The JudiciaryWhat do judges do?How they become one?Do we have separation of powers?How do judges maintain their independence?
What’s the word?Too easy? Can you spot the odd one out and explain why!negligence contractmisconduct service
Can you apply your learning?Reason your response using what you have learnt this lesson.Your Great Aunt Betty has died. You were told that she had leftyou her house, and have a letter which she sent to her solicitorssaying this, but her will was not updated.Do you have an action?You were involved in a nasty car accident. You instructed yoursolicitor to take action, and they said that they would with amaximum fee of £2000. However, they have sent you a bill for£10,000 for work done.Do you have an action?You discover that the barrister who accepted instructions has noexperience in this complicated area of the law and is unfamiliarwith it. You have lost your case.Do you have an action?Your solicitor has asked a barrister for advice on the possiblesubmission of key evidence in your claim. The barristerconcluded that it was not valid. You have lost the case, butdiscovered that the evidence was legally vaild.Do you have an action?
Legal Services Act 2007Reform of the lawIn 2004, the Clementi report was published, which looked at how to update the legal profession,to make sure it offered clients a better deal. It also looked at how to provide a clearer, moreindependent complaints system. The LSA implemented some of those changes.What did it propose?Create an independent complaints service supervised by the Legal Services Board to supervise theregulation of lawYERS.New independent ombudsman heading the Office for Legal Complaints. (Now known as the LegalOmbudsman)The representative and regulatory functions are to be separated.Legal Disciplinary Practices (LDP) & Alternative Business Structures [‘Tesco Law’] (ABS)
One recent development:Alternative Business StructuresAllows lawyers and non-lawyers to set up businesses together.Licence given out by BSB or SRA, and recommended to LordChancellorWill replace Legal Disciplinary Practices (LDP)Student Task:Read the enclosed article, useyour brain and answer the twoquestions:1. What is Tesco law?2. What are the arguments forand against the change to thecurrent structure?Aim for at least three for each side.
Before we start...Can you summarise the last topic?
Separation of PowersNo one branch to have all the powerEach should check and balance thepower of the othersAO2 Thinking:Can you think of any problems in oursystem with this so far?
What are those checks and balances?Check Which branch ischecked?Which branch isdoing the checking?Parliamentarylegislation is supremeJudicial Review ofGovernment’sdecisionsVote of no confidenceLord Chancellor mayobject to the selectionof judgesMembers of the armycannot sit in theHouse of Commons
Now, before we begin...Separation of Powers Dominoes
Starter:What’s the word?Court of first instanceRSuperior InferiorAppellate Supreme CourtBefore we even start looking at the topic, can you identify the key words?
What problems still remain...Remember: our system has developed over time... And so isn’t a perfect one!The government also sit in Parliament – either as MPs or in the House of LordsThe government tend to have a large majority, and so can pass any Acts they wishThe budget for the courts is also that for the prisons and is controlled by the Ministryof JusticeThe courts can issue a declaration of incompatibility under the Human Rights Act 1998and even declare a national act invalid if it conflicts with EU law.Most of the legislation is done through delegated legislation (orders in council, statutoryinstruments etc.)Judges can create new precedent e.g. Re A or R v R 1991Judges can use the purposive approach to give effect to the ‘spirit of the law’.
Constitutional Reform Act 2005Two problems solved(ish)Extension: Have the problems really been solved?
JudgesLook at the following names of judges… can you put them in order of seniority?Extn: Can you identify the court(s) in which they sit?SupremeCourt JusticesLord Justicesof AppealDistrict JudgesRecordersHigh CourtJudgesCircuit JudgesDistrict Judges(MC)Superior JudgesInferior JudgesDistrict Judges(MC)District JudgesRecordersCircuit JudgesHigh CourtJudgesLord Justicesof AppealSupremeCourt JusticesSupreme CourtCourt of AppealHigh court (orCourt of Appeal)Crown and/orCounty courtsCounty CourtMagistrates CourtCrown and/orCounty courts
Let’s start at the topSupreme Court JusticesWhat’s wrong with thephoto?12 (sit in panels of 5,7 or 9) “Lord…Using everything that you have learnt over theyear… what is their role in the UK Legalsystem?Qualification?“high judicial office”ORSenior Court Qualificationfor at least 15 years
Lord Justices of AppealWhat can you tell me about thework of the CA? Master of the Rolls (Civil) Lord Chief Justice (Criminal)Qualified lawyerwith at least 7years rights ofaudience insupreme courts;orExisting HighCourt Judge
Sit in one of three divisions... Or the CC... Or the CA...What are they?What can you tell me about the work of the HCJ?Civil CriminalQualified lawyer with at least 7 years right s of audience in HC;orCircuit Judge for at least 2 yearsHigh Court Judge
Circuit JudgesQualified lawyer with at least 7years rights of audience;OrExperience as a recorder, districtjudge or tribunal judgeSit in the orIn civil cases they sit a jury and decidewhether C has proved his case or not and decideon the remedy which may include .In a criminal case they sit a jury. Thejudge decides all matters of and afterconviction they also decide on the .
