History of The Judiciary

When we see a judge or magistrate sitting in court, we are actually looking at the result of

1,000 years of legal evolution. Justice for the Anglo-Saxons and even after the Norman

invasion of 1066 was a combination of local and royal government. Local courts were

presided over by a lord or one of his stewards.1 The King’s court, the Curia Regis was initially

at least, presided over by the King himself. The Curia Regis in other words The King’s court

was initially controlled by the King himself. Until end of the 12 th century, trial by ordeal was

the trial system used to determine guilt or innocence in criminal cases. Under this system,

the accused would be forced to pick up a red hot bar of iron, pluck a stone out of a cauldron

of boiling water, or something equally painful and dangerous. If their hand had begun to

heal after three days they were considered to have God on their side, thus proving their

innocence. The number of ‘not guilty’ verdicts recorded by this system is not

known.2Ultimately William II banned trial by ordeal. Successively, the monarch and the

government gave independence to judges. Court officials who had certain experience

advising the King on the settlement of disputes were the very first judges in the 12 th century.

The Justices in eyre who influenced a mixed administrative and judicial jurisdiction was

derived from that group. The seeds of the modern justice system were sown by Henry II

(1154-1189), who established a jury of 12 local knights to settle disputes over the ownership

of land.3 Today there are more than 4000 judges in the country compared to 18 judges

during the time when Henry was holding the throne. Eventually, a new permanent court,
1
Available at http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ accessed 26 November
2014
2
Available at http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ accessed 26 November
2014
3
Available at http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ accessed 26 November
2014

1
the Court of the King’s Bench, evolved, and judicial proceedings before the King came to be

seen as separate from proceedings before the King’s Council.4 The Justice of the bench in 1217

was Martin de Pateshull, Archdeacon of Norfolk and Dean of St Paul’s. His judgements were

being searched for precedents because he was known as one of the finest lawyers in

England. Mirroring developments in the role and independence of judges were changes to

the avenues of redress open to aggrieved parties. The common law system was an

improvement on what had gone before, but common law however had a number of defects,

especially when juries were used. Fortunately, those who felt that common law was not

favourable, they can still petition the King. Gradually, these cases were delegated to the

King’s council, and eventually to one individual that is the Lord Chancellor. Because of this,

the Lord Chancellor came to be known as the ‘King’s conscience’, and began to preside over

his own court, the Court of Chancery which only dealt with civil disputes.5

Traditions of the courts

The Royal Coat of Arms

In 1399, under King Henry IV, The Royal Coat of Arms came into existence. It is used by the

reigning monarch. The Royal Arms appear in every courtroom in England and Wales,

demonstrating that justice comes from the monarch, and a law court is part of the Royal

Court.6 The Superior Court judges sit under the Royal Arms to show that they represent the

monarch, as appointees of the federal government.7 The reason why lawyers and courts

4
Available at http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ accessed 26 November
2014
5
Available at http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ accessed 26 November
2014
6
Available at http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ accessed 27 November
2014
7
Available at http://www.ojen.ca/sites/ojen.ca/files/sites/default/files/resources/Traditions%20of%20the
%20Courts.pdf/ accessed 27 November 2014

2
official bow to the judge or magistrates’ bench when they enter the room is because they

are bowing to the coat of arms to show respect for the Queen’s justice.

The Black Cap

Based on court headgear in Tudor times, the black cap was traditionally put on by judges

passing sentence of death because covering the head has from the earliest times been

regarded as a sign of mourning.8 Since the permanent abolition of capital punishment in

1969, there has been no need for the cap to be worn. High Court judges still carry the black

cap, but only on an occasion where they are wearing full ceremonial dress. 9

Oaths

Traditionally, the oath has served various functions within the justice system. 10 As for

judges, as part of their promise to fulfil their judicial duties, they swear an oath upon their

appointment to the bench. Witnesses giving evidence in court also take an oath to convey

the seriousness of giving evidence and to signal that lying under oath can result in a criminal

charge of perjury. Oaths were used at least as far back as Anglo-Saxon and Roman times. 11

