Lecture # 16

The Judiciary
By: Salik Aziz Vaince
[0313-7575311]
 Introduction
 When speaking of judges as a group, they are referred to as the judiciary. There are many different
levels of judges, but the basic function is the same at all levels: judges are there to adjudicate on
disputes in a fair, unbiased way, applying the legal rules of this country.
 There is no clear-cut division between civil and criminal judges, as many judges at the various levels are
required to sit for both types of case. This in itself causes problems as, before their appointment, most
judges will have specialized in one area of law. The head of the judiciary is the Lord Chief Justice.
 When considering judges the first point is that there is a marked difference between what are called
superior judges and inferior judges. This affects the method of appointment, the training, the work
and the terms on which they hold office, so it is as well to start by understanding which judges are
involved at each level.
 The work of the judiciary is mainly ‘judicial' in the sense that they adjudicate upon disputes. They
deduce the facts from the evidence presented in court, apply the law to those facts and then decide
the case. The members of the judiciary who sit in appellate courts will often hear legal argument
based on points of law rather than disputed facts.
 The judges perform the Role of – law enforcement, statutory interpretation, legality of government
decisions, application of EU and HRA; protect citizen’s rights and liberties.
 Where a case is concerned with the application of a statute, it is the task of the judiciary to ascertain
the intention of the legislature when passing that statute. Where adherence to the literal meaning of
the words in the statute would cause some problem, such as inconsistency with Human Rights law, the
judiciary will create new law by interpreting the statute in an alternative way.
 The judiciary can also create entirely new legal principles; the judiciary is therefore a very powerful
body of individuals and one limb of the law-making structure, for example the ‘neighbour principle'
was propounded by Lord Atkin in Donoghue v Stevenson [1932] AC 562, and is now widely
acknowledged as the basis of the modern law of negligence.
 A particularly key aspect of the judiciary is that its members are independent. The independence of
the judiciary is crucial because when they are interpreting and applying the law they must not bring
political considerations into the decision.
 Types of judges
 Superior judges
 Superior judges are those in the High Court and above. Starting from the top and working down these
are:
• The justices of the supreme court who sits in the supreme court

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 • The Lords Justices of Appeal in the court of Appeal
• High court judges who sit in the three divisions of the High Court and, note that in addition,
judges from the Queen’s Bench Division also sit in the Crown Court.
 Inferior Judges
 The inferior judges are:
• Circuit judges who sit in both the crown court and the county court.
• Recorders who are part-time judges sitting usually in the 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’s Court) who sit in Magistrate’s courts in London and other major
towns and cities.
• Tribunal judges
 Qualifications
 To become a judge at any level it is necessary to meet the judicial-appointment eligibility condition
relevant to that level. This means the applicant must have the relevant legal qualification and have
gained experience in the law for a certain period. The qualifications to become a judge have been
widened over the last 20 years.
 Before 1990 only barristers could become superior judges, although solicitors were eligible for the
lower levels of the judiciary. The court and legal service Act 1990 changed this by basing qualification
and allowing for promotion from one level to another. As a result of this, more solicitors became circuit
judges and 4 solicitors were promoted from circuit judges to High Court judge. The 1990 Act also
allowed academic lawyers to become judges, as it removed the previous need for them to have
practiced as a lawyer.
 The Tribunal, Court and Enforcement Act 2007 has changed the qualifications and further widened the
pool of potential applicants. This Act states that to apply to become a judge it is necessary to have the
relevant legal qualification. This is normally barrister or solicitor, but for some levels the Act has
opened up some judicial posts beyond solicitors and barristers for the first time. Fellows of the
Institute of Legal Executive (ILEX) and Registered patents Attorneys and Trade Mark Attorneys may
apply for certain lower level posts.
 Experience in Law
 The Tribunals, Court and Enforcement Act 2007 widen the ways in which applicants may have gained
experience in law. As well as practicing or teaching law, the Act recognizes that such activities as acting
as an arbitrator or mediator, advising on law or drafting legal documents are also methods by which an
applicant can gain experience in law.
 The Act has also reduced the length of time that a person has to work in the law before they can apply
to become a judge. Previously the minimum time was seven years for lower level posts and ten years
for most senior posts. These time periods are now five and seven years respectively.
 These changes have all helped to widen the pool of potential candidates for judgeship, and may
eventually help to make the composition of the Bench a wider cross-section of society.

