The English Legal System

12.2 The Constitutional Role of the Judiciary

Central to the general idea of the rule of law (see Chapter 2 above) is the specific proposition that it involves the rule of law rather than the rule of people. Judges hold a position of central importance in relation to the concept of the rule of law. They are expected to deliver judgment in a completely impartial manner through a strict application of the law, without allowing their personal preference, or fear or favour of any of the parties to the action, to affect their decision in any way.

This desire for impartiality is reflected in the constitutional position of the judges. In line with Montesquieu’s classic exposition of the separation of powers, the judiciary occupy a situation apart from the legislative and executive arms of the state, and operate independently of them. Prior to the English revolutionary struggles of the seventeenth century between Parliament and the monarch, judges held office at the king’s pleasure. Not only did this mean that judges could be dismissed when the monarch so decided, but it highlighted the lack of independence of the law from the state in the form, and person, of the monarch. With the victory of Parliament and the establishment of a state based on popular sovereignty, and limited in its powers, the independence of the judiciary was confirmed in the Act of Settlement 1701. The centrality of the independence of the judges and the legal system from direct control or interference from the state in the newly established constitution was emphasised in the writing of the English philosopher, John Locke, who saw it as one of the essential reasons for, and justifications of, the social contract on which the social structure was assumed to be based.

In order to buttress the independence of the judiciary and remove them from the danger of being subjected to political pressure, it has been made particularly difficult to remove senior judges once they have been appointed. Their independence of thought and opinion is also protected by the doctrine of judicial immunity. Both of these principles will be considered in more detail below, as will the change in the procedure for appointing judges, which cannot but have had an impact on their perceived independence from politics and politicians.

12.2.1 The Constitutional Role of the Lord Chancellor

The following brief historical consideration of the constitutional position of the Lord Chancellor and the Appellate Committee of the House of Lords, as the highest court in England was correctly referred to, has to be placed within the immediate context of the changes made by the Constitutional Reform Act (CRA) 2005, which radically altered both institutions. The point of it is to highlight why those changes were, and arguably had to be, made.

The Lord Chancellor always held an anomalous position in respect of the separation of powers in the contemporary state, in that the holder of that position played a key role in each of the three elements of the state. The Lord Chancellor was the most senior judge in the English court structure, sitting as they did in the House of Lords. At the same time, however, the Lord Chancellorship was a party-political appointment, and the occupant of the office owed their preferment to the Prime Minister of the day. Not only was the incumbent a member of the executive, having a seat in the Cabinet, but they were also responsible for the operation of their own government department. In addition to these roles, it should not be overlooked that the Chancellor was also the Speaker of the House of Lords in its general role as a legislative forum.

The party-political role of the Lord Chancellor gave rise to a furore when, in February 2001, Lord Irvine, the then New Labour appointee, personally wrote to lawyers who were known sympathisers of the Labour Party, asking them to donate at least £200 to the party at a fundraising dinner he was to host. His political critics made much of the fact that, as the person ultimately responsible for appointing the judiciary, his soliciting of party funds from those who might apply for such positions in the future could be represented as improper. As such, the press immediately entitled it the ‘cash for wigs’ affair, echoing the previous ‘cash for questions’ scandal in the House of Commons and the subsequent ‘cash for peerages’ scandal. The Lord Chancellor, however, refused to apologise for his action. In a statement to the House of Lords, delivered in his political persona and therefore two paces apart from the woolsack on which he sat when acting as the Speaker of the House of Lords, he stated that:

I do not believe I have done anything wrong nor do I believe that I have broken any current rules. If I did I would be the first to apologise.

According to Lord Irvine, it was misconceived to claim that the Lord Chancellor was not a party-political post, and that every minister from the Prime Minister down was involved in fundraising. The best that could be said for the Lord Chancellor was that, although he had done nothing unlawful, he had acted in an unwise, politically naïve and injudicious manner, and one that once again brought the anomalous constitutional role of his office to the political foreground and renewed calls for its reformation, if not removal.

In addition to difficulties arising directly from his responsibility for implementing political policies in relation to the legal system, the Lord Chancellor’s judicial role also came into question. As a consequence of the fact that the appointment of the Lord Chancellor is a purely political one, there is no requirement that the incumbent should have held any prior judicial office. Indeed, in the case of Lord Irvine, he had never served in any judicial capacity, making his reputation as a highly successful barrister. Nonetheless, as Lord Chancellor, he was the most senior judge and was entitled to sit, as he thought appropriate (see below, 12.2.2, for further observations about the Lord Chancellor’s residual powers).

There was, however, a much more fundamental issue relating to the manner in which the Lord Chancellor’s former multifunctional role may be seen as having breached the doctrine of the separation of powers. There cannot but be doubts as to the impropriety of a member of the executive functioning as a member of the judiciary and Lord Irvine himself withdrew from sitting in a case in March 1999 in which he recognised the possibility of a conflict of interest. That case involved an action by the family of a man who had died in police custody. The suggestion was made that the Lord Chancellor’s participation on the judicial panel raised doubts as to whether the case would be decided by an independent and impartial tribunal. Given his recent guidelines warning the judiciary about the need to be sensitive to issues of conflict of interest, the Lord Chancellor clearly felt himself required to stand down from hearing the case.

In McGonnell v UK (2000), the European Court of Human Rights (ECtHR) confirmed the previous decision of the Commission in relation to the judicial function of the Bailiff of the island of Guernsey. It was held that the fact that the Bailiff had acted as the judge in a case in which he had also played an administrative role was in breach of Art 6 of the European Convention on Human Rights (ECHR). In the words of the Commission decision:

It is incompatible with the requisite appearance of independence and impartiality for a judge to have legislative and executive functions as substantial as those carried out by the Bailiff.

Although those words could apply equally to the Lord Chancellor, the actual court decision was limited to the situation of the Bailiff, and Lord Irvine made it clear that he considered its application to be limited to the particular facts of the Guernsey situation. In any event, the Lord Chancellor continued not to sit on cases where there might appear to be a conflict between his judicial and other roles. In February 2003, the Lord Chancellor’s dual role as judge and member of the executive came under attack in the parliamentary assembly of the Council of Europe, which oversees the operation of the ECHR (see Chapter 5). A Dutch member, Erik Jurgens, a vice president of the assembly, tabled a motion that stated that:

The assembly… has repeatedly stressed that judges should be a completely independent branch of government. It is undeniable that combining the function of judge with functions in other branches of government calls that independence seriously into question.

Mr Jurgens was quoted as saying that he was advising eastern European countries seeking entry to the Council of Europe that they would not be admitted unless their judges were totally independent, so it was an anomaly that one of the original members had a figure like the Lord Chancellor, and further that:

Sooner or later a case is going to come to the European Court of Human Rights at Strasbourg, and I think they will certainly say that this is an unacceptable combination.

In April 2003, Lord Irvine defended the unique position of the Lord Chancellor in an appearance before the parliamentary select committee with oversight of the Lord Chancellor’s Department. Questioned on the conflict inherent in his power to make law and still sit as a judge, he responded that he had ‘difficulty seeing why this issue is so important’, and argued against changing a legal system that had an enviable international reputation, simply for the sake of constitutional purity. As he put it:

The basic point is that the higher judiciary accept this role – they believe profoundly that it is a superior system to any other.

