Within a criminal trial, a Judge must consider and direct both prosecution and defence counsel on matters of law and decide on the admissibility of evidence. At the conclusion of the trial a judge must also look hard at all the evidence put before the jury and précis it in a concise and objective manner for them in his summing up before sending them out to deliberate a verdict. On a finding of guilt a judge is expected to pass a fair sentence on the defendant that is appropriate to the case and meets public demand.
The Separation of Powers maintains the Judiciary and the Executive act as separate bodies within the state and that neither should influence nor assume the role of the other. This notion I feel, is somewhat contradicted, as the Lord Chancellor is head of the Judiciary and also a member of the Cabinet.
The current system of judicial appointment is that all judicial applications are made through the Lord Chancellors office. He and four most senior ranking members of the Judiciary will choose from a selection of candidates who will have over twenty years standing as a Barrister, many of which will have ‘taken silk’ to the order of Queens Counsel (QC’s). High Court Judges and above are only appointed by request from the ranks of Queens Counsel. Barristers who do not become QC’s may be selected as circuit judges and recorders. In every case, the Lord Chancellor has the final decision on the matter; however it is for the Prime Minister, with advice from the Lord Chancellor, to decide on who becomes a Court of Appeal or House of Lords judge.
The Lord Chancellor is expected to be apolitical in his role in the appointment of judges and when advising the government on reforms within legal system. An article in ‘The Independent’ (10 March 2003) published the result of an inquiry commissioned by the Bar council. Below is an extract from the newspaper. Sir Iain Glidewell, head of the Bar Councils working party and a former Lord Justice of Appeal is quoted in the article;
‘Lord Irvine of Lairg should be stripped of his powers to appoint High Court judges and Queens Counsel…and that it was “politically unacceptable” for a member of the Government to continue to appoint high-ranking judges’ He also called for an end of the so-called "tap on the shoulder" system for appointing High Court judges. "We do not consider that the current processes can be seen to be wholly satisfactory for the 21st century," he said.’
The Independent (front page) 10 March 2003
Sir Glidewell equates the selection procedure to a ‘tap on the shoulder system’, which implies there is a lack of equal opportunities within the current system and portrays an ‘old boys club’ where senior members of the Judiciary ‘cherry pick’ their successors. It must be accepted that there is considerable truth in Sir Iain Glidewells’ statement whereas my interpretation of the tap on the shoulder system is a deliberate stereotypical assusmption.
Therefore, when asked if think the current system for appointing judges should be changed, I am, with slight discontent, inclined to disagree. I am mindful of the opinion that the 19th Century Inns of Courts are still in practice today and the Judiciary are slow in modernising. It is clear from statistics that the members of the judiciary do not reflect the country’s population as there are no female or black Lords of Appeal in Ordinary, no black Heads of Divisions, Lords of Appeal or High Court Judges and only 1.1% of Circuit Judges are of visible ethnic appearance. But do these statistics suggest a problem in the current system of appointment or a problem in the attitudes of senior members of the judiciary who recommend prospective judges, or, is it simply, that there are insufficient candidates from minority groups in the legal profession as a whole.
My argument against radical change is not based on these questions, but on the premise that the Judiciary remains a separate and independent body. It has customs and traditions, although they are not ‘cloak and dagger’ some may appear old fashioned and out of date. But the Judiciary has a long pronounced history. Throughout hundreds of years of constant change and political unrest, it has remained stable. It is this fact alone that assures the Executive, the Legislative and the man the Clapham omnibus that it will remain stable in the years to follow. Changing long established methods may weaken the strength of the Judiciary and thus weaken the solid foundations of our fundamental system of law.
A judge is not just simply a natural progression that follows the rank of QC with time; they are selected for their proven ability within the legal profession and possess a wealth of knowledge, wisdom and experience. Although I do feel there may be a requisite need for attitudes to change and greater opportunity within the system, I do believe that the method by which a judge is appointed should remain the same and the decision should be left in the hands of the Judiciary itself.
BIBLIOGRAPHY
BARNETT - Constitutional and Administrative Law
GRIFFITH J.A.G - Politics of the Judiciary
BLACKBURN & PLANT - Constitutional Reform
THE INDEPENDENT NEWSPAPER - 10 March 2003
The Lord Chancellors Department (statistics)
http://www.lcd.gov.uk/statistics/statpub.htm
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