3.1 Courts 3.1.

1 The Structure of the Courts

A new Supreme Court has been established and in October 2009, The Supreme Court replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom.1

Help with Law Exams <http://www.helpwithlawexams.co.uk/courtstructure.html> , 13 December 2010

3.1.2 Jurisdiction of the Courts Magistrates Court wide and varied jurisdiction 98% criminal prosecutions extensive involvement of lay people as judges County Court debt collection contract, tort and property matters limited jurisdiction financially and geographically Crown Court more serious criminal offence (indictable and triable either way offence ) Judge and Jury High Court Chancery division- equity, trust, wills and bankruptcy Queen's Bench Division- personal injury,contract, tort Family Division divorce, children Court of Appeal Civil division Criminal division Supreme Court Highest AppelateCourt in UK Privy Council Commonwealth Court : deals mainly with doctrine of precedent

3.2.1 Appointment of Judges In the U.K., to appoint judges on the High Court Bench and above is a matter of practice and convention, not of written law. The U.K. Parliament except the Prime Minister, who is both head of government and leader of the majority party in Parliament, is not involved in the process of appointment of judges on the High Court Bench and above. 2 When lawyers that were chosen at the beginning of their career is chosen to be judges and work their way up the ladder, that is called a career structured judiciary. However, England does not have that. All English Judges3, are chosen from the ranks of practising lawyers, mainly barristers. At high court level, to be a judge is by 'invitation only'.4 A Lord Chancellor is appointed on a 'political' basis. He is the only judge to be appointed that way by the Queen with the Prime Minister's advice, he is a member of the government and a Lord Chancellor would change when there is a change in the government. A Lord Chancellor appoints Justices of Peace directly.5 Judges that are appointed by the Queen with advice from the Prime Minister : The Lord Chief Justice The Master of the Rolls The President of the Family Division The Vice-Chancellor The Lords of Appeal in Ordinary Lords Justices of Appeal Judges that are appointed by the Queen with advice from the Lord Chancellor Puisne Judges of High Court Circuit Judges Recorders Consultation is an important feature of the process of judicial appointment in the U.K. Views and opinions about the qualities and work of an
2 WL, Cheung, The Process of Appointment of Judges in Some Foreign Countries: The United Kingdom, <http://www.legco.gov.hk/yr00-01/english/library/erp02.pdf>, 15 December 2010. 3 Bruce Henry in English Legal System Textbook (1990), page 41 states that the judges are from ranks of appeal in ordinary to stipendary magistrates. 4 Bruce Henry, English Legal System Textbook (HLT Publication London 1990) 41 5 Ibid

applicant are collected from a wide range of judges and senior practitioners in the legal profession.6 The chart shows the process of Appointment of the Judges.7

6 WL, Cheung, The Process of Appointment of Judges in Some Foreign Countries: The United Kingdom, <http://www.legco.gov.hk/yr00-01/english/library/erp02.pdf>, 15 December 2010. 7 Ibid

3.2.2 Removal of Judges With the Lord Chancellor exempted , the judges of the High Court8 and above are subjected to a power of removal by Her Majesty on an address presented by both Houses of Parliament.9 The Lord Chancellor may remove Circuit Judges and Recorders from office on the grounds of incapacity or misbehaviour. Magistrates may also be removed by the Lord Chancellor for good cause. 3.2.3 Roles and Function of Judges Lord Devlin said in regard to the roles of judges In theory the judiciary is the neutral force between government and the governed. The judge interprets and applies the law without favour to either... it is not the judge's personal order; it is substantially the product of the law and only marginally of the judicial. 10 In theory, a judge cannot create new rules of law however, in practice this must inevitably happen. For example in the case of Jones V Secretary of State for Social services (1972 ) 1 All ER 145 Lord Simon said In this country it was long considered that judges were not makers of law but merely its discoverers and expounders the theory was that every case was governed by a relevant rule of law, existing somewhere and discoverable somehow, provided sufficient learning and intellectual rigour were brought to bear . . . . But the true, even if limited, nature of judicial lawmaking has been more widely acknowledged of recent years". In this case, the judges decided on the construction of the National Insurance Act held that one of its own decisions of only five years' standing was wrong but they did not overrule it.11

