The Judiciary

Some key points History Constitution – 3 branches of government (Montesquieu) Constitutional Reform Act 2005 Judicial Appointments Commission Judiciary website Judicial salaries A recent judgmentjudgment What sort of questions can you expect?questions Beware of nutters!nutters

Key superior judges Lord Chief Justice Justices of the Supreme Court Lord Justices of Appeal Master of the Rolls High Court Judges (Puisne Judges) High Court Judges

Inferior judges Circuit Judges (Crown & County) Recorders (p/t “ “ ) District (County) District (Magistrates’)

Qualifications Traditionally barristers became judges Until the Courts & Legal Services Act 1990, only barristers with 10 years’ practice could become Superior Judges. This act extended the pool to solicitors. The Tribunals, Court and Enforcement Act 2007 extends it further to Fellows of ILEX (Deputy District and Tribunal Judges) and to arbitrators, mediators, lecturers, etc.

How to become a Justice of the Supreme Court… Be a Court of Appeal judge or… a senior judge with 15 years’ qualification to appear or practise in the Senior Courts, in England & Wales or Scotland (advocates) or NI.

How to become a Lord Justice of Appeal… Be a High Court judge or… Be a qualified barrister or solicitor with 7 years’ relevant experience (The first qualified solicitor was appointed in 2007)

How to become a High Court Judge… Be a barrister or solicitor with 7 years’ experience or a solicitor with a certificate of advocacy for 10 years. (First solicitor was appointed in 1993)

How to become a Circuit judge… Be a barrister or solicitor with 7 years’ experience or… be a District or Tribunal judge for 3 years

How to become a Recorder… Be a qualified barrister or solicitor with 7 years’ experience Be available to work 20 days a year (Mostly criminal cases in the Crown Court, some Civil Recorders work in the County Court)

How to become a District Judge… Be a barrister or solicitor with 5 years’ experience. (Usually solicitors, work in County Court, ILEX Fellows can be DDJs)

How to become a District Judge in the Magistrates’ Court Be a Deputy District Judge or… Be a B or S with 5 years’ exp. (Most DJs in the Magistrates have been p/t DDJs. ILEX Fellows can become DDJs in the Magistrates’ too).

CRAct 2005 – what does it aim to do? Transparency in judicial appointments A more diverse judiciary Independence of the judiciary Re d u c t i o n in the role of the Lord Chancellor in favour of the Lord Chief Justice Supreme Court of Justice established 2009

Appointment of judges All judges are appointed by the monarch. The question is – how are they selected?

Selection 1 (before the 2005 CRAct) Lord Chancellor, an ally of the PM, made the decision Problem! The LC was executive, legislature and judiciary at the same time. Problem! The LC was always an old white male. All the people who advised him looked just like him, went to the same school, the same university, the same chambers…LC All the people he picked looked just like him, went to the same school, the same university, the same chambers…

Selection 2: After the 2005 CRAct From 1998, vacancies were advertised (but the LC still invited people to apply) The big change was with the Constitutional Reform Act 2005 which set up the Judicial Appointments Commission. This de-politicised the selection of judges and made it more transparent.

Judicial Appointments Commission 15 members made up of… 6 lay members 5 judges 1 barrister 1 solicitor 1magistrate 1 tribunal member NB In the case of selection for the Supreme Court, Heads of Division and LCJ, the JAC convenes a panel to make the decisionJAC convenes a panel

A better system Selection by merit Only the JAC can select and recommend candidates Consultation with judge of equal rank and LC LC can reject a candidate once for any given appointment The Crime and Courts Act 2013 further limits the LC’s powers.Crime and Courts Act 2013

What qualities does the JAC look for? Intellect Personal, e.g. integrity, independence, decisiveness, objectivity To be understanding and fair To be authoritative and to communicate efficiency efficiency

Is it working? 2006: vacancies for High Court advertised, 129 applicants of whom all were white and 18 were women. 2010, 15/90 were women, 6 were black (2 of whom got the job).

What do judges do? 12 Justices of the Supreme Court hear appeals on points of law, civil and criminal. They hear dozens of cases each year. 38 Lords Justices of Appeal hear criminal appeals (against conviction and/or sentence) and civil appeals (against finding and/or award) They hear thousands of cases/year.

