LEARNING OBJECTIVES:

The aim of this topic is to enable students to:

Identify the role and function of judges
Describe the appointment and training of judges
Express as to whether judges enjoys any immunity when making
decisions

LEARNING OUTCOMES:
A successful student will be able to;
Describe how judges are appointed into the judiciary and how and when
the process of dismissal of judges takes place
Describe the training process that judges goes through
Critically analyze the appointment and training of judges and the reform
suggested



INTRODUCTION . . .

In the 12
th
century judges were drawn from the ranks of Royal Clerks. In the 13
th

century judges were drawn mostly from both civil servants and the lower forms of
Holy order. The church was the only centre of learning in the middle ages. Judges
who were appointed directly by the king interpreted the law in favour of the monarch
because judges could be removed at the pleasure of the Monarch. Thus there was
a tendency of political biasness and a lack of independence.

After the revolution, there was a significant change with regard to the independence
of the judiciary. The King no longer held responsible of direct appointment. It was to
be carried out by the prime minister of the Lord Chancellor.
APPOINTMENT OF JUDGES. . .

The courts of law remain the Queens Court and the judges remain Her
Majestys judges.
However changes in the Monarchs constitutional has meant that, whereas
originally the power of appointment vested in the Monarch was entirely personal,
at the present time all judicial appointment are made by the Monarch on the
advise of representatives of the government of the day.
The Lord Chancellor is the only judge appointed on a political basis. He is
appointed by the Queen on the advise of the Prime Minister and is a member of
the government.
The Lord Chief J ustice, The Master Of the Roll, The President of Family
Division, The Vice Chancellor, The Lord of Appeal in Ordinary and the
Lords J ustice of Appeal are appointed by the Queen on the advise of the Prime
Minister.
Puisne judges of the High Court, Circuit Judges, recorder, Stipendiary
Magistrates and a vast number of lay magistrates are appointed by the Queen on
the advise of the Lord Chancellor.
The sole qualification for a senior judicial appointment in the English system is practical
experience as a barrister. A minimum period of experience is required, increasing from 10
years for a High Court judge and 15 years for the Court of Appeal judge.

Before appointment, the Lord Chancellor must regard the candidates background and
experience. Information about good senior barristers is stored in the so called yellow
sheets and accumulated for future references. The candidates reputation is very
important for it can be made or broken in court. The Lord Chancellor has his own
department headed by a permanent Secretary. The department is centre for the collection
of information about the;
Activity
Legal practice
Reputation of members of the bar including those more senior Queens Counsel from
whom senior judicial appointment will be made.

Professor Griffith in his book The Politics of the Judiciary wrote that the most
remarkable fact about the appointment of judges is that it is wholly in the hands of
politicians. Whether the prime minister accepts the lord Chancellors advise on senior
appointments varies with different prime Ministers and different circumstances.

Lord Salisbury, one of the former Prime Minister said the judicial salad requires both
legal and political vinegar.


DISMISSAL OF JUDGES . . .

S.11(3) Supreme Court Act 1981 every judge of the Supreme court shall hold that
office during good behaviour, subject to a power of removal by Her Majesty on an address
presented to her by both Houses 0f Parliament.

The Lord Chancellor may remove the recorder (part-time judges of the Crown Court ) for
incapacity or misbehaviour and the Lord Chancellor may also remove the magistrates
name from the commission without showing cause.

December 1983 Lord Chancellor dismissed a Circuit Judge for misbehaviour who had
been fined on 2 charges of smuggling whisky and cigarrettes.

The status and salary of judgeship, other than on grounds of ill-health or retirement,
resignation has not been a phenomenon to be reckoned with. Consequently the
announcement in 1970 that Mr. Justice Fisher at the age of 52, and after only 2 years
service as a High Court Judge, was to give up his judicial office to follow a career in the
business world came as a substantial break with convention.

The Judicial Pensions Act 1959 High court judges and the appeal court judges are
required to retire from office on reaching the age of 75.Circuit judges must retire at 72,
unless the Lord Chancellor invites them to continue until the age of 75.

IMMUNITY . . .
The concept of judicial immunity which lays down that a judge may not be sued
in a civil action for things said or acts done in the exercise of his judicial office in
good faith, even though he has acted mistakenly or in ignorance of his powers
SIRROS v MOORE (1975)

Lord Denning says that every judge should be able to work in complete
independence and free from fear. He should not have to turn the page of his
books with trembling fingers asking himself If I do this, shall I be liable in
damages.


TRAINING . . .

All judges and magistrates on appointment take the judicial oath under the
Promissory Oaths Act 1868, to do right to all manner of people after the laws
and usages of this realm without fear or favour, affection or ill-will.

Judges receive no training in preparation for their change of role and this has
been the subject of comment. A brilliant advocate may after all make an
unsatisfactory judge.

The J udicial Studies Board was set up to assist judges in their exacting role by
organizing lectures and residential seminars on racial awareness. It is usually
organized by the Lord Chief Justice and the Lord Chancellors office.

However such training has met with resistance. Lincoln Crawford a former
member of the Commission for the racial equality stated that judges are opposed
to the training in racial awareness for the simple reason that they are not racist.

The Runciman Committee made several recommendations on this issues of
training;

More resources should be allocated for judicial training
Should involve a mixture of people from different agencies and disciplines
within the criminal justice system and should not be judge focused
That experienced judges should monitor the performance of those judges
undergoing training
That judges should be required to attend refresher training courses every 3
years
Assistant recorders should receive their 1
st
refresher training 2 years after
their initial training


INDEPENDENCE . . .

Montesquieu - A French political philosopher who advocated the separation of
executive and legislative and judicial powers (1689-1755) and the author of "On
the Spirit of Laws" which defines the process of separation of powers
embedded in US Constitutional Law was a student of history, science and law.
His view on judicial independence was;
Stressed that judiciary should be kept apart from the legislative and
executive ( separation of powers ). He was of the view that if at any time
theses 3 functions were to combine, then it would result in a tyranny.
Judiciary should be independent from improper pressure by the executive,
litigants and pressure groups.
Although the judiciary has connection with both the legislation and executive,
it is controlled by neither, and they may not try to influence the judge in his
decision even if the decision is inconvenient to the executive.

Professor Griffiths in his book The Politics of the Judiciary he criticised
the judiciary by suggesting that the decision of the judges are not entirely
objective. To support his views he examined the education and social
background of the judges.
SOCIAL POSITION OF JUDGES

Judges are educated in Oxford University and Cambridge University. Therefore
the decisions of the judges are not entirely neutral. By virtue of their background,
education, training and their socialization within close-knit profession, nearly all
judges show a strikingly homogenous collection of attitudes, beliefs and
principles.

They belong to the upper-middle class society , they are rather conservative and
unaware of the different culture , life style and problems faced by the layman
down the street.

Less women

Majority are whites ethnic minority are not taken into account

No training

TUTORIAL QUESTIONS
1. What is the traditional position of judges?

2. How is the independence of the judiciary maintained?

3. How are judges appointed?

4. What is the statutory provision which governs the selection of judges?

5. What is the statutory retirement age for judges in the Supreme Court?

6. Are judges given immunity for the decisions that they make? State with
relevant case laws

7. Is it true to say that judges make law? Illustrate your answer by providing
example of cases.