The Constitutional Reform Act 2005

While Lord Irvine preferred to maintain his position rather than bow to constitutional purity, his views were apparently not shared by his colleagues in government and most importantly the Prime Minister, who sacked him in June 2003. As part of a Cabinet reshuffle, which appeared to involve a power struggle between the Home Secretary and the Lord Chancellor, which the former won, Lord Irvine was not only removed from office, but it was announced that his office itself was to disappear. A new ministry, the Department for Constitutional Affairs, was to replace the Lord Chancellor’s Department and Lord Falconer was appointed Secretary of State for Constitutional Affairs to replace Lord Irvine as Lord Chancellor. It would appear that the announcement was made without anyone having thought through the constitutional implications, or indeed practicalities, of simply abolishing the position of the Lord Chancellor. Initially, Lord Falconer said he was not the Lord Chancellor and that he would not be assuming all of the functions of his predecessor. However, the realisation soon dawned that it was impossible to eradicate the role of the Lord Chancellor by simple diktat. Lord Falconer had to be Lord Chancellor even if by default, as someone had to perform the constitutional functions attached to the Lord Chancellor’s office. So, on the first day in his new role, Lord Falconer was to be seen in wig and tights sitting on the woolsack in the House of Lords, for the simple reason that someone had to do it. As a consequence, Lord Falconer was, at least for the time being, both Secretary of State for Constitutional Affairs and Lord Chancellor, although in the former role he was charged with the duty of abolishing the latter role. It should be noted that from the outset Lord Falconer made it clear that he would not, and never did, sit as a judge. As regards his legislative role in chairing sessions of the House of Lords, the CRA subsequently provided for the election of an independent Lord Speaker and in July 2006 the House of Lords elected Baroness Hayman as the first office-holder.

The proposal of the original Constitutional Reform Bill for the complete abolition of the office of the Lord Chancellor was extremely controversial. Reference has already been made to the concerns of the judiciary as to the abolition of the role of the Lord Chancellor and those concerns were also shared by politicians and social commentators. Many of the latter argued against what they saw as the ditching of hundreds of years of history and practice for the sake of dressing up a Cabinet reshuffle as a matter of constitutional importance.

The government, nonetheless, insisted on pursuing its reforms, and justifying them on the basis of transparency and the recognition that it was no longer appropriate for one person to perform the disparate functions of the Lord Chancellor in clear contradiction of the doctrine of the separation of powers. However, as many correctly pointed out, the constitution of the UK never actually incorporated a strict separation of powers. Nonetheless, that recognition cannot be taken as justifying a situation that, as preceding analysis has shown, was clearly founded on fundamental conflicts of interest and was almost certainly contrary to the European Convention on Human Rights. In this regard, the changes introduced by the Constitutional Reform Act 2005 can be seen to be not only pertinent, but also timely, in their endeavour to address an issue before it became a problem. Nonetheless, as was explained above, the government did submit to the wish to retain the ancient office of Lord Chancellor, although the importance of the role was significantly reduced. Following a Cabinet reshuffle in 2007, which also involved the replacement of the Department of Constitutional Affairs by a new Justice Ministry, the Justice Minister, Jack Straw, became the first member of the House of Commons to assume the role and title of Lord Chancellor. Subsequently, in 2012, Chris Grayling, the Conservative MP, became the first Lord Chancellor to hold no legal qualifications.

As part of the reform of the office of Lord Chancellor, its former judicial functions transferred to the Lord Chief Justice in the role of President of the Courts of England and Wales, who took over responsibility for the training, guidance and deployment of judges. They are also responsible for representing the views of the judiciary of England and Wales to Parliament and ministers (see 12.3).

12.2.2 The Constitution and the Role of the House of Lords and the Supreme Court

As has been mentioned previously, by virtue of the Constitutional Reform Act 2005, the Supreme Court replaced the House of Lords as the highest court in the United Kingdom in October 2009. The Judicial Committee of the Privy Council remains as a distinct entity, but follows the Supreme Court to its new location.

Consequently the Supreme Court is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland and hears appeals on arguable points of law of general public importance. However, once again, the explanation for this event requires a brief consideration of its historical and constitutional context. A number of issues came together to raise questions about the operation of the House of Lords as the final court of appeal in the English legal system and the role of the Privy Council. Among these were the devolution of parliamentary power to the Scottish Parliament and Welsh Assembly, the previous and proposed further reform of the House of Lords, the enactment of the Human Rights Act and the role of the House of Lords itself in the Pinochet case (see below). However, of far greater significance was the proposal in the Constitutional Reform Act 2005 to replace the currently constituted Appeal Committee of the House of Lords with a new Supreme Court.

The case for the reform of the Lord Chancellor’s position and against the location of the most senior judges in the House of Lords was presented to the commission examining the reform of the House of Lords by JUSTICE, the civil rights organisation. Both aspects of the challenges were strongly rejected by the then Lord Chancellor Irvine in a speech to the Third Worldwide Common Law Judiciary Conference in Edinburgh, delivered in July 1999. Nonetheless, spring 2002 saw a spate of speeches and interviews highlighting disagreement, if not actual tension, between the Lord Chancellor and some of the most senior members of the judiciary. In March of that year Lord Steyn, then the second longest serving Law Lord, expressed the view that Lord Irvine’s insistence on sitting as a judge in the House of Lords was a major obstacle to the creation of a Supreme Court to replace the House of Lords. In April, the Lord Chancellor’s response was reported in the Financial Times newspaper. The article stated that ‘Lord Irvine may have an impressive intellect, but his lack of diplomacy means he will seldom be short of enemies.’ The point of that comment was supported by the Lord Chancellor’s reaction to Lord Steyn’s previous comments, dismissing them in a tone of effete arrogance as ‘rather wearisome… he’s not a political scientist, he knows nothing about the internal workings of government – or very little’. As reported, he reduced Lord Steyn’s argument to a demand for ‘a grand new architectural venture’, stating that the argument that ‘the Lord Chancellor, because of his desire to continue sitting, is preventing the judges from having a new building – that’s just nonsense’.

Lord Irvine’s views should, however, be contrasted with those of the former senior Law Lord, Lord Bingham, expressed in the Spring Lecture given at the Constitution Unit at University College London in May 2002. In a paper entitled ‘A New Supreme Court for the UK’, Lord Bingham directly addressed all of the issues raised above, except for the role of the Lord Chancellor, before stating his preference for:

a supreme court severed from the legislature, established as a court in its own right, re-named and appropriately re-housed, properly equipped and resourced and affording facilities for litigants, judges and staff such as, in most countries of the world, are taken for granted.

As to the views and future role of the Lord Chancellor, the reduction of his direct judicial powers was implicit in the speech. As Lord Bingham concluded, ‘inertia… is not an option’.

Once again, Lord Irvine’s political antennae appear to have lacked acuity, in that not only was he replaced as Lord Chancellor by Lord Falconer, but as has been seen, his successor proposed the establishment of a Supreme Court much along the lines of that suggested by Lord Bingham. Thus Part 2 of the Constitutional Reform Act 2005 contained provisions for the following:

The establishment of a new, independent Supreme Court, separate from the House of Lords with its own independent appointments system, its own staff and budget and its own building: Middlesex Guildhall. This new Supreme Court should not be confused with the old Supreme Court, which was the title previously given to the High Court and Court of Appeal. In future those courts will be known as the Senior Courts of England and Wales.
The 12 judges of the Supreme Court will be known as Justices of the Supreme Court and will no longer be allowed to sit as members of the House of Lords. As a matter of fact, all of the present members are life peers and as a result will be able to sit in the House of Lords on their retirement from their judicial office, but this may not always be the case in the future.
The current Law Lords will become the first 12 Justices of the Supreme Court, and the most senior will be appointed President of the Supreme Court. Lord Phillips, the former Lord Chief Justice, was appointed the first President of the new court and when it actually sat for the first time in October 2009 there were only 11 justices in office.

