Government & Politics AS Unit 2 Judges and Civil Liberties

• The rule of law is a principle that states 
  • No one is immune to law
  • No one can be pinished except for a breach of the law
  • Law is applied equally to all citizens throughout the UK

• Citizens have rights. 
• Goverment power is not unlimited e.g Belmarsh Case in 2004 ended indefinte detention.  
• To protect the rule of law:
  • Judges should be Independant 
  • Access to court should be free
  • Court proceedings should be open and fair e.g Man has the right to know his accuser 
• Possible introduction of sharia law in the UK highlighted equal application of the law would be incompatible with the principle of the rule of law.

Judges.....

• Have the responsability to ensure a fair trial 

• Must interperate the law when sentancing on the basis of
  • common law
  • case law
  • or statutory guidelines e.g starting point of 10 years for murder

• Have a quasi-political role and performe judicial review e.g Belmarsh Case

• May also be final arbiters of constitution during disputes e.g issues such as Human rights/ civil liberties 

• Preside over judicial inquires e.g Bloody Sunday 

Judicial Neutrality - The principle that members of the judiciary should avoid allowing their political ideas to affect thier decisions in cases. It also implies that judges should not show any sympathetic bias towards or against any group in society  

•  Any political affiliations are not supposed to interfere with the facts of the case. judges are not blocked from membership to parties or pressure groups, but any conflict can result in cases overturned. e.g (Lord Hoffman's member of amnesty Intl = rejection of ruling on the Chilean Dictator) 
• Senior Judges expected to see beyond prejudice ideas based on ignorance. 
  • J.A.G Griffith criticised judges for their homogeneity and questioned would people prefer to be judged by someone of the same race/gender/class as ourselves but had no understanding of law?
• A free & fair society has allows external groups to campaign for someone for retrial. Unsound convictions often get media and pressure group support allowing quashing of convictions after retrial e.g Belmarsh  

Civil Liberties - The rights & freedoms of citizens in relation to the state and its laws. These include rights to vote or stand in office, freedom of expression and the right to a fair trial.

• Declare actions as Ultra Vires -Through the power of judicial review judges can declare an unfair use of powers by public officials/bodies 
  • e.g Michael Howards decision to give the min sentence to Bulger killers. Straw 1990, judges declared asylum seekers being deported to France and Germany as unlawful
•  Human Rights Act (1998) allows judges to review cases in light of European Convention on human rights allowing citizens extra protection against civil liberties abuse. 
  • e.g ruled evidence obtained under torture was inadmissible.
• Judges able to act as a pressure group via their comments to media, HofL or in summing up cases. 
  • 2003 Lord wolf attackted Blunkett over restricted sentencing powers.
  • Lord Phillips aired reservations on English Prison crisis in 'Leaked' papers of a meeting. Attacked the criminal justice Act 2003 for increased pressure on already crammed prison system. 

Judiciary is free from pressure due to.....

• Security of Tenure - judges cannot be dismissed over their decisions can act independently
• Appointments for life - subject to good behaviour, retiring age 75
• To be removed must be addressed by both HofP (not happened since 1830)
• Sub judice rules in both HofP - MPs & lords blocked from discussing a current or impending court case. e.g Secretary of state precluded from commenting on extradition of general Pinochet.
• Conduct of Judges free from criticism, unless rare need to remove them from office e.g 1990s,100 MPs sign motion as judge made controversial decision = MPs being told off.
• Growth in Judicial review and MPs actions being declared Ultra Vires e.g Baker: failed to to comply with court order in asylum case. Howard: extension of Bulger killers sentence. Straw: ban on journalists reporting miscarriages of justice.
• Declaring gov policy Incompatible with ECHR e.g 2002 HS's power to increase min tariff for murder incompatible. 2005 evidence from torture is inadmissible. 2007 18hr curfews breach ECHR. 
• Gov protect independence of judiciary, straws defends judges discussion 

Judiciary is Not free from pressure due to.......

• The gov retains control of the legal system through the justice ministry. this does not show direct control but suggests a good deal of interference.
• Increase in political dialogue between politicians and judges over issues such as sentencing and protection of rights.
• Appointments handled by JAC however the PM has final Veto over these decisions and therefore remains a theoretical problem of interference.
• Fussion of roles carried out by members of Gov Attorney General who serves as legal adviser to the government. and until the constitutional reform act (2005) the Lord Chancellor was in all areas of HofP.
• Judiciary inquires much more likely to rule in favour of the government, 9/10 it will go in favour of the government and high profile cases occasionaly shadow this discrepancy. Critics believe they will never reveal more than minor embarrassment for government.
  • e.g ASBOs and DNA all UK court rulings over turned by Strasbourg 
  • Kettling in 2001 was not a breach of the right to liberties
  • Stop and Search under terrorism Act not breach of Human Rights

The Judiciary is not free from social/political bias......

• Homogeneous collection of attitudes beliefs and principles within the judges e.g on the whole male, white, public school, and Oxbridge educated.
• The opening up of judiciary has been described by the only black high court judge as 'woefully slow'. Since 2004 only 2 new women appointed and none were black.
• Social bias is further evident where there is a clash between property rights and civil rights, thereby keeping political power in the hands of those who have it.
• Judges' known membership of societies such as the Freemasons may make them biased in case involving the police. Senior judges may share prejudice which results in miscarriages of justice such as the Guildford 4 and the Birmingham 6.
• Evidence of bias against women found with avg sentence for rapists being 4 years and guide lines recommending 5 years.

The Judiciary is free from social/political bias......

• The make-up of judiciary mirrors existing power structures such as the executive therefore cannot be blamed on the judiciary. Only 3 PMs in the past 100 years have not come from Oxbridge.
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