Independence of the Judiciary

What is it

Refers to how judges are undefended from outside pressures (Media, Pressure groups & Public opinion) and independent from other institutions of power (Government / Executive and the Legislature)

Why is it important

• Protects citizens against abuses of political power and preserves our liberties which is crucial to democracy

• Ensures that any unlawful actions of government, public / state run organisation, person or organisation are accountable to law

• Enables courts to hold the executive (government) and legislature to account and make decisions critical of the government without fear of consequences (again in judicial review cases)

• Upholds ROL by ensuring no one is above the law (particularly government and individual ministers)

• Upholds Justice cases to be dealt with free from ‘fear or favour’ (i.e. bias) and on the basis of the evidence and legal merits alone.

How are the Judiciary independent in their role

• Judges have immunity from being prosecuted or sued for any acts they perform within their judicial function / role e.g. any comments they make about a D or witness (Sirros v Moore). However does not prevent complaints against judges for rude behaviour or misconuct and Judges can be removed from office (Constance Briscoe)

• Any errors in decisions / applications of the law in a trial can be appealed, rather than judges accountable and sanctioned

• Judges pay - reviews and pensions are not set by the government or legislature but from consolidated fund reviewed by an independent body.

How are the Judiciary independent from government

• Judges are not under the control of government and have ‘security of tenure’,

• Superior judges (high court and above) cannot be removed from office by government, only a petition in Parliament

• Circuit and district judges can be removed for misconduct or incapacity by the Lord Chancellor (subject to the Lord Chief Justices approval)

• Judges should ignore pressure from the government and government would not try to exert political influence

• Judges should be impartial and free from political bias (Pinochet) Justice must not only be done, but must also be seen to be done.

Key terms

• Security of tenure - Protection from removal from office

• Immunity from suit - Protected from being sued

• Montesquieu - Separation of Powers - Division of the legislative, executive and judicial function to be separated, with the aim to limit the possibility of arbitrary excesses by government and to work as a system of checks and balances.

• Institutional Independence - For Judges to be free to make independent decisions when deciding cases

• Decisional Independence - For Judges to make decisions in a case free from self-interest and independent from outside influence or pressure