Tagged as: UK Law

The Judiciary Lecture

A. Introduction

An understanding of the hierarchy of courts in the UK is helpful in explaining the various judicial functions. The higher courts, the Court of Appeal and the Supreme Court have certain law-making functions, which means that their decisions are binding on lower courts. They also have particular roles as appeal courts, and hence perform the function of reviewing the decisions of lower courts. This hierarchy of courts is important in ensuring the administration of justice functions effectively within the court system and in particular in relation to public law acts as an important limitation on the abuse of the powers of the Executive and Legislative branches of government.

B. The Structure of the Judicial System

Figure 10.1 The Judicial System in England and Wales

Court Hierarchy

Figure 10.1 shows the basic architecture of the judicial system in England and Wales. A variety of courts operate in a hierarchical system and fulfil a variety of functions within this system. At the first tier, the Magistrate's court exists for the less serious criminal offences and the County court for civil matters as well as the First-tier tribunal. They are first instance cases, which means that the cases that they hear are done so for the first time. These courts generally are finders of fact hear witnesses and consider evidence presented to the court. The Crown Court is also a criminal court of first instance and hears cases in which more serious criminal offences (indictable or triable either way) are prosecuted.

The second level include the courts of a higher standing, including the High Court and the upper tribunal. The High Court is the court of first instance for judicial review cases. The Upper Tribunal has the equivalent status to the High Court, in that it determines appeals on a point of law from the First-tier tribunal. The Court of Appeal, (which can be divided into the civil and criminal division) is an exclusively appellate court. This means that it only deals with cases which have first been heard in a lower court and for which an appeal has been lodged challenging a decision that the first instance court has made.

The Supreme Court is at the top of the hierarchy and its role is to determine questions of law that have been appealed from the Court of Appeal. Its predecessor was the appellate body of the House of Lords and both courts tend to take decisions which are of specific importance in areas of law. The website of the Supreme Court states that "the Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population." [https://www.supremecourt.uk/]

Criminal and Civil Divisions

The court structure is also divided into specialisms as has already been alluded to. Generally speaking, there are three divisions in this respect: the criminal division, the civil division and the administrative division.  The criminal justice system is concerned with the prosecution of offenders who are accused of a criminal offence; the second part in such cases is the crown (known as Regina or R in the case names). The majority of such cases start in the Magistrates court, where a bail hearing will be held to determine whether an individual should be held in custody or released on police bail. Lesser offences will be heard in the Magistrates court before a panel of lay Magistrates of a single judge. More serious offences are heard in the Crown court or in certain cases (known as triable either way) an accused may elect for their case to be heard in the Crown court in front of a single judge and a jury of twelve members of the public. Appeals from the magistrates' court can be made to the Crown Court, and on an appeal on a point of law only is then allowed from the High Court to the Court of Appeal or from the Court of Appeal to the Supreme Court. Appeals from cases, which are in the Crown Court at first instance, proceed to the Court of Appeal (Criminal Division) and if leave is granted to the Supreme Court.

The civil justice system deals with cases of a civil matter, such as personal injury cases of breaches of contract between two private parties. Small value claims must be brought in the Court Court but other civil claims may be brought either in the County Court of the High Court. This usually depends upon the complexity of the legal and factual issues in the case, or the availability of specialist judges on the matter of issue. Appeals from the County Court can be made in to High Court, after which they can proceed to the Court of Appeal (Civil Division) and then on to the Supreme Court.

The third branch is the administrative system, or the system of public law, which is concerned with challenges against public of governmental decisions. Judicial review cases involve a challenge against the actions or decisions of a public body (such as welfare and immigration tribunals). There are First Tier Upper Tier immigration tribunals; they handle a large number of decisions each year.

Jurisdiction is founded on courts in different ways. The High Court has inherent jurisdiction, and hence is not conferred its powers by Statute, thus in a certain view cannot be removed by legislation. The High Court has three divisions: including the Family Division, the Queen's Bench Division and the Chancery Divisions. The Queen's Bench Division includes the Administrative Court, in which judicial review cases are heard.

