The judiciary

Question 1

What is the judiciary?

Answer 1

The judiciary is the term used for a group of judges. Judges in the UK work on many different levels and their main functions are similar but their power is different.

Question 2

Who are the inferior judges?

Answer 2

• District judges
• Recorder
• Circuit judge

Question 3

Who are the superior judges?

Answer 3

• High Court Judge
• Lord/ Lady Justices of Appeal
• Justices of the Supreme Court

Question 4

What is an inferior judge?

Answer 4

Inferior judges are circuit judges who sit in both the Crown Court and County Court. Recorders are part time judges who usually sit in the Crown Court. District Judges who hear small claims and other matters in the County Court, their are also ones who sit in the Magistrate’s court in London and other major towns and cities. There are also tribunal judges.

Question 5

Whoa re the justices of the supreme court?

Answer 5

They are appointed from those who hold high judicial office. Constitutional Reform Act 2005 provides that there should be a maximum of 12 justices. They must have been qualified as a barrister or solicitor and have gained experience in law for at-least 7 years or be an existing High Court judge. They hear criminal and civil appeals on points of law and complex legal matters which sets a precedent.

Question 6

What is the Lord Justices of Appeal: in the COA?

Answer 6

They are appointed by HC judges, officially appointed by the King. They sit in two divisions which is the criminal division (hearing appeals from the Crown Court) and civil division (appeals from the County Court)

Question 7

What are the high court judges?

Answer 7

It is necessary to be qualified as a barrister or solicitor and gained experience in law for at-least 7 years, or a circuit judge for 2 years. They are appointed to a division and will hear at first instance cases and appeals such as in KBD, Chancery Division and Family division.

Question 8

What are circuit judges / recorders?

Answer 8

Solicitor or barrister who held a ‘right of audience’ for at least 10 years. They are either part-time as a recorder of criminal cases or full-time district judges on civil. Part-time for qualified barristers or solicitors who have gained 7 years experience and then they will be a recorder.

Question 9

What are the district judges?

Answer 9

Must have been qualified as a barrister or solicitor for at-least 5 years. The vast majority are in the county court and are former solicitors. They are usually sat part-time as a judge before being considered for the position. The Tribunals, Courts and Enforcement Act 2007, CILEX fellows are now eligible to be appointed. In the magistrates court and sit alone to hear summary or triable-either-way offences and impose sentences on offenders.

Question 10

What are the three arms of the state as identified by Montesquieu?

Answer 10

• The legislature
• The executive
• The judiciary

Question 11

The legislature

Answer 11

This is the law-making aim of the state and in the British system, this is Parliament.

Question 12

The executive

Answer 12

This is the body administering the law in the British political system, this is the Government of the day which forms the cabinet.

Question 13

The judiciary

Answer 13

Judges who apply the law

Question 14

What are the 5 ways in which the judiciary is independent?

Answer 14

• Immunity from suit
• Security of tenure
• Independence from case
• Independence from the executive
• Independence from the legislator

Question 15

Immunity from suit

Answer 15

Judges are given immunity from prosecution for any judicial related acts. Sirros v Moore stated that no action can be taken against a judge as he had acted in good faith.

Question 16

Security of tenure

Answer 16

Came from the Act of Settlement in 1701 before the monarch could dismiss them. Same rule is now in Senior Courts Act 1981. Monarch can also remove a judge if presented to HoL and HoC.

Question 17

Tenure of inferior judges

Answer 17

LCJ has the power to dismiss inferior judges for incapacity or misbehaviour. Bruce Campbell avoided customs duty of a cigarettes and whiskey. He was dismissed and criminally convicted. If there are complaints against certain judges, they can be warned, such as failure to pay child maintenance.

Question 18

Independence from case

Answer 18

Must not try any case that they have involvement with. Pinochet, where an appeal was heard and they agreed to send him back to Chile to be extradited. It became apparent that one of the judges had a link with Amnesty International in which this case was associated with so decision had to be abandoned as it was bias. Important that judges have no links so they are impartial.

Question 19

Independence from the executive

Answer 19

Can make decisions which upset the Government but will not face dismissal. s3 of the Constitutional Reform Act 2005 ensures this is the case which states there shall be no interference with the judiciary and to ensure there is no influence in their decisions. Judges are not involved in law-making of Parliament or allowed to be members of Parliament if they are a full-time judge. They need to be separated.

Question 20

Independence from the legislator

Answer 20

Judges are not used in the law-making process. The main reason for the creation of the supreme court in 2009 was there needed to be separation of powers from the HoL and their role on both judges and legislators. However, there is a lot more independence from the legislator there is still influence in relation to retirement.

Question 21

Evaluation points

Answer 21

• Background and ethnicity
• A major difference in Universities that senior judges attended
• Age
• Women in the judiciary

Question 22

Background and ethnicity: The judiciary has traditionally been dominated by white, upper class men

Answer 22

This doesn’t reflect modern Britain an can lead to mistrust in some sections of the population.

Question 23

Background and ethnicity: HOWEVER

Answer 23

On the other hand, diversity is gradually improving. In 1967, only 2.7% of judges were female, now it’s over 50%. Currently, only 10% of judges are BME but this is slowly improving. Furthermore, the judicial appointment council is aware of the problem and in 2020 set up a five-year strategy with the specific aim of increasing diversity in the judiciary.

Question 24

Education: There was a major difference in the Universities that senior judges had attended compared to judges at a lower level.

Answer 24

90% of COA/ HOL judges had been to Oxford or Cambridge but only 1/6 district judges and 4/13 in the county court had attended Oxford or Cambridge.

Question 25

Education: HOWEVER…

Answer 25

As the judges in the COA and HOL decide complex cases and law. Derbyshire pointed out that it would be surely a matter of concern if senior judges were not highly educated and exceptionally intelligent.

Question 26

Age: judges tend to be middle aged when they are appointed and it could be argued that this means that a large part of the judiciary is out of touch with many sections of the population and their issues and concerns in modern Britain.

Answer 26

One of the problems is that most judges start off as solicitors or barristers and need to gain a lot of experience over time before they can be appointed as judges. The average age in England and Wales for appointment to the HC tends to be late forties/ early fifties and even an assistant recorder is likely to be in the late thirties when appointed.

Question 27

Age: However

Answer 27

This means that the judges have a vast amount of experience with the areas of law and can develop further skills to judge on complex issues fairly and a certain level of expertise.

Question 28

Women in the judiciary: This has improved significantly in most areas.

Answer 28

A positive of this is that it is more representative of the whole population so views are more supported by people who actually represent the population rather than just half of it.

Question 29

Women in the judiciary: HOWEVER

Answer 29

Although there seems to be an increase in women judges within the lower courts there are 23% of Judges in the Court of Appeal and 27% in the High Court were women. This seems an increase, however, is not representative of the female population as a whole. Furthermore, in the Supreme Court, only 2 female members as of 2021.