8 Bruce Henry in English Legal System Textbook (1990), page 42 states with good behaviour can they hold office. 9 Bruce Henry in English Legal System Textbook (1990), page 42 states that this provision is derived from the Act of Settlement 1701, and is now contained in The Supreme Court Act 1981. 10 Bruce Henry, English Legal System Textbook (HLT Publication London 1990) 44 11 Sixth Form Law <http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/04_precedent_ecj_hol.htm> 21 December 2010

Roles of the judge : Supervisory conduct of the trial Sole arbitor of any legal issue In civil cases the judge alone decides the facts and the law- ( except primarily libel cases) In civil cases the judge decides the quantum of damages To interpret, clarify and give the effect to the law In criminal cases, the role of summing up to a jury In criminal cases, passing sentence.

In addition, to this main judicial function, judges exercise certain administrative functions. For example, Justices of Peace deals with many types of licensing,another example is the Court of Protection. A High Court is often chosen as the chairman of a Royal Commission or a Tribunal of inquiry.12 A judge also gets immunity, it is an extension of an independent judiciary. A judge cannot be sued in a civil action for anything said and done while acting in his judicial capacity. This can be seen in Sirros v Moore (1974 ) 3 All ER 776 where D appealed to the Crown Court against a magistrate's recommendation for his deportation. The judge dismissed the appeal and when saw D about to walk out of his court he called upon the police to stop him. It was held: D's claim for damages for assault and false imprisonment failed. Although the judge's order was unlawful (D had not been remanded in custody) the judges immunity extended even to acts beyond his jurisdiction as long as they were done in good faith.13 Immunity of judges varies with the judges status14 : Judge of Superior Court : no action lies against him for anything he says or does in exercise of his judicial office even if he is malicious or acts in bad faith. Judge of Inferior Court : the same immunity as above but only when acting within his jurisdiction.
12 Bruce Henry, English Legal System Textbook (HLT Publication London 1990) 44 13 Sixth Form Law <http://sixthformlaw.info/02_cases/mod1/cases_judges.htm#Sirros%20v%20Moore %20[1974]%20CA> 21 December 2010 14 Bruce Henry, English Legal System Textbook (HLT Publication London 1990) 44

Magistrates : Justices Protection Act 1848 : Magistrates may be sued in respect of any act done in excess of jurisdiction, and in respect of any act within done maliciously and without reasonable cause. Judicial Services15 Lord Chancellor Holds the highest judicial office, also speaker of the House of Lords and is the Government's principal spokesman on matters of law. A minister of the Crown and usually is a cabinet minister. He recommends most judicial appointments. He is also the ex officio head of Chancery Division, President of the Court of Appeal, presides over judicial sittings in the House of Lords and Privy Council. No 'formal' qualifications but a lawyer of considerable experience and standing who may have previously served the Government as a law officer ( Attorney- General ) Lord Chief Justice Ranks after the Lord Chancellor, his appointment is made on recommendation from the Prime Minister after a consultation with the Lord Chancellor. The Lord Chief Justice would be the head of the High Court during the absence of the Lord Chancellor. He is also president of the Queen's Bench Division and presides over the Criminal Division of the Court of Appeal. During practice, he would sit in the appellate courts16. Master of the Rolls Presides in the Civil Division of the Court of Appeal. It is a key position. The influence of the Court of Appeal outweighs the House of Lords. He has a great deal of influence over development of civil law17. President of the Family Division Responsible for organising and managing his division, presides over the Family Division Divisional Court. He also is an ex officio member of the Court of Appeal. Vice Chancellor Administration of Justice Act 1970 recreate this position which requires the person to organise the
15 Bruce Henry, English Legal System Textbook (HLT Publication London 1990) 45 16 Bruce Henry in English Legal System Textbook (1990), page 45 states that normally it is the Court of Appeal or Queen's Bench Divisional Court. 17 Bruce Henry in English Legal System Textbook (1990), page 45 gives an example base on Lord Denning's judgements who retired from office in 1982.