Figure 10.0 refers to the court structure in England and Wales only; in Northern Ireland there is a separate but similar system; however, their ultimate route of an appeal resides in the UK Supreme Court. The UK Supreme Court is also the final appeal court in the Scottish court system; however, much of the rest of that system differs from the structure of courts in England and Wales.

In certain cases, there is a further route of appeal beyond the UK Supreme Court. The Court of Justice of the European Union (CJEU) which sits in Luxembourg, while the UK remains within the European Union this court is still of relevance in the UK legal system. UK courts can and sometimes should refer contested questions of EU law to the CJEU. The CJEU does not make a determination of a case on the facts but makes an interpretive decision on a point of EU law and then refers the case back to the domestic authorities to make a determination on the facts. There has also been certain speculation as to whether the UK will remain within the Council of Europe European Convention on Human Rights System. While it remains so, it will be subject to the decisions of the European Court on Human Rights, which is seated in Strasbourg. The Conservative Government has also expressed its intention to repeal the Human Rights Act 1998; if it does this will change the relationship between UK courts and the Strasbourg Court. However, while it remains in force, decisions of the European Court on Human Rights are binding upon UK courts when interpreting issues which relate to Convention rights in the UK courts. The Strasbourg Court's judgments are also binding on the UK as a matter of international law, when the UK is a party to a case in the court.

C. The Role of the Judiciary

The role of the court system is to decide cases, including a determination of the relevant facts, then the determination of the relevant law and the application of the relevant facts to the relevant law. The courts must ascertain what the relevant facts are; this may require a court to resolve a dispute about the facts. The lower tribunals and courts are primarily finders of fact; in criminal cases, this is through the presentation of evidence that relates to the element of the crime that the defendant is accused of. In other litigation, such as judicial review proceedings, the dispute does not usually centre on the facts but on whether the decision that was made is lawful.

Secondly, the court must determine the relevant legal rules to apply in the particular case. In certain instances, the court may even be required to clarify, develop or supplement existing legal principles in order to apply the law to new factual situations. The higher appellate courts fulfil this function in resolving points of law; this role is within the remit of the Court of Appeal or UK Supreme Court. Cases, which involve important points of law with a broad social importance, might proceed to the Supreme Court for an authoritative resolution by the senior judges. These decisions are binding on the lower courts.

Finally, courts must apply the law to the facts; it must determine that the facts satisfy the relevant legal requirements of the criminal offence or civil liability. In criminal trials the prosecution must establish that the evidence is sufficient to support the factual acts required as well as the requisite intention on behalf of the accused. In a judicial review case, the High Court might need to decide whether a government policy is a breach of an individual's Convention rights.

There are bodies other than courts who also resolve disputes between parties; these include matters of private law that might be resolved through arbitration. A dispute which relates to a contract between parties might be resolved through an arbitrators’ ruling which is accepted by the parties on a consensual basis. Alternative dispute resolution (ADR) refers to a method of resolving disputes which do not resort to involving the court system. The existence of such mechanisms for dispute resolution is important for three principal reasons.

1. Courts operate as a longstop; it may be possible to resolve a dispute without recourse to the courts. It is often the case that no particular relationship exists between the parties to the dispute; if one party is injured due to the carelessness of the second party who is a stranger, no arrangement will exist between the parties to decide how this matter should be resolved. The outcome is that the careless party might simply refuse to participate in any form of voluntary dispute resolution process. Many of the cases that end up in court are this sort of cases since without a third party being capable of determining a point of dispute such a matter cannot be resolved. It is necessary that in order to main social order between the parties, an effective and independent judicial system is available in order to resolve the dispute without recourse to less civilised ways of resolving disputes.
2. Courts can exercise the coercive powers of the state; parties may not be willing to participate in a voluntary dispute resolution process or if they do, one party may refuse to abide by the ruling of the ADR process. ADR processes are based upon the consent of the parties, but the courts have the power to use its coercive power to order a particular remedy. Ultimately, a party who refuses to abide by a court's ruling, can be held in contempt of court and receive a custodial sentence. The court's can also use coercive powers against government, by striking down an unlawful decision.
3. The courts are also a necessary element of the separation of powers doctrine, which means they are part of the essential checks and balances put in place so that other branches of government do not act outside of their powers.

