Essay: The role of judges

The role of Judges in the English legal system is to interpret and uphold the law, as laid down in statutes by parliament, and to uphold principles of common law, such as reasonableness and fairness REF1 .

Judges may apply equitable remedies, which are discretionary remedies available in common law to ensure justice.  It is argued that judges also make law, in creating legal rules, changing interpretation of statute, and in light of social and moral changes [i.e. R v R 1991 REF2].

An important aspect of their role is that relating to EC Legislation and to the Human Rights Act 1998 incorporating the European Convention on Human Rights.  Statutes are to be read in conjunction with EC Law and where a statute directly conflicts, it’s now accepted that judges are to apply the EC Law.  Legislation is to be read in conjunction with the Human Rights Act and if it conflicts, a judge will need to review whether the derogation is permitted or override the conflicting legislation [Unit 2, p.47 REF3].

The most senior judges, the Law Lords, also are involved in the creation of law as they can seek to influence Bills as they pass through parliament through the House of Lords.

A further role of the judiciary in the legal system is to review the legality of ministerial actions or those made by statutory bodies.

In consideration of these roles, the judiciary, although separate and supposedly independent from the other branches of the government, have a varied role to play with both executive and legislative functions.

The role of the judges in court is to preside over the proceedings, to ensure that a fair trial is given, and to deliver the verdict at the end of the case [Units 5-7, REF4].

In civil cases the Judge decides upon the outcome of the case.  Before the case begins the Judge reads through the case notes so that he is aware of the situation under which the case has been brought about.  It is the Judge’s decision regarding what damages, if any, are to be awarded. Unlike juries or magistrates in a criminal court the Judge will give a reason for his verdict – part of which will form the ratio decendi and may become binding on lower courts.  The level of compensation or recompense is the Judge’s decision based upon legislation and previous cases.

In criminal cases, it’s the jury or magistrates who decide whether the defendant is guilty or innocent.  The Judge’s role during the case is to ensure that the questioning done by both defence and prosecution is fair and that order is maintained.  He also sums up the case to the jury before they make their final decision.  This is his responsibility as he is an unbiased party in the case who gives and impartial description of the law to the jury who are presumably lay people as well as reminding them of the facts of the case in the event that they may have forgotten some of the key points.  He also reminds the jury that it’s for the defence to prove that the accused is guilty and not that he is innocent.  When the jury have delivered a verdict it’s for the judge to pass sentence if a guilty verdict has been given.  The Judge will use legislation to apply the range of sentences and punishments to the weight of the offence.

Judges are impartial and independent, and are therefore of ‘central importance’ to the concept of the Rule of Law [Slapper p.191 REF5].  It is sometimes difficult to see how this independence is maintained.  The judiciary in Britain is appointed on merit and there are safeguards to protect their independence – for example, judicial salaries are not subject to parliamentary voting and are fixed by statute.  However, the Lord Chancellor is at the head of the judiciary being the most senior judge in the English Court Structure, and is appointed by the Prime Minister.  He is supposedly apolitical in the way he carries out his functions, and in particular with the appointment of judges but he holds a seat in the cabinet, and is responsible for overseeing his own government department, an executive function.  This mix of powers has led to criticisms that the Chancellor may be politically biased in his decisions – for example, the “Cash for Wigs affair” [Slapper p. 193 REF5].  Further, if he appoints judges substantially from his own political party, it doesn’t seem feasible that they too will be apolitical.

A further criticism of the appointment of judges is that there’s a lack of variety in background, age, ethnic origin and sex.  Harris comments “we should not be surprised to discover that judges tend to have extremely homogeneous backgrounds and educational patterns” [Harris p. 470 REF6].  This may indicate that judges are not able to fully grasp the reality beyond their own social class or mindset.  The lack of female judges has led to criticisms that the attitude of judges to women are outdated.  This isn’t in line with the concepts of a fair trial or independent, impartial judge.  Contrast this to the appointment of magistrates, who are considered from all walks of life and are to reflect the diversity of occupations, backgrounds, religion, ethnic groups, and gender [Harris p. 473 REF6].  This is in order to see that “the bench is broadly balanced” [Lord Chancellor’s Department Book 1988 Harris p.472 REF7].  Although they are not legally qualified, they are surely more “in touch with the people”, and if reconsidering the appointment of judges, this is worth taking into account.

There are clearly many criticisms of the current appointment of judges and I think that, in line with the Rule of Law, the right to a fair (and therefore unbiased) trial and the principle that the judiciary should be independent, the system of appointment needs to be reviewed. Although judges are appointed on merit, it’s hard to rule out possible political bias both in their appointment and in their attitudes.  It also would seem that a broader range of people appointed would result in a judiciary that is more ‘in touch’ with the needs of today’s ever changing society.

References:

1. Lord Irvine of Lairg  The Lord Chancellor, “Principle and Pragmatism: The Development of English Public Law under the Separation of Powers” Friday, 18 September 1998, Lecture at the High Court in Hong Kong
2. R v R 1991 4 All ER 481 in Allen, M. – Elliot & Wood’s Cases & Materials on Criminal Law (8th Edition, 2001) Sweet & Maxwell, London

3. Unit 2 – Terminology & Sources of Law, W200 Understanding Law (2003), The Open University, Milton Keynes.

4. Unit 5-7 – How the English Legal System Works, W200 Understanding Law (2003), The Open University, Milton Keynes.

5. Slapper, G. & Kelly, D. The English Legal System (5th Edition, 2001), Cavendish Publishing Limited, London/Sydney

6. Harris, P. An introduction to Law (6th Edition, 2002), Butterworths, London

7. Lord Chancellor’s Department Book 1988 cited in Harris, P. An introduction to Law (6th Edition, 2002), p. 472, Butterworths, London

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