Rule of Law - law rules and establishes a fair framework to which all conduct and behavior conform, applying equally to all members of society. No person is above the law. Legal equality - same laws apply to everyone and there is equal access to them. (eg. legal aid). Aims to equate law and Justice, as though they have the same meaning. Legal certainty - clear statement of everyone's rights and obligations. There is innocence, until proven guilty.
Lack of bias - no-one can judge their own case.
All views to be heard - evidence of all parties must be heard, and official (eg. judge or magistrate) must assess evidence and ensure justice.
Balancing conflicting interests - balancing interests and rights (eg. a right may interfere with another's freedom - right for woman to control her body/rights of an unborn child - determining the time-period in which abortion is permissible).
Police powers and procedure - there should be a balance between preventing crime and making individual's rights suffer.
The Judicial Process
Judiciary - branch of government responsible for adjudication of law and the arbitration between parties in any legal dispute. Administering and interpreting meaning of laws. Should be separation from judiciary and any other branch of government.
In Britain - judges have been traditionally appointed by the current government. However, a new Judicial Appointments Commission is now present which puts forward nominations with clear restrictions on the ability of Lord Chancellor to reject them. They are very hard to remove (unless misbehavior) and serve until retirement).
Judicial neutrality - judges are above and beyond politics - interpret but do not make laws. They should remain politically neutral. However, it may be difficult when asked by government to make recommendations based on a case/cases.
Ministry of Justice - responsible for sentencing policy, probation, prisons and prevention of re offending in England and Wales and responsible for dealing with suspected offenders from the time they are arrested, through until convicted offenders are released from prison. Lord Chancellor is at its head who retains the roles and responsibilities given to him and is now known as the secretary of state for justice. The Lord Chief justice has responsibility for the system of court and judges.
Law Lords - members of the House of Lords by virtue of their high judicial positions. They retain their seats for life, so that there is always more law Lords than necessary to enable the House of Lords to fulfill its judicial functions.
Home Secretary - retains responsibility for the police and the security service, as well as oversight of crime reduction, counter-terrorism and other crime-related areas.
Lord Chief Justice - overall head of the judiciary. but exercises disciplinary authority over the judges, joined with Lord Chancellor.
Lord Chancellor - Secretary of State. Appoints judges. No longer a judge (or participates in judicial business in House of Lords), but exercises disciplinary authority over the judges, joined with Lord Chief Justice.
Role of Judges – responsible for all matters of criminal law and making sure rules of procedure are properly applied, deliver appropriate sentences (eg. imprisonment/community service) and peacefully resolve civil disputes between individuals. They take responsibility for applying the rules of law, without fear or favour.
People appointed as judges – overwhelmingly white, male upper middle aged and upper middle class. Most are educated at Oxford or Cambridge University. Critics complain that judges are unable to understand the habits and terminology of everyday life, reflecting instead the social thinking of 30 or 40 years ago (eg. human rights).
Magistrates Court – hear more than 95% of criminal cases (handle the first hearing of all). Receive training to give them sufficient knowledge of the law and nature and purpose of sentencing. If done appropriate training, they can also sit as a youth court for young offenders (sentence of youth detention – up to two years in custody). Magistrates have some civil jurisdiction (eg. separation and child custody.)
Crown Courts – operate on a system where judges travel around courts to hear the more serious cases. They hear indictable cases (eg. manslaughter) and offenses triable either way, where the accused selects trial by jury. A High Court judge must hear the first tier of indictable cases in the Crown Court (eg. murder)
Summary Offenses – minor criminal offenses – always tried by magistrates (eg. failure to pay television license)
Indictable Offenses – serious criminal offense - must be tried by a crown court, before a judge and jury. (eg. ****)
Offenses triable either way – offenses that could either be serious or minor, depending on how they are committed (eg, theft) May be committed by magistrates to Crown Court if a more severe sentence is thought necessary.
Civil Court – some civil cases are heard be magistrates court. Most work is matrimonial – can grant separation but not divorce.