These measures can be considered in two parts: first, the creation of a Supreme Court, distinct from the House of Lords; and second, the removal of the right of the members of that new Supreme Court to sit as members of the Upper House. Neither of these proposals found favour with a majority of the members of the Law Lords; indeed, in their collective response to the Consultation Paper on constitutional reform, six of the 12 expressed their opposition to the creation of a Supreme Court and eight supported the retention of at least some judicial representation in the House of Lords. The minority supported the complete separation of judicial and legislative activity, as did Lord Falconer, who explained the need for reform thus:

The present position is no longer sustainable. It is surely not right that those responsible for interpreting the law should be able to have a hand in drafting it. The time has come for the UK’s highest court to move out from under the shadow of the legislature.

The relevance of Lord Falconer’s argument was given added power by the decision of the Scottish Court of Sessions, the equivalent of the Court of Appeal, in Davidson v Scottish Ministers (No 2) (2002). The case involved a challenge to a previous court decision, on the grounds of Art 6 of the ECHR, for the reason that one of the judges in the earlier case, the former Lord Advocate Lord Hardie, had spoken on the issue before the court while a member of the Scottish Assembly. The Court of Sessions held that Lord Hardie should at least have declared his previous interest in the matter and that, in the light of his failure to do so, there was at least the real possibility of bias, and ordered the case to be retried.

In other constitutional systems, both civil, as in France, or common law, as in the United States of America, not only is there a clear separation of powers between the judiciary, the executive and the legislature, there is also a distinct Constitutional Court, with the power to strike down legislation on the grounds of its being unconstitutional. It has to be emphasised that the UK Supreme Court will not be in the nature of these other supreme courts, in that it will not be a constitutional court as such and it will not have the powers to strike down legislation. Consequently, although the proposed alterations clearly increase the appearance of the separation of powers, the doctrine of parliamentary sovereignty remains unchallenged. It was presumably the lack of such power that led Lord Woolf to comment that the new court would effectively replace a first-class appeal court (the House of Lords) with a second-class Supreme Court.

It remains to be seen, however, whether, under the changed circumstances of the contemporary constitution, the Supreme Court, as the highest court in the land, will simply assume the previously limited role of the House of Lords, or whether it will, with the passage of time, assume new functions and increased powers as are consonant with Supreme Courts in other jurisdictions. This issue arose in September 2009 when Lord Neuberger, the current President of the Supreme Court, spoke on a BBC radio programme and expressed the opinion that the advent of the Supreme Court was not unproblematic: as he put it, ‘The danger is that you muck around with a constitution like the British constitution at your peril because you do not know what the consequences of any change will be’, and he added that there was a real risk of ‘judges arrogating to themselves greater power than they have at the moment’. Former Lord Chancellor, Lord Falconer, also expressed the view that the Supreme Court ‘will be bolder in vindicating both the freedoms of individuals and, coupled with that, being willing to take on the executive’, but Lord Phillips, the first President of the Supreme Court, was more conciliatory towards the executive, expressing the view that, although he could not predict how the court would function in the future, he did not foresee it changing in the way suggested by Lord Neuberger.

It is a commonplace of politics that the devolution of power from the UK Parliament in London, particularly to the Scottish Parliament in Edinburgh, will give rise to disputes as to the relationship between the two bodies. Eventually, such issues will have to be resolved in the courts. Jurisdiction was originally with the Privy Council but has been subsequently transferred to the Supreme Court. During 2010 and 2011 there was considerable tension between the Supreme Court and the Scottish Executive in relation to the court’s powers under the Human Rights Act, as a UK rather than a Scottish court, to determine criminal cases in relation to Scots law (see Cadder v HM Advocate (2010) and Fraser v MH Advocate (2011)). In AXA General Insurance Limited v The Lord Advocate (Scotland) (2011) the Supreme Court considered the constitutional position of the Scottish Parliament and concluded, in the words of Lord Hope:

As a result of the Scotland Act, there are thus two institutions with the power to make laws for Scotland: the Scottish Parliament and, as is recognised in section 28(7), the Parliament of the United Kingdom. The Scottish Parliament is subordinate to the United Kingdom Parliament: its powers can be modified, extended or revoked by an Act of the United Kingdom Parliament. Since its powers are limited, it is also subject to the jurisdiction of the courts.

Lord Hope’s judgment in AXA is also of general interest with respect to the constitutional relationship between Parliament and the courts.

Nor should it be forgotten that the Human Rights Act has, for the first time, given the courts clear power to declare the UK Parliament’s legislative provision contrary to essential human rights (see above, 2.5). Even allowing for the fact that the HRA has been introduced in such a way as to maintain the theory of parliamentary sovereignty, in practice, the courts will inevitably become involved in political/constitutional issues. Once the courts are required to act in constitutional matters, it is surely a mere matter of time before they become Constitutional Courts, as distinct from ordinary courts, with specialist judges with particular expertise in such matters.

12.2.3 Judicial Impartiality

Re Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (1999)

No consideration of the operation of the judiciary generally, and the House of Lords in particular, can be complete without a detailed consideration of what can only be called the Pinochet case (the various cases are actually cited as R v Bartle and R v Evans (House of Lords’ first hearing); Re Pinochet (House of Lords’ appeal against Lord Hoffmann); R v Bartle and R v Evans (final House of Lords’ decision)).

In September 1973, the democratically elected government of Chile was overthrown in a violent army coup led by the then General Augusto Pinochet Ugarte; the President, Salvador Allende, and many others were killed in the fighting. Subsequently, in the words of Lord Browne-Wilkinson, in the final House of Lords’ hearing ([1999] 2 All ER 97 at 100):

There is no doubt that, during the period of the Senator Pinochet regime, appalling acts of barbarism were committed in Chile and elsewhere in the world: torture, murder and the unexplained disappearance of individuals on a large scale.

Although it was not suggested that Pinochet had committed these acts personally, it was claimed that he was fully aware of them and conspired to have them undertaken.

In 1998, General Pinochet, by now Senator for life and recipient of a Chilean amnesty for his actions (extracted as the price for his returning his country to democracy), came to England for medical treatment. Although he was initially welcomed, he was subsequently arrested on an extradition warrant issued in Spain for the crimes of torture, murder and conspiracy to murder allegedly orchestrated by him in Chile during the 1970s. Spain issued the international warrants, but Pinochet was actually arrested on warrants issued by the metropolitan stipendiary magistrate under s 8(1)(b) of the Extradition Act 1989. The legal question for the English courts was whether General Pinochet, as head of state at the time when the crimes were committed, enjoyed diplomatic immunity. In November 1998, the House of Lords rejected Pinochet’s claim by a three-to-two majority, Lord Hoffmann voting with the majority but declining to submit a reasoned judgment.

Prior to the hearing in the House of Lords, Amnesty International, which campaigns against such things as state mass murder, torture and political imprisonment, and in favour of general civil and political liberties, had been granted leave to intervene in the proceedings, and had made representations through its counsel, Geoffrey Bindman QC. After the Pinochet decision, it was revealed, although it was hardly a secret, that Lord Hoffmann was an unpaid director of the Amnesty International Charitable Trust, and that his wife also worked for Amnesty. On that basis, Pinochet’s lawyers initiated a very peculiar action: they petitioned the House of Lords about a House of Lords decision; for the first time, the highest court in the land was to be subject to review, but review of itself, only itself differently constituted. So, in January 1999, another panel of Law Lords set aside the decision of the earlier hearing on the basis that Lord Hoffmann’s involvement had invalidated the previous hearing. The decision as to whether Pinochet had immunity or not would have to be heard by a new, and differently constituted, committee of Law Lords.

