legal systems: judges, paper 1 sec a Flashcards
1
Q
justices of the supreme court
A
- most supreme judges in the company
- sit in the Supreme Court and hear final appeals from all courts in the uk
- JOSC are appointed to those who hold high judicial office
- must have been qualified to appear in the senior courts for at least 15 years
- this will include judges from Scotland and northern ireland, as the Supreme Court is the final appellate court for these countries
- constitutional reform act states: there should be a maximum of 12 justices
2
Q
lord justices of appeal
A
- must be qualified as a barrister or solicitor and have gained experience in law for at least 7 years, or be an existing high court judge
- officially appointed by the king
- LJOA will sit in either:
1. the civil division of the court of appeal where they will hear appeals from cases in the country or high court or
2. the criminal division of the court of appeal where they will hear appeals from trials in the crown court
3
Q
high court judges
A
- necessary either to have been qualified as a barrister or solicitor, and have gained experience in law for at least 7 years, or have been a circuit judge for atleast 2 years
- officially appointed by the king
- high court judges are assigned to to one of the divisions of the high court and will hear the cases assigned to that division:
1. judges of the kings bench division will hear high value civil claims of contact and tort. judges of this division will hear serious criminal cases such as muder in the crown court
2. judges of the chancery division will hear high value commercial claims and cases of liquidation of companies and partnership disputes
3. judges of the family division will hear claims relating to disputes of property and financial matters of married and unmarried partners and relating to children of relationships - judges of the high court can sit as judges of the court of appeal alongside lords justices to hear appeals relating to work of respective divisions
4
Q
circuit judges
A
- necessary to be a barrister or solicitor who has held a ‘right of audience’ for atleast 10 years
- should generally also have served either part time as a recorder in judges of civil cases before they have been appointed
- they will hear both civil and criminal claims:
1. in county court, will hear a wide range of tort and contract claims, claims relating to possession of land and property disputes and some family work
2. in crown court, will take charge of criminal trials, hearing more serious cases as they gain seniority, and sentence offenders who have pleaded guilty - this is a part-time post for qualified barristers or solicitors who have gained at least 7 years experience
5
Q
district judges
A
- full-time post and an applicant must have been qualified as a barrister or solicitor for atleast 5 years or have been a deputy district judge
- under the tribunals, courts and enforcement act 2007, CILE fellows are now eligible to be appointed as a deputy district judge
- district judges will hear civil and criminal cases:
1. in the county court and particularly small claims court, they will hear low value civil claims of tort and contract
2. in the mags court, they sit alone to hear summary and either-way criminal trials and impose sentences on offenders of those crimes
6
Q
what is the role of judges in civil court?
A
- resolve disputes in a fair, unbiased way, applying the law to each before them
- in civil courts, the crown court and the high court , a judge will sit on their own to deal with all aspects of case
- at trial, a judge will: hear evidence from all the witnesses, listen to legal arguments, look at any relevant case papers, decide facts and how the law applies to those facts, and make the decision on who has won the case (who is liable), decide who should bear the costs of the legal case
7
Q
what is the role of judges in the crown court?
A
- sit with a jury when a defendant pleads not guilty to an either-way offence and an indictable offences
- decide any legal issues in the case and direct the jury on the relevant law
- decide on a sentence where the defendant pleads not guilty, or is found guilty by a jury
- take into account any legal submissions on behalf of the defendant and consider any reports
8
Q
who put forward the theory on separation of powers?
A
montesquieu
9
Q
what does the theory on the separation of powers state?
A
there are 3 primary functions of the state, the only way to safeguard the liberty of citizens is by keeping these 3 functions separate
10
Q
what are the 3 arms of the state according to montesquieu?
A
- the legislature: this is the law-making arm of the state and, in in the English system, this is parliament
- the executive or the body administrating the law: in the British political system, this is the government of the day
- the judiciary: the judges, who apply the law
11
Q
why is there an overlap between the executive and the legislature?
A
ministers forming the government also sit in parliament and are active in the law-making process
12
Q
is there an overlap between the judiciary and the other two arms of the state?
A
very little. this is important because it allows the judiciary to act as a check and ensure that the executive does not overstep its constitutional powers
13
Q
security of tenure
A
- cannot be dismissed by the government, only the monarch following a petition presented by both houses of parliament
- judicial independence is guaranteed by sec 3 the constitutional reform act 2005, which states: the lord chancellor, the other ministers in the government and anyone with responsibility for matters relating to the judiciary or the administration of justice
- must uphold the continued independence of the judiciary
14
Q
immunity from suit
A
- allows a judge to reform judicial duties without fear of repercussions
- judge of all levels are given immunity from criminal prosecution from any acts they carry out in performance of their judicial duties
- also have immunity from being sued in any civil case while they are preforming their judicial duties
15
Q
independence from the legislature
A
- judges are generally not involved in the law making functions of parliament
- full time judges are not allowed to be members of the house of commons
- the rule is not as strict for part time judges so recorders and assistant recorders can be members of parliament
- the main reason for the creation of the Supreme Court 2009 was to separate the judiciary from the legislature
- judges of the Supreme Court are not allowed to be members of the House of Lords
- judges are given a certain degree f financial independence
- parliament can changer judicial retirement ages and qualifying periods of service for pensions
16
Q
independence from the executive
A
- superior level judges cannot me dismissed by the government
- they make decisions that may displease the government, without the threat of dismissal
- the extent to which judges are prepared to challenge or support is considered in the constitutional reform act 2005: the lord chancellor, other ministers in the government and anyone with responsibilities for matters relating to the judiciary or the administration of justice must uphold the continued independence of the judiciary
- the lord chancellor and government ministers must not seek to influence particular judicial decisions
17
Q
judicial review
A
- an initial hearing takes place in the divisional court of the queens bench division when decision of government ministers or public authorities can be challenged by a person who is ‘standing’ (affected by their decision)
- judges are prepared to find against ministers if they have acted unlawfully
18
Q
judges and human rights
A
human rights act 1998 incorporates the European convention of human rights (ECHR) into uk law and judges have the power to declare that an act is incompatible with the convention
19
Q
advantages of judiciary and judicial independence
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20
Q
disadvantages of judiciary and judicial independence
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