Chapter 7: Judicial Independence

Question 1

What are the 6 roles of judges?

Answer 1

1. Dispute Settlements - interpreting, clarifying, aplpying, declaring the law
2. Case management - Making sure trials are efficiently ran
3. Training (for new judges/refresher for existing ones)
4. Extra-judicial activities - speeches/lectures
5. Judicial Review
6. Upholding ROL

Question 2

What were the main critisms on the judiciary before the Constituional Reform Act 2005?

Answer 2

Lacking judicial independence

1. LC (head of LCD) handpicked by PM - politcal influence
2. Lord Chancellor’s Department (LCD) - responsible for the selection and appointment of judges
3. Position of Lord Chancellor (was a speaker in all 3 organs)
4. Composition of the judiciary (was not diversed - Dominated by white, males, oxbridge educated/public school, middle & upper-middle class)

Question 3

What is the nature and characteristics of judicial accountability & independence?

Answer 3

• It is linked to concept of separation of powers
• Judiciary impartial and independent, free from all internal & external pressures (should not be swayed/affected by pressure in their judgements)

Question 4

What are 8 examples of internal and external pressures that judges may face in whcih judges may not be affected by?

Answer 4

1. Executive
2. Legislature
3. Individual litigants
4. Pressure groups
5. The media
6. Powerful corporations
7. Self-interest
8. Other senior judges

Question 5

What academic states concept of ROL regarding JI?

Answer 5

The idea of an ideal judiciary being independent by Joseph Raz originates from the Acts of Settlement 1700 and has recently been re-iterated in s.3(1) of the Constitutional Reform Act 2005

• The fundamental constitutional concept that is used to describe the factors necessary for a well-functioning state and to constrain the exercise of arbitrary powers

Question 6

What is the concept of judicial independence?

What academic says it is necessary for a democratic state?

Answer 6

• The vital importance of this independence follows from the judiciary’s core responsibility. it is the branch of the state responsible for providing the fair and impartial resolution of dispute between citizens and the state or state entities under the prevailing rules of statute or

Sir Igor Judge observes that

• It is not a privilege of the judges themselves. But is necessary for public in a democratic state to ensure that people can live securely and that their liberty is safeguarded and only interfered with when the law permits it

Question 7

What is the concept of judicial independence?

What academic says it is necessary for a democratic state?

Answer 7

• The vital importance of this independence follows from the judiciary’s core responsibility. it is the branch of the state responsible for providing the fair and impartial resolution of dispute between citizens and the state or state entities under the prevailing rules of statute or

Sir Igor Judge observes that

• It is not a privilege of the judges themselves. But is necessary for public in a democratic state to ensure that people can live securely and that their liberty is safeguarded and only interfered with when the law permits it

Question 8

What are the 2 key aspects of judicial independence?

Answer 8

• Personal independence
• Institutional independence

Question 9

What is Personal Indipendence?

Answer 9

Individual cases must be free from all elements of personal interest/motivation directly and indirectly, and decided purely on the strict application of ROL to the evidence presented.

• They must be fearless in their judgement, demonstrating moral courage and legal accuracy

free from bias

Question 10

What is the article and case ‘test’ that supports the concept of personal independece of the judiciary?

Answer 10

Compliance to Article 6 ECHR

• “in the determination of his civil rights & obligations/any criminal charge against him, everyone is entitled to a fair & public hearing…by an independent & impartial tribunal…”

Porter v Magill (2001) test - ‘no bias’ test

1. First - Court considers all the circumstances where there is alleged/possible bias
2. Second - Judges ask the question: “Whether the fair minded & informed observer, with regard to all the facts, would conclude there was a real possibility of bias?”

Question 11

What is institutional independece?

Answer 11

The entire judiciary must be independent & separate from other arms of state (e.g. legislature & executive)

Question 12

What 4 importances has the Constitutional Reform Act 2005 brought to institutional independence

Answer 12

Creation of UKSC

• Enhances appearance of judicial independence

Changes to role of LC

• Remains only in the executive body

Creation of Judicial Appointment Commission

• Selection of judges is now done by the JAC

Codification of Judicial Concenpt

• Section 3(1) CRA 2005

Question 13

What does section 3(1) CRA 2005 state in codification of the judicial concept?

