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Judges - role
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The Role of Judges

Essentially, the role of judges is to interpret and uphold the law.

The law is laid down in statutes by Parliament. The common law is judge-made law.

 

Judicial Review

It is also the role of the judges to act as a check on the misuse of power usually through judicial review.  The Administrative Court (formerly known as the Divisional Court) can review the decision of any inferior court, tribunal or public body.

 

Constitutional position of judges

This is found in the separation of powers, this is a key feature of our unwritten constitution and now enshrined in statute (Constitutional Reform Act 2005).

 

Why?

The doctrine of the separation of powers is aimed at the prevention of a tyrant or a dictator obtaining total, and absolute power by exercising these three functions of the state.

 

Lord Steyn 1997

"The courts acknowledge the sovereignty of Parliament…and the judiciary unreservedly respects the will of Parliament as expressed in statutes."

 

"The acts of the executive are either lawful or not…the executive must carry out the law as declared by the courts’. In other words, acts by the executive are subject to judicial review."

Sole arbiters of law

Whereas the jury is the sole arbiter of fact the judge is the sole arbiter of law.  Except when he/she sits alone, that is almost always in civil cases.

 

Law Making and other functions

Chairmen of bodies: judges are often called upon to be members of advisory committees, commissions and enquiries.  Notably the head of the Law Commission is a High Court judge.

 

Working with the MoJ: to improve the effectiveness of the justices system

 

Substantial commitments internationally: they represent our system abroad.  They assist new democracies to set up their justice system.

 

In Parliament: as members of the House of Lords they are sometimes involved in legislative business, not politically, but as advisors.  By convention they limit their activity to law reform measures.

 

As judges: they interpret law and thereby give effect to Parliament's will.

 

Creating common law: judges are exclusively responsible for the law of equity.  Many areas of law have little Parliamentary involvement, the law of contract is an example of this, although Parliament has passed some legislation affecting privity and the effect of minors' contracts.

 

Higher courts

In the higher courts (Court of Appeal and House of Lords) the role of the judge is almost exclusively to decide points of law. 

 

This is not the same in the High Court, which is a court of first instance for much of its work.

 

When hearing an appeal the judges do not concern themselves with the facts of the case, as they do not rehear the evidence from witness and rely on the report from the judge "below".

 

Sentencing

Judges play a particularly important role in sentencing.  In the Crown Court a judge may be asked to correct a sentence imposed by magistrates.

 

After a trial in the Crown Court the judge is solely responsible for the sentence.

 

Appeals against sentence take up a very large amount of time in the Court of Appeal.  They can be asked to change a sentence by the defendant, or by the prosecution.

 

The defendant can appeal on the grounds that his sentence is harsh, and the prosecution can appeal on the basis that the sentence imposed was "unduly lenient".

 

The Court of Appeal is also responsible for issuing guidance of sentencing on the advice of the Sentencing Advisory Panel.

 

Sentencing powers unlimited

In 2005 Mr Justice Mackay imposed a record fine of £10 million on the rail maintenance company Balfour Beatty that was implicated in the Hatfield train crash (reduced to £7.5 million on appeal).

The previous record in an English court of £2 million was imposed on Thames Trains after the 1999 Paddington rail crash. A £15 million pound fine was imposed Transco PLC in August 2005 at the High Court of Justiciary in Edinburgh

The judge said Balfour Beatty had been responsible for “one of the worst examples of sustained industrial negligence in a high-risk industry I have ever seen”. The incident at Hatfield resulted in 4 deaths and 102 injuries.

 

Network Rail was fined £4 million in March 2007 for safety failures that contributed to the deaths of 31 people and injuries to hundreds more in the Paddington rail disaster of 1999.

 

Public inquiries

Judges are regularly asked to chair important public enquiries.  these can have profound importance and can have great political consequences.

