The Judiciary - Superior and Inferior Judges
UNIT 1.3 LEGAL PERSONNEL
10. The Judiciary - Superior and Inferior Judges
10.1 Introduction
Judges are collectively referred to as 'the judiciary'.
Different levels of judges exist:
Superior judges: High Court Judges and above.
Inferior judges: Circuit Judges and below.
10.1.1 Qualifications
To become a judge (superior or inferior), candidates must meet judicial appointment eligibility conditions relevant to their level, including:
Relevant legal qualifications.
Gaining experience in the law for a specified period.
Judges can be former barristers, solicitors, and, for some posts, fellows of the Chartered Institute of Legal Executives (CILEX), Registered Patent Attorneys, and Trade Mark Attorneys.
Qualifications vary by level:
Supreme Court Justices: 15 years' experience or holding high judicial office.
Court of Appeal: 7 years' legal experience or existing High Court Judges.
High Court Judges: 7 years' legal experience or 2 years as a Circuit Judge.
Circuit Judges: 7 years' legal experience or recognized positions as Recorders or District Judges.
District Judges: 5 years' legal experience or service as a Deputy District Judge.
The Lord Chief Justice is the head of the judiciary.
10.2 Selection and Appointment
10.2.1 The Judicial Appointments Commission
The selection of judges is managed by the Judicial Appointments Commission.
Responsible for selecting over 500 people annually for judicial positions.
Selection advertisements are disseminated via the commission's website, email newsletter, and Twitter.
For superior-level judges, the commission recommends candidates to the Lord Chancellor, who can accept, reject, or request reconsideration. This power has drawn criticism for potentially infringing on judicial independence, outlined in secondary legislation under §94C of the Constitutional Reform Act 2005.
For inferior-level judges, appointments are separate from government involvement, executed by the Lord Chief Justice after a recommendation from the Judicial Appointments Commission.
10.2.2 Process for Appointing Judges
Appointments are merit-based.
The commission alone assesses candidate merit and recommends appointments.
Candidates cannot be appointed without the commission's recommendation.
The commission must consult the Lord Chief Justice and another judge of equivalent experience before recommending a candidate.
10.2.3 Required Judicial Qualities
The commission enumerates five desirable qualities for judges:
Intellectual capacity.
Personal qualities: integrity, independence of mind, sound judgment, decisiveness, objectivity, and willingness to learn.
Ability to understand and deal fairly.
Authority and communication skills.
Efficiency.
Good character is essential; convictions may disqualify a candidate, except for minor motoring offences without an excessive record.
10.2.4 Justices of the Supreme Court
Appointed from those holding high judicial office or qualified for at least 15 years in senior courts, including qualifications in Scotland and Northern Ireland for similar durations.
New appointments follow a method outlined in Part 3 of the Constitutional Reform Act 2005, involving the Supreme Court Selection Commission, which includes key judicial figures and reports to the Lord Chancellor.
The Queen formally appoints the candidates recommended by the Lord Chancellor.
10.2.5 Lords Justices of Appeal
Candidates must have been qualified as a barrister or solicitor for at least seven years or be existing High Court Judges.
The selection process begins when the Lord Chancellor requests the Judicial Appointments Commission to form a selection panel.
10.2.6 High Court Judges
Eligibility requires qualification as a barrister or solicitor with seven years' experience, or two years as a Circuit Judge.
Most High Court Judges come from experienced barristers.
Deputy High Court Judges are also appointed to vet candidates.
Official appointments are made by the Queen.
10.2.7 Circuit Judges
Applicants can be barristers or solicitors with at least seven years' experience or have been Recorders for three years.
Approximately 13% of Circuit Judges were formerly solicitors, and the Courts and Legal Services Act 1990 allows promotions from District Judge, magistrate, or tribunal chairperson roles.
The selection procedure is similar to that of High Court Judges.
10.2.8 Recorders
Part-time judges with a requisite qualification of barrister or solicitor and seven years' law experience.
They initially become Recorders-in-training before full appointment.
10.2.9 District Judges
Requires at least five years' experience as a barrister or solicitor or previous role as a Deputy District Judge.
