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Law Book 1 > The English Legal System - Judiciary (Chapter 5) > Flashcards

The English Legal System - Judiciary (Chapter 5) Flashcards

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1
Q

Translation tenet

A

Grundsatz

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2
Q

Central tenets of the Judiciary

A

The principle of judicial jurisprudence and judicial neutrality

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3
Q

How is judicial independence preserved under UK constituion?

A

1) Sub judice: Parliament does not comment on the cases which are before the court
2) Parliamentary privilege: Members of the Parliament are protected from prosecution in certain circumstances by the courts

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4
Q

Important act to support the independence of the Judiciary

A

Constitutional Reform Act 2005

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5
Q

How long do Judges remain in their positions?

A

As long as they are in “good order”, they can stay in their position until they resign or reach the mandatory retirement age of 70

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6
Q

Who decides on judicial pay or salaries?

A

An independent pay review body, which makes recommendations to the Government. They are usually accepted and fully implemented.

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7
Q

Agency which administrates courts
When was it created?

A

His Majesty’s Courts & Tribunals Service (HMCTS)
1 April 2011

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8
Q

One of the main goals of the HMCTS

A

Citizens receive timely and effective access to justice

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9
Q

HMCTS operates a partnership between which people?

A

Lord Chancellor
Lord Chief of Justice
Senior President of Tribunals

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10
Q

Who oversees the HMCTS?

A

A board headed by an independent chair working with non-executive, executive and judicial member.

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11
Q

Historically, before the establishment of the Supreme Court, which was the final court of appeal in the US?

A

House of Lords

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12
Q

Why was the Supreme Court introduced?

A

The Labour Government 2001-2005 was concerned that the House of Lords mixed executive, legislative and judicial functions and that it would not be compatible with Art. 6 of the EUHG (right to a fair trial)

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13
Q

Which act introduced the Supreme Court?

A

Constitutional Reform Act 2005

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14
Q

The Supreme Court focuses on cases of greatest public and … importance

A

constitutional

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15
Q

The Supreme Court cannot overturn Acts of Parliament, what three options does it have?

A

It can make declarations of incompatibility under section 4 of HRA
Overturn secondary legislation where it is found to be ultra vires
Interpret and apply the law in accordance with the rules of statutory interpretation

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16
Q

In regard to broadcasting rights, how does the Supreme Court differ from lower courts?

A

Court sessions can be broadcasted live. In lower courts, it is forbidden.

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17
Q

How are the judges of the Supreme Court called? What are the two exceptions?
How many judges does the Supreme Court need?

A

Justices, except for the President and Deputy President
At least 12

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18
Q

Who appoints Justices?

A

A recommendation is made to the Lord Chancellor
The name is sent to the PM
The PM sends it to the King for formal approval
The PM then announces the name

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19
Q

What are the requirements to become a Supreme Court?

A

A) Held high judicial office (i.e., the High Court, Court of Appeal, Northern Irish High Court or Court of Appeal, or Scottish Court of Session) for at least 2 years
OR
B) been a qualifying practitioner for a period of at least 15 years
A person satisfies the judicial-appointment eligibility condition on a 15-year basis if they have been a solicitor of the senior courts of England and Wales, or barrister in England and Wales, for at least 15 years; and have been gaining experience in law during the post-qualification period.
A person is a qualifying practitioner if they are an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary; or a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.

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20
Q

What is the selection process for a Justices?

A

Lord Chancellor convenes a selection commission for the selection of a person to be recommended
Once convened, the commission must determine the selection process to be applied, apply the selection process and make a selection accordingly
The commission must consult each of the following_
Senior judges who are not member of the commission and are not willing to be considered for selection
the Lord Chancellor
First Minister in Scotland
Assembly First Secretary in Wales
Secretary of State for Northern Ireland

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21
Q

When selecting a Justice, what criteria does the commission have to consider?

A

Qualification requirements are met
He is not a member of the selection commission
He has knowledge of, experience of, practice in, the law of each part of the UK

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22
Q

How many persons can be selected by the commission at once?

A

Any selection must be of one person only

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23
Q

Once a selection commission has selected a candidate and made a recommendation to the Lord Chancellor, which options does he have? Does he have to forward the recommendation to the Prime Minister?