Courts and Human Rights Act – European Convention on Human Rights covers a wide area or right (eg. right to fair trial). However, it does not cover all human rights – omitting general economic and social rights (eg. right to housing and free healthcare).
Supreme Court – final court of appeal in all matters under England, Welsh and Northern Ireland Law. has 12 Lords of Appeal. Entirely separate from the parliamentary process and the highest court in the land. Final arbiter on points of law from the whole of the UK in civil cases and for England, Wales and Northern Ireland in criminal cases. Its decisions bind all courts below it. It is legally separate from England and Wales Courts since it is also the supreme Court of Scotland and Northern Ireland – therefore isn’t under the remit of the Lord Justice as head of judiciary of England and Wales.
European Court of Human Rights (1959) – Strasbourg, considers cases brought by individuals, organizations and states against countries bound by the Act (most European nations). (eg. discrimination or mistreating of prisoners) Countries must comply with the Court’s verdicts, although it cannot directly enforce this. Only hears cases where all other legal avenues have been exhausted. Cases have increased, particularly from democracies where there is less trust in local judicial systems (eg. Russia).
Membership of ECHR – as many members as members of the Council of Europe. Expected to be of high, moral character and have necessary qualifications.
ECHR in the UK – most cases as resolved in UK courts via the Human Rights Act. This is only used as a last resort if all else fails. For example, Mrs Diane Pretty (2003) was given ‘fast tract’ to ECHR to determine whether or not her husband would be allowed to help her kill herself. It ruled that the original decision by the High Court was correct and dismissed her appeal.
Judicial review – power of courts to overturn executive or legislative actions they hold to be illegal or unconstitutional. In the UK, courts cannot strike down an Act of Parliament, but they can review executive actions monitor the way public officials carry out their duties, deciding whether they have acted beyond their powers (abusing legal powers), unfairly or without reference to relevant and material facts – and nullify (cancel out) illegal and unconstitutional actions. The High Court reviews decisions (of government, public bodies, officials, etc.) that affect the individual.
Natural justice – whether legal proceedings are just and fair (certain legal standards are required by nature and should be applied universally without needing to be enacted into law). They stress the importance of procedural fairness (eg. all parties are entitled to ask questions and contradict the evidence of the opposing party).
Case Study – a cinema was granted a license as long as no children under 15 were admitted on Sundays. They said that this was beyond the powers of Wednesbury Corporation to impose. However, courts could not intervene simply because they disagreed with it, and would only be able to do so if the corporation had taken/had failed to take into account factors that shouldn’t/should have been taken or was so unreasonable, no reasonable authority would even consider imposing it. Therefore, the decision of Wednesbury Corporation was upheld.
Civil Law – offers a range of remedies that may be available in any case of judicial review. Declarations are statements of the legal position which declares the rights of parties (eg. to tax repayment) damages involve payment of money be compensation – general or specific and injunctions are court orders given to defendants - prohibitory or mandatory (requiring/ordering individual to do something).
High court - can order remedies that are discretionary, so that even if an applicant for review proves that the public body acted illegally the court can still refuse a remedy. Remedies include – Certiori –an order that quashes an ultra vires decision, Mandamus – order to a public body to fulfil its duty and Prohibition – order to a body not to act unlawfully in the future.
Criticisms of judicial review – There have been several cases where the verdict of judicial review has gone against the minister (eg. judges declared that parts of the Nationality, Immigration and Asylum Act-2002 were in breach of the Human Rights Act-1998). According to this view, behavior of the government should be sorted in the polling booth rather than in the courtroom.
From the alternative point of view of those seeking review, there are various things that cause difficulty. Those taking judicial review are often poor and disadvantaged through no fault of their own. They may encounter problems, such as the strictness of unreasonableness test (eg. the ban on homosexuality in the armed forces is reasonable), restrictions on applications to the High Court (eg. ordinary people may be reluctant, believing that these conditions will make it difficult to win).