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  The qualifications for each level of judge are as below:
 The justices of the Supreme Court
 These are appointed from those who hold high judicial office, for example, as a judge in the court of
Appeal, or from those who have been qualified to appear in the senior courts for at least 15 years. As
the Supreme Court is the final appellate court for Scotland and Northern Ireland as well, judges can
also be appointed from those who have qualified to appear in courts in Scotland or Northern Ireland
for at least 15 years.
 Lord justices of Appeal
 These must have been qualified as a barrister or solicitor and have gained experience in law for at least
7 years or to have been an existing High Court Judge. In recent times all Lords Justices of Appeal have
been appointed from existing High Court Judges.
 High Court Judges
 In order to be eligible to be appointed as a High Court Judge it is necessary either to have been
qualified as a barrister or solicitor and have gained experience in law for at least 7 years or to have
been a circuit judge for at least two years. The vast majority of High Court judges are appointed from
barristers who have been in practice for 20 or 30 years, although the list of judges in October 2009
shows that out of the 100 or so High Court judges, 14 had previously been circuit judges. Deputy High
Court Judges, who sit part-time, are also appointed and this is a way of testing the suitability of person
to become a High Court judge.
 Circuit Judges
 The applicant can either have been qualified as a barrister or solicitor and have gained experience in
law for at least seven years to have been a Recorder. About 13 per cent of circuit judges are former
solicitors.
 The courts and Legal Services Act 1990 also allows for promotion after being a District Judge,
stipendiary magistrate or chairman of an employment tribunal for at least three years. These
provisions have widened the pool of potential judges and are gradually leading to a better cross-
section among the judges at this level.
 The usual route to becoming a Circuit Judge is to be appointed as a Recorder first and then be
promoted to a circuit judge.
 Recorders
 This is a part-time post. The applicant must have been qualified as a barrister or a solicitor and have
gained experience in law for at least seven years. An applicant is appointed as a Recorder in training
first and then appointed as a Recorder.
 District Judges
 At this level an applicant must have been qualified as a barrister or solicitor and have gained
experience in law for at least five years or to have been a Deputy District Judge. The vast majority of
District judges in the county court are former solicitors. District judges in the Magistrate’s courts need
the same qualifications. About two-third of these are former solicitors. It is usual to have sat part-time
as a deputy district judge before being considered for the position of District Judge. Under the
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 Tribunals, Courts and Enforcement Act 2007, ILEX Fellows are now eligible to be appointed as a deputy
district judges.
 Tribunal Judges
 These must have been qualified as b barrister, solicitor or ILEX fellow and have gained experience in
law for at least 5 years. For the position of chairman or Deputy Chairman of the Copyright Tribunal,
Registered patents Attorneys and Trade Mark Attorneys are also eligible.
 Selection
 History
 Until 2005, the Lord Chancellor was the key figure in the selection of superior judges. The Lord
Chancellor’s Department would keep information on all possible candidates. These files would contain
confidential information and opinions from existing judges on the suitability of each person. The
contents of these files were secret.
 When there was a vacancy for a judicial position in the House of Lords, the court of Appeal or the High
Court, the Lord Chancellor would consider the information in these files and decide which person he
thought was the best for the post. That person would then be invited to become a judge.
 Not surprisingly, this system of selection was seen as secretive. It was also felt that it favoured white
males, as there were few women in the higher ranks of the judiciary.
 Matters improved for High Court judgeships as, from 1998, vacancies were advertised and any
qualified person could apply. However, even then, the Lord Chancellor continued to invite people to
become judges, rather than appoint solely from those who applied.
 The major role of the Lord Chancellor in appointment was very controversial as the Lord Chancellor is
a political appointment. It was thought that the appointment of judges should be independent from
any political influence. So the method of appointment was changed by the Constitutional Reform Act
2005.
 Judges of the new Supreme Court
 When the Supreme Court took over from the House of Lords, the existing House of Lords judges
became the Justices of the Supreme Court. For new appointments, judges for this court are selected
according to the method set out in the part 3 of the Constitutional Reform Act 2005. This states that
when there is a vacancy, the Lord Chancellor must convene a Supreme Court selection commission.
 This commission must include the president and the Deputy President of the Supreme Court and one
member of judicial appointments commission. As the Supreme Court is also the final court of Appeal
for Scotland and Northern Ireland, the commission must also include a member of the Judicial
Appointment Board for Scotland and the Northern Ireland Judicial Appointments Commission.
 The commission will decide the selection process to be used. It will then use that process to select a
candidate and report that selection to the Lord Chancellor.
 Under s 29 of the Constitutional Reform Act 2005, the Lord Chancellor can reject that candidate or ask
the commission to reconsider. This can only be done if the Lord Chancellor is of the opinion that the
person selected is not suitable for the office or that there is evidence that the person is not the best

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 candidate on merit. The Lord Chancellor must give written reasons for rejecting a candidate or asking
the commission to reconsider.
 Once the Lord Chancellor has accepted the commission’s nomination, he then notifies the Prime
Minister and the Prime Minister must recommend to the Queen that she appoints that person. The
Prime Minister cannot recommend another person for appointment.
 The Prime Minister’s role in the appointment has been criticized as it infringes the independence of the
judiciary; even though it is now only an administrative role. The Constitutional Reform and Governance
Bill 2009 have provision for the removal of the Prime Minister’s role on the appointment of the justices
of the Supreme Court.
 The Judicial Appointments Commission
 All other judicial appointments are made by the Judicial Appointments Commission. This was created
under the Constitutional Reform Act and started work in April 2006. The commission is responsible for
selecting between 500 and 700 people for appointment to judicial posts each year.
 There are 15 members of this commission. There must be:
• Six lay members
• Five judges – three of these from the court of Appeal or High Court plus one circuit judge
and one District judge or equivalent
• One barrister
• One solicitor
• One magistrate
• One tribunal member.
 The key features of the new process for appointing judges are:
 Appointments are made solely on merit
 The commission is entirely responsible for assessing the merit of the candidates and
selecting candidates for appointment
 No candidate can be appointed unless recommended by the commission
 The commission must consult with the Lord Chief Justice and another judge of equivalent
experience before recommending a candidate for appointment
 The Lord Chancellor has limited powers in relation to each recommendation for
appointment. He can reject a candidate once or ask the commission to reconsider once but
he must give written reasons for this.
 The power of the Lord Chancellor to reject a candidate or ask the commission to reconsider has been
criticized.
 In 2006, the chairman of the Commission for Judicial Appointments said that the system of
Appointments was ‘unrecognizable and hugely superior’ to that of five years previously. However, he
felt that it is ‘work in progress not the finished article’. He pointed out that loopholes still exist in the
appointment system if anyone is ‘determined to meddle with merit based – based appointment’.
 When the first vacancies for High Court judgeship were advertised there were 129 applicants, but only
18 of these were women and all the applicants were white.

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  The process
 Positions are advertised widely in newspapers, legal journals and also online. To encourage a wide
range of candidates to apply, the commission runs roadshows and other outreach events designed to
communicate and explain the appointments system to potential applicants.
 All candidates have to fill in an application form. Candidates are also asked to nominate between three
and six referees. In addition, the commission has published a list of people whom it may consult about
candidates. These include existing judges. For lower-level posts, applicants will also be asked to write
an essay or do a case study.
 A shortlist will then be made of candidates and these will be interviewed. The interview process may
include role play or taking part in a formal, structured discussion.
 Judicial qualities
 The commission has listed five qualities that are desirable for a good judge. These are:
1. Intellectual capacity
2. Personal qualities including integrity, independence of mind, sound judgment, decisiveness,
objectivity and willingness to learn
3. Ability to understand and deal fairly
4. Authority and communication skills
5. Efficiency
 The JAC selects candidates for judicial office through fair and open competition and under the CRA
has the following statutory responsibilities:
 to select candidates solely on merit;
 to select only people of good character; and
 to have regard to the need to encourage diversity in the range of persons available for
judicial selection
 Merit is assessed through the demonstration of qualities and abilities and is the bedrock of the
selection process. Once appointed, judges have security of position, a principle on which judicial
independence rests. This means the decision to appoint a judicial office holder must be the right one in
every case.
 There are several versions of the qualities and abilities which ensure they are appropriate to the
judicial post, for example there is a generic set, and a leadership and management set for more senior
roles. There are also High Court and Tribunal appointments sets, all of which may be adapted slightly
for different posts. Examples of the qualities and abilities are:
 Generic qualities and abilities:
1. Intellectual capacity
• High level of expertise in your chosen area or profession
• Ability quickly to absorb and analyse information
• Appropriate knowledge of the law and its underlying principles, or the ability to acquire this
knowledge where necessary

