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.
 Lord Chief
Justice is the
SUPREME COURT SUPERIOR
head of the Justices of the Supreme JUDGES
judiciary Court

COURT OF APPEAL
Lords Justices of Appeal

HIGH COURT
High Court Judges

CROWN COURT COUNTY COURT

Circuit Judges Circuit Judges
District Judges MAGISTRATES District Judges
Recorders (part time) COURT Recorders (part time)
District Judges INFERIOR
(Magistrates Court) JUDGES
Selection of judges
Pre 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.
Post Constitutional Reform Act 2005
• 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.
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.