The Role Of Judges

8
Available at http://www.sacred-texts.com/etc/mco/ml08.htm/ accessed 27 November 2014
9
Available at http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ accessed 27 November
2014
10
Available at http://www.ojen.ca/sites/ojen.ca/files/sites/default/files/resources/Traditions%20of%20the
%20Courts.pdf/ accessed 27 November 2014
11
Available at http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ accessed 27
November 2014

3
The judiciary is the branch of authority in a country which is concerned with law and the

legal system.12 Judges are the arbiters of disputes. They hear the cases tried before a court.

They make decisions concerning the law and also make decisions concerning the facts of

cases. Judges may hear trials and may also be appointed to hear appeals. 13 The head of the

judiciary is the Lord Chief Justice. Under the rule of law judges are expected to deliver

judgement in a completely impartial manner, applying the law strictly, without allowing any

personal preferences to affect their decision-making. 14 This desire for impartiality is

reflected in the constitutional position of the judges. In line with Montesquieu’s classic

exposition of the separation of powers, the judiciary occupy a situation apart from the

legislative and executive arms of the state, and operate independently of them. 15 The judges

play a vital but sensitive role in controlling the exercise of power by the state. The passing of

the HRA 199816 significantly increased the power of the judges to control the work of

Parliament and the executive.17 An example can be seen in Secretary of State’s 18 where

Parliament passed the Anti-Terrorism, Crime and Security Act 2001 in fear over the

increased risk of terrorism. If a defendant is convicted of a crime, the judge passes sentence,

imposing a penalty that can range from a fine to a prison term depending on the severity of

the offence. In civil cases the judge decides whether a claim is valid and assesses damages,

grants an injunction or orders some other form of redress to the plaintiff, unless a jury has

been empanelled to make these decisions.19

Judicial Hierarchy
12
Available at http://www.collinsdictionary.com/dictionary/english/judiciary/accessed 23 November 2014
13
R.Huxley-Binns and J. Martin, The English Legal System (4 th Edition 2014)309
14
C.Elliot and F.Quinn, English Legal System (14 th Edition 2013/14) 154
15
G.Slapper and D.Kelly, The English Legal System (15 th Edition 2014/15) 449
16
Human Rights Act 1998
17
C.Elliot and F.Quinn, English Legal System (14th Edition 2013/14)154
18
A and X and Others v Secretary of State for the Home Department (2004)
19
Available at http://www.cscja-acjcs.ca/role_of_judge-en.asp?l=5/accessed 24 November 2014

4
The judiciary also has its own hierarchy like the court system. Judges are categorised into

inferior and senior judges. Inferior judges preside, on the whole, in the inferior courts.

Senior judges preside, on the whole, in the senior courts.20 Inferior courts are the

Magistrates’ Court, the County Court and the Crown Court. Meanwhile the senior courts are

the High Court, the Court of Appeal and the House of Lords. Various judges who function at

the various level within the judicial hierarchy are referred to in the following terms:

Magistrates’ Court

The only other judge who hears cases in magistrates’ courts is a district judge. They are also

known as registrars.21 District judges are full time, paid members of the judiciary with a legal

background. They will hear the more complex cases in magistrates’ courts, but will also work

in county court hearing civil cases, and may also hear some family law cases if qualified to

do so. District judges are assigned to county court work in ‘circuits’. They will sit anywhere

within that circuit hearing mostly civil and family cases. They most often sit alone. 22

Recorder

Recorders may sit in both Crown and County Courts, but most start by sitting in the Crown

Court. The modern office, like the circuit judge, is relatively modern and was created by s 21

CA 197123 although part-time roles previously existed.24 Generally they will handle less

complicated or important matters coming before the court but their jurisdiction is broadly

similar to that of a circuit judge. Recorders are required to manage cases actively as well as

to determine claims at trial. A recorder’s duties include assisting the parties to prepare for
20
R.Huxley-Binns and J. Martin, The English Legal System (4th Edition 2014)313
21
G.Slapper and D.Kelly, The English Legal System (15th Edition 2014/15)464
22
Available at
http://www.findlaw.co.uk/law/government/constitutional_law/citizens_guide_to_the_judicial_system/8034.h
tml/ accessed 24 November 2014
23
Courts Act 1971
24
These tended as neither Recorder of London, Liverpool, and Manchester were knighted on appointment
although this appears to have lapsed as neither the Recorder of Liverpool nor Manchester are currently
knights.