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 2. Personal qualities
• Integrity and independence of mind
• Sound Judgement
• Decisiveness
• Objectivity
• Ability and willingness to learn and develop professionally
3. An ability to understand and deal fairly
• Ability to treat everyone with respect and sensitivity whatever their background
• Willingness to listen with patience and courtesy
4. Authority and communication skills
• Ability to explain the procedure and any decisions reached clearly and succinctly to all those
involved
• Ability to inspire respect and confidence
• Ability to maintain authority when challenged
5. 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 (including leadership and managerial skills where
appropriate)
 Leadership and management qualities and abilities:
 Same as above except the ‘efficiency’ quality and ability is replaced with:
• Leadership and management skills
• Ability to form strategic objectives and to provide leadership to implement them effectively
• Ability to motivate, support and encourage the professional development for whom you are
responsible
• Ability to engage constructively with judicial colleagues and the administration, and to
manage change effectively
• Ability to organise own and others’ time and manage available resources.
 Also ‘personal qualities’ is enhanced with the ability to work constructively with others.
 To encourage diversity the JAC makes selections from as wide a field as possible and works closely with
a range of organisations to ensure that eligible candidates are aware of the opportunities and have the
information they need to apply. The organisations include The Law Society, the Institute of Legal
Executives (ILEX) and General Council of the Bar. They also work with groups who represent under-
represented candidates such as the Black Solicitors Network, the Society of Asian Lawyers, the
Association of Women Solicitors, the Association of Women Barristers, and the Lawyers with
Disabilities Division.
 Application
 The application form plays an important part in the selection process, particularly the self-assessment
section which requires applicants to provide clear evidence of how they meet the qualities and abilities
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 needed for the role. The application form, along with references, may be used for shortlisting in some
circumstances, for example for senior roles, where there are a small number of vacancies and in other
limited circumstances. For other selection exercises, mostly large-scale exercises below Senior Circuit
Judge Level, qualifying tests are often used for short-listing.
 Test
 Qualifying tests are written papers, used to objectively shortlist candidates by assessing their ability to
perform in a judicial role, through analysing case studies, identifying issues and applying the law. Test
papers are generally prepared and marked by serving judges, equality proofed by external experts and
trialled in a mock environment. The results are analysed for any anomalies and any necessary
corrective action is taken.
 Interview
 If shortlisted, candidates are invited to a selection day, which may consist of an interview or an
interview and role-play. Interview panels usually have three members: a panel chair, a judicial member
and an independent member. If the selection day involves a role-play the panel may have an additional
judicial member. A role play usually simulates a court or tribunal environment with the candidate
being asked to take the role of a judge to assess how they would deal with situations they might face if
appointed. They are normally used for exercises in which a large proportion of candidates are likely to
be entering the judiciary for the first time. In line with this, for some specialist and the more senior
appointments, there may only be a panel interview as the level of candidate skill in legal reasoning and
judge craft is already known.
 Panel members assess all the information about each candidate (application form, references, role play
if applicable and interview) and agree which candidate(s) best meets the required qualities and
compile a summary report of their findings.
 Consultation
 The next stage is statutory consultation. It is required under the CRA that summary reports on
candidates likely to be considered for selection by the Commission are sent to the Lord Chief Justice
and to another person who has held the post or has relevant experience.
 In selecting people only of good character, the JAC assesses the past conduct and present financial,
criminal and professional circumstances of applicants through declarations made in the application
form and formal character checks made with, for example, the police, Her Majesty’s Revenue and
Customs and the legal professional bodies.
 This is to ensure public confidence in the judiciary is maintained through judicial office holders and
those who aspire to such office maintaining the highest standards of behaviour in their professional,
public and private lives. Criminal convictions (other than some more minor motoring offences) are
likely to disqualify candidates. Insolvency and bankruptcies will be considered on a case by case basis
and generally VAT and tax affairs should be in good order. Matters of professional negligence,
complaints and disciplinary action will also be examined.
 When it makes selections, the Commission considers the statutory consultation responses, together
with all the other information that has been gathered about the candidate(s).

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  The Commission then selects those who will be recommended to the Lord Chancellor for appointment.
The JAC writes to candidates to inform them if they have been successful in being recommended for
appointment and that future contact will be by the Ministry of Justice.
 Appointment
 Once a candidate has been selected and that selection accepted by the Lord Chancellor, then the
appointment is made by the Queen for all judicial posts from District Judges up to the Supreme Court.
 The Judicial Oath
 “… I will do right to all manner of people after the laws and usages of this realm, without fear or
favour, affection or ill will.”
 The role of judges
 The role of judge is a senior role within the British legal system. Judges are given the role of deciding
cases in some circumstances, or if there is a jury, of ruling over proceedings and offering direction to
the jury to ensure the trial is fair and their decision is reached in the correct way.
 The role of judge can mean many things, but typically refers to a presiding judge in a court, although
others such as magistrates preside in magistrates’ courts.
 There are also many levels of judge higher up the ranks, with some performing roles such as heading
up a division of the High Court, or in the case of the Lord Chief Justice, heading up the entire criminal
justice system and court system in the UK.
 The role of judges in court
 In court, judges are in control of the trial and will decide in accordance with accepted practice how
the trial will run. Judges grant adjournments, encourage cooperation between both sides, and hear
evidence so as either to decide a case in accordance with the law or to direct a jury to help them
decide a case in accordance with the law.
 Judges are expected to interpret the laws of the land in light of the particular facts of a case, and must
therefore have extensive knowledge of both statutory law and previous case law in a particular area.
 The work that a judge does depends on the level of court in which he or she works.
 Magistrates and district judges
 At the grass roots level, magistrates will hear minor criminal cases in a magistrates’ court sitting in a
panel of three. Magistrates are lay people, meaning they are not trained lawyers and they have no
formal legal training. Magistrates do have to complete a course to prepare them for the job, however.
Magistrates are unpaid, so offer their time in the role voluntarily.
 The only other judge who hears cases in magistrates’ courts is a district judge. 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.