Most District Judges are former solicitors.
Eligible for appointment now include CILEX Fellows for Deputy District Judges.
10.3 The Role of the Judiciary
10.3.1 General Role
Judges decide disputes fairly and impartially by applying law.
In civil courts (County Court and High Court), judges usually sit alone.
In criminal courts (Crown Court), judges sit with a jury deciding guilt, while judges determine legal issues and sentencing.
10.3.2 Role of Supreme Court Judges
Hears about 70 cases annually, generally more civil than criminal appeals.
Must address points of law, with decisions setting precedents for lower courts.
Judges also participate in the Judicial Committee of the Privy Council to hear cases from Commonwealth countries.
10.3.3 Role of Court of Appeal Judges
Divided into Civil and Criminal Divisions, typically involving a three-judge panel.
More cases heard than the Supreme Court, handling appeals against criminal convictions and civil liability findings.
10.3.4 Role of High Court Judges
Assigned to one of three divisions responsible for case management in civil trials at first instance.
Judges assess evidence, law, and deliver verdicts and remedies.
Can also hear appeals from County Court trials.
10.3.5 Inferior-Level Judges
Circuit Judges hear civil cases alone and criminal cases with a jury.
Recorders - part-time judges usually in Crown Court, deciding minor crimes and civil cases up to £10,000.
District Judges hear cases in Magistrates' Courts, deciding facts and law for verdicts and sentences.
10.4 Training
Judicial training is conducted by the Judicial College, comprising three main elements:
Knowledge of substantive law, evidence, and procedure.
Acquisition and improvement of judicial skills.
Awareness of the social context of judging.
New judges undergo an induction program with mentorship by experienced judges.
Continuing education for judges incorporates updates in law and social issues for a comprehensive understanding.
10.5 Retirement and Removal
10.5.1 Retirement
Judges must retire at age 70 per the Judicial Pensions and Retirement Act 1993, although some can continue until 75 with authorization.
10.5.2 Removal of Judges
Superior judges enjoy 'security of tenure' and cannot be removed by the government, only by parliamentary petition.
Removal rules established in the Act of Settlement 1700 and the Senior Courts Act 1981, protecting judges from political whims.
Historically, this power has not been employed against English judges, though it has been used in Ireland.
10.5.3 Complaints about Judges
Investigated by the Judicial Conduct Investigation Office; disciplinary actions can range from advice to formal removal based on proven misconduct.
Notable cases include:
District Judge Margaret Short was removed for inappropriate behavior.
Removal of judges for viewing inappropriate content on judicial accounts.
10.6 Judicial Independence
10.6.1 Definition and Importance
Each judge must operate fairly and without prejudice.
An essential principle is that no individual may judge a case in which they hold an interest.
10.6.2 Bias and Human Rights
Judicial conduct may be evaluated based on observables influencing perceptions of bias, influenced by the European Convention on Human Rights.
Legal proceedings highlight instances of perceived bias leading to disqualification, such as in the Pinochet Case.
10.6.3 Separation of Powers
Montesquieu's theory of separation of powers proposes three separate governmental functions:
Legislation (Parliament).
Execution of laws (the government).
Judiciary (judges).
These entities operate independently to uphold liberty and prevent excessive domination.
10.6.4 Free from Pressure
Judges enjoy financial independence and immunity from prosecution regarding judicial acts, thus safeguarding impartiality.
10.6.5 Independence from Political Bias
Despite critiques of inherent bias towards the establishment, judges have displayed independence in instances of judicial review, consistently ruling against the executive where procedures were not followed correctly.
10.6.6 Case Studies of Judicial Independence
Examples of cases demonstrating judicial independence:
R (Miller) v Prime Minister: The court ruled on the legality of the Prime Minister's decision to prorogue Parliament, necessitating parliamentary authorization.
A and Another v Secretary of State: Ruling against indefinite detention without trial under the Anti-Terrorism Act, enforcing compliance with human rights conventions.
Conclusion
The judiciary operates within a robust framework ensuring independence, enabling fair judicial conduct and maintaining the rule of law in the UK.