5
trial, presiding over court proceedings and delivering judgments in both applications and

contested trials.25 Some Recorders may be authorised under s.9(1) of the Senior Court Act

1981 to sit in the High Court to meet a specific business need. 26

Circuit Judge

The office of circuit judge is relatively modern, being created by s 16 CA 1971 27 although

prior to this other judicial appointments did exist.28Some circuit judges deal specifically with

criminal or civil cases, while some are authorised to hear public and/or private law family

cases. Others may sit more or less on a full-time basis in specialised civil jurisdictions, such

as Chancery or mercantile cases, or as judges of the Technology and Construction Court.

Some circuit judges may be asked by the Lord Chief Justice (LCJ) to sit in the Criminal

Division of the Court of Appeal. There are currently over 600 circuit judges throughout

England and Wales.29

High Court

High court judges work in one of three ‘divisions’ of the high court Chancery, Queen’s Bench

or the Family Division. Judges are appointed to particular divisions depending on the

amount of work needing to be conducted.30They will sit with appeal judges to hear criminal

cases and also hear serious criminal and civil cases. Each division of the High Court consist of

25
Available at http://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/judicial-
roles/judges/recorder/ accessed 24 November 2014
26
Available at http://jac.judiciary.gov.uk/static/documents/terms__and_conditions_00555.PDF/ accessed 28
November 2014
27
s 16 Court Act 1971
28
A.Gillepie, The English Legal System, (4th Edition 2013)216
29
Available at http://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/judicial-
roles/judges/recorder/ accessed 24 November 2014
30
G.Slapper and D.Kelly, The English Legal System (15th Edition 2014/15) 464

6
a president and a vice-president. High court judges are referred to as ‘The Honourable

Mr/Mrs Justice’ followed by their surname. They wear red robes when hearing criminal

cases, and black robes when sitting in the Court of Appeal. 31

Lord of Appeal in Ordinary

Whilst they no longer exist, it is historical interest to note that the judges of the House of

Lords were known as the Lord of Appeal in Ordinary, although they are referred to as the

Law Lords.32 What is meant by ‘in ordinary’ is that they were paid for their work. Each judge

was granted a life peerage upon appointment, becoming Baron or Baroness X. Technically

any judge who held, or had held, a high judicial office within the meaning of the AJA 1876 33

and who was also a peer could sit in the House of Lords.34

Lord Justice of Appeal

Prior to the 2003 Act the judge of the Court of Appeal were known as Lord Justice of Appeal

as in s 2(3) SCA 1981.35 The first female member of the Court of Appeal, Elizabeth Butler-

Sloss, had to be referred to by the male title because the SCA 1981 36 had not considered the

possibility of a woman holding such a high judicial office.37 Later on the Court of Appeal

referred them as Lady Justices.

Appointment of Judges

Before 1997, the appointments of Justices of the High Court were by invitation only.

Applications are now also invited by public advertisement for vacancies in the High Court. 38
31
Available at
http://www.findlaw.co.uk/law/government/constitutional_law/citizens_guide_to_the_judicial_system/8034.h
tml/ accessed 24 November 2014
32
A.Gillepie, The English Legal System, (4th Edition 2013)215
33
Appellate Jurisdiction Act 1876
34
A.Gillepie, The English Legal System, (4th Edition 2013)215
35
s 2(3) Supreme Court Act 1981
36
Supreme Court Act 1981
37
G.Slapper and D.Kelly, The English Legal System (15th Edition 2014/15)464
38
The first advertisement of High Court Bench judges was in 1997. Judicial Appointments Annual

