Their ignorance of the modern way of British Life is astounding (Lord Gifford).In light of this comment discuss the appointment and training of judges.
"Their ignorance of the modern way of British Life is astounding" (Lord Gifford).
In light of this comment discuss the appointment and training of judges.
Looking at Lord Gifford's comment, I would tend to agree. There are several key terms that stand out; ignorance, modern and British Life. In this essay I will explore the background, appointment and training of judges and hope to find out the grounds on which Lord Gifford based his comment and determine if it is justified.
There are many different kinds of judges. These can be categorised as either superior judges or inferior judges. These different types of judges have different method of appointment, training, work and terms of office.
Superior judges are those in the High Court or above. These are: The Lords of Appeal in Ordinary headed by the Lord Chancellor, Lord Justices of Appeal and High Court Judges in three divisions in the High Court. The titles of these judges are: The Lord Chancellor who is head of the House of Lords (Lord Derry Irvine). Lord Chief Justice who is a Senior Judge in the Queens Bench Division and President of Court of Appeal Criminal Division (Lord Harry Woolf). The Master of Rolls who is President of the Court of Appeal Civil Division (Lord Phillips). The President of the Family Division of the High Court and the Vice-Chancellor of the Chancery Division of the High Court.
The Inferior Judges are: Circuit Judges in the County and Crown Court. Recorders and assistant recorders, in either the Crown or County Court. District Judges in the County Court. Stipendiary Magistrates in Major Magistrates Courts.
The background of judges is very unrepresentative of society. Superior Judges fall into a very specific group of people. They are generally fifty to seventy year old, middle class, white males and have attended an Oxbridge University, who primarily recruit from private school. The fact that most Superior Judges went to an Oxbridge University may be beneficial as we want the best people as judges and the best people attend the best universities. However, it also means that these judges are made up of a very small social spectrum, predominantly comprised of upper-middle class individuals. In the higher courts all the judges are white, this is severly unrepresentative as in Britain we have a diverse range of cultures and ethnic origins. There is evidence to show that black defendants are more likely to receive a custodial sentence for the same offences as white defendants. Inferior Judges, in the main, have a more average background. They are usually aged between forty and fifty years old, equally male and female, of all races, have had an ordinary education and it is unlikely they attended an Oxbridge University. Of all of these factors it is the age of the judges that has the most significance. Older judges may mean more experience and therefore more skill at deciding jurisdictions. However, being older can also denote traditional and conservative views and a reluctance to accept and understand modern opinions and concepts.
The appointment of judges is often under debate. Although we now live in a democracy where we are supposed to be the ones in control of the country we clearly have no jurisdiction here at all. We appoint a government who in turn will appoint a Lord Chancellor, after that he, the Lord Chancellor is basically in control of the people who will operate the legal system in this country. He will influence the Prime Minister and ultimately the Queen on the appointment of Higher Judges, though he will appoint or nominate the Lower Judges himself.
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The appointment of judges is often under debate. Although we now live in a democracy where we are supposed to be the ones in control of the country we clearly have no jurisdiction here at all. We appoint a government who in turn will appoint a Lord Chancellor, after that he, the Lord Chancellor is basically in control of the people who will operate the legal system in this country. He will influence the Prime Minister and ultimately the Queen on the appointment of Higher Judges, though he will appoint or nominate the Lower Judges himself.
The Courts and Legal Service Act 1990 specifies the qualifications for each judicial post. To become a judge at any level it is necessary to have qualified but not necessarily practiced) as a solicitor or a barrister. This may be a drawback to the judicial system, as even though someone may make a good barrister we can only assume that they would make a good judge. The skills needed for each are quite different. A judge must look at things impartially whereas the whole basis of a solicitor or barrister's job is to be, completely the opposite, fully partial. However, the act has been useful in increasing the number of judges and to provide those from a wider cross section of society, for example: Allowing Civil Service and Crown Prosecution Service Lawyers to become judges and breaking the monopoly the bar held on Superior judgeships by providing the structure for promotion and basing the necessary qualifications on the relevant certificate of advocacy.
Since 1995, instead of being invited to be appointed, adverts are placed for judicial positions in the High Court and below. However, in higher courts the system of appointments still operates. In addition the Lord Chancellor stated that judicial appointments could be made regardless of sex, marital status, wealth, ethnic origin, religious beliefs and political afflictions.
Information about potential professionals is collated in files over a period of time by the Lord Chancellors Department. Judicial appointments are largely down to the opinions of other judges and legal personnel, and these are known as 'secret soundings'. As judges are high profile and in the public eye any secret personal information that any jeopardize a persons eligibility is also collected, this is important to the legal profession so as not to cause any compromisation. As judges' behaviour must be seen as impeccable, on appointment, they often have to discard their previous lifestyle; this is strong evidence to imply that they are out of touch, as they are out of touch, as they are quite clearly not leading the life of an ordinary person.
