JUDGES - G151 THE ENGLISH LEGAL SYSTEM

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THE SEPERATION OF POWERS

  • Theory of the Separation of Powers was firstvput forward by Montesquieu
  • The three aims of state must be kept independent of each other
  • Examples of problems caused by non-implemtation
  • Examples of good/bad implemation - e.g. USA vs. Zimbabwe
  • Still some overlap in this country with the executive and legislative
  • Legislative makes law- Houses of Parliament and the Queen
  • Executive- puts law into effect and administer the nation's affairs- government, ministers and their departments
  • Judiciary- interpret and enforece the law -judges
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JUDICIAL REFORM

  • Governed by the Conditional Reform Act 2005, Crime and Courts Act 2013
  • Although there remains overlap with the executive and the legislature, there is less overlap with judiciary than previously. The Lord Chancellor used to overlap all three arms of state but now has only a very limited role in the selection of judges and does not sit as a judge in the Supreme Court
  • Selection of Judges is now by the Judicial Appointments Commission so is independent of government influence although Lord Chancellor still exerts 'some' influence
  • The Supreme Court has been created to deal with the overlap between the Law Lords and the legislature as they sat in the House of Lords in Parliament. Newly Appointed Supreme Court Judges will not be allowed to be members of the House of Lords
  • Judicial independence now guaranteed by section.3 Constitutional Reform Act 2005 and specifically states that Ministers may not seek to influence Judicial decisions.
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QUALIFICATIONS OF JUDGES

Set out in the Courts and Legal Services Act 1990, amended by the TribunalCourts and Enforcement Act 2007

  • Justices of the Supreme Court: 2 years high judicial office or 15 yearsHigh Court qualification
  • Lords Justices of Appeal; 7 years High Court qualification or existingHigh Court Judge
  • High Court Judges – 2 years as a Circuit Judge or right to practice inHigh Court for 7 years
  • Circuit Judges – 3 years as a District Judge, Recorderor Tribunal Chairor rights of audience in the Crown or County Court forat least 7 years
  • Recorders: 7 years relevant qualification;
  • District Judges: 5 years general qualification (including Fellow of theInstitute of Legal Executives as Deputy District Judges, TribunalChairmen, Trade Mark and Patent Attorneys).
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SELECTION OF JUDGES

Governed by the Constitutional Reform Act 2005

  • Justices of the Supreme Court are selected by a Supreme Court Selection Committee specially convened by the Lord Chancellor when a vacancy arises
  • All other judicial selection is organised by the Judicial Appointments Commission
  • JAC comprised of a mixed panel of judges, lay people and lawyers
  • All appointments now advertised with the aim to diversify the judiciary
  • Committee will look for the five qualities desirable in a good judge which are;
    • intellectual capacity
    • Personal qualities
    • ability to understand and deal fairly
    • authority and communication skills
    • efficiency
  • Applicants for lower level posts will be asked to write an essay or undertake a case study
  • Interviews assess attitude and aptitude and may include role play
  • Lord Chancellor has limited power to object to selection
  • Applicants for higher appointments are expected to show competence at a lower level (appointment at assistant recorder level is usually used to try out potential judges for more permanent positions).
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QUALIFICATIONS

Governed by the Tribunals, Courts and Enforcement Act 2007:

District Judges:

  • Barristers or solicitor with 5 years’ legal experience
  • CILEx Fellow with five-years post-qualification experience

Circuit Judges:

  • Barrister or solicitor with 7 years’ legal experience, or
  • Recorder, District Judge or Chairman of an Employment Tribunal for 3 year, or

Recorders

  • Barrister or solicitor with 7 years’ legal experience
  • 5 year appointment
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ADVANTAGES OF REPLACING LAY PEOPLE WITH JUDGES

  • Training – judges have more training and experience so should have a better understanding of individual cases. However, the training of lay magistrates is now more specific and detailed
  • Legal knowledge – judges have greater legal knowledge by virtue of the educational standards required to enter the profession
  • Consistent sentencing – judges are more consistent in their sentencing. However, they are more likely to impose custodial sentences than magistrates. There is still an inconsistency in lay magistrates sentencing although this is improving due to better training
  • Judges are more consistent in the application of the law. They do not require advice from the Court Clerk.
  • Speed – judges are quicker due to their knowledge and the fact they do not need to rely on a Court Clerk. Lay magistrates are often criticised for their over reliance on the clerk
  • Less required – Only one judge is required where three lay magistrates are needed. To have just one judge would make organisation of the court much simpler rather than organising a rota for a group of part-time magistrates who may have availability issues. However the cost of replacing lay magistrates would be very high
  • Diversity – judges tend to be younger than magistrates – magistrates tend to be middle aged. However there is not the diversity seen in lay magistrates particularly in terms of gender.
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THE IMPACT OF RECENT REFORMS

  • Previously senior Judges were selected by the prime minister and the Lord Chancellor. Those may have resulted in political bias as it was secretive. Following reforms (Act) an independent Judicial Appointments Committee now appoints (with the exception of the Supreme Court appointments) and appointments are made solely on merit. This  reinforces the independence of the judiciary.
  • Crime and Courts Act 2013 further reinforces the independence as the LC no longer has any say in appointment of inferior Judges. Power now transferred to the Lord Chrid Justice.
  • Law Lords were members of the House of Lords in its legislative capacity and therefore not totally independent. Since the creation of the Supreme Court this is no longer the case and the Justices of the Supreme Court are separate from the legislature and are not allowed to be members of the House of Lords. Currently Justices who were previously Law Lords are able to return to the House of Lords upon retirement. Newly appointed Justices of the Supreme Court will not have seats in the House of Lords reinforcing independence.
  • Reform of the role of the Lord Chancellor ensures he no longer sits as Judges or is involved to such a great extent in the appointment of the judiciary
  • Section 3 of the Constitutional Reform Act 2005 forbids the interference of Ministers in Judicial decisions which should improve judicail independence.
  • Legislative/ Executive 'accepts' judicail  law- making, the decisions of the Supreme Court, making declarations of incompatibility under the he Human Rights Act and accepting quased decisions in Judicial review indicate seperation of Powers checks and balances and independence of the jurdicairy.
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