RecordersQualified lawyer for at least 7 years experienceGenerally is a recorder-in-training first for 2-3 yearsThey are part-timersThey are fee-paid rather than salarySit mostly in the Crown Court and hearfairly straightforward crime cases.Some sit in the civil or family courts aswell.They are required to sit for between 15and 30 days every year with at least oneten-day continuous period. Theappointment is for an initial five-yearperiod, extendible for furthersuccessive five year terms up to theretirement age of 65.AO2 Linking:What advantages are there for a practising lawyerto become a recorder rather than full-time judge?
District JudgesType One:Magistrates CourtType Two:… err normal type!Their work involves: dealing with civildisputes such as personal injury cases, claimsfor damages and injunctionsMany district judges will also deal withbankruptcy petitions, as well as the windingup of insolvent companies.They will also deal with small claims.They sit in the County CourtsQualified lawyer for at least 5 years (rights of audience);orBeen a Deputy District Judges*Alternative to:Powers:
An alternative qualification?“To try and broaden the people applying to be judges”(so they’re not all old white men!) they have broadened the qualificationTribunals, Court and Enforcement Act 2007.This aims to widen those who can become judges, for example, by gettingproviding an alternative to the rights of audience qualification, and reducing theamount of experience from 7 to 5 years (or 10-7)The new‘judicial-appointment eligibility condition’.You will have to show that:you have possessed a relevant legal qualification;for the requisite period; andthat whilst holding that qualification you have been gaining legal experience.
So when I’m a judge..What training do I get?“The Judicial College ensures that high qualitytraining is provided to enable judicial office-holders to carry out their duties effectivelyand in a way which preserves judicialindependence and supports public confidencein the justice system”What does the college think about itself?http://martinpartington.com/2012/03/02/educating-judges-the-judicial-college-interview-with-lady-justice-hallett/The Judicial Colleges activities fall under three mainheadings:Initial training for new judicial office-holders and thosewho take on new responsibilities.Continuing professional education to develop the skills andknowledge of existing judicial office-holders.Delivering change and modernisation by identifying trainingneeds and providing training programmes to support majorchanges to legislation and the administration of justice.
The Selection ProcessAdvertisment &Application Good characterQualities and abilitiesReferences (not all yourchoice!)Paper sift orQualifying test Are you suitable? Do youhave the skills? analysing casestudies, identifying issuesand applying the law.Selection Day InterviewsMay includesituational questioningEvidence of qualitiesRole playConsulation LCJ Person with experience ofpostRecommend toLord Chancellor Who put forward andwhy?“Appoint on merit, with aim of encouraging diversity.”Aiming for the top“Joined up thinking”How might this approach affect the theory ofseparation of powers?
What qualities do you need to be a judge?1. Intellectual capacity2. Personal qualities• Integrity and independence of mind• Sound judgement• Decisiveness• Objectivity• Ability and willingness to learn anddevelop professionally• Ability to work constructively withothers.3. An ability to understand and dealfairly4. Authority and communication skills5. EfficiencyUse what you know about judges to explain why these qualities areessential to a judge.
Could you be a judge?SCENARIO A – CHARLIECharlie appears before the Court charged with common assault on his partner Tracey. Tracey and Charlie had beenliving together for three years. That evening Tracey was at home with their two year old daughter Amy, when Charliecame back from the pub. He had forgotten his key and began banging on the front door with such force that hecracked the glass panel. He demanded to be let in and called Tracey a “fat slag” and saying it was his flat and sheshould let him in. Fearful that he would completely wreck the door, Tracey left Amy on the settee and opened thedoor, whereupon Charlie pushed her back into the lounge and held her against a wall by her throat. He said that hehad heard from his mates in the pub that she had been going with another man and he was going to teach her alesson. Alerted by the screams of Amy, a neighbour came round and Charlie ran from the flat.The Police are called and take photographs of the damaged door and of red marks to Traceys neck. Tracey then goeswith a police officer for a drive around the area where she picks Charlie out. He is arrested and taken to the PoliceStation where he makes a no comment interview. Tracey makes a statement. The police crime report indicated thatthere have been three previous complaints by Tracey alleging assaults on her by Charlie. These have resulted in nofurther action as she has not wished to press charges.You convict Charlie who loudly protests his innocence in courtand abuses you and Tracey.Question 9 What are the significant factors affecting sentencing? Would you adjourn for a report? What sentence would you impose? Give reasons.This is a sample from a district judge test
What about the Supreme Court?The two appointments were made by the Queen at therecommendation of the prime minister and lordchancellor, following the recommendation of an independentselection commission. The commission consulted across eachof the supreme courts three UK jurisdictions.Lord Phillips, the president of the supreme court, said: "I amvery pleased to welcome these appointments. Theindependent selection commission considered a strong fieldof candidates who applied following open advertisement ofthe vacancies."Lord Justice Wilson will prove a valuable asset to this courtas another judge with a family law background, whose skilland knowledge has shone through all his judgments at thecourt of appeal for England and Wales."Jonathan Sumption is widely acknowledged to be one of thiscountrys leading advocates. He has demonstrated incisiveintellectual rigour throughout his years as a barrister."These appointments reflect the fact that the pool of legaltalent from which the highest court in the land can draw wasdeliberately widened by parliament when it created thesupreme court. I am very much looking forward to workingalongside two new justices of such considerable calibre."There is a similar approach to the headsof division and CA judges (except thatgoes to LC not PM)
Has JAC worked?“Since 1998 there has been gradual but slowprogress in the percentage of women andBlack, Asian and Minority Ethnic (BAME)members of the judiciary. The latestpublished figures for April 2011 indicatesthat the percentage of women within thecourts based judiciary has increased to22.3%, while 5.1% were BAME.4 Within themost senior courts judiciary (High Court andabove) the percentage of women is13.7%, while the percentage of BAME is3.1%. This compares with most recentestimates of women representing around51% of the population and BAME groupsrepresenting 12% of the population.”Last three appointments (andthe shortlist!) to the SupremeCourt all white male barristers.Job-sharing?An alternative career path? Who’s at university?Student thinking:Read the articles and write aresponse…Plus once you have read the articles,decide what you think the strongesttwo argument is, put it on a post-itand pop it on the board.Stretching yourself:Thinking back to the start of the course...Where else has race and gender affected law?How does this compare?
