7- Judiciary

Question 1

What is the role of judges?

Answer 1

Although different types, basic function is the same.
Their main role is to make decisions in respect of disputes.
They must do this in a fair, unbiased way, applying the law and the legal rules of England and Wales.
There are 2 types of judges.

Question 2

What are the 2 types of judges?

Answer 2

SUPERIOR JUDGES

• Sit in the SC, CofA and High Court.
  
  • Justices of the SC
  • Lord Justices of Appeal
  • High Court Judges (also known as puisne judges) who sit in the 3 divisions of the HC. Judges in the QBD also sit to hear serious cases in the Crown C.
• Head of the judiciary is called the Lord Chief Justice.

INFERIOR JUDGES

• They include:
  
  • Circuit judges who sit in both Crown C. and County C.
  • Recorders who are part time judges who usually sit in the Crown C, though some hear cases in the County C.
    - District judges who hear small claims and other matters in the County C.
  • District judges who sit in Magistrates’ C.
  • Tribunal judges.

Question 3

What qualifications are needed to become a judge?

Answer 3

Qualifications to become a judge based on legal qualifications plus relevant legal experience for a number of years.

Question 4

How are judges selected?

Answer 4

• Up to 2005, selection of superior judges was done by the Lord Chancellor. The system was secretive.
• In addition, the Lord Chancellor is a political appointment.
• This meant selection of judges was not independent from political influence.

System changed by the Constitutional Reform Act 2005 which established the Judicial Appointments - Commission to deal with the selection of judges.
The commission advertises vacancies for judicial posts, interviews applicants and recommends to the Lord Chancellor who should be appointed.

Question 5

How are judges appointed?

Answer 5

Once selected, the appointment is made by the Queen.

Question 6

What is the role of Justices of the SC?

Answer 6

• Hear about 100 cases each year- appeals.
• They can be civil or criminal cases. Majority of cases are civil appeals.
• Case can be appealed to the SC if there is a point of law involved.
• Justices of the SC sit as an uneven number panel (minimum 3) to hear a case.
• Any decision made by the SC becomes precedent for all lower courts to follow.

Question 7

What is the role of Lord Justices of Appeal?

Answer 7

• All their work concerned with appeals.
• Sit in both the civil and criminal divisions of the CofA, so they deal with both civil and criminal cases.
• Workload much heavier than the SC.
• They hear over 7,000 criminal applications for leave to appeal against sentence or conviction. These are dealt with by 1 judge.
• Only about a 1/4 of these get leave to appeal, so the full ncourt then has about 1,8000 criminal appeals to hear/year.
• In addition, they hear over 3,000 civil appeals.
  These may be appealed against the finding of liability or on appeal about the remedy awarded (ex: money given.)
• CofA judges usually sit in a panel of 3.
• In important cases, there might be a panel of 5.
• Decisions by the CofA on points of law become precedents which lower courts must follow.

Question 8

What is the role of High Court judges?

Answer 8

• Main function is to try cases.
• Cases known as cases at first instance bc it is the first time a case has been heard by a court.
• Hear evidence from witnesses, decide what the law is and make the decision as to which side has won the case.
• If case is for damages, judge decides how much should be awarded to the winning claimant.
  When hearing first instance cases, judges sit on their own.
• They also hear some appeals, mainly from civil cases tried in the County C.
• Judges in the QBD also hear criminal appeals from the Magistrates’ C by a special case stated method
• These are appeals on law only.
• When hearing appeals, judges sit in a panel of 2.
• Judges from the QBD also sit in the Crown C to hear criminal cases- with a jury.

Question 9

What is the role of inferior judges?

Answer 9

• Circuit judges sit in the County C to hear civil cases and in the Crown Court to hear criminal cases. They decide the law and who wins the case.
• Recorders are part-time judges appointed for a period of 5 years. Used mainly in the Crown C but some sit in the County C.
• District judges sit in the County C to deal with small claims cases (under 10,000 pounds) and can hear other cases for larger amounts.
• District judges (Magistrates’ Courts) try criminal cases. They sit on their own and decide facts and law. When D pleads guilty or is found guilty, they decide the sentence.

Question 10

What are the reasons for judicial independence?