High Court Judges 73 in the QBD 19 in the Family Division 18 in Chancery They try cases First instance (though QBD can hear criminal appeals ‘by way of case stated’) They adjudicate in favour of one side and may award damages In the QBD, In cases of fraud, libel, slander, malicious prosecution & false imprisonment a jury provides a verdict High Court judges hear appeals from the County Court High Court Judges also sit in the Crown Court. Here the jury is the final decider of fact; the judge decides – and explains the law. The jury gives the verdict. If this is ‘guilty’, the judge hands down the sentence.

Inferior judges Circuit Judges sit in the County Court and decide on the law and the facts. They sit alone and decide who has won the case and quantum of damages. In the Crown Court the jury delivers its verdict and the judge hands down the sentence. Recorders mostly work in the Crown Court District Judges deal with small claims (<£5000) in the County Court or criminal cases in the Magistrates’ Court, and family cases with lay magistrates.

Training Judicial Studies Board -> Judicial College One week course for lawyers who become Assistant recorders. Is it enough? Change of attitude over time. Threat to independence? An insult? “Human Awareness Training” e.g. religion, gender, race, disability If the judiciary was a single career…

Tenure Why should it be almost impossible to sack senior judges? Since the Act of Settlement 1701, judges hold office whilst of “good behaviour”. CRAct 2005 now covers tenure of Justices of the Supreme Court, Senior Courts Act 1981 for High Court and Appeal Court Judges. Removal “by the monarch” after petition from both Houses. Last used in 1830 on Irish Judge Jonah Barrington who had misappropriated £700 from court funds NB: Inferior judges can be dismissed by LC for incapacity or misbehaviour – Bruce Campbell, cigarettes and whiskey smuggler Judges retire at 70 (used to be 75) Judicial Pensions and Retirement Act 1993

Composition Key issue: Do judges reflect the wider population?Do judges reflect the wider population Newspaper article on House of Lords committee recommendations Newspaper article on House of Lords committee recommendations

Gender Traditionally women got as far as the Family Division of the High Court Court of Appeal 1988 (2 nd in 1999), QBD 1992, Chancery 1993, Supreme Court % of Circuit judges are women, 33% of District judges

Race First non-white judge in High Court? % Circuit judges, 6.5% Recorders

Class/education Senior judges: public school, Oxbridge, chambers, decades working as barristers Lord Taylor: judges shop in supermarkets

Separation of Powers Section 3 of the Constitutional Reform Act 2005: "The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary."

Rule of Law Lord Chief Justice Phillips: "A judge should value independence above gold, not for his or her own benefit, but because it is of the essence of the rule of law.“ The rule of law says we are all equal under the law, so if one person can make and execute laws they might give themselves an advantage – John Locke Montesquieu – especially important to keep the judiciary separate. The danger is fusion of powers

The three branches Executive = the administrative branch of government, includes ministers, the cabinet, civil servants, police and army, the day to day running of the country Legislature = the lawmakers, (in the UK, parliament). Judiciary = the enforcers of the law, the judges, magistrates, tribunals, etc.

Do we have true separation? PM can influence MPs Power of executive to appoint Lords Govt ministers sit in parliament Govt controls parliamentary timetable Parliament can remove superior judges Lord Chancellor can remove inferior judges

On the other hand… Judges cannot be in the commons CRAct – reduced role of LC Supreme Court no longer in the House of Lords

Practice question 2 2 Describe how judges are trained for their work. (10 marks) Description of judicial training could include - responsibility of Judicial Studies Board, provision of initial practical training, eg how to run a court, sitting with experienced judges and visits, annual training and induction courses when receiving new responsibilities, mentoring scheme

2 3 Explain the role of a judge in a civil case involving a claim for damages. (10 marks) Explanation of role of judge could include – dealing with pre-trial issues (eg tracking), acting as trial manager, ruling on legal issues during trial, deciding liability, deciding compensation or other remedy, possible reference to appeals

2 4 Discuss the importance of judicial independence. (10 marks + 2 marks for AO3) Discussion of importance of judicial independence could include – public confidence in judiciary, upholding Rule of Law, decision-making free of pressure, ability to hear judicial review and cases involving the government, possible reference to separation of powers