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  High court judges
 Each judge in the High Court will be assigned to one of the divisions. High court judges work in one of
three ‘divisions’ of the high court Chancery, Queen’s Bench or the Family Division. These judges will
hear serious criminal cases, important civil cases and will also sit with appeal judges to hear criminal
appeals. Each division of the High Court has a president and a vice-president.
 There are about 72 judges in the Queen’s Bench Division, 17 in the chancery division and 19 in the
Family Division.
 These are also Deputy High Court judges who sit to help with the workload.
 The main function of High Court judges is to try cases. These are cases at first instance, because it is the
first time the case has been heard by a court. They will hear evidence from witnesses, decide what the
law is and make the decision as to which side has won the case. If the claim is for damages the judge
decides how much should be awarded to the winning claimant. The type of work dealt with by each
division is different. When hearing first instance cases, judges sit on their own.
 However in the Queen’s Bench Division in some rare cases there may be a jury.
 High Court judges also hear some appeals. These are mainly from civil cases tried in the county court.
The judges in the Queen’s Bench Division also hear criminal appeals from the Magistrate’s courts by a
special case stated method. These are appeals on law only. When sitting to hear appeals, there will be
a panel of two or three judges.
 Judges from the Queen’s Bench Division also sit to hear criminal trials in the crown court. When they
do this they sit with a jury. The jury decides the facts and the judge decides the law, where a defendant
pleads guilty or is found guilty by a jury, the judge then has to decide on the sentence.
 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.
 Appeal court judges
 There are some 38 Lords Justices of Appeal. They sit in both the civil and criminal divisions of the
Court of Appeal, so they deal with both civil and criminal cases. Their workload is much heavier than
the Supreme Court.
 On the criminal side, they will hear over 7,000 applications for leave to appeal against sentence or
conviction. Each application can be dealt with by one judge. Only about a quarter of these get leave to
appeal, so the full court then has about 1,800 criminal appeals to hear. In addition, it hears over 3,000
civil appeals. These may be appeals against the finding of liability or an appeal about the remedy
awarded e.g. the amount of money given as damages.
 Court of appeal judges usually sits as a panel of three to hear cases. On rare occasions, in important
cases, there may be a panel of five.
 Because the workload of the Court of Appeal is so large, High Court judges are often used to form part
of the panel. This means there may be one Lord Justice of Appeal sitting with two High Court judges.
 In law reports Court of Appeal judges are referred to as Lord Justice or Lady Justice, but when their
judgments are being quoted they are usually referred to by their surname followed by LJ.

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  Justices of the Supreme Court
 The judges in the Supreme Court hear about 70 cases each year. These are appeals. They can be in civil
or criminal cases. However, there are always far more civil appeals each year. A case can only be
appealed to the Supreme Court if there is a point of law involved. Often civil cases involve complicated
and technical areas of law, such as planning law or tax law.
 The Justices of the Supreme Court must sit as an uneven number panel (minimum three judges) to
hear a case. Any decision the Supreme Court makes on a point of law becomes a precedent for all
lower courts to follow.
 Inferior Judges
 Circuit judges sit in the county court to hear civil cases and also in the crown court to try criminal
cases. In civil cases they sit on their own (it is very rare to have a jury in a civil case in the county court).
They decide the law and the facts. They make the decision on who has won the case.
 In criminal cases they sit with a jury. The jury decides the facts and the judge decides the law. Where a
defendant pleads guilty or is found guilty by a jury, the judge then has to decide on the sentence.
 Recorders are part-time judges who are appointed for a period of 5 years. They are used mainly in the
Crown Court to try criminal cases, but some sit in the county court to help with civil cases.
 District judges sit in the county court to deal with small claims cases and can also hear other cases for
larger amounts.
 District judges (magistrate’s courts) sit to try criminal cases in the Magistrate’s Courts. They sit on their
own and decide facts and law. When a defendant pleads guilty or is found guilty, they also have to
decide on the sentence.
 They may also sit to hear family cases, but this will usually be with two lay magistrates.
 Composition of the Bench
 One of the main criticisms of the Bench is that it is dominated by elderly, white, upper-class males.
There are very few women judges, and even fewer judges from ethnic minorities, with the introduction
of a younger retirement age, the average age of judges will be slightly reduced, but it is unusual for any
judge to be appointed under the age of 40, with superior judges usually being well above this age.
 Educational and social background
 At the higher levels judges tend to come from the upper levels of society, with many having been
educated at public school and nearly all attending Oxford or Cambridge University. There were
marked differences in background between superior judges and those at a lower level. For example,
none of the District judges (Magistrate Court) had been to private school, whilst 11 out of 16 High
Court Judges and 8 out of 10 Court of Appeal/ House of Lords Judges had been privately educated.
 It would surely be a matter of concern if senior judges were not highly educated and exceptionally
intelligent.

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  At a glance
Court Judge Qualification
Supreme Court Justices of the senior court 15 – year supreme court
qualification or hold high
judicial office barrister or
solicitor
Court of Appeal Lord Justices of Appeal 7 years legal experience or
be an existing High Court
Judge
Barrister or solicitor
High Court High court judges Barrister or solicitor 7 year
legal experience or be a
circuit judge for 2 years
Crown court High court judges As above
Role
Hear appeals on point of
law civil and criminal cases
Hear appeals criminal
cases against conviction
and/ or sentence
Civil cases on the finding
and/or the amount
awarded
Sit in one of three divisions
Hear first instance cases
and decide liability and
remedy
Some appeal work
Try cases with a jury

Circuit judges 7 years legal experience or Decide the law

be a recorder or District
judge for 3 years
Recorders Barristers or solicitors 5 Pass sentence on guilty
years legal experience defendants
County court Circuit judges As above Civil cases – decide liability
and remedy
District judges Barrister or solicitor 5 years District judges hears small
legal experience claims
Magistrate’s court District judges Barrister or solicitor 5 years Criminal cases – decide law
legal experience and verdict
ILEX fellows can be Pass sentence on guilty
appointed as deputy district defendants
judges Some family work
 Training
 The training of judges is carried out by the Judicial Studies Board, which was set up in 1979. Originally
most of the training was, however, focused at the lower end of the judicial scale, being aimed at
recorders. However training is now given to the newly appointed High court. Once a lawyer has been
appointed as a recorder in training, they go on four day residential course run by the judicial studies
board. Recorders will then shadow an experienced judge for a week. After this they will sit to hear
cases. There is continuation training, one-day courses available from time to time, especially on the
effect of new legislation.
 Critics point out that the training is very short, and that even if all the people involved are experienced
lawyers this does not mean that they have any experience of doing such tasks as summing up to the

