The role or function of a judge.
- A 'judge' refers to a legally qualified personnel operating within the court structure.
- All judges must take the oath under the promissory Oaths Act 1868.
Superior Judges are located in the high court and above.
- The Lords of Appeal in ordinary in the house of lords.
- The Lords justice of Appeal in the court of appeal.
- High court judges who sit in the three divisions of the high court, * note that in addition, judges from the Queens Bench Division also sit in the Crown Court.
- The head of the house of Lords is the Lord Chancellor.
- The Lord Chief Justice is the head of the judicary. He is the president of the Criminal Division of the Court of Appeal.
- The Master of the Rolls is the president of the Civil division of the court of appeal.
- The president of the Queen's Bench Division.
- The president of the family division of the high court is the seniour judge in that division. in 1999 the first woman president was appointed.
- Circuit Judges who sit in the Crown Court and the County Court.
- Recorders who are part-time judges sitting usually in thr Crown Court, though some may be assigned to the County Court.
- District Judges who hear small claims and other matters in the County Court.
- District Judges (Magistrate Court) who sit in the Magistrate courts in London and other major towns and cities.
- Chairman and tribunal.
The qualifications for the different judicial posts are set out in the courts and legal service Act 1990.
To become a judge you need to first have the qualifications of a barrister or solicitor.In 1994 the Lord Chancellor lifted the ban which prevented lawyers in the civil service and CPS from becoming judges. These changes have helped to widen the pool of potential candidates for judgeships, and may eventually help to make the composition of the bench a wider cross-section of society.
Law Lords - They are appointed if they have held high judicial office or are qualified to appear in the supreme court for at least 15 years.
- In recent years all the appointments have been from those holding high judicial office in the English court of Appeal.
High Court judge -Must have had the right to practice in the High Court for at leat 10 years or have been a circuit judge for 2 years.This gives solicitors the chance to become high court judges, either by promotion or by holding a certificate of advocacy. Academic lawyers can also be appointed.
Circuit Judges -Had rights of audience for at least 10 years in the crown court or county court or have been a recorder. Helps solicitors without a certificate of Avocacy into judicary. The Courts and legal services Act 1990 allows for promotions after being a district judge, stripendiary magistrate or chairman of an employment tribunal for at least 3 years.
Role of the Judge
- The judges take little part in the trial itself but preside over the proceedings, seeing fair play between the parties concerned,
- The control the trial with an aim of arriving at a decision based upon the facts as elicited through legal argument and examination of witnessess and othe evidence by either side.
- When there is a jury the judge has the added task of summarising the evidence on both sides of the case for the benefit of the jury, aquainting the jurors with the relevant law applicable to the facts and ultimately sending the jury away to reach a decission.
- The judge has now recieved a further role under the 'case management' proposal, where the judge is given the resposibility for progressing cases through the system and will have, the power to bring solictors or barristers before the court for not making sufficient progress in bring the case before the court.Training programs will be planned so that judges recieve the skills to carry out this function.
The judicial appointment commission
- The new commission was established under the Constitutional reform Act which consists of 15 members; 1 lay chairperson and 14 Commissioners, 5 of which are Lord Justice of Appeal, puisne judges and circuit and district judges, 2 professionals, a practicing barrister or solicitor, a lay magistrate and 5 lay members.
- A member of the commission cannot be a civil servant so as to prevent governement influence.
- The term of office for commissioners is 5 years.
- Commissioners can be removed by the queen on recommendation of the Lord Chancellor.
- No one will be appoint unless the commissioner selects them. They may consult the Lord Chief Justice and the Lord Chancellor who will beable to reject a candidate once but must give reason.
- Just like non-legal jobs the candidate must fill in an application form and are asked to nominate referees.The commissioner publishes a list of people that it might ask about appointing you.
Retirement or Dismisal
- Superior judges have security of tenure in that they cannot be dismissed by the Lord Chancellor or the Governement. This right originated in the Act of settlement 1700 which allows them to hold office while on good behaviour.
- The same provision is now contained in the Supreme courts Act 1981 for high court judges and lord justice of Appeals. They can only be removed by the Monarch following a petition presented to the houses of parliament.
- This gives superior judges protection from political whims and allows them to be independent in their judgement. But this means that judges have more pressure put on them to resign.
- Tenure and inferior judges dont have the security the other judges do they can be dismissed for incapacity, misbehaviour or a criminal conviction. Under the Constitutional reforms Act 2005 the lord chancellor must comply with set procedures before he can remove a judge.
- Retirement - Since the Judicial Pensions and Retirement Act 1993 all judges must retire at 70 but there are in some situations where the judge can continue beyond that age. Judges in the high court and above can remain sitting until they are 75. All inferior judges now also have to retire at 70.
Composition of the Bench
One of the main criticisms of the Bench is that its dominated by elderly, white, upper-class males. There are very few women and ethnic background. But judges are becoming younger because of the the average age has been reduced.
Women in the Judicary
During the 1990's there was an increase in the number of women appointed to the high court.The first woman appointed in the Queen's bench division was in 1992. Women were still refered to as My Lord and this didnt change the Courts Act 2003 that the offical title of women judges in the court of appeal became Lady Justice of Appeal. By 2007 the total number of women in the high court was 10 out of 100. Lower down the judicial ladder there are more women. The highest percentage of women was 23% for distric judges.
Compoition of the Bench
In 2004 the first ethnic minority judge was appointed the the high court. Even in the lower levels ethic minority was low . However there have been improvements at the lower levels of 8%.
Educational and social background
At the higher levels judges tend to be from the upper level of society, public school and most attending oxford or chambridge. Judges spend at least 20 years working as barristers and mixing with the same like minded people so they are out of touch with society. The judges are taught human awareness because of this.
Doctrine of the separation of powers.
This was proposed in the 18th Century by a French politician he stated that there are three primary functions of the state and the only way to safeguard the libery of the citizens is by keeping all these functions seperate.
- The legislature: the part of the state that makes law. In this system, Parliament is the legislature.
- The excecutive: this is the government of the day, a political group who form the cabinet and this body adminsiters law.
- The judiciary: the judges, who simply apply the law.
By keeping them seperate, each 'arm of state' can check on the other, and limit the amount of power wielded by any one part of the state. Nobody should be a member of more than one state. The office of Lords in involved in all three though.
There is some overlap between the executive and the legislature because the ministers who form the Governement also sit in Parliament and are involved in the law-making process. There is little overlap for the Judicary.
Independence of the Jury
An independent judicary is seen as important in protecting the liberty of the individual from abuse of power by the executive. Judges in the English system can be thought as being independent in a number of ways.
Independence from the legislature.
- Judges arnt involved in the law-making functions of parliament, full time judges can't be members of the House of Commons. However judges can be members of the house of Lords in its legislative function, as the law lords are life peers and can take part in debates on new law.
- There is convention that the law lords wont take part in political debates, but over recent years there have been instances where they have entered into controversial areas of law-making.
Independence from the executive
They are independent of the governement because they cannot be dimissed, they can make decisions which may displease the Governement, without the threat of dismisal.
Freedom from pressure
There are severla ways judges are protected from outside pressure:
- They are given a certain degree of financial independence, without the need for parliamentary authorisation.
- They have immunity to being sued for actions or decissions made in the course of their judicial duties.
- Unable to be dismissed.