It has to be stated in favour of this decision that the English legal system is famously rigorous in controlling conflicts of interest, which might be seen to affect what should be a neutral decision-making process. The rule, which applies across the board to trustees, company directors and other fiduciaries as well as to judges, is so strict that the mere possibility of a conflict of interest is sufficient to invalidate any decision so made, even if in reality the individual concerned was completely unaffected by their own interest in coming to the decision. In the words of the famous dictum of Lord Hewart, it is of fundamental importance that ‘justice must not only be done but should manifestly and undoubtedly be seen to be done’ (R v Sussex Justices ex p McCarthy (1924)). With regard to the judicial process, it has been a long-established rule that no one may be a judge in his or her own cause, that is, they cannot judge a case in which they have an interest. This is sometimes known by the phrase nemo judex in causa sua. Thus, for example, judges who are shareholders in a company appearing before the court as a litigant must decline to hear the case (Dimes v Grand Junction Canal (1852)). It is therefore astonishing that Lord Hoffmann did not withdraw from the case, or at least declare his interest in Amnesty when it was joined to the proceedings. The only possible justification is that Lord Hoffmann assumed that all of those involved in the case, including the Pinochet team of lawyers, were aware of the connection. Alternatively, he might have thought that his support for a charitable body aimed at promoting civil and political liberties was so worthy in itself as to be unimpeachable: could not, and indeed should not, every English judge subscribe, for example, to cl 3(c) of the Amnesty International Charitable Trust memorandum, which provides that one of its objects is ‘to procure the abolition of torture, extra-judicial execution and disappearance’?

In either case, Lord Hoffmann was wrong.

Once it was shown that Lord Hoffmann had a relevant interest in its subject matter, he was disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest was sufficient to disqualify him unless he had made sufficient disclosure. Hitherto, only pecuniary or proprietary interests had led to automatic disqualification. But, as Lord Browne-Wilkinson stated, Amnesty, and hence Lord Hoffmann, plainly had a non-pecuniary interest sufficient to give rise to an automatic disqualification for those involved with it.

The House of Lords therefore decided that Lord Hoffmann had been wrong, but it remained for the House of Lords to extricate itself, with whatever dignity it could manage, from the situation it had, through Lord Hoffmann, got itself into. This it endeavoured to do by reconstituting the original hearing with a specially extended committee of seven members. Political and legal speculation was rife before the decision of that court. It was suggested that the new committee could hardly go against the decision of the previous one without bringing the whole procedure into disrepute, yet the earlier court had actually contained the most liberal, and civil liberties minded, of the Lords. It was assumed that the new hearing would endorse the earlier decision, if with reluctance, but what was not expected was the way in which it would actually do so.

In reaching the decision that General Pinochet could be extradited, the House of Lords relied on, and established, Pinochet’s potential responsibility for the alleged crimes from the date on which the UK incorporated the United Nations Convention on Torture into its domestic law through the Criminal Justice Act 1988–29 September 1988. Consequently, he could not be held responsible for any crimes committed before then, but was potentially liable for any offences after that date. Thus, although the later House of Lords’ committee provided the same decision as the first one, it did so on significantly different, and much more limited, grounds from those on which Lords Steyn and Nicholls, with the support of Lord Hoffmann, relied. Such a conclusion is neither satisfactory in law nor in political practice, and did nothing to deflect the unflattering glare of unwanted publicity that had been visited on the House of Lords.

It is important not to overstate what was decided in Re Pinochet. The facts of that case were exceptional and it is unlikely that it will lead to a mass withdrawal of judges from cases; however, there might well be other cases in which the judge would be well advised to disclose a possible interest. Finally, with regard to Re Pinochet, whatever one’s views about the merits, sagacity or neutrality of the current judiciary, there is considerable evidence to support the proposition that, historically, judges have often been biased towards certain causes and social classes. For example, JAG Griffith’s book, The Politics of the Judiciary (1997) (see 13.7.1), is brimming with concrete examples of judges who have shown distinctly conservative and illiberal opinions in cases involving workers, trade unions, civil liberties, Northern Ireland, police powers, religion and other matters. Lord Hoffmann was wrong, but it is nonetheless ironic that the first senior judge to have action taken against him for possible political bias was someone whose agenda was nothing more than being against torture and unjudicial killings.

Locabail (UK) Ltd v Bayfield Properties Ltd (1999)

Following a number of other cases in which lawyers sought to challenge a judgment on the grounds that through a social interest or remote financial connection the judge was potentially biased, the Court of Appeal delivered authoritative guidance on the matter in Locabail (UK) Ltd v Bayfield Properties Ltd and Another (1999).

The Court of Appeal ruled that all legal arbiters were bound to apply the law as they understood it to the facts of individual cases as they found them without fear or favour, affection or ill will: that is, without partiality or prejudice. Any judge, that term embracing every judicial decision-maker, whether judge, lay justice or juror, who allowed any judicial decision to be influenced by partiality or prejudice deprived the litigant of their important right and violated one of the most fundamental principles underlying the administration of justice. The law was settled in England and Wales by the House of Lords in R v Gough (1993), establishing that the relevant test was whether there was in relation to any given judge a real danger or possibility of bias. When applying the real danger test, it would often be appropriate to inquire whether the judge knew of the matter relied on as appearing to undermine their impartiality. If it were shown that they did not, the danger of its having influenced their judgment was eliminated and the appearance of possible bias dispelled. It was for the reviewing court, not the judge concerned, to assess the risk that some illegitimate extraneous consideration might have influenced his decision.

There was one situation where, on proof of the requisite facts, the existence of bias was effectively presumed, and in such cases it gave rise to automatic disqualification; namely, where the judge was shown to have an interest in the outcome of the case which they were to decide or had decided (see Dimes v Proprietors of the Grand Junction Canal (1852), R v Rand (1866) and R v Camborne Justices ex p Pearce (1955)). However, it would be dangerous and futile to attempt to define or list factors which might, or alternatively might not, give rise to a real danger of bias, since everything would depend on the particular facts. Nonetheless, the court could not conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on his or her social, educational, service or employment background or history; nor that of any member of his or her family; nor previous political associations, membership of social, sporting or charitable bodies; nor Masonic associations; nor previous judicial decisions; nor extracurricular utterances, whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers; nor previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him or her; nor membership of the same Inn, circuit, local Law Society or chambers.

By contrast, a real danger of bias might well be thought to arise if there existed personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any such member of the public, particularly if that individual’s credibility could be significant in the decision of the case; or if in a case where the credibility of any individual were an issue to be decided by the judge, he or she had in a previous case rejected that person’s evidence in such outspoken terms as to throw doubt on his or her ability to approach such a person’s evidence with an open mind on any later occasion.

It might well be thought that the Court of Appeal was bound to come to this conclusion. Had it ruled that membership of certain societies, or a particular social background, or the previous political associations of a trial judge were grounds for appeal, two consequences would follow. First, there would be a rapid expansion of the use by law firms of special units that monitor and keep files on all aspects of judges’ lives. Second, there would be a proliferation of appeals in all departments of the court structure at the very time when there is such a concerted effort to reduce the backlog of appeals. The decision in Locabail leaves a question of profound jurisprudential importance: how far can judges judge in an entirely neutral and socially detached manner?

