Professional Documents
Culture Documents
Sayed-Ul-Haque (Dinar)
The Legal and system and method (LSM) module will be
assessed entirely by written examination in May 2017. The
examination is divided into three parts: A, B and C. All parts
are compulsory.
Part A (25% of the overall marks) relates primarily to the
case note but also contains an extract from another
unseen case;
Part B (50% of the overall marks) consists of essay
questions from which candidates much choose two; and
Part C (25% of the overall marks) is a multi-part question
about the statute.
PART= A
Broadview Energy Developments Ltd v The
Secretary of State for Communities and Local
Government & Ors [2016] EWCA Civ 562
Court of Appeal
High Court
County Court
Magistrates Court
Supreme Court judges
The highest court in the UK is the Supreme Court. Its members
are known as the Justices of the Supreme Court.
It took place in 2009. The Justices are appointed from the Court
of Appeal, though they may occasionally be appointed directly
from practice or from amongst leading academics. The court hear
both civil and criminal appeals of general public importance.
Appointment
Sections 23 31 deal with the appointment
of Supreme Court judges. As the Supreme
Court is a court for the whole of the UK, a
special procedure is provided for involving all
three commissions for England & Wales,
Scotland, and Northern Ireland. When a
vacancy arises at the Supreme Court, a
Supreme Court Appointment Commission
(SCAC) is convened, comprising members of
the three permanent commissions.
S.C.A.C Lord Chancellor Prime
Minister Queen Appoint
Section 23(2) provides that the Queen is to appoint Supreme
Court judges.
Section 26(2) establishes that she may only make
appointments on the recommendation of the Prime Minister.
Section 26(3) provides that the Prime Minister must
recommend persons notified to him by the Lord Chancellor,
and may not recommend anyone else (it therefore appears
that the Prime Ministers role is purely symbolic).
Section 29(2) explains the Lord Chancellors role. His job is to consider
whether to accept or reject each name put forward to him by the SCAC.
Only one name at a time is put forward, and the Lord Chancellor may
accept it (and so notify the Prime Minister), reject it (in which case that
persons name cannot be put forward again), or require the SCAC to
reconsider.
If a name has been rejected then the SCAC must put forward a different
name; it the SCAC is asked to reconsider it can put forward the same name
or a different one. Note that this process cannot continue indefinitely
there would be the potential for serious abuse if the Lord Chancellor could
simply reject every name put forward by the SCAC until eventually they
came up with a name he wanted. Section 29 provides that the Lord
Chancellor can only reject once and ask for a reconsideration once after
that he must notify whichever name is put forward to him.
The selection process itself is set out in Section 27. This provides,
inter alia, that:
1. Selection must be on merit (s.27(5))
2. The Commission must consult with such of the senior judges
as are not members of the Commission and are not willing to
be considered for selection, the Lord Chancellor, the First
Minister in Scotland, the Assembly First Secretary in Wales
and the Secretary of State for Northern Ireland (s.27(2))
3. The Commission must have regard to any guidance given by
the Minister as to matters to be taken into account in making
a selection (s.27(9))
4. Any selection must be one person only (s.27(10))
Lords and Ladies Justice of Appeal
Judges in the Court of Appeal are usually appointed from the High Court.
They hear both civil and criminal appeals. The Civil Division sits in panels
of twos or threes, while the Criminal Division sits in threes, usually made
up of one Lord Justice, with two High Court judges, or with one High Court
judge and one Circuit judge.
The Tribunals, Courts & Enforcement Act 2007 makes some changes to
the appointment of judges:
S.50 reduces the minimum qualifying periods for District judges (from
7 to 5 years); Recorders, Circuit judges, High Court and Court of Appeal
judges (from 10 to 7 years)
S.51 allows those with ILEX qualifications to become judges
S.50 of the 2007 Act also requires that judicial candidates have gained
experience in law
S.52 gives examples of what this means:
practice or employment as a lawyer;
advising on the application of the law;
acting as an arbitrator;
acting as a mediator;
teaching or researching law.
THE FUNCTIONS OF THE
JUDICIARY
1. Essentially, the role of judges is to interpret and uphold the law. The law
is laid down in statutes by Parliament. The common law is judge-made
law.
