the judiciary Flashcards
Who are judges?
-Collectively known as the judiciary
-Many different level of judges (but
overall function is the same)
-Main role is to make fair, unbiased
decisions in disputes and apply the law
of England and Wales
-They are divided into inferior (lower
courts) and superior (High court and
above) judges
-Different judges have different levels of
training
What are mitigating and aggravating factors?
mitigating = a fact or circumstance that lessens the severity/culpability of a criminal act
aggravating = a fact or circumstance that increases the severity/culpability of a criminal act
What is the role of judges?
to apply the law they should so in an independent manner and to interpret the Act of Parliament using the rules of statutory interpretation and then apply it. In criminal cases, the issue of guilt will be decided by a jury, and the judge will pass sentence. In most civil cases, the judge will decide the issue of liability and the amount of damages to be awarded.
What act made judges independent from Parliament?
Constitutional Reform Act 2005
it also changed The Lord Chancellor to the Minister of Justice so judges no longer could sit in the HOL
How does s2 of the Human Rights Act 1998 affect the role of judges?
judges should ‘take into account’ decisions of the European Court of Human Rights.
How does s3 of the Human Rights Act 1998 affect the role of judges?
So far as it is possible to do so, Statutes must be read and given effect in a way which is compatible with the Convention rights.
How does s4 of the Human Rights Act 1998 affect the role of judges?
judges can issue a declaration of incompatibility- A & Others (2004)
How were judges selected before the Constitutional Reform Act 2005?
- selected judges based on the opinions of existing judges. - Lord Chancellor would decide on who to appoint, and that person would be invited to become a judge.
- Lord Chancellor was a political appointment and so was not free from political influence.
How are judges selected now post Constitutional Reform Act 2005?
- Recruitment of judges is now managed by the Judicial
Appointments Commission (JAC). - Judicial posts are now advertised and candidates must apply.
- Appointments process is now completely separate from the political influence of the government.
- Lord Chancellor has minimal involved in appointment and only of superior judges
how are judges trained?
The Judicial College is directly responsible for training full (salaried) and part-time (fee-paid) judges as well as magistrates.
There are three main elements to judicial training:
- knowledge of substantive law, evidence and procedure
- the acquisition and improvement of judicial skills
- the social context within which judging occurs
who dissmisses judges?
- judges can be removed from office by the Judicial Conduct Investigations Office, who deals with all issues of judicial discipline, if any allegations of misconduct are upheld.
- Superior judges have Security of Tenure cannot be dismissed by the government. Only the monarch has the power to if there is a petition signed by both Houses of Parliament.
- Inferior judges do not have the same security of tenure as superior judges, and the Lord Chancellor has the power to dismiss any inferior judge for incapacity or misbehaviour.
how does s3 Constitutional Reform Act 2005 affect the role of judges?
guarantees judicial independence and states that this must be upheld at all times.
- judges should be free from political bias
- Judges can declare UK legislation incompatible with the European Convention on Human Rights which will force the government to change the law.
what is immunity from Suit?
- immune from any prosecution or being sued for any act that’s part of their judicial function.
- upheld in Sirros v Moore 1975 where a judge was accused of wrongly detaining someone during a crown court case. held: detention was unlawful, no action could be taken against the judge as he had acted in good faith as part of his role.
why are judges Independent from the executive (government)?
can’t be dismissed by the government, dont worry about displeasing the government. + cant be members of Parliament .This keeps them truly independent
what are judges Independence from case?
not allowed to judge cases where they are involved in any way or have any interests.
This is shown in the Pinochet case