Locabail was decided before the HRA 1998 came into force, but the Court of Appeal soon had the opportunity to assess the rules in R v Gough against the requirements of the European Court’s approach to bias in relation to Art 6 of the ECHR. Director General of Fair Trading v Proprietary Association of Great Britain (re Medicaments and Related Classes of Goods (No 2)) (2001) related to a case before the Restrictive Practices Court. Six weeks into the trial, one of the lay members of the panel hearing the case, an economist, disclosed that, since the start of the case, she had applied for a job with one of the main witnesses employed by one of the parties to the case. On learning this, the respondents argued that such behaviour must imply bias on her part and that consequently, the whole panel should stand down, or at least the member in question should stand down. The Restrictive Practices Court rejected the argument. On appeal, the Court of Appeal took the opportunity to refine the common law test as established in R v Gough. Previously, the court determining the issue had itself decided whether there had been a real danger of bias in the inferior tribunal. Now, in line with the jurisprudence of the ECtHR, the test was whether a fair-minded observer would conclude that there was a real possibility of bias. In other words, the test moved from being a subjective test on the part of the court to an objective test from the perspective of the fair-minded observer. In the case in question, the Court of Appeal held that there was sufficient evidence for a fair-minded observer to conclude bias on the part of one member of the panel and that consequently, at the stage the trial had reached, her discussions would have contaminated the other two members, who should also have been stood down. The approach adopted by the Court of Appeal in re Medicaments and Related Classes of Goods (No 2) was subsequently approved by the House of Lords in Porter v Magill (2001), and in the words of Lord Hope the test for bias is ‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’.

Subsequently, in Lawal v Northern Spirit Ltd (2003), the House of Lords stated that ‘public perception of the possibility of unconscious bias is the key’ and while not finding it necessary to delve into the characteristics to be attributed to the fair-minded and informed observer, did suggest that such a person would adopt a balanced approach ‘neither complacent nor unduly sensitive or suspicious’.

Finally, in Meerabux v The Attorney General of Belize (2005), Lord Hope in delivering the report of the Privy Council raised the possibility that had the House of Lords been able to apply the refined version of the test for apparent bias, rather than the test set out in Gough, then it is unlikely that it would have found it necessary to find a solution to the problem that it was presented with by applying the automatic disqualification rule. Not a little ironically, Lord Hoffmann himself was a member of this particular Privy Council panel.

12.4 Appointment of the Judiciary

The somewhat astonishing fact is that there are approximately 30,000 judicial officeholders in England and Wales if one includes judges, tribunal members and magistrates. This section of this book considers how such a number of people actually come to hold these judicial positions.

In the first of his Hamlyn Lectures of 1993, the then Lord Chancellor, Lord Mackay, stated that the pre-eminent qualities required by a judge are:

good sound judgment based upon knowledge of the law, a willingness to study all sides of an argument with an acceptable degree of openness, and an ability to reach a firm conclusion and to articulate clearly the reasons for the conclusion.

Although the principal qualification for judicial office was experience of advocacy, Lord Mackay recognised that some people who have not practised advocacy may well have these necessary qualities to a great degree. This was reflected in the appointment of an academic and member of the Law Commission, Professor Brenda Hoggett, to the High Court in December 1993. Professor Hoggett, who sat as Mrs Justice Hale, was the first High Court judge not to have had a career as a practising barrister, although she qualified as a barrister in 1969 and was made a QC in 1989. As Dame Brenda Hale, she sat in the Court of Appeal; as Lady Hale of Richmond, she was the first female member of the Law Lords; and she is now Deputy President of the Supreme Court.

The Courts and Legal Services Act (CLSA) 1990 introduced major changes into the qualifications required for filling the positions of judges. Judicial appointment is still essentially dependent upon the rights of audience in the higher courts, but at the same time as the CLSA 1990 effectively demolished the monopoly of the Bar to rights of audience in such courts, it opened up the possibility of achieving judicial office to legal practitioners other than barristers.

The Tribunals, Courts and Enforcement Act 2007 extended the possibility of holding judicial office to Fellows of the Institute of Legal Executives. This provision came into effect in November 2010.

12.4.1 Qualifications

The main qualifications for appointment are as follows (the CLSA 1990 is dealt with in detail at 16.6 below):

Lord of Appeal in Ordinary

(a) the holding of high judicial office for two years; or
(b) possession of a 15-year Supreme Court qualification under the CLSA 1990.

The Constitutional Reform Act retained the same qualifications for members of the new Justices of the Supreme Court. There is, however, a new statutory appointments procedure under the proposed legislation, which is considered below.

Lord Justice of Appeal

(a) the holding of a post as a High Court judge; or
(b) possession of a 10-year High Court qualification under the CLSA 1990.

High Court judges

(a) the holding of a post as a circuit judge for two years;
(b) possession of a 10-year High Court qualification under the CLSA 1990.

Deputy judges must be qualified in the same way as permanent High Court judges.

Circuit judges

(a) the holding of a post as a recorder;

(b) possession of either a 10-year Crown Court qualification or a 10-year County Court qualification under the CLSA 1990;

(c) the holding of certain offices, such as district judge, Social Security Commissioner, chairman of an industrial tribunal, stipendiary magistrate for three years.

Recorders must possess a 10-year Crown Court or County Court qualification under the CLSA 1990.

District judges require a seven-year general qualification under the CLSA 1990.

12.4.2 Selection of Judges

So far, attention has concentrated on the specific requirements for those wishing to fulfil the role of judge, but it remains to consider the more general question relating to the process whereby people are deemed suitable and selected for such office. Although the appointment procedure for judges has changed as a consequence of the Constitutional Reform Act 2005, with the establishment of the Judicial Appointments Commission, it is still necessary briefly to examine the former appointment procedure in order to explain the need for the reforms introduced by that Act.

Senior judicial positions

All judicial appointments remain, theoretically, at the hands of the Crown. Previously, however, the Crown was guided, if not actually dictated to, in regard to its appointment by the government of the day. Thus, as has been seen, the Lord Chancellor was a direct political appointment and the Prime Minister also advised the Crown on the appointment of other senior judicial office-holders such as the Law Lords and Appeal Court judges. Such apparent scope for patronage in the hands of the Prime Minister did not go without criticism.

Also under the previous system judges at the level of the High Court and Circuit Bench were appointed by the Crown on the advice of the Lord Chancellor, and the Lord Chancellor personally appointed district judges, lay magistrates and the members of some tribunals. This system did not go without challenge either, the question being raised as to how the Lord Chancellor actually reached his decision to recommend or appoint individuals to judicial offices.

High Court Bench

In the past, appointment to the High Court Bench was by way of invitation from the Lord Chancellor. However, in 1998, the Lord Chancellor’s Department (LCD) issued an advertisement inviting applicants to apply for such positions. However, the Lord Chancellor retained their right to invite individuals to become High Court judges. As regards the system of invitation, the question immediately raised was as to exactly how the Lord Chancellor selected the recipients of their favour. There being no system as such, there could be no transparency and without transparency there had to be doubts as to the fairness of the process. Even where a candidate applied for the post of High Court judge, the procedure was different from applications at a lower level, for the reason that the candidate was not interviewed after the usual consultation process with the senior judiciary and the candidate’s own referees. The Lord Chancellor simply decided whom to appoint on the basis of that consultation process. Thus doubts about the secretive nature of the consultancy procedure were compounded as regards applicants for the High Court Bench.

The previous procedure of appointment to the High Court was subject to some sharp criticism in a review conducted for the Bar Council under the chairmanship of the former Appeal Court judge Sir Iain Glidewell. The main review concluded that the system of appointment was not sufficiently transparent. More contentiously, however, it suggested that, given the increased role of the judiciary in matters relating to the review of administrative decisions, devolution issues and human rights, it was no longer constitutionally acceptable for judges to be appointed by the government of the day, of which the Lord Chancellor is a member.