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 jury or sentencing. There is also the fact that some Recorders will not have practiced in the criminal
courts as lawyers, so their expertise is limited and a one-week course is a very short training period.
 The attitude of the judiciary to training has changed considerably over the last 20 years. Training used
to be seen as insulting to lawyers who had spent all their working lives in the courts building up
expertise in their field. It was also seen as a threat to judicial independence. However, the need for
training is now fully accepted.
 Human awareness training
 In 1993 the judicial studies board recommended that training should include racial awareness courses.
This was accepted by the Lord Chancellor and all circuit judges and Recorders now have to attend a
course designed to make them aware of what might be unintentionally discriminatory or offensive,
such as asking a non-Christian for their Christian name. The board has also introduced training in
human awareness, covering gender awareness, and disability issues. The training explores the
perceptions of unrepresented parties, witnesses, jurors, victims and their families, and tries to make
judges more aware of other people’s viewpoints.
 Legal research
 Another problem that exists is the lack of research facilities for judges at all levels – this is especially
true of the appellate courts, where the cases are likely to involve complex legal points. The judges in
the court of appeal have only four days a month for legal reading and unlike many foreign courts, there
are no lawyers attached to the court to research the law. In the European Court of Justice there are
Advocates-General who are independent lawyers working for the court, whose task is to research legal
points and present their findings.
 Judges must be impartial
 Each judge is meant to conduct proceedings in a fair and unbiased way. An important rule of natural
justice is that no person can be a judge in a case in which they have an interest. This has been applied
so that it also includes cases where the judge has interest in promotion of some cause.
 Retirement and dismissal
 It is important that judges should be impartial in their decision and, in particular, that the Govt. cannot
force a judge to resign if that judge makes a decision with which the Govt. of the day disagrees. In this
country judges are reasonably secure from political interference.
 Security of tenure of superior judges
 Superior judges have security of tenure in that they cannot be dismissed by the Lord Chancellor or the
Govt. this right originated in the Act of Settlement 1700 which allowed them to hold office while of
good behavior. The same provision is now contained in the Senior Courts Act 1981 for the High Court
Judges and Lords Justices of Appeal, and in the Constitutional Reform Act 2005 for the justices of the
Supreme Court. As a result they can only be removed by the monarch following a petition presented
to him or her by both Houses of Parliament. This gives superior judges protection from political whims
and allows them to be independent in their judgments.
 This power to remove a superior judge has never been used for an English judge, though it was used in
1830 to remove an Irish judge, Jonah Barrington, who had misappropriated £700 from court funds.
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  The Lord Chief Justice can, however, after consulting with the Lord Chancellor, declare vacant the
office of any judge who (through ill-health) is incapable of carrying out his work and of taking the
decision to resign. This power was first introduced in the Administration of Justice Act 1973 and is now
contained in the Senior Courts Act 1981.
 In fact what has happened on two occasions in the past is that pressure has been put on unsatisfactory
High Court Judges to resign. The first of these was in 1959 when the Lord Chancellor asked Mr. Justice
Hallert to resign; the second in 1998 when Mr. Justice Harman resigned after criticisms by the Court of
Appeal.
 Tenure of inferior judges
 These do not have the same security of tenure of office as superior judges since the Lord Chancellor
has the power to dismiss inferior judges for incapacity or misbehavior. A criminal conviction for
dishonesty would obviously be regarded as misbehavior and would lead to the dismissal of the judge
concerned. This has happened only once, in the case of Bruce Campbell, a Circuit Judge, who was
convicted of evading Customs duty on cigarettes and whisky. Other matters such as drunken driving
would probably be seen as misbehavior, as would racial or sexual harassment.
 Under the Constitutional Reform Act 2005, the Lord Chancellor must comply with set procedures and
have the consent of the Lord Chief Justice before he can remove any judge from office.
 In addition under the Constitutional Reform Act 2005, the Lord Chief Justice has the power to suspend
a person from judicial office if they are subject to criminal proceedings or have been convicted. The
Lord Chief Justice can only exercise this power if the Lord Chancellor agrees, and must use set
procedures. Any judge who is suspended or disciplined in any other way can make a complaint to an
Ombudsman if the procedures have not been carried out correctly and fairly.
 Complaints about judges
 Any complaint about a judge is investigated by the Office for Judicial Complaints, which is overseen by
the Judicial Appointments and conduct Ombudsman. If they find the complaint to be true, the Lord
Chancellor and the Lord Chief Justice must also uphold the complaint. If they do, then they have the
power to agree to advice, warn or remove a judge. In April 2009, Judge Margret Short was dismissed in
this way for ‘inappropriate, petulant and rude’ behavior.
 Retirement
 Since the Judicial Pension and Retirement Act 1993 all judges now have to retire at the age of 70,
though there are some situations in which authorization can be given for a judge to continue beyond
that age. Prior to this Act judges in the High Court and above could remain sitting as judges until they
were 75. The Lord Chancellor may authorize retired senior judges to sit part-time until the age of 75.
All inferior judges also retire at 70.
 Doctrine of the separation of powers
 The theory of separation of powers was first put forward by Montesquieu, a French political theorist,
in the 18th century. The theory states that there are three primary functions of the State that the only
way to safeguard the liberty of citizens is by keeping these three functions separate. As the power of
each is exercised by independent and separate bodies, each can keep a check on the others and thus

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 limit the amount of power wielded by any one group. Ideally this theory requires that individuals
should not be members of more than one ‘arm of the state’.
 Some countries, for example, the USA, have a written constitution which embodies this theory. In
United Kingdom we have no such written constitution, but even so the Three Organs of The State are
roughly separated. There is some overlap, especially in the fact that the Lord Chancellor is involved in
all three functions of the state. However the Lord Chancellor’s role in relation to the judiciary is now
much reduced.
 The three arms of the state identified by the Montesquieu are:
 The Legislature
 This is the law-making arm and in our system this is parliament.
 The executive or the body administering the law
 Under the British political system this is the Govt. of the day which forms the cabinet.
 The judiciary who apply the law.
 In other words, the judges
 There is an overlap between the executive and the legislature, in that the ministers forming the Govt.
also sit in the parliament and are active in law-making process. With the exception of the Lord
Chancellor, there is very little overlap between the judiciary and the other two arms of the state. This is
important because it allows the judiciary to act as a check and ensure that the executive does not
overstep its constitutional powers. This is accordance with Montesquieu’s theory. However, it is open
to debate whether the judiciary is truly independent from the other organs of Govt.
 Independence of the judiciary
 As already stated, an independent judiciary 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 of as
being independent in a number of ways.
 Judicial independence is part of Doctrine of Separation of Powers which the Executive, Legislative and
Judicial functions of government should be performed by different people in order that no one group
should have too much power. Judges must be able to organize the law justly without pressure from the
government to help maintain public confidence in the judicial system.
 The key features of the rule of law are that the law must be accessible, clear and predictable. The
questions of legal right and liability should be resolved by the law and not the exercise of discretion.
Also the law of land should be equal to all. The law must afford adequate protection of fundamental
human rights. Means must be provided for resolving without too much costs or delays. Ministers and
public officers must exercise the powers given to them reasonably and within limits of their powers.
Adjudicative procedures provided by the state should be fair. Lastly, the state much comply with its
obligations in International Law.
 Judges have to make sure Government acts within the law defend human rights. They cannot do this
unless they are independent of government and of all powerful groups. With the help of the Human
Rights Act 1998, this will enable more applications for judicial review of government action. Judges

