English Legal SystemCoursework Assessment

The UK government is divided into the three organizations, the legislative, the executive and the judiciary, vaguely following Montesquieu’s principles of the separation of powers. While the executive administers the state, and the legislative (Parliament) passes new laws, the judiciary is responsible for enforcing laws and upholding justice in the society.

Judges form the basis of the judiciary, and are required to pass judgments in an impartial manner while applying the laws made by Parliament1, however it is important to note that there are only some 730 senior full time judges and 560 more junior full-time judges giving a total of 1,290 judges in the English judicial system compared to the 30,308 magistrates (Justices of the Peace) currently in service2. Nevertheless, judges hold a higher level of authority and respect.

The Crown, on the advice of the Prime Minister, makes senior judicial appointments such as the Law Lords (Lords of Appeal in Ordinary) and appeal court judges while the Lord Chancellor (currently held by Alexander Andrew Mackay Irvine) advices the Crown in appointing judges at High Court and Circuit Bench judges. In the case of district judges and lay magistrates, the Lord Chancellor has the authority to personally appoint individuals to those posts. This element of the appointment of the judiciary has attracted considerable criticisms due to the excessive interference of the executive and secrecy of the process.

The Lord Chancellor is not immune to political processes and is effectively under the control of the Prime Minister who can dismiss him at will, therefore there are doubts as to the reason for the Lord Chancellor’s decisions. There are some who view that this function of judicial appointment should be transferred to a judicial appointments commission. The present Lord Chancellor has already done much to make the initial judicial appointment process more transparent.

Vacancies are now advertised and there is a “competition” recruitment process with structured appraisal and outside review (first use of advertisements was in 1994). The professional judges normally retire at the age of 70, although High Court judges have to retire at 723. This is the natural way of putting a judge away from service. Due to a need to protect the independence of the judiciary, it has been made very difficult to remove judges from service, particularly by the executive for a political purpose.

While judges are few in number compared to other judicial offices such as the lay magistrates, they enjoy a greater level of respect and authority. However, not every judge is perfect. There are times when they too commit errors, but the various forms of protection (such as immunity from sue) can prevent them from being given the exact punishment they deserve. Nevertheless, there are still some established methods of judging judges, for instance judges from the House of Lords, Court of Appeal and High Court (supposedly the most secure) can still be removed by an address from both houses of Parliament.

The issue concerning the removal of a judge must be that of an action going against his required good behaviour, and misbehaviour was defined as: “judges charged with any criminal offence other than parking or speeding violations amounts prima facie to misbehaviour4”. However no English judge has been removed through this method as of yet, and only an Irish judge guilty of misappropriating funds in 1830 was ever removed this way. The Lord Chancellor can remove Judges below the High Court without permission from Parliament. Even with the established method of judging judges, judges are seldom given punishment when they make an error in court.

One example is the case of Sirros v Moore (1975)5 where a judge wrongly detained someone, but the Court of Appeal held that although the detention was illegal (false imprisonment), the judge acted in good faith of his judicial capacity and was pardoned6. Nevertheless, the Courts hold that judicial immunity from suit does not extend to situations where the judge acted corruptly or maliciously and can be sued for their errors in court. These accounts for the established methods of judging judges, but it can be seen that a direct application of the methods was rare, especially in England.

One reason could be that the current methods of judging judges are too harsh, resulting in almost certain removal of the judge, and is thus avoided when possible. In my own opinion, the English judiciary has failed to recognize the fact that the professional judges are very highly paid (the Lord Chief Justice is paid 200,236, Lords Justices of Appeal are paid  166,394, High Court Judges receive 147,198 and Circuit Judges 110,362. A District Judge is paid 88,546 (92,546 in London7) and more methods of judging judges could be made, capitalizing on this fact.

For example, a judge who misuses authority could be fined, instead of being considered for removal on the basis of ultra vires. In conclusion, there are methods of judging judges currently in use. However its use has been limited. Nevertheless, it has proven to be a satisfactory way of keeping judges in check, on fear of removal.

Bibliography

Gary Slapper and David Kelly, Principles of ELS The judiciary, http://www. eurolegal. org/ukengjud. htm 1 Pg 121, Gary Slapper and David Kelly, Principles of ELS. 2 The judiciary, http://www. eurolegal. org/ukengjud. htm 3 Regulated by Retirement Act 1993