases of first instance they normally sit alone. They also hear appeals mainly civil cases from the County Court. Judges in the Queen Bench Division also hear appeals from Magistrate, these are only on points of law, when hearing appeals they will sit in a bench of two.
Judges from the Queen Bench also sit in the Crown Court, when they do this they have a jury. The jury decides the facts and the judge decides the law. When they are found guilty the judge then decides on the sentence.

Question 11

What is the role of inferior judges P88

Answer 11

Circuit judges sit in the County Court to hear civil cases and also the Crown Court to hear criminal cases. In civil cases they decide the facts, the law and who has won. In Crown they sit with a jury and they decide the law. If the defendant is guilty the judge has to pass a sentence.
Recorders are part time judges who are appointed for a period of five years. They mainly sit in the Crown Court but can also sit in the County Court. District Judges in the County deal with small claims under 10K also hear cases for larger amounts. District Magistrates Judges try Criminal cases, sit on their own and decide the facts and the law

Question 12

Retirement P88

Answer 12

Judges are quite secure and they cannot be sacked just because the government of the day disagrees with their decision. Since the Judicial Pensions and Retirement Act 1993 all judges have to retire at the age of 70, although in some cases authorisation can be given for a judge to work beyond this age. Before this superior judges could sit until the age of 75. The Lord Chancellor may authorise retired senior judges to sit part time until 75 but all inferior judges must retire at 70.

Question 13

Removal of senior judges P88 and 89

Answer 13

Superior judges have security of tenure in that they cannot be removed by the Lord Chancellor or the gov. This originated in the Act of Settlement 1700 which allowed them to hold office while of good behaviour. Judges can only be removed by the monarch following a petition by both Houses of Parliament, this hasn’t been done since 1830.
The Lord Chief Justice can however after consulting with the Lord Chancellor declare vacant the office of any judge because they are unable to do their job through ill health and resigning.

Question 14

Removal of inferior judges P89

Answer 14

They do not have the same security as the Lord Chancellor has the power to remove them for incapacity or misbehaviour such as drunken driving. Under the Constitutional Reform Act 2005 the Lord Chancellor must follow procedure and get permission from the Lord Chief Justice before they can be removed. Lord Chief Justice can also suspend someone if they have been convicted or subject to criminal proceedings, have to consult the Lord Chancellor. The judge can go to the Ombudsman if it’s not been done fairly.

Question 15

Evaluation of the judiciary P89 and 90

Answer 15

One criticism is that it’s nominated by elderly upper class males. They are few female upper rank judges and even fewer from ethnic minorities. It’s unusual for any judge to be appointed under the age of 40 and most superior judges are well over this age. The Judicial Appointments Commission has led to greater diversity in the judiciary. At the beginning of the 1990s there were no women in the COA at the beginning of 2016 there was 8. There is now more females in the judiciary because there is a more open and competitive method of selection and increasing number of female lawyers so more applicants for judicial posts. There is also an increase in the number of BAME judges. In the early 1990s there were no bame judges in the COA or high Court, by 2016 there were 3 bame high court judges

Question 16

Educational and social background P90

Answer 16

At the higher levels judges tend to come from the upper levels of society, with many having been educated at public school and nearly all going to Oxbridge. In 2007 none of the District Mag judges had been privately educated while 11 out of 16 High Court Judges had. 90% of COA and HOL judges had been to Oxbridge

Question 17

Should there be a career judiciary? P90 and 91

Answer 17

In many continental countries it’s a career choice to be a judge. They will not normally practice as lawyers first but train as judges. They will start in junior posts and hope to be promoted.
The advantages of this is the average age for a judge is much lower and have had far more training in the specific skills they need as judges.
The disadvantage of the continental system is they are seen too closely linked to the government as they are civil servants.

Question 18

What is the separation of powers P91

Answer 18

It was first introduced in the 18th century. There are three primary functions of the state and the only way to protect the liberty of the state is to keep each body separate.
The US has a written constitution which embodies this theory. In the UK this is mostly the case but there is some overlap as the Lord Chancellor is involved in all three. Although, their role in the judiciary is now reduced.

Question 19

What are the three arms of the state P91

Answer 19

The legislature - the law making arm of the state, in the British System this is Parliament.
The Executive - the body administrating the law, the gov of the day which forms the cabinet.
The judiciary - the judges who apply the law.
There is some overlap between the legislator and the executive because the ministers forming the gov sit in Parliament and part of the law making process. It’s important the judiciary is separate because they can ensure the executive does not overstep it’s power.

Question 20

What is immunity from suit P91 and 92

Answer 20

Judges are given immunity from prosecution for any acts they carry out in the performance of their judicial function. They also cannot be sued in civil cases for actions taken or decisions made in the course of their judicial duties. This was shown in the case Sirros V Moore 1975, important at ensuring judicial independence in decision making.
They can also not be sued in defamation for things they say during the case. They can perform their duty without fear of repercussions. Only liable if not acting in a judicial capacity or they know they don’t have the jurisdiction to do what they are doing.

Question 21

Independence from the executive P92

Answer 21

Judicial independence is guaranteed in the Constitutional Reform Act 2005. The Lord Chancellor and other ministers must not seek to influence particular judicial decision. This was seen in the case where the Executive could start the process of leaving the EU without consulting Parliament.

Question 22

Independence from the legislator P92

Answer 22

Judges are not generally involved in law making function of Parliament. Full time judges cannot be a member of the HOC. Although, this does not apply to part time judges. There used to be judges in the HOL when the appellate committee of the HOL was the final court of appeal. The reason for the creation of the SC was to separate the judiciary from the legislator. The SC has it’s own building.

Question 23

Independence from the case P92

Answer 23

Judges must not try any case where they have any interest in the case involved. This rule was reinforced in the Pinochet case 1998. Judges have to be completely unbiased

Question 24

Evaluating judicial independence P93

Answer 24

Judicial independence is important for protecting the liberty of an individual from abuse from the power of the executive. If the Parliament had power over judges they could imprison those than conflict the government. Also important that the gov cannot make someone resign because they made a decision that the gov of the day disagrees with. Often have to decide if what the gov is doing is reasonable. People need to be sure that judge is not influenced by an outside party or their own interests.

Question 25

Advantages of judicial independence P93

Answer 25

Because they are independent their decisions are only on the basis of facts of the case and law. This enables fairness in all cases. The judiciary is able to protect citizens against unlawful acts of government. There can be an impartial judicial review of acts or decisions by the gov. People have confidence in the judiciary because they know their cases are decided fairly and in accordance with the law.