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
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).
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
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
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
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
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.
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".
Judges play a particularly important role in sentencing. In the
Crown Court a judge may be asked to correct a sentence imposed by
After a trial in the Crown Court the judge is solely responsible for the
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
The Court of Appeal is also responsible for issuing guidance of sentencing
on the advice of the
Sentencing powers unlimited
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
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.
Judges are regularly asked to chair important public enquiries.
these can have profound importance and can have great political
Some notable inquiries:
The Hutton Inquiry
The Bloody Sunday Inquiry
The Stephen Lawrence Inquiry
The Shipman Inquiry
(Many other reports
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".
"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.
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
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
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.
London Borough of Southwark v Kofi-Adu  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  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
[ ... "
Role in enforcing human rights
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
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.