A

No, he has several options.

a) He may notify the Prime Minister of the name of the person selected
b) He may reject the selection on the grounds that, in his opinion, the person selected is not suitable for the office concerned
c) He may require the commission to reconsider its selection where:
1) There is not enough evidence that the person is suitable for the office concerned
2) There is evidence that the person is not the best candidate on merit
3) There is not enough evidence that, if the person were appointed, the Justices of the court would, between them, have knowledge of, and experience and practice in, the law of each part of the United Kingdom

The Lord Chancellor must give the commission reasons, in writing, for rejecting or requiring reconsideration of a selection.

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24
Q

If the Lord Chancellor rejects the selection of a candidate for Justice, what options does the commission have?

A

None, they cannot appeal against the decision, they have to find another candidate.

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25
Q

What is the maximum term a Justice can serve?

A

There is no term limit

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26
Q

How can Justices quit their service?

A

They have to give the Lord Chancellor notice in writing.

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27
Q

How can a Justice be removed from their office?

A

On the grounds of misconduct
(section 33 of Constitutional Reform Act 2005)
Both Houses of Parliament have to agree

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28
Q

What roles does the Lord Chief Justice play?

A

Head of Judiciary of England and Wales
Most senior judge in the Criminal Division and the Court of Appeal
Head of Criminal Justice
President of the Courts of England and Wales

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29
Q

Before the Constitutional Reform Act 2005, who held the position of Lord Chief Justice?

A

Lord Chancellor

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30
Q

What are three of the Lord Chief Justice’s tasks?

A

Representing the views of the Judiciary of England and Wales to Parliament and Government
The welfare, training, and guidance of Judiciary of England and Wales, the Lord Chief Justice discusses with Government the provision of resources for the Judiciary, which are allotted by the Lord Chancellor
The deployment of Judges and allocation of work in courts in England and Wales

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31
Q

Who is the British sovereign?

A

King or Queen

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32
Q

Who appoints the Lord Chancellor?

A

The sovereign on the advice of the prime minister

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33
Q

What is the privy council? Why is it relevant to the Lord Chancellor?

A

The Privy Council is a formal body of advisers to the sovereign of the United Kingdom. Its membership mainly comprises senior politicians who are current or former members of either the House of Commons or the House of Lords. The Lord Chancellor is a member.

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34
Q

With the Constitutional Reform Act 2005, which two positions were stripped away from the Lord Chancellor?

A

Presiding Officer of the House of Lords -> Lord Speaker
Head of Judiciary in England and Wales -> Lord Chief Justice

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35
Q

What are the requirements for the Lord Chancellor to be selected?

A

a) experience as a Minister of the Crown
b) experience as a member of either House of Parliament
c) experience as a qualifying practitioner
d) experience as a teacher of law in a university
e) other experience that the PM considers relevant

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36
Q

How is the role of the Senior President of Tribunals comparable to Lord Chief Justice?

A

Just like the Lord Chief Justice heads the judiciary in England and Wales, the Senior President of Tribunals heads tribunals judiciary, but not only in England and Wales, also in Scotland and Northern Ireland.

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37
Q

Who appoints the Senior President of Tribunals?
What is the requirement?

A

The sovereign on recommendation of the Lord Chancellor
Selected among ranks from existing Court of Appeal Judges (and equivalent courts in Scotland and Northern Ireland) or through open competition run by the Judicial Appointments Commission

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38
Q

What is the Judicial Appointments Commission? Which positions does the commission provide recommendations for?
Common mistake: Whose selection does the commission NOT provide a recommendation for?
Which act created the commission?

A

Head of Divisions (5) + Senior President of Tribunal
Lord Chief Justice of England and Wales
Senior President of Tribunal
President of King’s Bench Division
President of Family Division
Master of the Rolls
Chancellor of the High Court

NOT for the Supreme Court

Constitutional Reform Act 2005

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39
Q

The Court of Appeal has a Civil and Criminal Division, who heads these?

A

Civil: Master of the Rolls Head
Criminal: Lord Chief Justice

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40
Q

Most appeal cases have their final appeal at the Supreme Court or Court of Appeals?

A

Court of Appeals

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41
Q

Who are the Judges of the Court of Appeal?

A

The “Heads of Division” plus the Lords Justices of Appeal

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42
Q

Who are the “Heads of Division” at the Court of Appeal’

A

Lord Chief Justice of England and Wales
Master of Rolls
President f the King’s Bench Division
President of the Family Division
Chancellor of the High Court

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43
Q

The Civil Division of the Court of Appeals hears which appeals?

A

Appeals from the High Court, County Court and certain tribunals such as the Employment Appeal Tribunal and the Immigration Appeal Tribunal

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44
Q

Who is the head of the Civil Division of the Court of Appeal?
Who hears the cases?