7
Prior to the CRA 2005,39 the Lord Chancellor played a central role in the appointment of

judges. The judges in the House of Lord and the Lords of Justices of Appeal were appointed

by the Queen on the advice of the Prime Minister who in turn was advised by the Lord

Chancellor.40 Traditionally judicial appointments particular of superior judges, were clouded

in mystery and secrecy with “secret soundings” being normal. Lord Elwyn-Jones, the former

Lord Chancellor, explained the process:

“When a vacancy had to be filled, the heads of the Divisions…were invited into my office to

consider likely names. Usually we agreed as to the one most meriting appointment.

Occasionally two names were equally supported. Then the choice was left to me.” 41

An important feature of the process of judicial appointment in the U.K. is consultation.

Views and opinions about the qualities and work of applicants are collected from a wide

range of judges and senior practitioners in the legal profession. This information is mainly

collected in writing and sometimes at face-to-face meetings. 42Over the years there had been

considerable criticism of the way in which judges were appointed. The Judicial

Appointments Commission (JAC) was created by the CRA 200543 in order to remove the

responsibility for selecting candidates for judicial from the Lord Chancellor alone and

making the appointment process clearer and more accountable. 44 The members are

appointed by the Queen on the recommendation of the Lord Chancellor,45 following a fair

and open competition administered by the Judicial Appointments Commission .The Lord

Chancellor appoints those who appear to him to be the best qualified regardless of gender,

Report 1998-99, the Lord Chancellor’s Department, the United Kingdom, October 1999.
39
Constitutional Reform Act 2005
40
C.Elliot and F.Quinn, English Legal System (14th Edition 2013/14)156
41
A.Gillepie, The English Legal System, (4th Edition 2013)219
42
Available at http://www.legco.gov.hk/yr00-01/english/library/erp02.pdf/ accessed 27 November 2014
43
Constitutional Reform Act 2005
44
R.Huxley-Binns and J. Martin, The English Legal System (4th Edition 2014)314
45
C.Elliot and F.Quinn, English Legal System (13th Edition 2012/13)155

8
ethnic origin, marital status, sexual orientation, political affiliation, religion or disability. 46

The following shows how judges are appointed after the Judicial Appointments Commission

was created:

District judges

The statutory qualification for a statutory judge is a five-year “right of audience” for a party

in a case in the court in relation to all proceedings in any part of the Supreme Court, or all

proceedings in county courts or magistrates’ courts. The Lord Chancellor will normally only

consider applicants who have been serving Deputy District Judges for two years or who have

completed 30 sittings in that capacity. There are currently over 400 District Judges in post,

including 18 who sit in the Principal Family Division of the High Court in London. 47

Recorder

Section 21 of the Courts Act 197148 provides for the appointment of Recorders to carry out s

other judicial functions as may be conferred on them.49 Appointments are for five years, and

are usually automatically extended by the Lord Chancellor for further successive terms of

five years.

Circuit Judges

Some circuit judges have been appointed as senior circuit judges, taking on additional

responsibilities, for example the running of the largest court centres. Circuit judges must be

lawyers who have held a ‘right of audience’ for at least ten years, and should generally also

46
Available at
http://webarchive.nationalarchives.gov.uk/20100512160448/dca.gov.uk/consult/jacommission/judges.pdf/
accessed 25 November 2014
47
Available at http://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/judicial-
roles/judges/ciruit-judge/ accessed 27 November 2014
48
As amended by Schedule 10 of the Courts & Legal Services Act 1990.
49
Available at http://jac.judiciary.gov.uk/static/documents/terms__and_conditions_00555.PDF/ accessed 28
November 2014

9
have served either part-time as a recorder on criminal cases or full-time as district judges on

civil cases before they can be appointed.50

High Court judges

High Court judges must have had a “right of audience” for at least seven years, or have been

a circuit judge for at least two years51 and had been a Circuit judge for at least two years.52