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 have proved quite resilient in defending human rights against politicians and public opinion. English
judges can and do rule against the government when the law requires it.
 Judicial independence is protected in many different ways; one way is the Constitutional Reform Act
2005.
 Lord Chancellor’s role changed dramatically. This was the first time in 900 years, judicial
independence is now official. The changes include, duty on government ministers to uphold the
independence of Judiciary, cannot influence judicial decisions.
 The Lord Chancellor transferred his judicial functions to be the president of the Courts of England &
Wales.
 Lord chief justice responsible for training, guidance deployment of judges and represents the views of
judiciary of England and Wales to parliament and ministers.
 An independent Supreme Court which separate from the House of Lord, own independent
appointments system, stuff, budget and own building.
 A new independent Judicial Appointments Commission responsible for selecting candidates to
recommend for judicial appointments to Secretary of State for Justice. New judicial appointments and
conduct commission are responsible for investigation and making recommendations concerning
complaints about judicial appointments.
 Independence from the legislature
 Judges are generally not involved in the law-making functions of parliament. Full – time judges are not
allowed to be members of the House of Commons. The rule is not as strict for part-time judges so that
Recorders and Assistant Recorders can be members of parliament. There used to be judges in the
House of Lords when the Appellate committee of the House of Lords was the final court of appeal. The
main reason for the creation of the Supreme Court in 2009 was to separate the judiciary from the
legislature. The judges of the Supreme Court are not allowed to be members of the House of Lords.
 Independence from the executive
 Superior judges cannot be dismissed by the Govt. and in this way they can truly be said to be
independent of the Govt. they can make decisions which may displease the Govt. without the threat of
dismissal. Judicial independence is now guaranteed under s 3 of the Constitutional Reform Act 2005.
This states that the Lord Chancellor, other Ministers in the Govt. and anyone with the responsibility for
matters relating to the judiciary or the administration of the justice must uphold the continued
independence of the judiciary.
 The section also specifically states that the Lord Chancellor and other ministers must not seek to
influence particular judicial decisions.
 Freedom from pressure
 There are several ways in which judges are protected from outside pressure when exercising their
judicial functions.
 They are given a certain degree of financial independence, as judicial salaries are paid out of the
consolidated fund so that payment is made without the need for parliament’s authorization. This does

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 not completely protect them from parliamentary interference with the terms on which they hold
office. As already seen, changes can be made to retirement ages and qualifying periods for pensions.
 Judges have immunity from being sued for actions taken or decisions made in the course of their
judicial duties. This is a key factor in ensuring judicial independence in decision – making.
 As already noted, the security of tenure of the superior judges protects them from the threat of
removal.
 Independence from political bias
 This is the area in which there are most disputes over how independent the judiciary is. Writers such as
prof. Griffith, point out that judges are too pro-establishment and conservative.
 This view is partly supported by the admission of Lord Justice Scrutton in the 1920s that it was difficult
to impartial, saying: ‘I am not speaking of conscious partiality, but the habits you are trained in, the
people with whom you mix, lead to you having certain class of ideas of such a nature that when you
deal with other ideas you do not give as sound and accurate judgments as you would wish’.
 Relevant case laws

Barnsley JJ ex [Judges must not appear to be biased or impartial]

p Barnsley LVA[1960] Barnsley Co-Op applied for and was granted an off-licence, but it later appeared that
CA of the seven justices who had dealt with the application, six were members of the Co-
Op Society and the seventh had a wife who was.
Held: Statutory provisions preserved the validity of the licence: the procedure had
been irregular, but there was no real likelihood of bias because the extent of the
justices' financial interest was so small.

Bentley, R v (1998) [Role of judge – to listen – keep order – clear up ambiguities]

CA Derek Bentley’s next of kin appealed against his conviction and execution for murder
in 1952.
Held: The trial judge, Lord Goddard CJ had, in his language in summing-up been that
of an advocate rather than of a judge.
He had indicated clearly that the police witnesses deserved the thanks of the
community and should not be branded as liars by a failure to accept their evidence.
Apart from significant omissions in the judge's directions on matters of law, this had
clearly been enough to deny D the fair trial to which he was entitled.
Pardon recommended

Bradford v [Judges must not appear to be biased or impartial]

McLeod [1986] HCJ A sheriff had said to a solicitor on a social occasion that striking miners should not be
(Scotland) given legal aid.
A miner was convicted of a breach of the peace on picket line.
Held: This was enough to create a reasonable suspicion of bias, whether there had in
fact been any bias or not. Given his publicly expressed views, the sheriff should have
disqualified himself from hearing the case.
Conviction quashed

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Bromley LBC v [Judges must not appear to be biased or impartial]
Greater London The Labour-controlled Greater London Council implemented a "Fares Fair" policy in
Council [1982] CA & which public transport fares were subsidised from the rates. A Conservative-
HL controlled council sought certiorari to quash this decision, claiming that the GLC had
acted ultra vires.
Held: Lord Denning MR said all three members of the Court were interested on all
sides.
All were fare-paying passengers on the tubes and buses, benefiting from the reduction
(or in his own case, from the free travel offered to senior citizens),
And all were Greater London ratepayers having to pay the increase in rates.
However, neither side had made an objection to their hearing the case.
Any Court of Appeal would have been in the same position.

Congreve v Home [Judicial Review – grounds include ultra vires – if government minister acts
Office [1976] CA improperly]
Following an announcement that the price of a TV licence was to be raised, people
bought Licences at the old price to beat the increase. The Home Secretary purported
to exercise his powers under the Wireless Telegraphy Act 1949 to cancel
any licence TV Licences bought.
Held: The Home Secretary had acted for an improper purpose, and that his decision
was consequently ultra vires and unlawful.

Dimes v Grand [Judges must not appear to be biased or impartial]

Junction Canal(1852) Lord Cottenham (LC) held a substantial block of shares in a canal company that
HL brought a case in equity against a landowner
His holding was then discovered and an application made to have the Chancellor's
decision set aside.
Held: Although there was no suggestion that the Lord Chancellor had in fact been
influenced by his interest in the company, no case should be decided by a judge with a
financial interest in the outcome. The Chancellor's orders would therefore be set aside
as such, but those of the Vice-Chancellor (to the same effect) were confirmed.