Circuit judges and below

All appointments up to and including circuit judges were made on the basis of open competition but as part of the process comments were solicited from a wide range of judges and lawyers who were approached for assessments on the Lord Chancellor’s behalf.

Relying on the recommendations and opinions of the existing judiciary as to the suitability of the potential candidates might appear sensible at first sight. However, it brought with it the allegation, if not the fact, that the system was over-secretive and led to a highly conservative appointment policy. Judges were suspected, perhaps not unnaturally, of favouring those candidates who have not been troublesome in their previous cases and who have shown themselves to share the views and approaches of the existing office-holders.

One of Lord Irvine’s earliest actions as Lord Chancellor had been to declare the government’s intention to inquire into the merits of establishing a Judicial Appointments Commission. However, rather than carry out that intention, he announced in 1999 that Sir Leonard Peach, the former Commissioner for Public Appointments, would be conducting an independent scrutiny of the way in which the current appointment processes for judges operated. In December of that year, Sir Leonard reported that he had been:

… impressed by the quality of work, the professionalism and the depth of experience of the civil servants involved.

Sir Leonard recommended that a Commission for Judicial Appointments be established, whose role would be to monitor the procedures and act as an Ombudsman for disappointed applicants. However, it was also recommended that the commission should not have any role in the actual appointments, but should merely maintain an independent oversight of the procedure.

Not surprisingly, Lord Irvine was most happy to accept such findings and Sir Leonard’s proposals, and the system of appointing the judiciary remained essentially unchanged. The appointment of Sir Colin Campbell, Vice Chancellor of Nottingham University, as the first Commissioner was announced in March 2001. Nonetheless, the work of the Commission proved salutary in relation to the appointments process and its reports did not hold back on providing a constant flow of restrained if sometimes acerbic criticism of the process and indeed the continued role of the Lord Chancellor within that process.

Somewhat surprisingly, in April 2003 Lord Irvine announced – before the select committee with oversight of his department – that he intended to issue three separate consultation documents relating to:

whether judges and lawyers should continue to wear wigs and gowns in court;
whether the status of Queen’s Counsel should be retained and the related appointment process; and
the role of the Judicial Appointments Commission.

Once again, Lord Irvine’s actions were forestalled by his dismissal from office and his replacement in June 2003 by Lord Falconer, who immediately issued a consultation paper on the establishment of a full-blown Judicial Appointments Commission, which subsequently formed the basis of the proposals in regard to judicial appointments contained in the Constitutional Reform Act 2005.

12.4.3 The Judicial Appointments Commission

Part 4 of the Constitutional Reform Act created a new independent Judicial Appointments Commission (JAC), which was in due course to assume responsibility for the process of selecting all judges for appointment in England and Wales from magistrates to members of the Supreme Court. However, following an agreement between the Lord Chancellor, the Judicial Appointments Commission (JAC), the Lord Chief Justice and the Magistrates’ Association, it was decided that the JAC would not take responsibility for the recruitment and selection of magistrates. Consequently that function would remain with the Lord Chancellor’s Advisory Committees on Justices of the Peace for the foreseeable future.

The Judicial Appointments Commission makes recommendations to the Lord Chancellor and no one may be appointed whom the Commission has not selected. The Lord Chancellor may reject a candidate, once, and ask the Commission to reconsider, once. However, if the Commission maintains its original recommendation, the Lord Chancellor must appoint or recommend for appointment whichever candidate is selected. The appointments of Lords Justices and above will continue to be made by the Queen formally, after the Commission has made a recommendation to the Lord Chancellor. The Act makes special provision for the appointment of the Lord Chief Justice, Heads of Division and Lords Justices of Appeal. In these cases, the Commission will establish a selection panel of four members, consisting of two senior judges, normally including the Lord Chief Justice, and two lay members of the Commission.

Members of the Judicial Appointments Commission are appointed by the Queen, on the recommendation of the Lord Chancellor. Schedule 12 of the Act sets out the membership of the Judicial Appointments Commission, together with its powers and responsibilities. Of the total of 15 Commissioners:

six must be lay members;
five must be members of the judiciary (three judges of the Court of Appeal or High Court, including at least one Lord Justice of Appeal and at least one High Court judge, one circuit judge and one district judge);
two must be members of the legal profession;
one must be a tribunal member; and
one must be a lay magistrate.

Significantly, the Chair of the Commission is one of the lay members. The Act requires that all candidates must be of good character and that selection shall be made strictly on merit. In addition, it gives the Lord Chancellor power to issue guidance to the Commission in regard to what considerations to take into account in assessing merit, which the Commission must have regard to. However, the Act does not prescribe detailed appointments procedures and makes it clear that any such procedures are a matter for the Commission to decide.

It can be seen that although the Lord Chancellor retains the ultimate power to decide whom to appoint, or to recommend to the Queen for appointment, and thus maintains Parliamentary accountability, their discretion has been tightly circumscribed by the provisions of the Act.

The Act also provides for the establishment of a Judicial Appointments and Conduct Ombudsman to whom unsuccessful or disgruntled applicants for judicial office can apply for a consideration of their case. As the full title suggests, the Ombudsman also will have a role to play in relation to matters of a disciplinary nature and s 110 allows complaints to be made to the Judicial Appointments and Conduct Ombudsman about judicial disciplinary cases.

The JAC has identified five core qualities and abilities that are required for any judicial office, although they may be adapted for different posts; thus for example a High Court judge would be expected to display a high level of legal knowledge, whereas a lay tribunal member would be expected to display expertise in their professional field.

1 Intellectual capacity

high level of expertise in your chosen area or profession;
ability quickly to absorb and analyse information;
appropriate knowledge of the law and its underlying principles, or the ability to acquire this knowledge where necessary.

2
Personal qualities
- integrity and independence of mind;
- sound judgment;
- decisiveness;
- objectivity;
- ability and willingness to learn and develop professionally.

3 An ability to understand and deal fairly

ability to treat everyone with respect and sensitivity whatever their background;
willingness to listen with patience and courtesy.

4 Authority and communication skills

ability to explain the procedure and any decisions reached clearly and succinctly to all those involved;
ability to inspire respect and confidence;
ability to maintain authority when challenged.

5 Efficiency

ability to work at speed and under pressure;
ability to organise time effectively and produce clear reasoned judgments expeditiously;
ability to work constructively with others (including leadership and managerial skills where appropriate).

While the JAC is ‘committed to widening the range of applicants for judicial appointment and to ensuring that the very best eligible candidates are drawn from a wider range of backgrounds’, this goal is to be achieved by encouraging a wider range of applicants and through the provision of a fair and open selection process. That being said, all appointments will be made purely on merit. However, the first appointments of the Commission were subjected to criticism in the newspapers in early 2008 when it was discovered that the first 10 High Court judges appointed under the new system were all men and thus not very different from those appointed under the old system.

The JAC’s role in the judicial appointments process begins when they receive a request from Her Majesty’s Courts Service (HMCS), the Tribunals Service or on behalf of a tribunal outside the Tribunals Service. It then seeks out the best candidates, using the processes described below as measured against the qualities and abilities relevant to that post. The following sets out the procedures leading to the appointment of judicial office-holders (see also the JAC’s website at http://jac.judiciary.gov.uk):

Stage 1: Application

Most positions are advertised widely in the national press, legal publications, the professional press and online. The application form is tailored for each individual selection exercise. Alongside the form, an information pack is available to applicants, which includes details of the eligibility criteria and guidance on the application process. This too is tailored for each exercise. Both documents can be downloaded from the JAC website or are sent out to candidates on request. Once JAC has received a completed application form, it is required under s 63(3) of the Constitutional Reform Act to select people for appointment who are of ‘good character’ and has established guidance to help people to decide whether there is anything in their past conduct or present circumstances (for example business connections) which might affect their application for judicial appointment. The essential principles in determining good character are:

the overriding need to maintain public confidence in the standards of the judiciary; and
that public confidence will only be maintained if judicial office-holders and those who aspire to such office maintain the highest standards of behaviour in their professional, public and private lives.

