Judges

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Judges

They have the authority to interpret and create laws through precedent and statutory interpretation.

Judges in high court and above can determine whether government officials have acted unlawfully (ultra vires) by process of judicial review. 

The Human Rights Act also gives judicial powers to deal with legislation so has to ensure compatibility with the articles of the Convention e.g. right to fair trial.

To become a judge candidate must be a sollicitor/barrister.

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Judges

They're unelected.

State official with power to adjudicate on disputes for decisions.

Variety operating in different courts and at different levels in court hierarchy.

Simplest way of categorising judges is into inferior and superior judges. 

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Inferior judges

District judges

Recorders

Circuit Judges

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Superior judges

High Court Judges

Lord Justices of Appeal in COA

Judges of Supreme Court

(these are more influential)

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District Judges

Work in Magistrates Courts .e.g London.

Found deciding civil cases in County Court e.g. hearing small claim cases up to £10,000.

Have responsibility for administration of court e.g. allocation of a civil case onto one of the three tracks.

419 District Judges.

To become a district judge they must have practiced for atleast 5 years as a solliciotr/barrister.

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Recorders

Part time, usually sitting in for one month a year

Often used as apprenticeship (as not permanent) where recorder can be assessed with viuew to permanent appointment as Circuit Judge.

Appointed following their selection by JAC and recommendation of Lord Chancellor.

Chosen from barristers/sollicitors of atleast 7 years standing and sit either in County Court/Crown Court.

1,310 recorders in practice. 

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Circuit Judges

Chosen from barristers who have practiced for 7 years atleast/chosen from recorders who have practiced for at least 2 years. 

Sit in Crown Court and County Court and hear both civil and criminal cases.

Wales has own circuit and no longer links with Chester.

640 Circuit Judges in the country.

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High Court Judges

Need to be barrister for atleast 10 years/Circuit judge who has held office for atleast 2 years/10 year High Court Advocacy Certificate under Courts and Legal Services Act 1990.

Way is now open for solicitors/suitably qualfied professional to attain highest judicial office- first High Court judge to be appointed from ranks of soliciotrswas Sir Michael Sachs, appointed in 1993.

109 High Court Judges: 72 preside over Queens Bench Division but if any pressing business then Lord Chancellor may appoint Deputy High Court Judges.

During duration of appointment they have same powers as High Court judges. 

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Lord Justices of Appeal

38 Lord Justices of Appeal

Sit in Court of Appeal

Appointed by Queen following their selection from applicants to Judicial Appointments Commission.

Qualifications needed to become judge is they must be practicising barrister/held High Court Certificate in Advocacy for atleast 10 years/existing High Court judge. 

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Judges of Supreme Court

12 Judges sit in Supreme Court.

Highest coirt of appeal in English law.

12 judges appointed on recommendation of Judicial Appointments Commission.

Those chosen have sat as Lord Justices of Appeal/High Court judges and must have been barristers of 15 years.

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Tribunal Chairmen

JAC selects appointments to tribunal service at both levels.

Apllicants must be experienced in particular field and refistered practitioners. 

JAC appoints on merit in same way as judges are chosen. 

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Appointment and selection of judges

Enlgand and Wales doesn't have career structured judiciary. 

English judges chosen from practicing laywers, mainly barristers/other suitable candidates meaning an acadmeic could apply to be judge if had previous experience in practice law.

High Court level or above becoming judge used to be by invitation only from Lord Chancellor. 

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Appointment and selection of judges

Selection used to be shrouded in secrecy.

System relied on word of mouth and confidential opinion of existing judges and senior members of Bar.

This info about good barristers was stored in 'Yellow Sheets' (collection of secret files kept by Lord Chancellor Department).

Barristers reputation more important and made/broken in court. A barrister than impressed judge with performance in court woul find his way on Yellow Sheets.

1992, Lord Williams: '2 lists kept by LCD-A list, likely to become HC judges, B list, unsuitable'.

1992 Malcolm Dean of the Guardian similarily criticed old process of selecting judges. 

In response to concerns about selection of judiciary e.g. 'cash for wigs' fiasco in 2001, link between judiciary and politics, and human rights liegislation, Labour Government introduced reforms to change selection of process. 

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Reform selection process

Government passed Constitutional Reform Act 2005.

Under Act a 'Judicial Appointments Commission' (JAC) of 15 people is responsible for selection od judges and tribunal members,

15 people are: 1 chairman, 5 judges, 1 barrister, 1 sollicitor, 5 independent lay members, 1 tribunal member and 1 lay magistrate. 

JAC 2006 intendd to improve arrangments for appointing judges across board.

Old system relied too much on outdated methods and wasn't transparent.

Process now open and based on point scoring appraoch. 

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Reform selection process

Candidate applies for position by formal application and may be shortlisted.

Then undergo series of interviews and tests (lasting 2 hrs)

And a role playing exercise lasting up to 25 minutes 

Chosen by clear scoring process 

Chosen only on merit.

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Reform selection process

JAC has a remit to encourage applicants of all backgrounds but keen to encourage females and candidates from ethnic minority groups. 

This is vast imporvement of old system. 

JAC doesn't appoint judges, it selects and recommends. 

Lord Chancellor appoints but unlikely they would ignore recommendations.

If they did then reasons must be given to JAC why such recommendation has been turned down. 

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Judicial office qualities/abilities

JAC identitifed: 

1) intellectual capacity

2) personal qualities

3) ability to understand/deal with fairly

4) authority and communication skills

5) efficiency 

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Intellectual capacity

High level of expertise in chosen area of profession

Quickly absorb info and analyse info

Appropriate knowledge of law and underlying principles/ability to acquire knowledge where necessary

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Personal qualities

Integrity and independence of mind

sound judgement

decisiveness 

objectivity

ability and willingness to learn and develop professionally 

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An ability to understand and deal fairly

Treat everyone with respect and senitive to their background.

Willingness to listen with patience and courtesy

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Authority and communication skills

Ability to explain procedure and any decisions reached clearly and succinctly to those involved.

Ability to inspire respect and confidence.

Ability to maintain authority when challenged. 

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Efficiency

Ability to work at speed and under pressure

Ability to organise time effectively and produce clear reasoned judgments expeditiously.

Ability to work constructively with others. 

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Training for judges

Judicial Studies Board set up in 1979

Provides human awareness training covering gender awareness and sensitivity to unrepresented parties, witnesses, jurors, victims and their families, children and persons under physical and mental disabilities. 

Before starting work a Recorder will have a residential course lasting 3.5 days before starting work. 

Apart from this there's no real training for judges because the job can only be learnt by doing it. 

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Judges evaluation

Appointment process more open than it was and JAC is required to encourage diversity in all applications. 

However, judges are still overwhelmingly white, male, middle to upper class and elderly, this is a product of hisoty and our class based culture. 

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Constitutional issues-separation of powers and jud

Theory of seperation of powers is that to safeguard the liberty of the citizen. 3 primary functions:

  • Legislative-making laws- Parliament
  • Executive- administering laws- Cabinet
  • Judicial- enforcing law-independence judiciary

must be exercised by seperate and independent bodies (each arm of state can keep check on others)

Some countries have written constitutions which state there shoulf be separation of powers. UK has no written constitution but government based on idea that three organs of state are/should be seperate. 

Rules of law based on idea judges can keep eye om power of executive.

Constitutional Reform Act of 2005 guarentees independence of judicary. 

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