English Legal System

1. English Legal System The Judiciary Who are the judges? Qualifications for judicial appointment Background of the Judiciary

2. Aims • The aims of this lecture are: • To introduce you to the different levels of the judiciary in England and Wales and which courts they sit in; • To consider the qualifications for judicial appointment and the criteria used in selection; • To look at reforms proposed by the government in relation to the judiciary and to critically assess those; • To look at how other jurisdictions in Europe appoint their judges; • To look at criticism of the current composition of the bench and critically appraise such criticisms as have been made • To look at judicial independence and what this means.

3. Outcomes • By the end of this lecture you should be able to: • Name the main judges in the hierarchy within England and Wales • State the qualifications for appointment to the bench; • Describe the reforms that the government is proposing to the appointment of the judiciary and the merits of those reforms; • Describe how other jurisdictions appoint judges and the merits of such an approach; • Critically consider the composition of the bench and whether this makes any difference to the way in which cases are decided; • State what is meant by judicial independence and whether this will be affected by the government’s reforms to the judiciary.

4. Judicial Office Holders • Before looking at the different levels of judges in England and Wales it is important first of all to look at particular and special offices which exist • The Lord Chancellor; • The Lord Chief Justice; • The Master of the Rolls; • The Heads of Divisions of the High Court of Justice; • The senior presiding judge for England and Wales.

5. Reforms under the Constitutional Reform Bill 2004 • The Constitutional Reform Bill will create several new offices: • President of the Courts of England and Wales; • President of the Supreme Court and Deputy President of the Supreme Court; • Head and Deputy Head of Criminal Justice; • Head and Deputy Head of Civil Justice; • Head and Deputy Head of Family Justice.

6. Levels of the judiciary • House of Lords – Lords of Appeal in Ordinary, commonly referred to as “the Law Lords” – 12 in total appointed under the Appellate Jurisdiction Act 1876 • The Court of Appeal – Lord Justice of Appeal, at the moment 38 • High Court Judges – 107 in total, on appointment they receive a knighthood, referred to in court as ‘My Lord/Lady’ • Circuit Judges – sit in the Crown Court and the county court, part of the Supreme court of England and Wales • Recorders – part-time judges sitting in the Crown Court or the County Court • District Judges

7. Qualifications for Judicial Appointment • Differ according to the rank – mostly contained in the Courts and Legal Services Act 1990: District Judges – require a seven year general qualification Recorders – 10 year Crown Court or county court qualification Circuit Judges – several possibilities • Previously been a recorder • Possession of a 10 year Crown or county court qualification • Previously held certain judicial offices.

8. Qualifications for Judicial Appointment • High Court Judges • Previously a Circuit Judge for 2 years • Has a 10 year High Court qualification Deputy High Court Judges must possess the same qualifications as High Court Judges • Lord Justice of Appeal • Previously a High Court Judge • Has a 10 year High Court qualification

9. Qualifications for Judicial Appointment • Lord of Appeal in Ordinary • Has previously held high judicial office for 2 years • Possesses a Supreme Court qualification for 15 years As can be seen a heavy bias for court work in the qualifications required for the judiciary

10. The Courts and Legal Services Act 1990 • In order to understand the terms used above for judicial appointments it is necessary to know a little about this Act • Act allowed solicitors to gain higher rights in the courts, and hence qualify for appointment to the bench for the first time

11. Selection criteria • Department of Constitutional Affairs have guidance information for candidates applying for the post of Circuit Judges which are as follows: • Legal knowledge; • Intellectual and analytical ability; • Sound judgment; • Decisiveness; • Communication and listening skills; • Authority and case management skills; • Integrity and independence; • Fairness and impartiality; • Understanding of people and society; • Maturity and sound temperament; • Courtesy; • Commitment, conscientiousness and diligence.

12. Method of appointment A topical area at the moment as reforms are on their way through Parliament aimed at reforming the current method of appointment which has been subjected to a lot of criticism. Currently judges are appointed by the Queen on the advice of the Prime Minister or Lord Chancellor Before appointing a judge, the Lord Chancellor will engage in what are described as ‘secret soundings’ – he will consult with the judiciary and senior practitioners to see if the candidate for judicial office will be a suitable one Much criticism of this method of appointment centring on the idea that it give rise to injustice for the candidates and tends to perpetuate the judiciary as an exclusive group

13. Analysing the composition of the Judiciary There are different ways to look at the composition of the judiciary as it now stands. These may be summarised as follows (although the list is not meant to be exhaustive): • Gender • Ethnic background • Social class • Educational background • Professional background

14. How do the Judges measure up against this background? • Gender The first female judge to be appointed to the House of Lords, Baroness Hale of Richmond, was only made last November Further down the scale of appointments at the level of District Judge, for example, there are more women Can you think of any reason why the ratio of men to women in the judiciary is skewed in this manner?