The courts’ role in the UK Constitution

Courts act as the adjudicators in cases that involve public law.  They are frequently asked to determine a case where a public body has infringed the rights of a private individual and are required to rule on the legality of a decision made by a public body. In 'judicial review' cases (dealt with in more depth in Chapter 11 of this module) the courts’ role is to determine the dispute by reference to the relevant legal principles and the evidence of the facts. In judicial review cases, courts are required to consider whether a public body has adhered to the special legal standards to which branches of government are required to adhere. These standards include the principles of good decision making, the relevant aspects of the rule of law and the European Convention on Human Rights (ECHR) principles which are protected by the Human Rights Act 1998 (HRA). These special rules apply because it is acknowledged that the role between the State and the individual is a relationship of unequal power; since the State has quite broad powers in relation to the individual, these powers must be exercised correctly.

Public bodies also possess a protection function. The Environment Agency (EA) exists in order to protect the UK environment, whereas the UK Border Agency (UKBA) has the responsibility of controlling the UK's borders. A public body might make a decision for the common good that is not in the interests of certain private individuals.  The EA might make the decision to impose a pollution tax which costs businesses but that is of benefit to society in general. Hence, it is clear that there are often conflicts, which arise between private individuals and the state in the form of public bodies due to their decision-making powers and the ways in which these impact upon the rights and interests of individuals or private companies. Particularly since the introduction of the HRA, the courts have had a growing role in acting as watchdog to protect the constitution, particularly in the light of the peculiarly powerful position of the Executive branch within the UK.

Unlike in other countries, the courts are constrained by the principle of parliamentary sovereignty and are unable to strike out primary legislation as unconstitutional. The courts’ powers to uphold constitutional principles, such as the rule of law or the separation of powers, are limited by contrary provisions within an Act of Parliament.

Functions other than Dispute Resolution

The resolution of disputes is necessarily a retrospective function; however, courts are capable of also acting in a more forward-looking manner. Under the doctrine of precedent, higher courts including the Court of Appeal and UK Supreme Court can make decisions that clarify specific points of law and bind the lower courts in a prospective fashion. A higher court might place an interpretation upon a certain form of behaviour to rule it unlawful, and then as a result people might change their behaviour to take account of this decision.

Courts have also provided 'advisory opinions' in situations that do not disclose any live disputes; but present an answer to a hypothetical question of law responding in a way that would answer the question as to whether such a given set of facts were to arise, what in these circumstances would be lawful.

The emphasis of such advisory opinions is upon public functions, and the aim is to make certain that public bodies act in the public interest. As such, the higher courts are able to provide advisory opinions in order to make authoritative rulings on the current state of the law so that public administration is carried out in a lawful manner in the first place.

Can Judges Make the Law? The Separation of Powers Doctrine

In Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157, Lord Diplock stated "Parliament makes the laws, the judiciary interpret them". Parliament is not the only body that makes laws, since administrative bodies pass a wide range of secondary legislation. The courts do however also contribute to the lawmaking enterprise in two ways:

1. Courts interpret legislation, the meaning of particular terms within a piece of legislation may be unclear and it is for courts to consider what these meanings could be in line with previously decided cases. Certain factual scenarios might arise to which there is no clear provision within a statute a judge will then need to choose between various potential interpretations of a statute and chose between them.
2. Legislation must also be interpreted in line with EU law and Convention rights within the ECHR.  In certain cases, the courts’ role goes way beyond interpreting particular terms within statutory texts. It must interpret the meaning of the text in line with the constitutional and human right framework; which at times may be difficult to do. In this role judges are acting as judicial legislators, going much further than the application of the law to particular facts.
3. Judges also more obviously create law when they create new rules of common law. There are certain large areas of criminal law for example that are devoid of legislative rules and are governed largely by common law principles. In contrast, the majority of public law is governed by statute, but the common law still has relevance in this area. The exercise of such powers are only lawful if compliant with the principles of judicial review, which are common law principles which have been developed by courts.

