Judiciary G151 Revision cards

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  • Created on: 15-04-14 11:15

Constitutional Reform Act 2005

Expressly provides independence of the judiciary as set out in Section 3 of the Act. 

Main changes?

  • Duty on government to uphold independence of the judiciary, barring them from trying to influence judicial decisions through any special access to judges. 
  • Reform of Lord Chancellor post, his judicial functions were transferred to the Lord Chief Justice who is now responsible for the training, guidance and deployment of judges, 
  • An independent supreme court has been established seperate from the HOL wuth its own independent appointments system, staff, budget and building. 
  • An independent Judicial Appointments Commission (JAC) is now responsible for selecting candidates to reccommend for judicial appointment. This ensures that merit remains the sole criteria for appointment. However LC can still reject the application. 
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Crime and Courts Act 2013

Aim: to improve transparency and diversity of judicial appointments. 

  • Working arrangements for judges - flexible now available in the High Court and above and opportunities for flexible working will be clearly highlighted in each JAC process. 
  • New selection process - the 'equal merit provision' is that when 2 judges are of equal merit, they can be chosen in regard to widening diversity. 
  • Lord Chancellor's powers to accept, reject or ask for reconsiderstaion of reccomendations by for judicial appointments below the high court have been transferred to Lord Chief Justice. 
  • Make-up of selection panels - there must now be an odd number of members for selection panels for senior judiciary and those making nominations to the panels must have regard for the desirability for more diversity among panels. 
  • Composition of JAC - composition of commission will become more representative of the roles JAC selects for and those whoa re eligable to apply for them (judicial members will now include a senior tribunal judge and one of the 2 members from legal professions could now be a CILEX fellow. 
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Selection and Appointment of Justices of Supreme C

Judges are selected according to the Constitutional Reform Act 2005. 

  • When there is a vacancy the LC must convene a temporary Supreme Court Selection Commission. 
  • The composition of the Supreme court selection Committee - Deputy president of supreme court, one member of JAC, one member of Judicial Appointments Board for Scotland/Northern Ireland. 
  • The commission decide the selection process to be used. The name of theselected candidate will be passed to the LC. 
  • The LC can then reject, accept or ask the commission to reconsider but this can only be done if LC thinks the person is not suitable or there is evidence that the person is not the best candidate on merit. (Still this process until Crime and Courts ACt 2013 is implemented).
  • Once the LC has accepted the Commission's nomination, he must notify the PM. 
  • The queen will then officially appoint the new judge. 
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Should there be a career judiciary?

Advantages:

  • Age of judges much lower, especially in bottom ranks where in the UK assistant recorders are usually in late 30's, early 40's. High court judges would also be younger as they are currently mostly in late 40's, early 50's. 
  • Judges have had more training in the specific skills they need to be a judge. 
  • Greater scope for specialisation
  • Would be selected for judicial skills, not all advocates become good judges. 

Disadvantages:

  • Lack of legal experience
  • Judges may be seen as too closely linked to government/civil servants, whereas in the UK judges are seen as independent from government. 
  • Less experience of dealing with clients and human awareness. 
  • Younger judges may lack life experience. 
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Should there be a career judiciary?

Advantages:

  • Age of judges much lower, especially in bottom ranks where in the UK assistant recorders are usually in late 30's, early 40's. High court judges would also be younger as they are currently mostly in late 40's, early 50's. 
  • Judges have had more training in the specific skills they need to be a judge. 
  • Greater scope for specialisation
  • Would be selected for judicial skills, not all advocates become good judges. 

Disadvantages:

  • Lack of legal experience
  • Judges may be seen as too closely linked to government/civil servants, whereas in the UK judges are seen as independent from government. 
  • Less experience of dealing with clients and human awareness. 
  • Younger judges may lack life experience. 
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Role of judges at first instance?

In all Courts:

  • Ensure the hearing is carried out fairly and preside over the court. 
  • To decide questions of law. 

In criminal cases?

  • Magistrates court - decide both verdict and sentence and preliminary matters, e.g. bail. 
  • Crown court - sum up for jury, sentence if appropriate. 

In civil cases?

  • Decisions are made by a single judge. 
  • Decide verdict and award; in small claims help parties put their case 
  • Act as a case manager, deciding track, holding preliminary hearings to clarify issues, keep parties to time limits, may be responsible for running court office. 
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Role of judges in appeal courts?

