the judiciary

Question 1

what can the judiciary do?

Answer 1

-interpret the common law (R v R 1992- the common law rule no longer reflected the views of society regarding raping wives, so changed the law to be more appropriate and was guilty of rape)
-the decision when applying the interpretation to the facts is legally binding and creates precedent (stare decisis)
-interpret the meaning of statutes (R v R 1992- sexual offences act 1976 sc1(1) “he has ‘unlawful’ sexual intercourse with a women who.. does not consent”, rather than interpretting the statute the courts ignored ‘unlawful’ to remove the defence of lawful sex without consent

Question 2

more powers of the judiciary

Answer 2

-make declarations of incompatilibility with ECHR under sc4 HRA 1998
-review the executives decisions, actions and omissions and find them unlawful (judicial review)

Question 3

powers of the courts: contempt of court act 1981

Answer 3

a strict liability criminal offence (makes it an offence to interfere with the adminitration of justice or fair outcome of a court case)

AG v Hawkins and liddle 2013- acted against an injunction to not publish the new identities of defendants, suspended sentence
AG v Dallas 2012- juror search ds previous convictions and got 3 months for doing so

debate- courts review the actions of others and finds them unlawful but, courts benefit from the cohersive powers of the state in enforcing court decisions

Question 4

limitations to judicial power

Answer 4

-can only deal with cases before them (R v R 1992, couldnt change law until came before them)
-limited by precedent (need to explain why departing)
-limited by statutes (can only interpret so far), but have removed words before in R v R)
-cannot declare an act of parliament to be unlawful (parliamentary sovereignty but Lord Hope in Jackson v AG 2006- may be limits to parliamentary sovereignty)

Question 5

how are judges appointed

Answer 5

before constitutional refrom act 2005- appointed by lord chancellor (head of the judiciary, cabinet minister and member of parliament)

now- judicial appointments commission
note- lord chancellor still minister and MP

Question 6

how are judges dismissed?

Answer 6

prior act of settlement 1700- the crown
after-address to the crown agreed by both houses of parliament

since CRA 2005- by the lord chancellor is medically unfit, or the same as above

Question 7

the principle of judicial independence:

Answer 7

-immunity from prosecution/being sued for judical acts
-LCJ or LC can refer judge to judicial conplaints investigations office for potential removal