Are these functions of judicial law making compatible with the separation of powers doctrine which states that the legislative and hence law-making function rests with Parliament. As was discussed in previous chapters, the UK does not have a pure separation of powers and the courts’ role in statutory interpretation helps guard against the abuse of power. It helps to prevent any particular branch of government from holding excess power (in this case theoretically Parliament, but in practise it is often a safety valve on the power exercised by the Executive).

Furthermore, the courts’ law-making powers are usually quite limited. The courts’ interpretive powers are of course constrained by the text of the legislation. Similarly in creating common law, courts are restricted by past precedent, they only act in an incremental fashion and do not make sweeping legal changes in deciding cases. It is always open to Parliament to legislate when courts make decisions that the Executive does not feel is in line with Government policy. A decision by the House of Lords in R v Davis [2008] UKHL 36, [2008] 1 AC 1128 restricted the courts' ability at common law to allow witnesses to give evidence in anonymously in criminal trials. Shortly after this decision, Parliament enacted the Criminal Evidence (Witness Anonymity) Act 2008, which granted criminal courts the statutory power to provide anonymity for witnesses when this would not deny the defendant the right to a fair trial under Article 6 ECHR.

As unelected judges the courts are not subject to the democratic selection by the public, and hence the separation of powers doctrine requires that there are significant limits on the courts' law making powers. This has been made clear by the courts themselves, when they have refused to rule on a particular question stating that a particular matter requires an Act of Parliament to make changes to the law. 

This legal change came in the form of section 34 Crime and Disorder Act 1998 which states that "the rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is herby abolished".  In this way, the courts deferred to the law-making power of Parliament recognising that to have abolished such a rule within common law would have been to act outside of their own law-making capacity.

D. Judicial Appointments

i. The Judiciary

The Executive is responsible for the judicial appointments in the UK.  The Queen, with the advice of the Prime Minister (PM), makes appointments in the UK Supreme Court. The Lord Chief Justice, the Master of the Rolls and the President of the Family Division are appointed, along with other senior roles, on the advice of the PM and the Lord Chancellor. The Queen, on the advice of the Lord Chancellor, appoints High Court judges; this is the same for circuit judges and recorders.

There are of course minimum requirements for judges to be qualified to take such a role. Since the Courts and Legal Service Act 1990, solicitors with rights of audience in the High Court and barristers' of ten years call or more as well as circuit judges of two years' standing can be appointed as High Court judges. Since the 1990 Act, candidates for appointment as Lord Justice of Appeal in the Court of Appeal must have at least 10 years standing as a barrister, or a solicitor with rights of audience in the High Court. Those who have already been a High Court judge may also be appointed.

In practice appointments to posts in the superior courts is frequently made of those individuals who have much more than the statutory minimum qualifications. It is exceptional that a person is appointed to a senior judicial position than through promotion through the other judicial positions. Occasionally an academic has been promoted to judicial office, however such an individual must also possess the relevant professional qualifications including time in legal practise already described.

ii. Judicial Appointments Commission

The widespread criticism of the lack of transparency in the judicial appointments process was the impetus for the passage of the Constitutional Reform Act 2005. The Judicial Appointments Commission (JAC) was established by an Order in Council in April 2006 to review judicial appointments. Its formation includes a lay chairperson as well as a number of other Commissioners. The Lord Chancellor in collaboration with the Lord Chief Justice (LCJ) governs the formulation of this body. The Judicial Appointments Regulations require that the Commission deals with a number of issues, including the eligibility for appointment to the Commission, regional balance, the terms and conditions of employment and the length of service of the Commissioners.