Goose v [Judges – lack of public confidence ultimately subversive of the rule of law]
Wilson Sandford (199 The highly unpopular High Court judge Mr Justice Harman - three times voted the
8) profession's least favorite judge - resigned after he was criticised over a 20-month
delay in delivering a judgment.
Three Court of Appeal judges said his conduct "weakens public confidence in the
whole judicial process". They ordered a retrial. He had lost documents and forgotten
evidence.
Alan Boyle QC told the appeal judges that he had written letters to Mr Justice Harman
urging him without success to give his judgment. At one stage, Mr Boyle had
considered taking out life insurance on Mr Justice Harman to cover lost legal costs if
he died before giving his ruling.
Held: The judge's 20-month delay in giving judgment weakened public confidence in
the whole judicial process, was ultimately subversive of the rule of law and must

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 never be allowed to occur again, Harman J submitted his resignation to the Lord
Chancellor within a matter of hours.

Gunning, R v [1980] [Role of judge – not an advocate – cricket analogy]

CA D on trial for theft, and during his evidence-in-chief, the judge asked him 165
questions, compared with 172 asked by his own counsel.
Held: The judge had deprived D of the opportunity of developing his defence. The
judge is not an advocate. Under the English system of criminal trials, he is much more
like the umpire at a cricket match. He is certainly not the bowler, whose business is to
get the batsman out.
D's conviction quashed

Hoekstra v Lord [Judges must not appear to be biased or impartial]

Advocate (2000) HCJ An article written by Lord McCluskey, strongly criticising the incorporation of the
(Scotland) European Convention on Human Rights into Scots law was published a few days after
he had sat (with other judges) to consider an appeal, which raised Convention issues.
Held: The article might reasonably create in the mind of an informed observer an
apprehension of bias, even if in fact there was none.

Home Secretary ex p [Judicial Review – Home Secretary cannot use prerogative powers to defeat
Fire Brigades Parliament - courts cannot overrule Parliament]
Union [1995] HL Home Secretary announced new rules for Criminal Injury Compensation scheme,
despite rules set out in The Criminal Justice Act 1988 The Criminal Justice Act 1988
which had never been brought into force after six years.
Held: The Home Secretary had acted unlawfully: he could choose when but not
whether to introduce the statutory scheme, and could not use prerogative powers to
defeat the clearly expressed wishes of Parliament.

Inner West [Judges – bias - lack of public confidence ultimately subversive of the rule of law]
London Coroner ex The coroner enquiring into the Marchioness disaster gave a press interview in which
pDallaglio [1994] CA he described a relative of one victim as "unhinged by grief" and others as "mentally
unwell". These and other relatives sought judicial review of the coroner's decision to
continue with the inquest,
Held: The coroner's comments had been injudicious, insensitive and gratuitously
insulting, and gave rise to an appearance of bias.
Application granted

Jones v National Coal [Role of judge – to listen – keep order – clear up ambiguities]
Board[1957] CA C’s husband a miner died in an underground accident Hallett J’s many interruptions
made it impossible for counsel to put the case properly.
Held: Ordering a new trial, Denning LJ said the judge's part in a civil trial is
"to hearken to the evidence, only himself asking questions when it is necessary to clear
up any point that has been overlooked or left obscure; to see that the advocates
behave themselves seemly and keep to the rules laid down by law; to exclude
irrelevancies and discourage repetition; to make sure by wise intervention that he
follows the points the advocates are making and can assess their worth; and at the

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 end to make up his mind where the truth lies. If he goes beyond this he drops the
mantle of a judge and assumes the role of an advocate, and the change does not
become him well."

Locabail v Bayfield [Judges must not appear to be biased or impartial]

Properties[2000] CA Guidance laid down as to the type of interest that might disqualify a judge, magistrate
or juror from hearing a particular case.
Automatic disqualification for a pecuniary interest
The question is not whether the judge has some link with a party involved in a case
before him but whether the outcome of that case could, realistically; affect the judge's
interest.
A judge should not not disqualify him/herself because of
religion, ethnic or national origin, gender, age, class, means or sexual orientation of
the judge social or educational or service or employment background or history, nor
on his political associations or membership of social or sporting or charitable bodies.

M v Home [Judicial Review – Home Secretary cannot ignore rule of law]

Office [1993] HL M was to be deported. The Home Secretary’s counsel gave an undertaking that this
would not happen until after the hearing of the appeal. However, M was deported.
The court ordered that M should be taken off the plane when it stopped at Paris. The
Home Secretary did not consider himself bound by the order and M was not taken off
the plane.
Held: The Home Secretary was held in contempt of court but no punishment imposed.
The "rule of law" requires even government ministers to accept and obey the orders
of the courts.
M disappeared shortly after his arrival in Zaire and was never heard from again.

Marylebone [Magistrates - lack of public confidence]

Magistrates' Court D guilty of disorderly conduct after an anti-apartheid demonstration. At his trial he
ex p Perry (1992) DC gave evidence which included a long denunciation of the evils of apartheid; after 15
minutes the magistrate said he intended to "improve the shining hour" with some
other work, and spent the next ten minutes signing warrants.
Held: There is a fundamental judicial duty for the court to give the case in hand its
undivided attention
Conviction quashed

R v W (1993) CA [Judges – lack of public confidence ultimately subversive of the rule of law]
D A 15-year-old boy was convicted of raping a classmate. The judge made a 3-year
supervision order and then ordered D to pay the victim compensation of £500 "so that
she can have a good holiday to get over the experience".
Held: By an Attorney General’s Reference, the sentence was substituted with two
years' detention.)

Re Pinochet [1998] [Judges must not appear to be biased or impartial]

HL Lord Hoffmann when deciding if a former head of state had immunity from extradition
proceedings had for some years been a non-executive director of Amnesty

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 International Charity.
Held: The fundamental principle is that a man must not be a judge in his own cause:
Lord Hoffman was so closely and actively associated with one of the parties that he
was disqualified from hearing the case regardless of whether or not there was any
actual appearance or risk of bias.
Where the judge was a director or senior officer of a charity that was party to a case,
disqualification is automatic subject to the possibility that the parties (having been
fully informed) might waive any objection.
This case was unique in that the HL reversed a previous decision of its own.