A

Master of the Rolls
In general, cases are heard by three Judges, consisting of any combination of the Heads of Division and Lord Justices of Appeal

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45
Q

The Criminal Division of the Court of Appeals hears which appeals?

A

Appeals from the Crown Court

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46
Q

Who is the head of the Criminal Division of the Court of Appeal?
Who hears the cases?

A

Lord Chief of Justice
In general, cases are heard by three Judges, consisting of the Lord Chief Justice, or the President of the King’s Bench Division, or one of the Lord Justices of Appeal, together with two High Court Judges or one High Court Judge and one specifically nominated Senior Circuit Judge

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47
Q

Earlier, we learned that Justices can be removed from their offices, can this be done for the Court of Appeal too? What is the process and legal foundation?

A

Yes, also for misconduct.
Both House of Parliament have the power to petition the king for the removal of a judge of the Court of Appeal for misconduct.
It is for the Lord Chancellor to recommend the sovereign the exercise of the power removal (Senior Courts Act 1981)

48
Q

Where are High Court Judges appointed?

A

To one of three Divisions of the High Court:
A) Chancery Division
B) King’s Bench Division
C) Family Division

49
Q

Who appoints the High Court Judges? Who selects them?

A

High Court Judges are appointed by the Sovereign on recommendation of the Lord Chancellor
The selection is done by Judicial Appointments Commission

50
Q

Besides High Court Judges, who else is authorized to sit as Judges of the High Court?

A

Certain Circuit Judges
Senior King’s Counsel
These are usually referred to as Deputy High Court Judges

51
Q

What are Deputy High Judges?

A

Certain Circuit Judges and Senior King’s Counsel
Besides High Court Judges, they are also authorized to sit as Judges of the High Court

52
Q

High Court sessions only take place in London, is this correct?

A

No, they can also take place at major court centres around the country.

53
Q

How does the process to remove a High Court Judge differ from the Court of Appeal?

A

There is no difference.

High Court Judges can be removed for misconduct.
Both House of Parliament have the power to petition the king for the removal of a judge of the Court of Appeal for misconduct.
It is for the Lord Chancellor to recommend the sovereign the exercise of the power removal (Senior Courts Act 1981)

54
Q

What is libel?

A

Verleumdung.

55
Q

How many judges does the King’s Bench Division have? Who heads the division?

A

Around 60 judges, headed by the President of the King’s Bench Division

56
Q

What is the size of the Family Division and the Chancery Division of the High Court?
Who heads them?

A

Family Division: 19 Judges - President of the Family Division
Chancery Division: 17 Judges - Chancellor of the High Court

57
Q

What three specialist courts does the Chancery Division of the High Court have?

A

Companies Court
Patents Court
Bankruptcy Court

58
Q

How many regions exist where Circuit Judges can be appointed to in England and Wales?

A

7

59
Q

In which courts can we find Circuit Judges?

A

County or Crown Courts
Criminal Division of the Court of Appeal (upon request by Lord Chief Justice)

60
Q

How many Circuit Judges are there in England and Wales?

A

Over 600

61
Q

Who appoints and selects Circuit Judges?

A

Appointed by Sovereign on recommendation of Lord Chancellor
Selection by Judicial Appointments Commission

62
Q

Who are Deputy Circuit Judges?

A

Judges who sit part-time, in retirement

63
Q

Who can remove Circuit Judges?

A

Lord Chancellor with the consent of Lord Chief Justice

64
Q

What is a recorder?

A

A part-time Circuit Judge, usually a practicing solicitor or barrister

65
Q

Who appoints Recorders?

A

The process is not different from Circuit Judge.
Appointed by the Sovereign per recommendation of the Lord Chancellor, selection by Judicial Appointments Commission

66
Q

How long are appointment terms for recordership?

A

Five years, automatic extensions (usually)

67
Q

Who is called “District Judge”?

A

Two different categories of judge

District Judges sitting sitting in the County Court
District Judge (Magistrates’ Court)

68
Q

What is a district registry?

A

A district registry is part of the High Court situated in various districts of England and Wales, dealing with High Court family and civil business. District registries are often co-located at County Court hearing centres.

69
Q

Where can District Judges sit?

A

At any County Court hearing centre or district registries of the High Court in a specific circuit. They are appointed to one circuit.

70
Q

Who appoints and removes District Judges? District Judges (Magistrates’ Court)

A

Same as Circuit Judges

71
Q

What kind of cases does a District Judge hear?
What kind of cases does a District Judge (Magistrates’ Court) hear in comparison?