This method of appointment is a matterof practice and convention, not of written law. 53

Appeal Court Judges

All Court of Appeal judges are senior judges with lengthy judicial experience. The Heads of

Division are selected in practice from the Lords Justices of Appeal, who in turn are selected

from the ranks of the High Court Judges.54

Conclusion

In conclusion I would like to say that in all these areas of work England and Wales are well

served by judges of the highest calibre. I have understood that at all levels of the justice

system, the British Legal System has a strong, independent judiciary respected nationally

and internationally.55 Since the Government came to power in 1997, it has made a number

50
Available at http://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/judicial-
roles/judges/ciruit-judge/ accessed 28 November 2014
51
Available at http://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/judicial-
roles/judges/ciruit-judge/ accessed 27 November 2014
52
Appointments to the High Court, if not on promotion from another full-time office (usually the
Circuit Bench), have in practice generally been made from members of the Bar of high standing
who have been in practice for perhaps 20 or 30 years and hold the rank of Queen's Counsel.
However, the Courts and Legal Services Act 1990 has made it possible for suitably qualified
solicitors to be appointed to the High Court Bench. Practitioners who are appointed to the High
Court Bench will normally have had a substantial and successful practice, often having developed
areas of specialisation, and be held in high regard by the profession. They will normally have sat
previously as Deputy High Court Judges and/or Recorders. "Senior Judicial Appointments," the
Lord Chancellor Department's website and Supreme Court Act 1981 s.10 as amended by
Courts and Legal Services Act 1990 s.71.
53
Shetreet, loc. cit.
54
Available at http://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/judicial-
roles/judges/coa-judges/ accessed 27 November 2014
55
http://webarchive.nationalarchives.gov.uk/20100512160448/dca.gov.uk/consult/jacommission/judges.pdf

10
of significant improvements to the judicial appointments system. It has made the system

more open, and more efficient. The appointment procedure has new and better ways to

help in attracting a wider range of people to the judiciary. Historical development of this

concept shows the significance of the judiciary in the system.

Word Count: 3,070 words

Bibliography

Books

• A.Gillepie, The English Legal System, (4th Edition 2013)

• C.Elliot and F.Quinn, English Legal System (13th Edition 2012/13)155

• C.Elliot and F.Quinn, English Legal System (14th Edition 2013/14)

• G.Slapper and D.Kelly, The English Legal System (15th Edition 2014/15)

• R.Huxley-Binns and J. Martin, The English Legal System (4th Edition 2014)

11
Electronic Sources

• Courts and Tribunals Judiciary

<http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/>

• Collin English Dictionary

<http://www.collinsdictionary.com/dictionary/english/judiciary/>

• Death and Burial

<http://www.sacred-texts.com/etc/mco/ml08.htm/>

• FindLaw, a Thomson Reuters business, 2014

<http://www.findlaw.co.uk/law/government/constitutional_law/citizens_guide_to_t

he_judicial_system/8034.html>

• Ontario Justice Education Network

<http://www.ojen.ca/sites/ojen.ca/files/sites/default/files>

• The Canadian Superior Courts Judges Association (CSCJA)

<http://www.cscja-acjcs.ca/role_of_judge-en.asp?l=5>

• Recorder Conditions of Appointment and Terms Of Service

<http://jac.judiciary.gov.uk/static/documents/terms__and_conditions_00555.PDF>

12
• Mr Cheung Wai-Lam, The Process of Appointment of Judges in Some Foreign

Countries: The United Kingdom (22 November 2000)

<http://www.legco.gov.hk/yr00-01/english/library/erp02.pdf>

• Constitutional Reform: A New Way of Appointing Judges (July 2003)

<http://webarchive.nationalarchives.gov.uk/20100512160448/dca.gov.uk/consult/ja

commission/judges.pdf>

Table of Statutes

• Courts Act 1971

• Constitutional Reform Act 2005

• Human Rights Act 1998

• Supreme Court Act 1981

Table of Cases

• A and X and Others v Secretary of State for the Home Department (2004)

13