Renshaw, R v (1989) [Role of judge – to listen – keep order – clear up ambiguities]

CA D received a number of threats before a trial and she was reluctant to give evidence.
The case involved W assaulting his girlfriend.
At trial, the CPS indicated they wished to withdraw the case, but Judge Pickles insisted
that it proceed. When D refused to give evidence, he directed the jury to acquit W. He
then committed D for contempt of court.
Held: W had agreed to be bound over and the prosecutor tried to explain to the judge
that he was prepared to drop the case on that basis. Judge Pickles continually
interrupted. He took it on himself to conduct the contempt proceedings, and had
given the impression throughout that he was determined to see D punished for her
contempt.
Refusal to give evidence was a serious matter, but justice had not been seen to be
done.
The Court of Appeal stressed the importance of the judge listening to the reasons
given by the prosecution for proposing to offer no evidence.
The judge should keep in mind that the prosecution will have information which he
does not. If he fails to heed what the prosecution says, he will deprive himself of a
proper basis for approving or disapproving of their proposed course of action.
Committal quashed

Sanders v [Role of judges – advising Parliament]

Chichester (1994) S, the Liberal Democrat candidate in the European election, challenged the result by
QBD (Election Court) which C was returned with a majority of only 700 over S. H, a candidate described
himself as a "Literal Democrat", polled 10,203 votes. S submitted that the returning
officer should have rejected H's nomination paper because the description was not
sufficient to identify him, according to law.
Held: Petition dismissed. The Rules required only that a candidate's nomination paper
should identify him by his name and address and that any description should not
exceed six words.
Returning officers had no powers to reject a nomination paper on the grounds that
the description was likely to confuse voters. Parliament's intention, as specified in
debates, was that despite the risk of voters being confused or misled, returning
officers should not become involved in sensitive political inquiries.
Parliament might do well to reconsider and introduce rules on candidates'
descriptions, Electoral Commissions and registration of political parties.

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 Comment: The judges said this was not unlawful, but suggested that Parliament might
consider whether there was a need for a formal register of political parties and a ban
on potentially misleading descriptions.
Schedule 2 to the Registration of Political Parties Act 1998 amended the election rules
accordingly.

Secretary of State ex [Judicial Review – is a review of procedure - not an appeal to substitute decision]
p Avon CC(1990) Secretary of State approved plans of Avon's County Council for reorganisation of a
secondary school. The governors of the school voted to "opt out" to preserve their
existing status.
Held: At judicial review the Minister's decision quashed on the grounds that he had
not properly considered the consequences for children at other schools.
[Two weeks later, having reconsidered, the Minister made the same decision again,
and the Court of Appeal said the courts could not substitute their
own Judgement for his.]

Secretary of State ex [Judges cannot overrule Parliament - Judicial Review – grounds include irrationality
p Smith[1996] CA – threshold of irrationality was high]
Four service personnel dismissed for homosexuality as a matter of general policy.
None of the applicants had engaged in homosexual activity on service premises.
Held: The policy had been endorsed by Parliament and by those to whom the Minister
looked for professional advice, and could not therefore be described as irrational … it
was not the role of the courts to regulate conditions of service in the armed forces.
Quashing order refused

Sirros v Moore [1974] [Judges immunity extends to acts done in good faith]
CA D appealed to the Crown Court against a magistrate's recommendation for his
deportation. The judge dismissed the appeal and when saw D about to walk out of his
court he called upon the police to stop him.
Held: D's claim for damages for assault and false imprisonment failed. Although the
judge's order was unlawful (D had not been remanded in custody) the judge’s
immunity extended even to acts beyond his jurisdiction as long as they were done in
good faith.

Starrs v Procurator [Judges must not appear to be biased or impartial – judicial independence –
Fiscal (1999) HCJ assistant recorders]
(Scotland) D claimed that his trial before a temporary sheriff violated his right under Art.6 (1)
European Convention to a trial before an independent and impartial tribunal.
Temporary sheriffs are appointed by the Lord Advocate (a member of the Executive)
as a first step on the road to a permanent judicial appointment.
Held: Judicial independence can be threatened not only by direct interference, but
also by a judge being influenced (consciously or unconsciously) by his hopes and fears
about his future career.

Weston-super- [Magistrates - lack of public confidence]

Mare JJ ex During a trial, the chairman of the magistrates appeared to be asleep. D's solicitor

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pTaylor [1981] DC suggested that she might be ill and should withdraw from the case, but she declined
to do so.
Held: The chairman had not in fact been asleep. This had been a genuine application
by a respected and responsible solicitor, and should have been taken more seriously.
Conviction set aside and new trial ordered.

Whybrow & [Role of judge – to listen – keep order – clear up ambiguities]

Saunders [1994] CA DD conspired to murder.
Held: Ian Kennedy J had repeatedly intervened while they were giving evidence,
ridiculing their (admittedly improbable) explanations to such an extent that they were
denied a fair trial.
Appeal allowed new trial ordered

Worcestershire JJ ex [Magistrates - lack of public confidence]

p Daniels(1996) DC D failed to provide a specimen of breath. During her trial, while she gave evidence,
one of the magistrates was reading other material and not paying attention to what
she said.
Held: It is important that justices give and seem to give full attention to the
proceedings. Justices need not look at a witness constantly, but should not appear to
be engaged for any considerable time in some other activity, this will maintain public
confidence.
Conviction quashed.

 Class Activity
 Description of the role, process of recruitment and selection, dismissal and training of the professional
judiciary.
 Discussion of the concept of political, financial and personal independence of the judiciary.
 Students prepare and deliver presentations on each level of the judiciary explaining the above issues.
 Past paper questions
 Q1. Judges hold a position of certain importance in relation to the concept of the Rule of LAW. They
are expected to deliver judgment in a complete impartial manner through a strict application of the
law, without allowing their personal preference, or fear or favor of any parties to the action ‘to affect
their decision in any way. ‘(Gary slapper and Graham Kelly: The English Legal System. 2001)? [MAY /
JUNE 2004]
 Q2. Evaluate the methods by which the judiciary is recruited and trained in England and Wales and
discuss any improvements that could be made. [May/June 2005]
 Q3. Consider the role of the judiciary as interpreters of legislation. To what extent are they able to
interpret legislation freely? [October/November 2006]
 Q4. ‘Efforts to make the judiciary more diverse are having a minimal impact’. Consider critically the
ways in which judges are appointed and discuss the problems which may arise from this process.
[October/November 2009]

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  Q5. Mrs. Careless, a magistrate, gives an interview in the local newspaper in which she states that
those lawyers who defend criminals are wasting public money. Consider fully the appointment and
function of lay magistrates and discuss critically the conduct of Mrs. Careless and its possible
consequences. [October/November 2009]
 Q6. Discuss critically the function and jurisdiction of the Crown Court in England and Wales. [May/June
2012]

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