A

District Judge: Wide spectrum of civil and family law cases such as claims for damages and injunctions, possession proceedings against mortgage borrowers and property tenants, divorces, child proceedings, domestic violence injunctions and insolvency proceedings.

District Judge (Magistrates’ Court): Criminal cases, youth cases, some civil proceedings. Some can be authorized to hear cases in the Family Proceedings Court. Some are authorized to deal with extradition proceedings or terrorist cases.

72
Q

Different name for Magistrates

A

Justices of the Peace

73
Q

What is surprising about Magistrates?

A

They work part-time and are UNPAID members of the community
They do not require legal training, but they need to undergo a compulsory programme of practical training

74
Q

How are Magistrates’ Courts composed?

A

There are always three magistrates. All three have equal decision-making powers but only one is the chairman who speaks in court and presides over meetings.

75
Q

What kind of offences can Magistrates’ Courts hear? Summary, either way or indictable offence

A

They can hear and decide over all summary and some either way offences

76
Q

What is the percentage of offences being heard and decided over by Magistrates’ Courts?

A

95%

77
Q

As the Magistrates are not legally trained, what makes sure that they respect the law?

A

A) They must undertake a compulsory programme of practical training
B) They have a qualified legal adviser available at all time

78
Q

In relation to criminal cases, what powers do Magistrates have?

A

Bail applications
Custody
Grant search warrants
Grants right to entry

Fines - all levels (1-4 only 2,500 GBP)
Prison up to 12 months
Community order

79
Q

Magistrates can issue community orders. What does that comprise?

A

Unpaid work : 40-300 hours
Residence: Must live at a certain address for up to 3 years
Exclusion: Excluded from entering a certain place for up to 2 years
Curfew: Must stay at a certain location for specified hours
Supervision: Must attend regular appointments with probation
Prohibited activity: The offender must not participate in stipulated activities for a certain period (up to three years), such as not attending a football match.
(not exhaustive list)
Electronic Tagging

80
Q

Who appoints Magistrates?

A

The Lord Chancellor on advice of local advisory committees

81
Q

What is the greatest field of work for Magistrates in civil cases?

A

Family cases

82
Q

When dealing with family cases in relation to children, what powers does the Magistrates’ Court have?

A

They can:

arrange for a child to be taken into care or put up for adoption
help separated parents make arrangements for their children
enforce child maintenance orders
make court orders to prevent domestic abuse

83
Q

Besides family cases, Magistrates’ Court also deals with what cases? What powers does the Court have?

A

Non-payment of council tax, can enforce financial penalties and orders

84
Q

What is the retirement age for Magistrates?

A

70

85
Q

When dealing with police powers, the acronym PACE is often mentioned. What does it stand for?

A

Police and Criminal Evidence Act 1984 (PACE)

85
Q

What are Presiding Judges? What are their responsibilities? Which court do they belong to? Who appoints them?

A

There are two Presiding Judges for each circuit in England and Wales
They are responsible for the general supervision of Judges, the deployment of the judiciary and allocation of cases on their circuit
They are appointed by the Lord Chief Justice

86
Q

Who supervises Presiding Judges?

A

the Senior Presiding Judge, he is a Judge of the Court of Appeal and Board Member of HMCTS

87
Q

What does “privy” mean?

A

Secret or private

88
Q

Who are members of the Privy Council?

A

Largely senior politicians who are or were members of the House of Lords or House of Commons

89
Q

What is the policy-making power of the Privy Council?

A

There are none. They are now controlled by the Cabinet of the UK.

90
Q

How are the Cabinet of the UK and the Privy Council related to each other?

A

The Cabinet of the UK is a committee of the Privy Council.

91
Q

What is the Cabinet of the UK? Who is it composed of?

A

The Cabinet of the UK is the senior decision-making body of His Majesty’s Government. It is chaired by the Prime Minister. Its members include secretaries of state and other senior ministers.

92
Q

What is the Royal prerogative? In relation to what does this need to be known?

A

The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law as belonging to the sovereign and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out. The Privy Council advises the Sovereign on the exercise of the Royal Prerogative.

93
Q

What are the executive order power of the Privy Council?

A

It can issue Orders-in-Council and Orders of Council

94
Q

What are Orders-in-Council and Orders of Council?

A

Orders-in-Council make government regulations and appointments
Orders of Council are issued under a specific authority of an Act of Parliament, which delegate such matters to the Privy Council. They are usually used to regulate public institutions.

95
Q

What are Royal Charters?