Answer 13

Lord Chancellor, Ministers and all individuals who take part in matters related to the judiciary and administration of justice have an active role to continue to promote and uphold the “continued independence of the judiciary.”

Question 14

What are the 3 other existing laws that protect judicial independence

What is 1 relevant case?

Answer 14

1. Security of tenure - Judges hold office, are subjected from the requirement of good behavior
2. Security of salary - Salary is fixed
3. Immunity from suit (Sirros v Moore) - Judges should be able to discharge their duty with complete independence & free from fear

Question 15

What are the 7 reasons why the reform of CRA 2005 was needed - importance of JI?

Answer 15

Importance of judicial independence

1. Judges are public figures responsible for upholding liberties & administration of justice
2. Judges are expected to exercise equality
3. Judges must be completely impartial & objective
4. Judges live in Ivory Tower
5. Impact of the Human Rights Act 1998
6. Uphold the Separation of Powers
7. Development of law

Question 16

When and who announced the reform proposals?

What did he say the effect/impact of reform would be for the judges?

Answer 16

In June 2003 - Tony Blair (then PM) announced several major constitutional changes, as it would greatly impact

• The role of judges
• The appointment of judges henceforth

Question 17

What were the 5 proposals for reform stated by Tony Blair?

Answer 17

1. Abolishing the role of the Lord Chancellor
2. The LCD will now be designated as the Dept of Constitutional Affairs (note - now changed to Ministry of Justice)
3. The abolishing of the Judicial branch of the HOL as the highest appellate court
4. Setting up of UKSC (effective 1st Oct 2009)
5. Creation of a Judicial Appointments Commission (in charged of selecting judghes)

Question 18

What is the current appointment body for selecting candidates as to-be judges?

Answer 18

Judicial Appointments Commission

Question 19

What date was the JAC created?

What introduced the JAC?

Answer 19

Created on 3rd April 2006 following the CRA 2005 reforms

JAC was introduced in Part 4 of the CRA 2005

Question 20

What is the function of the JAC?

Answer 20

1) To select and recommend the best qualified candidates regardless of

• Gender, ethnic origin, marital status, sexual orientation, political affiliation, religion, and disability

2) Statutory duty to consider how best to widen the pool of applicants to increase diversity of the judiciary

• Responsible for a modern, transparent appointments system

Question 21

What are the 2 focuses/aims of the JAC?

What are the 4 objectives that they want to preseve?

Answer 21

Provide info about being a judge

• Provide sufficient awareness amongst interested parties to understand the career expectancy

Look for suitable candidates & promote awareness amongst representation groups

• E.g. women, ethnic minorities

Objective is to preserve

1. Equality
2. Opportunity
3. Diversity
4. Fairness and balance

Question 22

What are the 3 statutory obligations of the JAC?

Answer 22

1) Judicial appointments are made solely on merit

• S63(2) CRA 2005 - solely on merit

2) But has to be both merit & diversity (only after 1st requirement)

• S64 CRA 2005 - encouragement of diversity

3) Only appoint people with good character

Question 23

What are the 4 main changes the JAC has brought. Explain.

Answer 23

New simplified definition of merit

• Intellectual capacity
• Personal qualities
• Ability to understand and deal fairly
• Authority and communication skills
• Efficiency

Fairer system for filling High Court vacancies

• All candidates need to apply for vacancies
• All are shortlisted candidates that will be interviewed (F2F)
• References will be sought fairly and openly

More streamlined and objective application process

• JAC reduced the old application from over 20 pages to 9
• Introduced new, impartial process for all judicial officeholders

Improved marketing of vacancies

• JAC’s advertising will be more prominent and better targeted to encourage more people to apply

Question 24

How does diversity contribute to legitimacy?

Answer 24

Quality and reputation have to be maintained

• Appointment of judges need to be more inclusive of people of the BAME community, women, and persons with different professional background

However, quality alone is not sufficient to influence public confidence

• The composition of the judiciary should be diverse enough so as to reflect society at large or the characteristics of the modern legal profession. That is how diversity can contribute to legitimacy

Question 25

What case states that ROL is to be shown through judicial indepdence?

