LEGAL PERSONNEL JUDICIARY

Objectives Explain the role of judges and the judicial hierarchy. Explain how judges are appointed. Describe the training of judges. Explain how the judiciary is regulated. Critically evaluate the constitutional position of judges. Discuss the role of judges in relation to the Rule of Law.

Role of judges The role of judges is to apply the law as stated by Parliament in an independent manner. Parliament is the supreme law maker and so courts cannot question the law, merely interpret it. s2 Human Rights Act 1998 – judges should ‘take into account’ decisions of the European Court of Human Rights. s3 Human Rights Act 1998 – all legislation should be interpreted in a way which is compatible with the European Convention on Human Rights. Judges preside over both civil and criminal cases. In criminal cases, the issue of guilt will be decided by a jury, and the judge will pass sentence. In most civil cases, the judge will decide the issue of liability and the amount of damages to be awarded. The establishment of the Supreme Court under the Constitutional Reform Act 2005 means that the superior judges are completely separate from Parliament. This creates an independent judiciary which is a fundamental principle under the Rule of Law. The Constitutional Reform Act 2005 also changed the role of the Lord Chancellor as it too was seen to be in conflict with the separation of powers. The Lord Chancellor is now known as the Minister of Justice.

Justices of the Supreme Court SUPERIOR JUDGES Lord Chief Justice is the head of the judiciary SUPREME COURT Justices of the Supreme Court SUPERIOR JUDGES COURT OF APPEAL Lords Justices of Appeal HIGH COURT High Court Judges CROWN COURT Circuit Judges District Judges Recorders (part time) COUNTY COURT Circuit Judges District Judges Recorders (part time) MAGISTRATES COURT District Judges (Magistrates Court) INFERIOR JUDGES

Pre Constitutional Reform Act 2005 Post Constitutional Reform Act 2005 Selection of judges Pre Constitutional Reform Act 2005 Post Constitutional Reform Act 2005 Lord Chancellor selected judges based on the opinions of existing judges. Lord Chancellor would decide on who to appoint, and that person would be invited to become a judge. This process was seen as very secretive. Lord Chancellor was a political appointment and so was not free from political influence. Recruitment of judges is now managed by the Judicial Appointments Commission. Judicial posts are now advertised and candidates must apply. Appointments process is now completely separate from the political influence of the government. Lord Chancellor is still involved in appointment of superior judges but in a very minimal way.

Judicial Appointments Commission There are 15 members of the Commission. Membership of the Commission is drawn from the judiciary, the legal profession, non-legally qualified judicial officer holders and the public. The Commission recommends five judicial qualities for a good judge: Intellectual capacity; Integrity, independence of mind, sound judgment, decisiveness, objectivity and willingness to learn; Ability to understand and deal fairly; Authority and communication skills; Efficiency. Appointments are now made solely on merit and posts are widely advertised to encourage a wide range of candidates to apply. The amount of time that a candidate has to have worked in the law has been reduced to increase the pool of potential candidates and to encourage applications from solicitors, barristers and tribunal judges.

Judicial Diversity Statistics – April 2016 Male, stale, pale? A huge criticism of the judiciary has always been that it is dominated by Oxbridge educated, old and upper class males. The system of selection under the Constitutional Reform Act 2005 has gone some way to addressing this issue’. Judicial Diversity Statistics – April 2016 Source: www.judiciary.gov.uk 21% of Court of Appeal judges are female 21% of High Court judges are female 28% of all other judges are female 34% of judges are from non barrister backgrounds Judges in lower courts are more likely to come from a non barrister background. 6% of judges identify as Black, Asian and Minority Ethnic. Only 1 female Justice of the Supreme Court – Lady Brenda Hale Discussion: To what extent is the judiciary representative of society? What measures have been implemented to encourage a greater representation?

Judicial Training Training of judges is carried out by the Judicial College, set up in 2011. There are three main elements to judicial training: - knowledge of substantive law, evidence and procedure - the acquisition and improvement of judicial skills - the social context within which judging occurs On first appointment, judges go through an induction programme, and will be assigned a mentor; usually an experienced judge. Judges are expected to participate in continuing professional development through the completion of seminars and e-learning which teach judges about developments in legislation and procedure.

Judicial Independence s3 Constitutional Reform Act 2005 guarantees judicial independence and states that this must be upheld at all times. Judges are free from influence from the legislature – judges are not allowed to be MPs. Judges are free from influence from the government – they can make decisions which may displease the government without the threat of dismissal. (Case Study: Court ruling that Parliament must vote on the process of the UK leaving the EU: http://www.bbc.co.uk/news/uk- politics-37857785) Judges should be free from political bias, but there are cases which show that judges tend to support the government. [Case Study: GCHQ case (1984), the ‘Spycatcher’ case (1987)] Judges can declare UK legislation incompatible with the European Convention on Human Rights which will force the government to change the law. [Case Study: A and another v Secretary of State for the Home Department (2004)]

Dismissal and Retirement of Judges Judges usually retire at the age of 70. Judges have to be independent, so it is important that they have security of tenure, which means they should not be at risk of removal just because the government may not agree with their decisions. Case Study: in 2013, Judge Peter Bowers refused to jail a paedophile for accessing images of child abuse, saying “he’d have a hard time” in prison. However, judges can be removed from office by the Judicial Conduct Investigations Office, who deals with all issues of judicial discipline, if any allegations of misconduct are upheld. Case Study: “Three judges removed and a fourth resigns for viewing pornography at work”, The Guardian, 17th March 2015. Inferior judges do not have the same security of tenure as superior judges, and the Lord Chancellor has the power to dismiss any inferior judge for incapacity or misbehaviour.