Answer 10

1. Independent judiciary is seen as important in protecting the liberty of the individual from abuse of power by the executive. It is vital in a democracy.
2. Gov cannot force a judge to resign if that judge makes a decision with which the gov of the day disagrees. It is important that the judges can carry out this function without fear of repercussions.
3. Judges should also be impartial in their decisions. Each judge must be able to decide the case solely on the evidence presented in the court by the parties. They should not be influenced by outside parties or their own personal interests.
4. Judges must be free to exercise their judicial powers without interference from litigants, the state, the media or powerful individuals or entities, such as large companies.
   - MP tried to influence the Jamie Bulger case: The trial judge, Mr Justice Morland, sentenced them to life, recommending that they serve a minimum of eight years. This was later increased to 10 by the Lord Chief Justice and then to 15 by then Home Secretary.
5. Justice must be seen to be done.
   - It was for this reason that the HoL in the Pinochet case in 1998 held that a decision it had given had to be set aside and the appeal before it heard again by a panel of different Law Lords. It had come to light after the original decision that one of the Law Lords might have not been independent and impartial because of a connection with Amnesty International, who were the campaigning organisation which was involved in the case. Justice demanded that the appeal be heard again before a panel of Law Lords.

Question 11

How does the UK plan to ensure judicial independence?

Answer 11

1. The appointment process
   - When judges were appointed by the prime minister and the Lord Chancellor it was very difficult to rule out the influence of political considerations. However, the establishment of the Judicial appointments Commission has introduced greater independence into this process.
2. Pay
   The pay and rewards of judges are safeguarded from political influence – judges are paid out of the consolidated fund.
3. Freedom from criticism
   - MP’s and peers – and also ministers – forbidden from putting pressure on judges by criticizing court rulings and judicial decisions in parliament.
4. Independent legal profession
   - Judges are appointed from the ranks of lawyers who belong to an autonomous legal profession. Standards within the profession are regulated by the law society, not by the government.
5. Role of Lord Chancellor
   - Lord Chancellor has to swear an oath to defend the independence of the Judiciary.

Question 12

How is independence of judiciary protected?

Answer 12

SECURITY OF TENURE OF SUPERIOR JUDGES

• Cannot be dismissed by gov.
• Can only be removed by the monarch following a petition presented to her by both Houses of Parliament.
• This gives superior judges protection from the gov and independence in their judgements.
• Never been used for an English judge.

TENURE OF INFERIOR JUDGES

• These don’t have the = security of tenure as superior judges.
• Lord Chancellor, with the consent of the Lord Chief Justice, has the power to dismiss inferior judges for incapacity or misbehaviour.

COMPLAINTS
- Complaints investigated by an independent office helps to maintain judicial independence.

IMMUNITY FROM SUIT

• Immunity from prosecution for any acts they carry out in performance of their judicial function.
• Also have immunity from being sued in a civil case for actions taken or decisions made in the course of their judicial duties.
  
  • Confirmed in Sirros v Moore (1975)- In a Crown C case the judge wrongly ordered someone’s detention.
• Judges also benefit from immunity from being sued for defamation (damaging a godd rep)for the things they say about parties or witnesses in the course of hearing cases.
  This allows judges to perform their duties without fear of repercussion and gives them complete independence.

INDEPENDENCE FROM THE EXECUTIVE
- Superior judges cannot be dismissed by the gov, they can make decisions that displease the government without the threat of dismissal.

INDEPENDENCE FROM THE LEGISLATURE

• Judges generally not involved in law-making functions of Parliament.
• Full-time judges not allowed to be members of the HoC, although the rule is not as strict for part-time judges. Recorders and assistant recorders can therefore be MPs.

INDEPENDENCE FROM THE CASE
- Judges must not try any case where they have any interest in the issue involved. The Pinochet case (1998) reinforced this rule.

Question 13

What are the advantages of judicial independence?

Answer 13

1. Decisions made only on the facts of the case and law. This ensures fairness in all cases and is an important advantage.
2. Judiciary are able to protect citizens against unlawful acts of gov. There can be an impartial judicial review of acts/ decisions by gov.
3. Public has confidence in our judicial system, they know that the cases will be decided fairly and in accordance with the law.