15. Ethnic Minority • Ethnic minorities are not represented in the House of Lords, Court of Appeal and until recently in the High Court • The proportion of judges at the lower level of the judiciary vary, but it can be seen that in percentage terms they are generally underrepresented

16. Social Class, Educational and Professional Background • These three categories can be dealt with together as there is a clear link between them • Most judges are drawn from the upper middle class • Most judges were educated at elite public schools, such as Eton, Winchester, Harrow, Rugby etc… • Most judges were educated at Oxford or Cambridge • The vast majority of judges trained as barristers

17. Social Class, Educational and Professional Background • What is the link between them? • Secret soundings – “the old boy’s network” • The expense of training: • Fees for an elite school something in the region of £14,000 p.a. • Oxford and Cambridge admit the same proportion of public school as state school children • The Bar Vocational Course is very expensive • Pupillage may be under funded • Barristers are self-employed

18. What difference would a more diverse bench make? • See the following articles: • Bertha Wilson, ‘Will women judges really make a difference?’ (1990) 28(3) Osgoode Hall LJ 507 • Brenda Hale, ‘Equality and the Judiciary’ [2001] Public Law 489 • Phillip Reed, Law Society Gazette (8th November 2001)

19. Research task • Can you think of any other categories than those above for analysing the composition of the judiciary? • Research a couple of those not covered in this lecture. As a starting point think about the political or religious persuasion of a judge. Do these matter? What relationship do they bear to the other categories that we have already looked at?

20. Reform of Judicial Appointments • Labour government has introduced in the Constitutional Reform Bill 2004 some of the most radical reforms of the English Judiciary including: • The creation of a Supreme Court and the abolition of the House of Lords; • The establishment of a Judicial Appointments Commission; • The abolition of the post of Lord High Chancellor, but has been allowed to stay although not as Head of the Judiciary.

21. Judicial Appointments Commission • Who should be on the Commission? The government White Paper in this area proposed that the JAC should consist of 15 members: • 5 Judges; • 5 lawyers; • 5 non-lawyers.

22. Possible Powers of a JAC • Appointing Commission • Recommending Commission • Hybrid Commission

23. Proposals for the Composition of the Commission • Changes in the Constitutional Reform Bill 2004: • Greater lay involvement in the Commission, 6 people instead of just 5; • A two-stage process built into the system; • Appointment still by the minister responsible. • Can you think of any reason why it may be desirable to have the minister responsible still appointing judges?

24. Appointment of the Commission • The JAC itself it was to be appointed by an independent panel consisting of the following: A permanent secretary, a senior judge, a senior figure unconnected with the legal system and an independent assessor In the past the Law Society had proposed that a JAC should be appointed by the Lord Chancellor

25. Alternatives to a Judicial Commission – a Career Judiciary • Other European countries such as France, Germany and Italy have what is known as a ‘career judiciary’ • Graduates from law schools sit a competitive exam to attend, in France, a two-year training course in Bordeaux • Creates a judiciary which is younger, arguably better trained • However, these younger judges may not have the experience and authority of practitioners of many years standing

26. Elected Judges • Democratic option of selecting judges by a popular vote – different systems found of doing so in the United States. • Judges elected and then subject to confirmation in office by a popular vote every few years; • Judges appointed by the governor and then subject to confirmation in an uncontested election; • Judges are appointed for life or until retirement age of 70 in 3 states.

27. Problems with elected judges • Involvement of politics • Big business to fund the campaigns • Susceptible to populist measures in the same way that politicians in this country are

28. Academic Judges? • Some judges have been appointed in this country on the basis of their academic careers, e.g. Brenda Hale who was appointed to the Court of Appeal • In some countries this is much more common, provided for in the European Court of Justice and the European Court of Human Rights • Judges so appointed may be better equipped to judge the finer points of academic law found in the appeal courts

29. The meaning of judicial independence • It is a natural right of a party coming before a court to have a fair trial by an impartial, unbiased tribunal • The doctrine of the separation of powers requires that the different branches of government, legislative, executive and judicial should be independent of one another • Until the 17th/18th century judges were appointed at the pleasure of the King or Queen • Their tenure of office usually lapsed on the death of the sovereign and had to be re-confirmed by the successor • Act of Settlement 1700 - provided that judges of the High Court could only be removed by a motion of both Houses of Parliament

30. Modern Meaning of Judicial Independence • In its modern sense there are, therefore, two meanings of judicial independence: • Independence of the executive; • Impartiality between the parties, no interest in the determination of the dispute in front of them. • R v Gough [1993] AC 658, a real danger of bias • Pecuniary or other interest, Dimes v Proprietors of the Grand Junction Canal (1852) 3 HL Cas 759 • Lord Hewart in R v Sussex Justices ex parte McCarthy (1924) ‘Justice must not only be done but should manifestly and undoubtedly be seen to be done’

31. Re Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte • Pinochet was the dictator of Chile who overthrew the legitimate government in 1973 • Perpetrated killings against political opponents within Chile to bolster his own power • Pinochet came to the United Kingdom for treatment in 1998 • Spain issued international warrants for his arrest and extradition • The Stipendiary Magistrate in the case issued the warrant for his arrest under the Extradition Act 1989

32. Re Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte • The House of Lords rejected Pinochet’s arguments by a majority of 3:2 • The lawyers for Pinochet subsequently found out that one of the judges who decided the appeal, Lord Hoffman, was a director of Amnesty International and that his wife also worked for the charity • They petitioned the House to re-consider its own decision, which was a novel thing to do at the time • Lord Hoffman should have withdrawn from the case on the basis of his involvement with Amnesty – significantly widened the possibility of bias or prejudice

33. Summary of lecture • You should now be able to: • Describe the different levels of the judiciary in England and Wales and the qualifications required for appointment; • Analyse the background of the judiciary in regard to different sociological categories; • Describe the government’s proposals for a JAC and the merits of such a Commission; • State what is meant by a career judiciary and elected judges and evaluate the desirability of such methods being introduced into England and Wales; • Describe what is meant by judicial independence.

34. Further reading on the Judiciary • Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7th edition), chapter 6 • Griffiths, J.A.G., The Politics of the Judiciary (London: Fontana, 1997, 5th edition)