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T5/Chap 16 & 17
Thursday, 19 September 2019 7:06 PM

Judges
1. Jacqueline Martin: judges adjudicate on disputes in a fair, unbiased way
Types of judges
1. Superior judges (High Court, C of Appeal, Supreme Court)
2. Inferior judges (Magistrate's court, County and Crown Court)

Qualifications
1. Relevant legal qualification
2. Experience in the law
3. Tribunals, Court and Enforcement Act 2007: widened the pool of potential
applications by stating that to become a judge the criteria is to have relevant legal
qualification; judicial position open to beyond solicitors & barristers. Eg: law
professors, arbitrator, mediator
a. In the bigger picture, may help make the composition of the judiciary wider
and balanced

Constitutional Role of Judges

1. Montesquieu: separation of powers
a. Three organs of a state: legislative (law-making body), judiciary (adjudicate on
the law) and executive (ruling government)
b. Each organ is independent, they keep each other in check and thus limit the
monopoly of legal and political power. Process of checks and balances.
2. However, the doctrine of SoP is divorced from the realities of the state system
a. Lord Chancellor was the head of judiciary, member of Cabinet and speaker of
the HoL
b. LC personally considered applications before making recommendations to
the PM.
i. Criticised that judges would recommend barristers who had not caused
trouble in court and who seemed to agree to the opinions of the judge.
ii. Politically motivated; reliant upon the "old boys" network which
resulted In who lacked in diversity, male, white, Ox-Bridge graduates,
conservative.
iii. Risk of politicization because the LC and PM were politicians.
iv. Large concentration of power in the LC

Impartiality of Judges
1. Pinochet case
a. Lord Hoffman who was a judge of the case was also an unpaid director of
Amnesty International (who had an interest in the case)
b. The Law Lord, upon discovering this fact, set aside the original case decision,
and affirmed that judges had to be independent and impartial.
c. Case exemplifies how members of society (lawyers, fellow Law Lords), uphold
impartiality and independence

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Reform of the Judiciary: Constitutional Reform Act 2005

1. Established the independence of the judiciary
2. Designed to enhance public confidence in the judiciary, accountability, and
effectiveness of judicial work

Judicial Appointments Commission

1. Responsible for the recommendation of judges to the Secretary of State
2. Clear, accountable, no "secret sounding" (secret selection) of judges; sought to
increase the diversity of the judiciary
3. New selection procedures:
a. Step 1: Vacancies advertised and applications accepted
b. Step 2: Interview, vetting and short-listing of candidates
c. Step 3: Selection and recommendation to the Lord Chancellor for final
approval

Retirement and dismissal

1. In the big picture, the government cannot force a judge to resign if the judge makes
a decision that displeases the government.
2. Superior Judges
a. Constitutional Reform Act 2005 affirms that superior judges cannot be
dismissed by the Lord Chancellor; and allowed to hold office while of good
behaviour.
b. Can only be removed by the Monarch if there is a petition presented by both
Houses of Parliament
3. Inferior Judges
a. Dismissal of judge for dishonesty and bad behaviour
b. CRA 2005: Lord Chancellor must comply to procedures and have the consent
of the Lord Chief Justice before removing any judge from office
4. Complaints about judges:
a. Office for Judicial Complaints which is overseen by the Judicial Appointments
Commission and Conduct Ombudsman
b. Both the Lord Chancellor and Lord Chief Juctice can advise/warn/remove the
judge
c. In 2015 3 judges were removed from office for viewing pornographic material
on their official judicial IT accounts

Independence of judiciary
Independence from legislature
1. Establishing the Supreme Court
a. Established in 2009
b. Independent; separated from the HoL; own staffing and budget
c. Before CRA 2005, blurred lines between the SoP between judiciary and
legislative because:
i. Court located in the HoL
ii. Judgements read in the chamber where legislative work was carried
out
iii. Judges contributed to the legislative work of the HoL
2. Full-time judges banned from being members of the House of Commons
a. Part-time judges can be a member. Does this affect the independence of the

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judge?

