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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)
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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).
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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
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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.
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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
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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
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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
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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.
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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)
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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
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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
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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
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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
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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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