  • Review the hearing at first instance, decide whether the law was correctly decided and whether hearing was carried out properly. 
  • Decisions are made by 3 or more judges sitting together. 
  • Decide whether the result is wrong or unsafe. 
  • Can change decision or may order a retrial. 
  • Can revise sentence or award.
  • Can decide issues of law in important cases (Supreme Court and COA usually)
  • Can clarify or amend the law where appropriatre [R v G&R] - HOL overruled the decision made in Caldwell 1982 and quashed the convictions as they did not intend to cause the damage. 
  • May be involved in judicial review in the Divisional High Court
  • May be reviewing situations in relation to the Human Rights Act 1998. 
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Independence from excecutive?

  • Superior judges cannot be dismissed by government so they can make decisions which may displease government. 
  • Judicial independence is guaranteed by S.3 Constitutional Reform Act 2005 as it states that LC and other gocernment ministers must uphold judicial independence. They also should not influence judicial decisions. 
  • In 2007, ministry of justice was created to bring the justice system under one ministry. Judges were worried that Minister of Justice was also LC, so how could he remain independent of the judiciary. However this has been resolved by removing LC's powers. 
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Independence from legislature?

  • Full-time judges are not allowed to be members of the HOC so cannot be involved in law-making. 
  • However part time judges can still be in parliament.
  • Also superior judges used to be members of the HOL but cannot be now due to the Supreme Court being created. 
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Freedom from pressure?

  • Several ways in which judges are protected from outside pressure. 
  • Judicial salaries do not have to be approved by parliament but changes can be made to retirement age and qualifying periods for pensions. 
  • Immunity from being sued for decisions in judicial duties, confirmed in the case of [Sirros v Moore] 1975. 
  • Security of tenure of superior judges protects them from threat of removal. 
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Independence from political bias?

Pro-Government decisions?

  • Griffith said in the GCHQ cas that judges tend to support the establishment, e.g. in the UK case of [council for civil service v minister for civil service] the HOL upheld the ministers right and was seen as anti-trade union. 

Anti-government decisions?

  • In the case of [DPP v Hutchinson], the law lords ruled in womens favour, going against the minister saying he had exceeded his powers. 

Human Rights?

  • In the case of [A v Secretary of State for Home Department] the HOL declared that the Ant-terrorism, Crime and Security Act 2001 conflicted with Human Rights. 
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Independence from case?

  • Judges must not try any case where they have any interest in the issue involved. This was established in Pinochet case. This was where an extradition case regarding torture and deaths were assosiated with the Head of State for Chile. 
  • After the HOl ruled that Pinochet could be extradited, it was discovered that one of the judges was an unpaid directior of Amnesty International (a human rights movement) - Lord Hoffman. 
  • The law lords then decided that the original decision could not be allowed to stand. 
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Diversity in judiciary?

Before changes in appointment:

  • Only appointed from Barrister ranks and appointed by 'secret soundings' by LC. 
  • Very few women judges or ethnic minorities. 
  • Over 80% of supreme court judges went to public school and Oxbridge and came from wealthy backgrounds. 

Since changes:

  • Appointments based on merit. 
  • All vacancies advertised and require applications. 
  • Positive steps to diversify the judiciary - more women and ethnic minorities being encouraged to apply. 
  • More women and ethnic minorities, but in lower ranks (27% women and 27/393 judges ethnic minority in district judge. Whereas only 13% women in COA. 8% women in Supreme Court. 
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Security of tenure?

  • Senior judges have security of tenure under the Act of Settlement 1701 and cannot be removed except by the monarch following a petition to both houses of parliament. 
  • Superior judges can be asked to resign. 
  • Inferior judges can be removed by LC and the Lord Chief Justice for incapacity or misbehaviour but must comply with set procedures (Constitutional Reform Act 2005)
  • Recorders are only appointed for 5 years but must be re-appointed unless there is good reason. 
  • Judges must retire at 70. 
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Seperation of powers?

  • Supreme Court makes judiciary physically seperate. 
  • Security of tenure (Act of Settlement 1701) makes judges free from government pressure. However LC can still get rid of judges. 
  • Salaries not governed by parliament 
  • Immunity from being sued.
  • Independence from case.
  • Judicial precedent - create law independently from the legislature and excecutive
  • Retirement age governed by parliament. 
  • Judges are no longer law lords. 
  • Part-time judges (recorders) can still be members of parliament. 
  • Senior judges cannot sit in HOC. 
  • LC used to appoint all judges, now only dismiss JAC's recomendations. However these powers are being transferred to Lord Chief Justice under Crime and Courts Act 2013 provisions. 
  • Judges have control over excecutive from judicial review (Strickland/Aylesbury mushrooms).
  • Recorders can not be appointed after 5 years. 
  • Retirement age governmed by Parliament. 
  • Excecutive dominates legislature. 
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