The independence of the judiciary in England and Wales

The judges:

Judicial independence means that judges are not subject to pressure and influence and are free to make impartial decisions based solely on fact and law. It is embodied in statute in the judicial oath and runs through legal training, judicial culture and judicial education. It ensures that judges are not subject to political pressure and the dictates of the legislature (Parliament), or public pressure or that of individual interest groups.Judicial independence from the Executive (the government) and the legislature is an essential part of democracy and rule of law. It ensures that power is not held in one entity, so reducing the risk of tyranny, and it provides assurance of impartial hearings (including disputes with the Executive).Independence for judges at an individual level means that no judge is accountable to another for any judicial decision that they make; they are held to account instead through the appeals process.Judges are also given immunity from prosecution for any acts they carry out in performance of their judicial function.The judiciary is one of the three branches of the state. The other two are the executive, (government), and the legislature, (which comprises the two Houses of Parliament, the Lords and the Commons). In most democracies these three branches are separate from each other, with roles and functions defined within written constitutions,preventing the concentration of power in any one branch and enabling each to serve as a check on the other two – this is known as separation of powers.

A) Which judges? The diversity of judges in England& Wales:

Judges in England are only doing judging. In France, they aren’t only judging.

1) Justices of the Supreme Court:

– 12 Lords/Lady Justices (only one woman). 100 judges in the CDC.

– Most senior judges but very surprisingly in court they don’t wear neither a week or a gown in the Supreme Court.

2) Justices of the court of Appeal:

Judges at the court of Appeal are specialized; it’s not the case in England.

– Hear both civil and criminal cases.

– Who are they?

– Lord Chief Justice.

– Master of the Rolls.

– President of the QB Division.

– President of the family division.

– Chancellor of the high court.

– + Lord/Lady Justice of Appeal

– Appointment: by the Queen on recommendation of the JAC (judicial appointment commission). They appointed the most valuable lawyers.

3) High Court judges:

They hear civil cases. They are in London.

4) Circuit judges:

Just a circuit judge:

– is appointed to one of the seven regions of England and Wales.

– A circuit judge will sit in the Crown court and county courts for civil matters.

– Barristers and solicitors who have held a “right of audience” for 10 years. This is a right to appear in court as an advocate. There is continuity in the carrier and the most achievement for lawyer is to become a judge. This explains the link that exists between both professions. A circuit judges tempt to specialize in either civil or criminal cases and some are also more especially in area such as conventional law or construction law.

The circuit judge may sit in the court of appeal but only in the criminal division.

5) District judges:

– They will judge in the county court, only civil cases in a particular region.

– A district judge may also sit alone in the magistrate’s court for the most important casesthat may arrive at the magistrate’s court (civil and criminal cases).

6) Magistrates-Justices of the Peace:

– Nonprofessionals (28 000 volunteers) they decide to be involved in the community and to sit as a magistrate for the less serious criminal cases (equivalent du tribunal de police). They aren’t paid and consequently they work and they will receive some legal train but this is not your profession. The magistrates are appointed by the Lord Chancellor and not by the Queen.

• B) A common status: the independence of the judges:

1) Appointment:

Historically the Lord Chancellor was the one who selected and who appointed the members of the judiciary. The appointment of judges was in the hand of the government. This resulted in the judiciary being preceded as having a lack of independence.

The criticism of lack of independence let the government to call in a constitution paper and how judges should be appointed in December 1999. The law society published also a constitution paper to organize the selection process and the appointment process of judges. The bill was proposed as a constitution of bill, this resulted from the Constitutional Reform Act in 2005: implemented judicial appointment committee (JAC).

The JAC (judicial appointment committee) has 15 members and these members come from different professions, they are judges but not only: one solicitor, one barrister, one magistrate and members who are neither a lawyer. This could be also compared in a way with the CSM. The judicial appointment committee select a candidate for the judicial office and they will study their… and they make some recommendation for appointment to the Lord Chancellor. Depending of type of position if they are district judges or circuit judges the process might be a little bit different. Whenever a position is published a panel is composed of 5 members, they have to select a candidate on the recommendation of the Lord Chancellor.

Judges are chosen from that small group of people who are solicitors or barristers. They are seen as very competent people and very experienced in practice, they are able to be some respect in the court.

High judges: For the most important judges, the JAC (judicial appointment committee) appointed a selection panel to make the selection candidates. Then a panel will sent into a report to the Lord Chancellor. At this stage, the Lord Chancellor can either accept the selection or reject the selection if in his opinion the candidate is not competent for the office. In that case, the lord chancellor will ask the panel to reconsider the selection.

The Lord chancellor has a veto. This veto has a limit after 3 rounds of proposals to the Lord Chancellor then he has no choice but to accept the selection. After the Lord Chancellor gives his consent, the person is appointed by the Queen in the letter of appointment.

Supreme Court:the tradition is that the prime minister will also be consulted in the nomination and the judges appointed necessary will have received the consent, the recommendation of the prime minister. Traditionally, only the senior judicial appointment for senior judges was made only for the ranks of barrister. Solicitors may also be appointed, eligible for appointment as senior judges.

2) Removal:

The appointment is the guarantee of the judicial. It’s important to protect the independence of the judges to the easy remove by the government.

The process is different depending on the categories of judges :

– Senior judges (SC, CA, HC): the Queen (petition of both Houses of Parliament). Only the Queen may remove these judges but only if both Houses of Parliament have petition her to remove these judges.

– Other judges: the Lord Chancellor, with the agreement of the Lord Chief Justice. He cannot do it on his own, he need to have the agreement of the Lord Chief justice.

Incapacity, inability or misbehavior, they are some cases where judges have been removed on misbehavior but also outside the courts.

There isn’t a similar process in the appointed process and in the removal process. Judicial independence is protected in other ways.

3) Judicial independence:

– Large salaries: the salaries of judges are large not necessarily as large as the one that successful lawyers are making but the salaries are right enough just to be sure to maintain the quality of candidates.

– Immune from being sued: it’s the fact that judges are immune from the sued only regarding the exercise of their jurisdiction. They will not be sued because they have sent someone to prison for example.

This statutory issues that ensure the independence should also go with the fact that judges are judging themselves, should be conscience of their behavior and of saying when an issue of bias (when the possible conflict of interest would be the possible when a judge may be lacking impartiality).

– Self disqualification is an issue of bias arises.

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte(No 2) [2000] 1 AC 119: in that case the House of Lords had ruled that the former president of Chili Pinochet who was accused of.. against Spanish national who were resident in Chili in the 1970’s could be extruded to Spain to face trial. The House of Lords has said that he could be extruded to Spain. It emerged, became known that one of the judge who had voted for the extradition Lord Hoffman had links with Amnesty International which campaigned for justice, political prisoners. It has been asked whether the decision to authorize the extradition of Pinochet was made on independent rules. When Lord Hoffman had contributed to the decision he hasn’t said that he was a member of this organization. It was considered that the fact that he didn’t reveal the fact that he was a member of the organization creating an impression of bias sufficient to justify the extruded.There was a rehearing to decide whether if Pinochet could be extruded or not.

Pinochet was too holding to face his trial in Spain; they allow him to live in UK.

4) Wigs and gown:

This is how judges, they have to wear in courts. Judges were requiting to wear a wig (perruque) and gown (robe). It depended on the season, whether they heard criminal cases or civil cases. In 2008, a reform was thought to be necessary because it’s an old fashion in the way to give justice. Not for the civil cases.

For criminal cases the judges still wear a wig and so will do the lawyers who represent in the procedure.

For one week, it’s possible to have a camera on the Court of Appeal.