Can we ‘sack’ a judge?Inferior: Courts Act 1971Superior: Acts of Settlement 1700How do we get rid of them?ResignationRemoval due toinfirmityRetirement“Security of tenure through good behaviour”
Lord Chancellor and Lord Chief Justice are incharge of disciplining the judiciaryAdditionalTrainingGuidance IssuedFormal AdviceRemoval fromOfficeFormal WarningSuspensionReprimandResign duringinvestigationWhat canthey do?
Judicial IndependenceThis is the theory that ajudge should be free tomake the best decision onthe facts and law of thecase, free from outsidepressure.It links strongly toSeparation of PowersThinking…Why do judges need thisindependence?Can you think of any evidencefrom the other areas we havelooked at that they have it?InstitutionalindependenceDecisionalindependence
Do these protect or challenge ourjudges’ independence?Area Protect orChallengeHow and Why?Art 6 of the ECHR says that a trial must be able in an “independent andimpartial *court+”The Ministry of Justice’s budget covers both the courts and the prisonsJudges have absolute immunity from being sued following Sirros v MooreJudges cannot be members of a political party or the House of CommonsJudges have security of tenure (means that they can keep their jobs so long asthey don’t commit a criminal offence)The Constitutional Reform Act 2005 explicitly says that the government is notallowed to influence the judgesJudges’ salaries come from an independent consolidated fundJudges may have ambition and want to be promotedMembers of the Supreme Court cannot sit in the House of LordsJudges are often asked to undertake inquiries into decisions or actions whichmay involve the government e.g. the Hutton inquiry into the death of Dr Kellyor the Leveson inquiryEven if they are not members of a political party, they may still be members ofinterest groups e.g. Amnesty International
Consolidation:Do we have judicial independence?You are going to write twoparagraphs…One arguing we do and one arguingwe don’t.
Approaching an exam question…A slightly different idea!Describe the theory of the separation of powers using examples to illustrate youranswer. What can you tell me about how to answer this?Plan:
PART A Mark SchemeWhat have you got to do to hit the mark?Level Separation ofPowersHow it worksFour All three are wellexplained and defined,with clearly describedexamples included.Student clearly explains atleast three checks indetail, which are clearlydescribed with examplesThree At least two are clearlyexplained, though theexact details may be vagueon the third, or it may lackan example.Student clearly explains atleast one check and refersto at least two or threeothers with somedescription.Two Either only one of theareas is clearly explained,or the explanation is vagueStudent refers to some ofthe checks, but they arevague, or only a couple innumber.One Has listed the three areas,but no explanationStudent may have referredto ‘checks and balances’but lacks any detailStudent Task:Write up one of yourpoints, and annotateit to demonstratehow it meets thecriteria.
Discuss why the theory of the separation of powers is important tojudicial independence. Plan:Example Point:Separation of powers ensures that no one branch of government holdsall the power. So, the members of the Supreme Court are no longermembers of the parliamentary House of Lords and so not entitled tomake law as well as enforce it. This should prevent them makingpolitical decisions in cases, and instead providing the most appropriateinterpretation of the law for each case. However, those Justices who saton the old court are still members, and so are not completelyindependent until they are all replaced.
Finally…Hidden in the wordsearch are 10 key terms. Can you find themand define them?Word Means Word MeansThe people incharge ofappointingjudgesJudges who sit inthe HC, CA andSCTheory thatsays thatjudges shouldbe physicallyseparate fromthe otherbranches ofgovernmentTheory whichsays that judgesshould be ableto make the bestdecision on thefacts, notinfluenceHead of thejudges andresponsible fortheir disciplineCareful... Some of the terms are in bits!