2. Judicial Review- It is also the role of the judges to act as a check on
the misuse of power usually through judicial review. The Administrative
Court (formerly known as the Divisional Court) can review the decision of
any inferior court, tribunal or public body.
3. Law Making: Creating common law; judges are exclusively responsible for
the law of equity. Many areas of law have little Parliamentary
involvement, the law of contract is an example of this, although
Parliament has passed some legislation affecting privity and the effect of
minors' contracts.
4. Sentencing Judges play a particularly important role in sentencing. In the
Crown Court a judge may be asked to correct a sentence imposed by magistrates.
After a trial in the Crown Court the judge is solely responsible for the sentence.
Appeals against sentence take up a very large amount of time in the Court of
Appeal. They can be asked to change a sentence by the defendant, or by the
prosecution. The defendant can appeal on the grounds that his sentence is harsh,
and the prosecution can appeal on the basis that the sentence imposed was
"unduly lenient". The Court of Appeal is also responsible for issuing guidance of
sentencing on the advice of the Sentencing Advisory Panel.
5. Public enquiries Judges are regularly asked to chair important public enquiries.
these can have profound importance and can have great political consequences.
Some notable enquiries: The Hutton Enquiry; The Stephen Lawrence Enquiry; The
Shipman Enquiry
APPOINTMENT OF THE JUDICIARY
Before 2004, judges of the Court of Appeal and above were
chosen by the Queen, on the recommendation of the Prime
Minister, acting on the advice of the Lord Chancellor.
For High Court judges and below, the Prime Minister played
no role and the Queen was advised by the Lord Chancellor
directly. This system, in which judicial appointments were
effectively solely in the hands of the Lord Chancellor, worked
well when the judiciary was very small and almost all of its
members where chosen from senior members of the Bar,
most of whom the Lord Chancellor would know personally.
However, as the system expanded and concerns about
independence, accountability and lack of transparency grew,
pressure to reform the system increased.
Criticisms of Previous Appointment
Other criticisms:
6) Secret sounding
7) undemocratic
1. White
No members of the ethnic minorities have ever been
appointed to the House of Lords or Court of Appeal.
In October 2004, Linda Dobbs QC made legal history
by becoming the first black person (either male or
female) to be appointed to the High Court. Non-
white judges are relatively rare in other common law
courts too, although there is a black judge in the
United States Supreme Court: Clarence Thomas,
from Georgia, appointed 1991 (after being
nominated by George Bush).
2. Male
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and
important functionary in the government of the United Kingdom. He is the second
highest ranking of the Great Officers of State, ranking only after the Lord High
Steward. The Lord Chancellor is appointed by the Sovereign on the advice of
the Prime Minister. Prior to the Union there were separate Lord Chancellors[1] of
England and Scotland.
The Lord Chancellor is a member of the Cabinet and, by law, is responsible for the
efficient functioning and independence of the courts. Formerly he was also the
presiding officer of the House of Lords, and the head of the judiciary in England
and Wales, but the Constitutional Reform Act 2005 transferred these roles to
the Lord Speaker and the Lord Chief Justice respectively. The current Lord
Chancellor is Kenneth Clarke, who as with his predecessor Jack Straw is
also Secretary of State for Justice. Clarke holds the position, as did Straw, while
serving as a Member of Parliament in the House of Commons; Jack Straw was the
first Lord Chancellor since the seventeenth century not to be a peer. Straw's
predecessor, Lord Falconer of Thoroton served as Secretary of State for
Constitutional Affairs before that post was superseded by the post of Secretary of
State for Justice in 2007.
IMPACT OF CRA 2005
The Constitutional Reform Act established a completely new system in
which judges are appointed by an independent judicial appointments
commission.
Approximately 900 full and part-time judges are appointed each year,
making it a major administrative process. There is an annual competition
cycle and all ranks below the Court of Appeal are now advertised.
Candidates are required to complete an application form (though High
Court judge appointments can still be made by invitation rather than
application). To be appointed, candidates must fulfill the eligibility
requirements of a certain number of years in practice (usually seven or
10) or a certain period of judicial office. The applications are then
measured against the selection criteria on the basis of the information
provided on the application form, an interview, the references, and the
feedback from the consultation process, through which the opinions of
judges and senior lawyers are sought regarding the suitability of
applicants.
New appointment- from 2006