business of Chancery Division. The Lord Chancellor is responsible for him. He is an ex officio member of the Court of Appeal18 and he ranks below the President of the Family Division. Lords of Appeal in Ordinary Appointed from appeal court judges. Must have held high judicial office for two years or be practising barristers of at least 5 years standing. Do not normally take part in the political debate eventhough he is the full member of the House of Lords. He also sits in the judicial committee of the Privy Council. Lord Justices of Appeal Appointed from Puisne High Court judges, may also be barristers of at least 15 years standing, must be at least eight and not more than sixteen. He sits in the Court of Appeal whichever division usually the court is organised so that at least one Appeal judge has experience of the branch of law involved in the case before the court. High Court Judges Referred to as 'puisne' judges, he has no limits on jurisdiction and are knighted on appointments. He must be a barrister for at least 10 years. Circuit Judges All the county judges19 became Circuit Judges after it was introduced in 1971 following the radical revision of the court structure20. They undertake both civil and criminal work as their High Court counterpart. They are appointed from barristers of 10 years standing or from recorders who have worked for five years. There are 300 circuit judges presently. Recorders Part-time judge of the Crown Court who have to be a barrister or solicitor for ten years. Appointment is always apprenticeship.

18 Bruce Henry in English Legal System Textbook (1990), page 45 mentioned that this is since the Supreme Court Act 1981. 19 Bruce Henry in English Legal System Textbook (1990), page 45 mentions that before this they were exclusively concerned with civil work only. 20 Bruce Henry in English Legal System Textbook (1990), page 45 referred to the Courts Act 1971.

Law Officers21 They are important legal posts which the holders are not judges: The Attorney-General ( AG) First legal advisor to the Crown and a member of Parliament and the Government and advises the Government on a wide range of issues and legal problems especially relating to constitutional and international law. He has large control over criminal proceedings22. He represents the Crown's interests in courts traditionally23. The Solicitor-General Assists the AG, was chosen based on appointment and a barrister. He wll deputise for the AG if necessary. The Director of Public Prosecutions (DPP) He would be a barrister or a solicitor of 10 years. Acts under the supervision of the AG and he can initiate prosecution, give advice to the police, clerks to the justices and others concerned with the criminal proceedings. The police are required to go to the DPP of certain offences. He has a wide jurisdiction and extensive powers. He can also offer no evidence at a trial and terminate a prosecution.

21 Bruce Henry, English Legal System Textbook (HLT Publication London 1990) 45 22 Bruce Henry in English Legal System Textbook (1990), page 46 gives examples like the Official Secrets Act 1911 where prosecution for certain offences cannot be commenced without his consent. 23 Bruce Henry in English Legal System Textbook (1990), page 46 states the cases which the Crown has special interests-treason or when the 'public interest' demands it.

3.5 Roles and Functions of the Judiciary The Judicial branch primary responsibility is to ensure that federal law is administered justly. The judicial branch must offer clarification by way of setting precedent for future cases through its rulings24.Contrary to what people may think, the judicial branch does not write laws. That power rests with the legislative branch. The judiciary however does ensure that the laws written by the legislative and signed by the executive branch are congruent with the Constitution25.

24 Basic Duties of the Judicial Branch <http://www.ehow.co.uk/list_6080877_basic-duties-judicial-branch.html> 25

December 2010 25 Unlike many nations, the UK has no core constitutional document. It is therefore often said that the country has an unwritten, uncodified, or de facto constitution. <http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom> 25th December 2010

Introduction The many levels of judiciary in England form a strict hierarchy of importance, in line with the different courts that have different style of judges and order of courts that they sit26.

Conclusion The Judiciary plays a vital part in British Politics. The Judiciary should be apolitical and any judgements made, for example on government legislation, have to be made without any form of political bias27.

26Judiciary of England and Wales <http://en.wikipedia.org/wiki/Judiciary_of_England_and_Wales> 25 December

2010 27 The Judiciary <http://www.historylearningsite.co.uk/the_judiciary.htm> 25 December 2010