The Judiciary

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Author:
toricazaly
ID:
298737
Filename:
The Judiciary
Updated:
2015-04-18 06:58:18
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law
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English Legal System
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law
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  1. What are the qualification required for each level of judicial appointment?
    • Set out in the Tribunals Court and Enforcement Act
    • Justice of the Supreme Court - hold high judicial office or have held superior court qualifications for at least 15 years - can be from Northern Ireland or Scotland as well as England and Walse.
    • Lord Justices of Appeal - existing High Court judge or at least seven years' qualification
    • High Court judges -barrister or solicitor for seven years or Circuit judge for two years.
    • Circuit Judge - barrister or solicitor for seven years, Recorder, District Judge or Tribunal Judge.
    • Recorder - barrister or solicitors for seven years
    • District Judge - Barrister or Solicitor for five years or ILEX fellow (deputy District Judge first)
  2. How are judges selected?
    • Supreme Court judges are selected like all other judges. Selection is organised by the Judicial Appointment Commission.
    • Selection by a mixed panel of judges, lay people and lawyers.
    • All appointments now advertised.
    • The aim is to diversify the judiciary
    • Candidates apply and provide references
    • There are interviews to assess attitude and aptitude.
    • The Lord Chancellor has a limited power to object to selection.
    • Applicants for higher appointments are expected to show competence at a lower level (appointment at assistant recorder level is usually used to try out potential judges for more permanent positions).
  3. How are judges trained?
    • Training conducted by the Judicial Studies Board.
    • For superior judges, training is voluntary.
    • For an inferior judge, training is compulsory - mainly for newly appointed assistant records and consists of a one-week course which deals with sentencing, running a criminal court and human awareness.
    • Inferior judges also have to spend a week shadowing an experienced judge before sitting themselves.
    • One-day courses are run from time to time to update judges on major changes in the law, some of which are compulsory, e.g. Human Right Act 1998
  4. What is the role of judges at first instance?
    • In all courts:
    • To ensure the hearing is carried out fairly and preside over the court
    • To decide question of law
    • In criminal cases:
    • Magistrates' Court - decide both verdict and sentence and preliminary, matters e.g. bail
    • Crown Court - sum up for jury, sentence if appropriate.
    • In civil cases:
    • Decisions made by a single judge
    • Decide verdict and award; in small claims help parties put their case
    • Act as case manager, deciding track, holding preliminary hearing to clarify issues, keep parties to time limits, may be responsible for running court office.
  5. What is the role of judges in the appeal courts?
    • Review the hearing at first instance decide whether the law was correctly decided and whether hearing carried out properly.
    • Decision are made by three or more judges sitting together.
    • Decide whether results is wrong or unsafe
    • can change decision or may order a retrial
    • can revise sentence or award
    • Can decide issues of law in important cases (UK Supreme Court and Court of Appeal usually)
    • Can clarify or amend the law where appropriate (R v G & R)
    • May be involved in judicial review in the Divisional High Court.
    • May be reviewing situations in relation to the Human Rights Act 1998
  6. Background of judges before the changes in appointment:
    • were originally only appointed from the ranks of barristers and appointed on recommendation of Lord Chancellor with secret soundings
    • They were still very few women or ethnic minorities
    • Supreme Court Judges - over 80% went to public school and Oxbridge and came from wealthy backgrounds
  7. Background of judges since the changes in appointment
    • Appointments from applications and based on merit
    • All vacancies advertised and require applications
    • Positive steps to diversify the judiciary - more women and ethnic minorities being encouraged to apply.
    • Promotions from current inferior judges to the more senior positions
    • The Judicial Appointments Commission should lead to greater diversity.
    • More women and people from ethnic minorities are now being appointed but is at the lower ranks of judges
    • It will take many years to diversify the judiciary to any great extent
  8. Tenure of judges
    • senior judges have security of tenure under the Act of Settlement 1701 and cannot be removed except by the Monarch following a petition to both Houses of parliament.
    • Superior judges can be asked to resign
    • Inferior judges can be removed by the Lord Chancellor and the Lord Chief Justice for incapacity or misbehavior but must comply with set procedures (Constitutional Reform Act 2005)
    • Recorders are only appointed for a period of five years but must be reappointed unless there is a good reason
    • Judges retire at 70.
  9. The separation of powers
    • The three arms of the state:
    • Legislature: makes law - Parliament and the Queen
    • Executive: puts law into effect and administers nation's affairs - Ministers (and their department)
    • Judiciary: interpret and enforce law - judges
    • The three arms must be kept independent of each other. This means that each can exercise control over the other two.
    • Without this separation, it is easier for one person or a small group to take complete control (e.g. Zimbabwe)
  10. The separation of power gives some independence to the judiciary
    • By giving security of tenure to the judiciary (in the Act of Settlement)
    • But judges do try to implement intention of Parliament in Statutory Interpretation
    • judges cannot question legality of legislation
  11. Judiciary independent controls are exercised by:
    • the judiciary providing a check on executive through judicial review
    • the executive providing a check on the higher judiciary
    • judiciary can be thought to limit legislature through statutory interpretation, e.g. the golden rule - judges may decide a literal interpretation would lead to an absurd or obnoxious result and give a different interpretation
    • legislature has some control over the terms of judges' employment e.g. pay, retirement age
    • the legislature can amend a law if a minister has been held to be acting ultra vires
  12. How is judicial independence maintained?
    • Judges cannot be sued for what is said or done in court which gives a judge freedom to come to an unpopular decision but this can be criticised in the appeal courts.
    • by convention the judges keep free of politics cannot become MPs (except for Recorders), avoid making political comments, Law lords can only take part in relevant debates - but LCJ and MR have felt the need to publicly voice concerns about issues such as sentencing.
    • Judges do sometimes have to take decisions that have a political elements, e.g. judicial reviews.
    • Independently appointed on merit on past record, tests and references but there is a political element for superior judges despite reforms.
    • Secure tenure - need a motion of Parliament to remove superior judges and good reason for inferior judges. Recorders contracts must be renewed except for good reason but can be eased out.
    • Financially secure - salary set independently, have pensions provision but this is now comparatively low in level as judges have to work 20 years to gain full pension
    • Judges must have any personal interest in a case they are hearing - pinochet case
    • Judicial Appointments Commission should lead to more independence
  13. Advantages of having a career judiciary
    • Judges will be younger as they will not have worked as an advocate first
    • Will have trained for longer in judicial skills - at present there is minimal training on human awareness, sentencing and presiding over a criminal court.
    • Greater scope for specialisation
    • able to concentrate on decision-making skills
    • selected for judicial skills - not all good advocates become good judges
  14. Disadvantages of having a career judiciary
    • being younger may not be an advantage as judges will lack life experience
    • less experience of court practice and barristers' techniques
    • less experience of dealing with clients and possibly human awareness
    • loss of advocate's habit of independence

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