In the event of a vacancy needing to be filed within a number of senior posts, the Lord Chancellor may request the Commission to establish a selection panel; two must be judges and two are not to be legally qualified. Two of the members of the panel must also be members of the Commission. There is no mandatory composition of the panel to appoint High Court judges, but the panel must consult the LCJ and another High Court judge before putting forward a recommendation for an appointment. In all judicial appointments, the end of the process is when a recommendation is made to the Lord Chancellor who can ask the panel to reconsider or reject the appointment altogether.

The Constitutional Reform Act 2005 (as amended) provides that the UK Supreme Court is to consist of twelve full time judges. Serving justices of the Supreme Court are prohibited from taking an active part in the legislature. The Supreme Court was established on 1 October 2009; appointments do not have to have prior judicial experience. Lord Sumption was appointed to the Supreme Court in 2012 straight from the Bar. Appointment to the Supreme Court will not bring a peerage although judges are referred to as 'Lord'.

Vacancies to the Supreme Court are filled through the appointment of an ad hoc Supreme Court Selection Commission, although the President of the Court is appointed differently.  The Commission must consist of five members; one must be a member of the Supreme Court, another a lay member and three must be members of the JAC. The Supreme Court (Judicial Appointments) Regulations 2013 includes further rules regarding the appointment and selection of members of the Supreme Court.

Judicial diversity has become an important question in recent years. Judicial statistics for 1 April 2015 state that only 12% of all judges under 50 declare their ethnicity as black or minority ethnic. There are increasing numbers of female judges, with the percentage of female High Court and Circuit Judges at 19.8% and 22.8% respectively. [Judicial Diversity Statistics 2015, p.3]. Despite developments over the past two decades there has been little discernible change in the gender and ethnic composition of the judiciary. To be truly representative of society it is necessary that the judiciary be more representative of a cross section of the social composition of society. In particular, the majority of the senior judiciary remain white upper class males, which is proportionally a very small cross-section of society.

E. Judicial Independence

It is important the courts are both independent and are perceived to be so. The right to have legal proceedings that are unbiased is a fundamental human right and is incorporated within Article 6 ECHR. Individual judges must not then have an interest in the outcome of a particular case as this might affect the fairness of the outcome and the integrity of the legal process. Judicial independence also requires that the Executive or the Legislative branches of government do not unduly influence them. Certain steps have been taken in recent years to ensure that there is a sufficient separation between the judiciary as an institution and the other branches of government.

1. The first of these steps was the establishment of the UK Supreme Court in October 2009. The Appellate Committee of the House of Lords included members of the House of Lords in its legislative capacity, but by convention did not participate in debates or votes that related to politically contentious matters. The Constitutional Reform Act 2005 established the UK Supreme Court and although it is largely a change in appearance as the same Law Lords have remained on the court as were on the Appellate body of the House of Lords. However, it places into law the body's independence from other branches of government.
2. The Lord Chancellor until recently held a senior role in all three branches of government. The Lord Chancellor appointed judges and also sat on the Appellate Committee of the House of Lords. The Lord Chief Justice took over the role of the Lord Chancellor who is now solely a Government Minister and is in charge of the Ministry of Justice.

An independent judiciary is thus an essential element of the separation of powers doctrine. Although changes in recent years may have been aimed at changes in public perception rather than actual changes, public perception that justice is fair is also an important element of the need for independence.

The Judiciary and the Courts - Hands On Example

The following essay style questions provide example questions that can test your knowledge and understanding of the topics covered in the chapter on the Judiciary and the courts. Suggested answers can be found at the end of this section. Make some notes about your immediate thoughts and if necessary, you can go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions, which may be presented in the exam.

Q1 Do judges make the law?

Q2 Does the current system of judicial appointment lead to a suitably transparent process and sufficient diversity within the serving judiciary?

