Although the stated role of the judiciary is to administer justice, the courts also unavoidably make law in which they are not supposed to. They also make law, in the effect that they lay down rules that will be used in future cases, this is known as the doctrine of precedent. “Case law is built up out of precedents, and a precedent is a previous decision of a court which may, in certain circumstances, be binding on another court in deciding a similar case. This practice of following decisions is derived from custom, but is a practice which is generally and closely observed.” C.J. Parker once stated (Mirehouse v. Rennel -1833) “Precedent must be adhered to for the sake of developing the law as a science.” This is also known as ‘judge made law’. Many judges today claim that one of their many roles is to observe and interpret law and not ‘make’ it. Once a decision is made by the House of Lords then it is automatically bound by the lower courts only unless a referral is made to the European Court of Justice. An incredibly striking example of judge made law was when a House of Lords decision stated that a husband could rape his wife; this in itself changed all the rules governing the laws between husbands and wives.
The Human Rights Act allows judges to announce legislation and to overturn executive decisions.
Judicial review is the process of reviewing administrative decisions (by government departments and local authorities) and is another one of the main roles of the judiciary. An application for judicial review must be bought forward by a petition. The court may grant assistance to the applicant who is entitled to it in one of the following procedures of relief in prohibition, an injunction or a declaratory judgement. When no right of appeal is given you may be able to challenge the decision of a lower court e.g. Magistrates Court. The court can look into the elements of such a decision but can not by any means rule upon it. The Divisional Court under the Queens Bench Division deals with judicial review and examines it under all aspects. Judicial review is an advantage in the fact that it allows ones claim to be looked into and to see if they can enforce and declare the law in their case in a suitable manner but also damages can also be claimed when under application for review. Judicial review is increasingly being used today and is now being referred to on many occasions as ‘the citizens weapon’.
However, there is a down side too of the review as Lord Dunning once stated (the Discipline of law-discussion) that many applicants ‘do not have a sufficient interest (locus standi) in the case and only their needs’. He also stated ‘that many just wanted to interfere in matters, which do not really concern them and waste their time more than anything else’.
To become a judge it is essential to have a minimum of experience even though most judges have more than the minimum required. As I mentioned before there are many different types of judges all who do similar or different styles of work. There are two groups of judges known as the inferior judges and superior judges. There are certain qualifications needed to become a judge in the higher courts. HM the Queen appoints the judges of the Court of Appeal and above on recommendation by the prime minister (even though as of late PM’s have not had much interest in judicial appointment) and advice from the Lord Chancellor. All judges in the Court of Appeal at present are barristers even though solicitors can be appointed to become judges in this court. For a Lord Justices of Appeal qualification you must have sat ten years in the High Court or be an existing High Court Judge. They hear both civil and criminal cases and can sit in both divisions of the Court of Appeal, and their work is of great magnitude compared to the work of a Law Lord.
To become a Law Lord (also Lords of Appeal in Ordinary) you must have at least 15 years qualification in the Supreme Court. Law Lords are automatically made life peers and can sit in the House of Lords when legislation is involved and can take part in debates. All the Law Lords are male and no female has ever been appointed to this position. They hear both civil and criminal cases however; much of their work involves hearing civil cases with about fifty heard each year compared to the five criminal cases.
In order to be worthy of becoming a High Court Judge (Puisne judge) you must have had the right to practice in this court for ten years or been a Circuit Judge for two years. The High Court sits at the Royal Courts of Justice based in London and other centres in England and Wales. It is divided into three sections; Queens Bench Divisional Court, the Chancery Division (has its own specialist courts) and the Family Division. The Queens Bench is the biggest of the three and has three specialist courts; the Commercial Court which deals with commercial matters. The Admiralty Court deals with shipping disputes and lastly the Divisional Court manages judicial review. Multi track cases are also heard in the High Court e.g. truancy involving parents and children. Generally most of the work is involved in civil claims for damages in tort and contract laws.
Recorders and assistant recorders must have a ten-year advocacy qualification and are appointed by the Queen on the Lord Chancellor’s advice by application to the Chancellor. It is a part time job and they only sit for twenty days a year as a judge with the rest of their time spent doing their normal line of work. They work for a maximum of five years and the majority of work is done in the Crown Court even though they can appear in the County Court. The Crown appoints District judges, assistant District judges and deputy District judges on advice from the Lord Chancellor. They work part time and have the advantage of holding a place in practice and must have a seven-year advocacy qualification. Most of their work is done in the County Court and deal with civil cases mostly.
Circuit judges can be appointed in two ways; firstly you should have had rights of audience for ten years in the Crown Court or County Court or have been a Recorder judge. Even if you did not have the necessary credentials there was a way for u too become part of the judiciary. Also there are exceptions for others to also becoming judges including junior judges or a tribunal chairman who has practised between three to five years.
The Stipendiary Magistrates now known as District judges sit mainly in London and must have a seven-year requirement. As a result of the Access to Justice Bill, the unusual situation whereby a stipendiary magistrate was not called a judge was resolved and is now referred to as a District judge (Magistrate Court).
In conclusion, there is a vast amount of work that a judge and the judiciary do and even though each judge’s style of work is different to the next they are still classed as judges and whether or not a judge does a good job or a bad job will strongly depend on the individuals themselves.
