judiciary

• judicial hierarchy

  judges can be separated into two categories :

  1. superior judge
  2. inferior judges
• superior judgeshierarchy

  • sit in the high court and above
  • president of the supreme court and his or her fellow supreme court justices, just below the supreme court is head of all the judges mainly the president of the courts of england and wales
  • lord cheif justice
  • the head of the civil division of the court of appeal (master of the rolls)
  • lord or lady justices of appeal
  • high court or puisne judges
  • high court judges from the king's bench division of the high court also sit in the crown court to hear more serious cases
• inferior judges

  • sit in the court below the high court
  • circuit judges (hears cases in the crown and county court)
  • district judges (sit in tnhe county court)
  • district judges (magistrates court)
  • part time judges/recorders (sit in the crown court)
• • The role of the judge is to apply the law impartially and fairly when deciding disputes, without letting their own personal opinions or prejudices intrude
• supreme court judges

  • supreme court judges hear approximately 100 cases each year, these cases of general public importance in which important legal principles are at stake
  • mostly civil matters but some criminal cases e.g. R v Jogee [2016] UKSC 8
  • the supreme court has 12 members, it sits with between three and eleven justices, but always as an even number to ensure there is a majority
  • in extremely important cases such as R (on the application of miller and dos santos v the secretary of state for existing the European Union, a full court of 11 justices may sit
  • decisions of the supreme court bind all lower courts
  • supreme court judges also sit on the judicial committee of the privy council, which hears appeals from common wealth countries and is technically outside the hierarchy of the courts of england and wales
• • the 38 lords and lady justices of appeal hear cases in both divisions as a panel of three or sometimes five in rare cases of paticular importance, high court judges in contrast, hear cases at first instance, they will listen to the evidence, make findings of the fact and decide how the law applies and may impose remedies such as damages and injunctions in civil cases
  • high court judges also hear appeals as a panel of two judges by way of case stated from the magistrates and crown courts as well as appeals on civil law matters from the county court
  • high court judges in the kings bench division can also sit in the crown court for more serious cases, where the jury decides the facts and the verdict, and it is for the judge to explain the law to thre jury and decide issues of evidence and procedure to ensure the trial is fairly conducted
• • circuit judges hear civil cases in the county court as a sole judge and criminal cases in the crown court in conjunction with a jury
  • civil circuit judges decide issues of fact and law and award damages or other remidies such as injunctions where appropriate
  • smaller cases in the county court are dealt with by district judges
  • district judges (magistates courts) hear criminal cases in the magistrates court as a sole judge, deciding the facts and law and the sentence if necessary
  • redcorders are part time judges appointed for a five year period they hear cases in both county and crown courts
• to become a judge candidtaes require a legal qualification as well as a number of years of legal experience. The requirements vary depending on the role in question and to the constitutional reform 2005 judges are by the judicial appointments commission this body was set up in April 2006 to make the appointments process clearer and more accountable under the act.

  The judicial appointments commission statutory duties are to select candidate solely on :

  • select only people of good character
  • have regard to the need to encourage judicial diversity in the range of persons available for judicial selection.
  • select candidates solely on merit
• • judicial appointments commission is made up of 15 commissioners
  • The chairman of the commission is a lay member
  • of the 14 of the commissioners, six must be judicial members including two tribunal judges, two must be professional members, five must be lay members and one must be a non-legally qualified judicial member
• • the judicial appointment commission recommends appointments of suitable candidates
  • for inferior judges this dis recommendation is made to the head of the judiciary, the chief justice as a result of the crime and courts act 2013
  • for tribunal judge the recommendation is made to the senior president of tribunal
  • for superior judges, they recommendation is made to the lord chancellor
• • The JAC also has a statutory duty to check the good character of candidates, including checks of external bodies
  • Those with criminal convictions will not be considered unless it’s a very minor motoring offence
  • Anyone with more than six points driving license will not normally be selected following R (Graham Stuart Jones) v JAC (2014)
• the qualities listed by the JAC as desirable in a judge are :

  • efficiency
  • Intellectual capacity
  • The ability to understand and deal fairly
  • Authority and communication skills
  • Personal qualities : independence of mind, integrity, willingness to learn, sound judgement, objectivity
• selection and appointment

  1. online application form
  2. Shortlisting (online tests for inferior posts, telephone assessments)
  3. Panel interview (presentations, role-plays, situational questioning)
  4. JAC makes selection (by Lord Chancellor Lord, chief justice or senior president of tribunals)
  5. Recommends and successful candidates to be appointed
• • the Lord chief justice is responsible for arrangements for training the judiciary in England and Wales under the constitutional reform act 2005
  • The senior president of tribunals of has an equivalent responsibility in relation to judges and members of the tribunal of the tribunals within the scope of the tribunal, courts and enforcement act 2007
  • these responsibilities for both ordinary and tribunal judges are exercised through the judicial college
• Judicial training

  • initial induction training (residential course for 3 to 5 days mentoring for lower level judges)
  • Main elements of training : judicial skills training, social context, academic programs (continuous process includes e-learning as well as residential and non-residential course)
  • Gives judges knowledge of law, evidence and procedure
• there are 5 for judges to leave their post these are :