A1 The separation of powers doctrine states that it is for the legislature (i.e. Parliament) to create law, they are the political representatives of the people and have been elected into their positions which means they should represent the public interests in the passage of legislation. However, there are certain ways in which is can be argued that judges do create laws.

• It was stated by Lord Diplock in Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157, that "Parliament makes laws, the judiciary interpret them".
• Judges interpret existing legislation, where a term in an Act of Parliament is unclear it is the judges’ role to consider what the various interpretation of a term in a Statute is and choose between them.
• Judges are also required to uphold the rights within the Human Rights Act 1998 and make sure that statutes comply with EU law. The HRA creates provision for judges to read into a statutory provision its compliance with Convention rights, this might have a significant impact upon the legal application of a specific provision of legislation.
• Judges also create new rules of common law. These are intended to be incremental changes, but over many years and decades of areas such as criminal law where many offences are still bound by common law, judges have created large areas of legal regulation over time.

For example, in Regina v R (Rape: Marital Exemption) The Times, 24 October 1991; (1992) Cr.App.R. 216 the House of Lords effectively created a new criminal offence of the act of rape within marriage. It had previously not been an offence of a man to rape his wife, as it was argued that through the marriage contract women gave themselves to their husband and was unable to withdraw consent. The House of Lords acknowledged the changes in society that made it no longer acceptable to suggest that rape in marriage was not possible.

Contrast this case with C(A Minor) v Director of Public Prosecutions [1995] Cr App R 136, [1995] UKHL 15, [1996] AC 1, where the court acknowledge that is was not their role to abolish the doli incapax rule and that it was for Parliament to legislate on the matter, which they did in the Crime and Disorder Act 1998, section 34.

A2 Judicial appointments in the UK are made by the Queen with advice of the PM, and the Lord Chancellor. The Courts and Legal Services Act 1990 provided that solicitors could obtain rights of audience in the High Court and hence both solicitors and barristers (of 10 years call) could be appointed as High Court judges. It was also possible at this stage for circuit judges also to be appointed to the High Court.

• Widespread criticism of the lack of transparency and diversity within the judicial appointments process led to the passage of the Constitutional Reform Act 2005. A year later the Judicial Appointments Commission was created through an Order in Council in 2006.
• The Lord Chancellor requests that the JAC form a selection panel in the event of a vacancy for a senior judicial appointment. There is a mandatory composition for this selection panel including two members of the JAC, two judges and two non-lawyers. The panel makes a recommendation to the Lord Chief Justice who can reject or accept the recommendation.
• The establishment of the UK Supreme Court by the Constitutional Reform Act 2005 meant that law (rather than convention) now prohibits serving justices from taking an active part in the legislature. Judges will not obtain peerage by virtue of their membership on the Supreme Court.
• To fill a vacancy in the Supreme Court, an ad hoc Supreme Court Selection Commission is established, which must include a member of the Supreme Court, three members of the JAC and a non-lawyer.
• Despite these changes, little impact has been had upon the diversity of gender and race within the judiciary, particularly in the senior roles. Judicial Diversity Statistics 2015 (p.3) reveal that 12% of judges under 50 declare themselves as black or minority ethnic, which is in line with the general population in which 86% of the population describe themselves as white (Office of National Statistics, 2012)
• However, the gender diversity is less encouraging with the percentage of female High Court and Circuit Judges at 19.8% and 22.8% respectively.
• At the most senior levels, there are no Lord Justices of Appeal that describe themselves as coming from a BME background. There are 8 Lord Justices of Appeal who are female, which constitutes just over 20% of the total number (Judicial Diversity Statistics 2015, p.4)
• There are no Lord Justices of Appeal who have come from the professional background as a Solicitor-Advocate (Judicial Diversity Statistics 2015, p.5)
• Although throughout the judiciary there have been changes in the number of women, of ethnic minorities and solicitor advocates taking on roles, at the highest levels all three of these groups are still significantly underrepresented. Since it is the Lord Justices of Appeal who make the most important legal policy decisions, to be representative of the population as a whole, this situation needs to change.

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