In the appointment of Inferior Judges candidates will apply for the position. To apply for the lowest judicial position - assistant recorder, general speculative applications are made, whilst others are advertised in the commercial press. Recorders usually start off as assistant recorders then after a few years will be promoted to Recorder. The position of recorder is part time, sitting for twenty days a year for three years, in the Crown or County Court. The next step up the ladder is that of Circuit Judge. The post of Circuit Judge is advertised, with requirements that applicants are between forty-five and sixty and have served as a recorder for two years. Applicants are interviewed by a Lord Chancellors Official, a lay person and a serving judge. They will report to the Lord Chancellor, who will advise the Queen who to appoint.
There are different possible career pathways to becoming a judge. The first of these being progression from being a Recorder, for those solicitors without a certificate of advocacy. This is the usual route i.e. Assistant Recorder, Recorder then Circuit Judge. The second way to become a judge is to have had rights of audience for at least ten years in the Crown or County Court. The third way is to do with The Courts and Legal Services Act 1990 again improving upon the composition of the social make up of the judges. It allows, after three years in position a Stipendiary Magistrate, District Judge or Employment Tribunal Chairman.
Superior Judges are appointed by a system of selection. Since it is not possible to apply for any of the superior positions, this results in 'secret selection', based on word of mouth, with no comeback by those discussed.
In the appointment of Law Lords, Judges are short listed by the Lord Chancellor, selected by the Prime Minister and appointed by the Queen. Normally the Lord Chancellors choice is adhered to however when Mrs Thatcher was the Prime Minister she was known to disagree on one particular occasion. The Law Lords are all male and no woman has ever been appointed as a Law Lord. Law Lords can be appointed form those who have practised either: In Northern Ireland as a member of the Bar, or in Scotland as an Advocate for at least fifteen years, or have held high legal position in their own legal system. This is because the House of Lords is their final appeal court. Or those who have been qualified to appear for the last fifteen years in the Supreme Court.
In the appointment of Lord Justices of Appeal the judges are short listed by the Lord Chancellor and selected by the Prime Minister. Solicitors can be appointed as High Court Judges but so far only barristers have. To become a Lord Justice of Appeal the candidate must be an existing High Court Judge or have a ten year High Court qualification. Often two High Court Judges are used to form the panel along with the Lord Justice of Appeal, dealing with Court of Appeal (Criminal Division) work. There is one woman in the Court of Appeal, she is referred to as My Lady, Lady Justice Butler-Sloss but in Law Reports as Lord, the Supreme Court Act, stated that it must be Lord Justices of Appeal.
High Court Judges are appointed by the Queen on the Lord chancellors advise and are assigned to a division depending on their expertise. The pay structure of a High Court judge is not attractive to a barrister as they have the potential to earn five or six times more than a judge.
The training of judges is carried out by the Judicial Studies Board. As assistant recorders have no judicial experience they receive the most training this still, however, only consists of one weeks training followed by one weeks work shadowing. Judges should attend a refresher course every two years according to the Runciman Commission on Criminal Justice (1993). The problem with this system is that the training is too short and the assistant recorders may have never practised in criminal courts. New High Court judges have no compulsory training. All Circuit Judges, Recorders and Assistant Recorders attend racial awareness training. They may also attend sexual awareness and disability awareness training.
Unlike some other countries such as France and Germany we do not have what is known as a 'Career Judiciary', so there are no exams to pass and relatively little training. This means the judges can enter the judicial hierarchy at any point and find themselves trying serious cases and passing life-altering sentences with little or no experience whatsoever. In continental countries there are two distinct advantages over ours: Judges have more training and the average ages are much lower. This is because students with basic legal qualifications, are trained as judges without legal practice. The disadvantage of this is that, being civil servants they may have a conflict of interest. In America judges are elected. This is often a televised public event.
The Courts and Legal Services Act (1990) changed the system by allowing solicitors to get rights of the audience in the higher courts through getting a Solicitors Advocate Qualification, thus enabling them to go on to be judges.
Recently there have been reforms to require judges to receive training in race awareness, dealing with children, the recent Access to Justice Act (1999) reforms and the Human Rights Act 1998.
In the Lord Chancellor's Department's Annual Report for 1999-2000 it states that judges will, "respect and have understanding of people (including children) of different backgrounds on the attitudes and behaviours of people whom they encounter in the course of their work. They will convey understanding of and sympathy for the needs and concerns of the court users and be sensitive and humane".
After suggestions about the need to have training regularly throughout judicial careers as well as more at the start, judges are now required to attend refresher courses every five years in order to brush up on existing skills and knowledge and learn about any new legislations or precedent. However, some still argue that this is not adequate and that there should be more training provided regarding sociology, psychology, penology and criminology.
In conclusion the evidence provides a sound argument to show that the judiciary is currently vastly unrepresentative and therefore out of touch with society. Recently there have been several reforms to address this significant issue and move in the right direction to creating a well-balanced and representative judiciary. Only time will tell if they have succeeded.
The Judiciary
Donna Hodgson 6126