Answer 25

**R (On the application of G) v Immigration Appeal Tribunal (2011)** * ‘It is the role of the judge to preserve the **Rule of Law**. The importance of that role has long been recognised by parliament. It is a constitutional norm recognised by statutory provisions that protects the **independence of the judiciary** such as **Section 11** and **Section 12** of the **Supreme Court Act 1981** (Senior Court Act 1981)

Question 26

What are 6 cases that state judges need to be impartial?

Answer 26

Nemo Judex In Causa Sua 1. **R v Sussex Judges Ex Parte McCarthy** 2. **Re Bow Street Metropolitan Stipendiary Magistrate Ex Parte Pinochet Ugarte** 3. **Locabail (UK) Ltd v Bayfield Properties Ltd (1999)** - pre HRA 4. **General of Fair Trading v Proprietary Association of Great Britain (2001)** - post HRA 5. **Porter v Magill** 6. Locabail v Waldorf Investment Corp [2000]

Question 27

**R v Sussex Justices Ex Parte McCarthy [1924]** ## Footnote nemo judex in causa sua

Answer 27

Facts 1. Applicant charged with dangerous and convicted 2. Later discovered that the Clerk to the Magistrates’ Court was a solicitor who had represented the person suing McCarthy for damages 3. Applied for JR on grounds that threw as bias by Clerk Held * McCargy’s conviction was quashed due to possible biases * **‘Justice must not only be done, but must also be seen to be done.’**

Question 28

**R v Bow Street Metropolitan and Stipendiary Magistrate Ex Parte Pinochet Ugarte [1999]** ## Footnote nemo judex in causa sua

Answer 28

Facts 1. Proceedings of the former Chilean head of State was challenged by JR 2. On grounds that one of the Lords, Lord Hoffman, had links with Amnesty International - a charitable pressure group on behalf of political prisoners 3. Held no actual bias but concerns that public perception might be bad for the judge Held * **Apparent bias** (seen bias) * Proceedings were abandoned and reheard by new bench of 7 judges

Question 29

**Locabail v Waldorf Investment Corp [2000]**

Answer 29

Issue * COA reconsidered the issue of judicial bias * Court had to consider 2 rules - 1. where the judge had interest in the case decided (Dimes v Grand Junction Canal [1852]) 2. examination of all relevant circumstances that there was a real danger or possibility of bias (**R v Gough [1993]**) Facts 1. A recorder published articles adjudicating in a personal injury case 2. Which were allegedly in favour of the claimants and against insurers Held * Said to take a **broad common sense approach** as a lay observer with knowledge of the facts * Couldn’t exclude the **possibility** that the recorder was biased * Held inappropriate for a judge to use intemperate language about subjects which he had adjudicated or would have to adjudicate * **Appeal allowed** & retrial ordered

Question 30

**Locobail (UK) Ltd v Bayfield Properties Ltd (1999)** ## Footnote pre HRA

Answer 30

Whether there was a judicial bias as a result of social or financial interest

Question 31

**General of Fair Trading v Proprietary Association of Great Britain (2001)** ## Footnote post HRA

Answer 31

* Set the test for judges to recuse themselves * Whether a reasonable person would conclude that there is bias

Question 32

**Porter v Magill (2001)**

Answer 32

First * Court considers all the circumstances where there is **alleged/possible bias** Second * Judges ask the question: “Whether the** fair minded & informed observer**, with regard to all the facts, would conclude there was a **real possibility** of bias?” ## Footnote 'No bias' test

Question 33

What are the 2 authorities that discuss the indepdence of the judiciary?

Answer 33

**Hewert LJ** - provincial law society dinner at Hastings in 1935 * ‘It might be useful sometimes to remind persons who have forgotten or never knew that there is still in existence an instrument called the **Act of Settlement 1701** and that the **independence of judges** is the protection of the people.’ **Wilfrid Prest** - ‘Judicial Corruption in Early Modern England’ * The inspiration for any form of judicial payment was rooted in the consideration that judges who were not paid **could be bought**