A

They are issued by the sovereign. The Privy Council gives advice on them.
They grant special status to incorporated bodies or give city or burrow status to towns.

96
Q

Which are the most relevant committees of the Privy Counci?

A

The executive committee (also called the Cabinet of the UK)
The judicial committee

97
Q

What is the Judicial Committee of the Privy Council? Who does it consist of?

A

Senior judges supported by a professional legal and executive staff.
The Judicial Committee is the highest court of appeal for many current and former Commonwealth countries as well as the UK’s overseas territories, crown dependencies, and military sovereign base areas.

98
Q

What is a funny oddity of the Judicial Committee of the Privy Council?

A

Under S. 4 of the Judicial Committee Act 1883, the Sovereign has the power to refer any matter to the Judicial Committee for “consideration and report”, literally anything!

99
Q

What are the crown dependencies?

A

Jersey
Guernsey
Isle of Man

100
Q

Are decisions of the Judicial Committee of the Privy Council binding to English courts?

A

No, but they are “highly persuasive”

101
Q

Important decision of the UK Supreme Court on Judicial Committee

A

Willers v Joyce and Another (No 2) [2016] UKSC 44
The SC held that the Judicial Committee of the Privy Council, which normally consists of the same judges as the Supreme Court, should, when applying English law, be capable of departing from an earlier decision of the Supreme Court (or House of Lords) to the same extent and with the same effect as the Supreme Court and can expressively direct that the domestic courts should treat the Judicial Committee of the Privy Council’s decision as representing the law of England and Wales

102
Q

What’s citizenship requirement for judicial appointments?

A

UK
Republic of Ireland
Commonwealth Country

103
Q

Is there a max. age at which people can be appointed as judges?

A

No, but someone should be appointed at an age that allows for a reasonable length of service to justify the costs of appointment and initial training. The Lord Chancellor has said that this is at least 5 years.

104
Q

Which act specifies qualifications for judges?

A

Tribunals, Court and Enforcement Act 2007

105
Q

What judicial appointment eligibility can be found in the Tribunals, Court and Enforcement Act 2007?

A

Must hold a relevant qualification (barrister or solicitor)
Must have gained experience in law for a specified period, while holding a relevant qualification (generally 5 to 7 years compared to 10 years before)

More recently, these posts have been opened to
Fellows of the Chartered Institute of Legal Executives
Members of the Institute of Trade Mark Attorneys
Members of the Chartered Institute of Patent Attorneys
But only for District Judges

106
Q

To be appointed as a District Judge or Circuit Judge, how many years of experience are required?

A

District Judge: 5 years
Circuit Judge: 7 years

107
Q

A potential High Court Judge must satisfy the judicial appointment eligibility condition on a seven-year basis. What does that mean?

A

The requirement is that the person must have been a barrister or solicitor for at least 7 years (or one of the other accepted qualifications).

108
Q

Most judicial positions require 7 years of experience post-qualification (e.g., barrister or solicitor). Which are the exceptions?

A

Supreme Court: 15 years of experience or held high judicial office (High Court, Court of Appeal, Northern Irish High Court, or Court of Appeal, Scottish Court of Session) for at least 2 years
District Judge and Magistrates and Registrars: 5 years

109
Q

Magistrates are volunteers, what is being considered as eligibility criteria?

A

Required: Intelligence, common sense, integrity and the capacity to act fairly
Ineligible if: Risk of conflict of interest, bias or compromised judicial independence

110
Q

Are police officers or civil servants allowed to serve as Magistrates?

A

Civil servants yes
Police officers no

111
Q

The Lord Chancellor has defined several restrictions for Magistrates. In which cases can they not appear?

A

Magistrates whose spouse/civil partner/partner is a solicitor should not sit on any case involving the firm
Magistrates who work in a solicitor’s firm (or whose spouse or partner works in that firm) should not sit on any matter which in any way involves that firm
Magistrates who have a close relative employed in a solicitor’s firm must not sit on any matter in which the relative appears or has advised; if the relative appears regularly appears in court on behalf of the firm, the Magistrate should apply to transfer to the another local justice area

112
Q

What are the responsibilities of the Attorney General?

A

Chief Government Legal Adviser
Superintends prosecution agencies
Government minister with responsibility for criminal justice
Acts as guardian of public interest in certain cases

113
Q

Who is the deputy of the Attorney General?

A

Solicitor General

114
Q

If a person feels that the public power that has been exercised by an public authority was unlawful, what can the person do?

A

They can apply to the Administrative Court for Judicial Review.

Law Book 1 (12 decks)

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