  1. dismissal
  2. disciplinary reasons
  3. resignation
  4. retirement
  5. removed due to infirmity
• The independence of judges from the executive is achieved in a few different ways. Firstly superior judges have what is known as security of tenure, meaning that they can only be removed by the king if a petition is presented to him by both houses of Parliament circuit and District
• dismissal - inferior judges

  • circuit and district judges can be dismissed by the law chancellor under the courts act 1971 with the agreement of the Lord chief justice for the misbehaviour or inability this is very rare
  • s108(1) of the Constitutional Reform Act 2005 makes clear that if the Lord Chancellor is to dismiss a judge, he must comply with any procedures set out to regulate this process
• • in terms of disciplinary proceedings, the judicial conduct investigatory office was set up in 2013 this independent office supports the law, chief justice and lord chancellor in dealing with complaints
  • it dismisses complaints which don’t meet the criteria in the judicial discipline regulations and passes the remainder onto the Lord chief justice and the Lord chancellor decide what action if any should be taken
  • A judge can be suspended if they are subject to criminal proceedings, disciplinary procedures or it appears necessary to do so to uphold public confidence in the judiciary where the judge is not to be dismissed
  • The JCIO provides complaints with a written explanation of the outcome and if a person is not happy with the way the complaint is dealt with they can contact the Judicial Appointment & Conduct Ombudsman
• resignation

  • in practice judges may come under informal pressure to resign if their performance is not up to scratch, and on some occasions the Lord Chancellor has suggested this to judges whose misbehaviour has been serious
• retirement

  • judges must now retire at 70 following the Judicial Pensions in Retirement Act 1993, although retired senior judges can sit part time until they are 75 if authorised to do so by the Lord chancellor
• removal due to infirmity

  • the Lord Chancellor also has the power to remove a judge who is disabled by permanent infirmity from performing his or her duties, if they are incapacitated from resigning themselves
• • It is important that judges in the legal system are independent. The judiciary has an important role to play with the separation of powers in mind. If they are to apply the law, it is important that they do so free from interference by the executive. This is particularly important as prosecutions are bought by the state and the judge must be neutral between the state and the defendant and because the judge is also her application for judicial review of government decision-making and may have to strike down legislation, that is ultra vires
  • Both these tasks require an independent judge who is not afraid where necessary to fight against government
• the Lord Chancellor

  • The judiciary is largely separate from the other two arms of state the exception to this is the role of the Lord Chancellor who is a government minister, doesn’t know chancellor still has a role to play in the appointment and removal of judges he is no longer the head of the judiciary and his fault is much reduced following the constitutional reform act 2005 so any overlap between the three arms of state is limited
  • although the role of the law appointing inferior judges has been reduced following the crime and courts at 2013, his role has been strengthened in respect of senior judges, which is of concern as the Lord is ultimately a politician
• security of tenure

  The Act of Settlement 1700 provides what is known as security of tenure for superior judges of the High Court and above this means they can only be removed from office by the on petition of both houses of Parliament. This has only happened once in 1830. This means that senior judges need not sacked by politicians who do not like their decision however, inferior judges can be dismissed by the Lord Chancellor but only with the consent of the and only from misbehaviour or
• immunity from suit

  • judges have immunity from suit. This means that they cannot be prosecuted or sued in the civil courts for anything they do in exercise of their judicial role
  • Sirros v Moore [1975] from suit in civil cases. This means judges can make decisions without any fear of legal action being taken against them.
• independent from executive

  • this is guaranteed by s3 of the constitutional reform at 2003 which places are duty of the government to uphold the independence of the judiciary
  • s3 makes it clear that the Lord chancellor and other government ministers must not try to interfere with the decisions judges make
• independent from legislature

  • full-time judges cannot sit as an MP in the house of commons
  • Following the establishment of the Supreme Court, judges in the highest court no longer have a seat in the House of Lords
• independent from parties

  • even the appearance of bias can lead to a judge being removed from a case
  • in Re Pinochet [1998], General Augusto Pinochet was seeking to avoid extradition to Chile to face charges of torturing and killing Chilean citizens when he was the head of state
  • One of the judges in this case, Lord Hoffman, was an unpaid director of Amnesty International, which campaign to have General Pinochet prosecuted for war crimes
  • This meant that the decision of the court had to be set aside and the case re tried without him
• importance of judicial independence

  • judicial independence provides a safeguard against government abuse of power
  • If judges are independent of government, they feel free to find against them in cases where judges demands it and this means that intend to freedom of citizens can be protected
  • This means that the independence of judges is important in guaranteeing the rule of law which requires that everyone is equal before the law
  • It also uphold public confidence in the legal system because the public note that judges will decide case is fairly on their merits
• • the composition of the judiciary is overwhelmingly white male and middle or upper class
  • in terms of class in 2014, 75% I’ve seen to just went to Oxford Cambridge University and 71% attended private schools
  • in terms of gender in 2018, only 29% of judges with female with lower representation in senior roles although 46% of tribunal judges were female
  • in terms of ethnicity, only 7% of judges and a less one percent of tribunal judges were from a BAME background
  • average age of judges is 58 and judges retire five years later than most professions which contributes to this
  • although some improvements have been made in terms of diversity, for example with the number of female judges increasing, there is clearly a long way to go if the judiciary is to represent the society it serves. This is a concern because it is clearly very important that those sitting in judgement and society should understand it