Some notable inquiries:

The Hutton Inquiry

 

The Bloody Sunday Inquiry

 

The Stephen Lawrence Inquiry

 

The Shipman Inquiry

 

(Many other reports here)

 

The Inquiries Act 2005 limits the scope of inquiries and is thought by many to put to much control in the hands of the executive.

 

Lord Saville pointed out that the Act "makes a very serious inroad into the independence of any inquiry; and is likely to damage or destroy public confidence in the inquiry and its findings".

He said:

"As a Judge, I must tell you that I would not be prepared to be appointed as a member of an inquiry that was subject to a provision of this kind."

The inquest into the death of Diana Princess of Wales will be presided over by Dame Elizabeth Butler-Sloss who will be appointed a deputy coroner for this purpose, although there are provisions in the Coroners’ Act for judges to hear inquests such an appointment is rare. Although retired she is a highly respected and experienced judge.

 

On the bench

The judges role in both criminal and civil cases is similar, but there are some essential differences.  One of these differences is the fact that there is a jury in civil cases in only a few circumstances.

 

Criminal Cases

Because the English court system is adversarial the judge has a role akin to a referee, between the prosecution and the defence.

 

Judges spend much of their time ruling on points of law, they do this when the jury is not present,

 

He also has the role of explaining the law to jury and summarising the evidence.  He has to explain to the jury that he is the sole arbiter of law, and they are the finders of fact.

 

Judges as coroners

Lord Scott Baker, a Court of Appeal judge was appointed as Royal Coroner to undertake the inquest into the death of the Princess of Wales, Lady Diana.

 

Civil Cases

In civil cases the procedure is also adversarial, but since the Woolf reforms which lead to the Civil Procedure Rules he has to take a more active role in managing the timetable of the case. 

 

He is also required, as part of the "overriding objective" of the Rules to encourage parties to attempt to resolve their case by ADR.

 

The function of judge at trial of civil action

A first instance judge is entitled to a wide degree of latitude in the way in which he conducted proceedings in his court.

Ultimately, the judicial function is to deal with cases justly in accordance with the overriding objective as expressed in the Civil Procedure Rules.

 

In The London Borough of Southwark v Kofi-Adu [2006] CA (a housing possession case) the judge went beyond this by continually interrupting and asking questions; the Court of Appeal ordered a retrial.

Although first instance judges rightly tend to be very much more proactive and interventionist than their predecessors, it remained the case that interventions by a judge carry the risk of depriving himself of the advantage of calm and dispassionate observation.
 

Lord Denning MR in Jones v National Coal Board [1957] CA said that it was not the role of the judge to conduct an investigation ...

"… to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large …."


Lord Denning went on to explain, that does not mean the judge is "a mere umpire to answer the question 'How's that?' ".

"His object, after all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role.


"Was it not Lord Eldon LC who said in a notable passage that 'truth is best discovered by powerful statements on both sides of the question'? …


"And Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations?


"If a judge, said Lord Greene, should himself conduct the examination of witnesses, 'he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict': see Yuill v Yuill [[1945] ... "

Role in enforcing human rights

 

"Declaration of Incompatibility"

The Human Rights Act 1998 puts an obligation on all courts to deal with matters of human rights that are raised during any hearing.


If an Act of Parliament is found to be incompatible with an Convention Right the High Court (and above) can issued a "declaration of incompatibility" inviting Parliament to correct the incompatibility by a fast-track procedure where the Minister issues a "remedial order".

 

"Remedial orders" are created by section 10 of the Human Rights Act, and empowers a Minister to place before Parliament a special order to bring legislation into line with the Convention following a declaration of incompatibility or a finding of the ECtHR.
 

The legislation concerned remains valid, thereby preserving Parliamentary sovereignty, though the Government has so far respected such declarations, and has in all cases taken, or said that it intends to take, appropriate steps to amend or replace the relevant legislation, so as to restore compatibility with the Convention Rights. The Review of the Implementation of the Human Rights Act in July 2006 concluded that the Act had not significantly altered the constitutional balance between Parliament, the executive and the judiciary.

 

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