Stage 2: Assessment

Candidates are asked on their application form to nominate up to three referees normally, or in some cases six. The Commission may also seek references from a list of Commission-nominated referees, which is published for each selection exercise. The time at which references are sought will depend on the assessment method used for shortlisting:

If a qualifying test is used, references are taken up after the qualifying test and before interviews take place.
If a paper sift is used, references are taken up before the sift and used to make the shortlisting decisions.

In all cases, references will form part of the information that JAC uses to make final selection recommendations to the Lord Chancellor.

Shortlisting

This may be done on the basis of qualifying tests or paper sift, using the application form and references. For senior appointments, where candidates will usually have an extensive track record, shortlisting will normally be done on information supplied by the candidate and from references.

Interviews and selection days

The next stage of the assessment will vary depending on the nature of the post to be filled. Candidates might be asked to attend a selection day, which may entail a combination of role-plays and an interview. For some specialist and the most senior appointments, there might be only a panel interview.

Panel reports

Panel members assess all the information about each candidate, prepare reports on their findings and agree which candidates best meet the required abilities.

Statutory consultation

As required under ss 88(3) and 94(3) of the CRA, the panel’s reports on candidates likely to be considered by the Commission are sent to the Lord Chief Justice and another person who has held the post, or has relevant experience.

Stage 3: Selection and recommendation

Recommendation to the Lord Chancellor

The Commissioners consider all the information gathered on the candidates and select candidates to be recommended to the Lord Chancellor for appointment.

Final checks

For existing judicial office-holders, checks are done with the Office for Judicial Complaints (OJC) that there are no complaints outstanding against them. For all other candidates recommended for appointment, a series of good character checks are done with the police, Her Majesty’s Revenue and Customs and relevant professional bodies.

The Lord Chancellor may also require candidates to undergo a medical assessment before their appointment is confirmed. JAC recommends to the Lord Chancellor one candidate for each vacancy. The Lord Chancellor can reject that recommendation but they are required to provide their reasons to the Commission. They cannot select an alternative candidate.

Appointment to the Supreme Court

As regards future appointments to the Supreme Court, s 25 of the Constitutional Reform Act (CRA) sets out three possible routes to qualification. These are:

having held high judicial office, for at least two years;
having satisfied the judicial-appointment eligibility condition on a 15-year basis;
having been a qualifying practitioner for at least 15 years.

Although appointment to office is by the Crown, ss 26, 27, 28, 29, 30 and 31 and Sched 8 CRA 2005 set out the procedure for appointing a member of the Supreme Court. The Lord Chancellor must convene an ad hoc selection commission if there is, or is likely to be, a vacancy. Subsequently, the Lord Chancellor will notify the Prime Minister of the identity of the person selected by that commission, and under s 26(4) the Prime Minister must recommend the appointment of that person to the Queen.

Schedule 8 contains the rules governing the composition and operation of the selection commission, which will consist of the President of the Supreme Court, who will chair the commission, the Deputy President of the Supreme Court and one member from each of the territorial judicial appointment commissions (see below), one of whom must be a person who is not legally qualified. The next most senior ordinary judge in the Supreme Court will take the unfilled position on the selection commission if either the President or Deputy President is unable to sit.

Section 27 sets out the process that must be followed in the selection of a justice of the Supreme Court. The commission decides the particular selection process to be applied, the criteria or competences against which candidates will be assessed, but in any event the requirement is that any selection must be made solely on merit. However, s 27(8) does require that the commission must take into account the need for the Court to have among its judges generally at least two Scottish judges and usually one from Northern Ireland. The Lord Chancellor, as provided for by s 27(9), may issue non-binding guidance to the commission about the vacancy that has arisen, for example on the jurisdictional requirements of the Court, which the commission must have regard to.

Under s 27(2) and s 27(3) the commission is required to consult:

(i) senior judges who are neither on the commission nor willing to be considered for selection;
(ii) the Lord Chancellor;
(iii) the First Minister in Scotland;
(iv) the Assembly First Secretary in Wales; and
(v) the Secretary of State for Northern Ireland.

Sub-section 28(1) provides that after a selection has been made the commission must submit a report nominating one candidate to the Lord Chancellor, who then must also consult the senior judges (or other judges) who were consulted by the commission, the First Minister in Scotland, the Assembly First Secretary in Wales and the Secretary of State for Northern Ireland.

Section 29 sets out the Lord Chancellor’s options after they have received a name from the commission and carried out the further consultation under s 28. The procedure may be divided into three possible stages.

1 Stage 1, where a person has been selected and recommended by the appointments commission. At this stage the Lord Chancellor may:

(i) accept the nomination and notify the Prime Minister;
(ii) reject the selection;
(iii) require the commission to reconsider its selection.

2
Stage 2, where a person has been selected following a rejection or reconsideration at stage 1. In this event the Lord Chancellor can:
- (i) accept the nomination and notify the Prime Minister;
- (ii) reject the selection but only if it was made following a reconsideration at stage 1;
- (iii) require the commission to reconsider the selection, but only if it was made following a rejection at stage 1.

3 Stage 3, where a person has been selected following a rejection or reconsideration at stage 2. At this point, the Lord Chancellor must accept the nomination unless they prefer to accept a candidate who had previously been reconsidered but not subsequently recommended for a second time.
In effect this means that the Lord Chancellor’s options are as follows. They can:

(i) accept the recommendation of the commission;
(ii) ask the commission to reconsider; or
(iii) reject the recommendation.

Where the Lord Chancellor requires the commission to reconsider its original selection, the commission can still put forward the same name with additional justifications for its selection. In such circumstances, the Lord Chancellor will either accept the recommendation or reject it. Alternatively, the commission can recommend another candidate, whom the Lord Chancellor can accept, reject or require reconsideration of.

However, if the Lord Chancellor rejects the original name provided by the selection commission, they must submit an alternative candidate giving reasons for their choice. At this point the Lord Chancellor can either:

(i) accept the second candidate; or
(ii) ask the selection commission to reconsider.

On reconsideration the commission can either resubmit the second candidate or propose an alternative candidate. At this point the Lord Chancellor must make a choice. They can either accept the alternative candidate or they can then choose the reconsidered candidate.

Under s 30(1), the Lord Chancellor’s right of rejection is only exercisable where in their opinion the person selected is not suitable for the office concerned. The right to require reconsideration is exercisable under three conditions:

(i) where they feel there is not enough evidence that the person is suitable for office;
(ii) where they feel there is not enough evidence that that person is the best candidate on merit; or
(iii) where there is not enough evidence that the judges of the Court will between them have enough knowledge of, and experience in, the laws of each part of the United Kingdom, following the new appointment.

Should the Lord Chancellor exercise either of these options they must provide the commission with their reasons in writing (s 30(3)).

Details of the procedures involved in appointment may be found in the JAC pages of the judiciary website at http://jac.judiciary.gov.uk, together with an interesting collection of essays entitled Judicial Appointments: Balancing Independence, Accountability and Legitimacy.

