16: The Judiciary

• Judge = 'he is an elderly, remote crusty figure wearing ridiculous fancy dress, speaking strange jargon and holding views more appropriate to the 19th century

  Interpretation: fancy clothing, speaking standard english with legal terms referring to appropriate views to the current generation and laws

  Judiciary = 1+ judge
• 2 Types of Judges:

  1. Superior Judges includes: Lord Chief Justice (who replaced Lord Chancellor), Justices of Supreme Court, Lord Justices of appeal, High Court Judges
  2. Inferior Judges includes: Circuit judges, Recorders, District judges and Tribunal Judges
• Qualifications: Courts and Legal Services 1990, ammended by Tribunals, Courts and Enforcement Act 2007

  • sets out 'judicial appointment eligibility condition', allowing those who are qualified barristers/solicitors of 5-7 years to be eligible to apply irrespective of rights of audience (without considering skills to present and argue cases in court)
• Appointment:

  • Before 2005, Lord Chancellor appointed superior judges (criticised for not being independant)
  • 2005: Constitutional Reform Act establishes judicial appointment commission who selects candidates based on methods of application and assessment, and must be selected on 'merit' and 'good character'
  • Monarch appoints judges after selected by JAC
  • Requirement: has met the judicial appointment eligibility condition
• Independence of Judiciary:

  • All English judges swear an oath to administer justice - 'without fear of favour, affection or ill-will' (Judge isn't concerned with other people's opinions, as long as their decision is unbiased'
• Separation of Powers: Independence

  • The Legislature (Parliamentary law making): judiciary is not involved with law making functions of Parliament and cannot become MPs unless they are part time judges. Previously judges werent independent as they were a part of House of Commons, where now the Constitutional Reform Act created the Supreme Court
  • The Executive (government, administrative): Superior judges cannot be dismissed by government and Lord Chancellor no longer appoints judges (However, the PM is involved in appointing some judges)
• Methods of Protection:

  • Security of Tenure - superior judges are removed by the monarch following petition by both Houses, which allows judges to make decisions against government without fear of dismissal
  • Immunity from Suit - judges cannot be sued for decisions and can make decisions without fear of consequences
  • Independence from the case - cannot try cases where they know/have interest in the issue involved
• Judge Training:

  • Compulsory 4-day residential course: lectures on sentencing, mock trials, prison visits, seminars on 'vulnerable witnesses' and 'mentally disordered offenders'
  • Superior judges take 'refresher courses'
  • Inferior judges take 'human awareness training', compulsory by JAC
  • Most training for superior judges is optional
  • Criticised for insufficient training time to learn complex sentencing decisions
• Retirement:


  Judicial Pension and Retirement Act 1993 - all judges should retire at age 70, but some may be authorised to continue beyond this age

  Age 75 becomes ineligible to continue judicial duties
• Dismissal:

  Superior judges cannot be dismissed by government due to security of tenure, but can be dismissed by monarchy and parliament

  Inferior judges do not have security of tenure and can be dismissed on 2 grounds:

  • Incapacity (could be due to lack of training)
  • Misbehaviour
• General Disciplinary:

  CRA gives LCJ power to discipline judges by:

  • Giving formal advice/warning
  • Suspend judges subject to criminal proceedings
  • Suspend judges in the process of being removed by Parliament
• Critical Comments

  • Composition is dominated by elderly, white upper class males
  • First woman appointed to High Court in 1992
  • Supreme Court/Lord Justices Appeal = 0% ethnic minorities
  • Nearly all judges attended Oxford/Cambridge
  • 70% of judges privately educated
  • 78% Oxbridge educated