Independence from executive

1. Reform in the role and responsibilities of the Lord Chancellor
a. Minister of Justice
b. No longer speaker of the HoL, head of judiciary
2. Ensures that the judiciary can criticise the executive, make decisions that displease
the government without the threat of dismissal
3. S3 CRA:
a. Independence of judiciary guaranteed
b. Lord Chancellor, ministers cannot seek to influence judicial decisions
4. There is separate system of retirement, dismissal, and appointment

Freedom from pressure

1. Financial independence
a. Judicial salaries are paid from a consolidated fund so that the payments do
not require Parliament's approval
2. Sirros v Moore
a. Judges have immunity from being sued for decisions made during the course
of their judicial duties
3. Tenure, retirement and dismissal of judges reformed in CRA 2005

Freedom from political bias

1. Independence from executive is difficult because of its political influence
2. LJ Scrutton:
a. Unconscious partiality always occurs because the class of people one mixes
with, all of which have similar political ideology, leads to one having a similar
class of opinion that all one's decisions are affected by.
Pro-government decisions
1. Attorney General v Guardian Newspaper (Spycatcher case)
a. HoL granted an injunction to the government banning the sale of a book
about security services on the grounds that it was done so in national
interest.
b. Illustrates how the judiciary may be swayed by the government of the day.
c. Book published in the US and AUS illustrates that other jurisdictions
approved of the distribution of the book
2. Council of Civil Service Union v Minister for the Civil Service
a. HoL upheld a minister's right which was seen as anti-trade union

Judicial Review
1. Doctrine of intra vires: designed to keep public bodies with delegated powers
within their scope
2. Check on the actions of the executive
a. R v Secretary of State for the Home Department, ex parte Fire Brigades Union
(1995)
i. Former Home Secretary admonished (warned) by the judiciary when he
was held to have unlawfully ignored the will of the Parliament by
introducing a criminal injuries compensation scheme
b. R v Secretary of State for Foreign and Commonwealth Affairs ex parte World
Development Movement (1995)

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i. Former Foreign Secretary criticised officially for authorizing millions of

£ for the Pergau Dam in Malaysia
3. If a body exceeds its powers, the court will nullify their decision and require the
body to make a decision based on the proper procedures.
4. JR is a process that is concerned with the process by which a decision is made, and
not the merits of the decision itself

Lay Magistrates
1. Lay people who hear cases in the courts in their community; volunteers
2. Known as Magistrates or Justice of Peace

Role
1. Hear cases in criminal and family courts
2. Each case is heard by 3 magistrates, with 1 who acts as a chairperson
3. A legal adviser is present to advice the magistrates on the law and makes sure
magistrates follow the correct procedures

Qualifications
1. No qualifications of law
2. Requirements to their good character, integrity and understanding
3. Age: 18-65 years old
4. Expected to live within the local justice area that they are allocated to
5. Commit to sitting for 13 full days each year
6. Good character:
a. Confident, trustworthy
b. Committed and reliable
c. Knowledge about current issues
d. Think logically
7. Restrictions:
a. People with criminal convictions
b. Undischarged bankrupts
c. Members of the forces (police) - conflict of interest
8. Payment:
a. Not paid as the position is voluntary; but employers usually allow magistrates
to take leave with pay
b. Can claim allowance for travel and subsistence

Advantages & disadvantages

Cross section of society Middle-aged, middle class

1. Gender balance, ethnic minorities 1. Usually retired
are well represented 2. Professional working class
2. Disabled persons also allowed
Local knowledge Do not have knowledge of the problems in
1. Specialised knowledge of the area of lower socio-economic status because
community most magistrates are from the professional
2. Understanding of local events, working class so they live in better areas
local patterns of crime and local

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consensus on a certain issue

Cost Access is limited because >150 Magistrates'
1. Voluntary role; given allowance courts have been closed
2. Cost of a trial in a Magistrates'
Court is cheaper than Crown court
because latter hears more
complex cases that takes longer to
reach final judgment
Legal adviser Prosecution bias
1. Assists the Magistrates in points of 1. Believing the authorities too easily
law so there is higher level of legal
skill
Simplicity of procedure Inconsistency in sentencing
1. No precedent
2. Sentencing for their personal benefit
Biased, media influence

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