The current membership of the Supreme Court

At the moment there are only 11 Supreme Court justices, Lord Toulson having retired in July 2016. As five other justices, including current president Lord Neuberger, are due to retire 2018 it has been decided to postpone the appointment of a replacement for Lord Toulson to allow the appointment process for all prospective retirees to be conducted collectively at a more appropriate time. Fortunately, s 39 of the Constitutional Reform Act 2005 provides for the appointment of a Supplementary Panel, upon which the Supreme Court can call when additional judges are needed to form a panel of the requisite number. The current panel consists of Lord Dyson, the former Supreme Court Justice and Master of the Rolls, the Scottish judges, Lords Gill and Hamilton, both former Lord Presidents of the Court of Session and Lord Toulson, whose effective retirement lasted only 72 days as he was a member of the panel that heard AIG Europe Ltd v Woodman in October 2016.

12.4.4 Judicial Diversity

Previous versions of this section have concentrated on an extensive, and admittedly rather dry, examination of available statistics and the pronouncements of various reports, committees and taskforces. While the importance of such evidence is not to be dismissed, perhaps they merely reflect underlying structural attitudes that have to be challenged before change can take place. To that end, and perhaps to better focus on such underlying issues, what follows will preface such consideration by placing it in the context of an apparent disagreement between two members of the current Supreme Court.

Lord Sumption

In an interview with the Evening Standard Lord Sumption was reported as offering his opinion on the gender structure of the judiciary. While many of his comments may well have been taken out of context to provide attention-seeking headlines, such as suggesting that rushing to achieve equal representation for women at the top of the legal profession could inflict ‘appalling consequences’ on the quality of British justice, nonetheless there are extensive, apparently verbatim, quotations from Lord Sumption that are no less worth comment, not to say concern. Thus he is quoted as expressing the view that it would take decades to have equal representation for women in the judiciary on the basis that:

These things simply can’t be transformed overnight, not without appalling consequence in other directions… One has to look at the totality of these problems and not simply at one of them. The lack of diversity is a significant problem, but it isn’t the only one… It takes time. You’ve got to be patient. The change in the status and achievements of women in our society, not just in the law but generally, is an enormous cultural change that has happened over the last 50 years or so. It has to happen naturally. It will happen naturally. But in the history of a society like ours, 50 years is a very short time… We have got to be very careful not to do things at a speed which will make male candidates feel that the cards are stacked against them. If we do that we will find that male candidates don’t apply in the right numbers. 85 per cent of newly appointed judges in France are women because the men stay away. 85 per cent women is just as bad as 85 per cent men… What we have in this country is a long cultural tradition which is genuinely based on public service, people feeling that at the end of a successful career at the Bar, that [becoming a judge] it is something that you ought to be willing to do. That’s a terrific public asset… It’s a tradition which you can destroy very easily and never recreate, not without waiting for a very long time. It would be very unfortunate… The Bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling. There are more women than men who are not prepared to put up with that. As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence which is that the top of the legal profession has fewer women in it than the profession overall does.

Lady Hale

In what may, or may not, have been a rejoinder to Sumption, Baroness Hale of Richmond, Deputy President of the Supreme Court, included the following in a speech delivered at the University of Birmingham:

So how are we doing with appointments to our own Supreme Court? I was sworn in as a ‘Lord of Appeal in Ordinary’ on 12 January 2004. 15 people have been sworn in as Lords of Appeal in Ordinary or Justices of the Supreme Court of the United Kingdom since then. Even if we leave out the two who were sworn in the day after me, the Court has more than replaced itself since then. One might have hoped that the opportunity would have been taken to achieve a more diverse collegium. It has not happened. All of those 13 appointments were men. All were white. All but two went to independent fee-paying schools. All but three went to boys’ boarding schools. All but two went to Oxford or Cambridge. All were successful QCs in private practice, although one was a solicitor rather than a barrister. All but two had specialised in commercial, property or planning law. None had spent much, if any, time as an employee. I share with them the experience of being white and having been to Cambridge. In every other of those respects I am different: I went to a state day school, my profession was University teacher and then Law Commissioner, my specialism was family and social welfare law. How is it that, despite their very different characters and outlooks, they remain such a homogenous group?…

I believe that anyone who is appointing the Justices of the Supreme Court should be able to look at the body of Justices as a whole and ask how they can collectively best serve the needs of the UK justice system. Excellence is important (though I am embarrassed to claim it). But so is diversity of expertise. And so is diversity of background and experience. It really bothers me that there are women, who know or ought to know that they are as good as the men around them, but who won’t apply for fear of being thought to be appointed just because they are a woman. We early women believed that we were as good as the men and would certainly not be put off in this way. I may well have been appointed because the powers that be realised the need for a woman. I am completely unembarrassed about that, because they were right, and I hope that I have justified their confidence in me. I don’t think that all the talk about the best women being deterred is a plot to put them off, but I am sure that they should not be deterred by talk such as this. We owe it to our sex, but also to the future of the law and the legal system, to step up to the plate.

Judicial Diversity Taskforce final annual report, June 2014

This Judicial Diversity Taskforce was set up as the result of the recommendations of a previous Advisory Panel on Judicial Diversity which reported in 2010. It was given the task of overseeing an agreed action plan for change recommended by that panel. In June 2015 it published its final annual progress report, which outlined the progress of the recommendations of the Advisory Panel. The oversight function of the Taskforce will now be the responsibility of the Judicial Diversity Forum, which brings together most of the parties who were in the Taskforce. The Chairman of the JAC, Christopher Stephens, said of the report:

It is important that the JAC, government, the judiciary and the legal profession continue the work of the Taskforce, including through the Judicial Diversity Forum – it is only through our joint efforts that we will achieve a more diverse judiciary. Since the report was published the JAC has effectively completed all of its 15 allocated recommendations. The final two have been incorporated into our internal change programme, through which we are making improvements to our selection processes. Furthermore the quality of applications remains high and judicial diversity has continued to improve at all levels.

In the last four years (to 31 March 2014) the JAC has recommended 2,890 candidates for judicial office – 44% of them women, 11% Black, Asian and Minority Ethnic candidates and 6% with a self-declared disability. Women made up a third of recommendations for the 2013 High Court exercise and 40% of the previous Chancery Division exercise which has resulted in the highest ever number of women in the High Court. And there is good news for the future as women have shown that if they apply they are often very successful – and even outperform their male colleagues.

Additionally, we now collect and publish data on sexual orientation and religious belief, and are now turning our attention to whether we should monitor social mobility. We all acknowledge there is further work to be done, but the JAC is very encouraged by the results to date. (The report is available on the Ministry of Justice website.)

Judicial diversity statistics, July 2016 (introduction from the Lord Chief Justice Thomas)

Together with the Senior President of Tribunals I am pleased to announce the publication of the judicial diversity figures for 2016 and the first progress report of the Judicial Diversity Committee of the Judges’ Council…

It is encouraging that the figures show that the overall percentage of female judges in courts has increased this year from 25% to 28% whilst remaining stable at the more impressive figure of 45% in the tribunals. The percentage of female judges in courts stood at 23% in 2012. Within these figures the numbers of female judges in the High Court and the Court of Appeal remain stable at their highest levels but have not increased this year. There has been marked improvement since 2015 in Upper Tribunals (up 8 percentage points), among District Judges (County Court) (up 5 percentage points), among Recorders (up 4 percentage points) and on the Circuit benches (up 3 percentage points)

The percentage of BAME judges under 50 years of age has increased from 12% to 16% which provides some encouragement for the future. However, we are disappointed that there has been no improvement in either courts or tribunals in the total percentage of judges from a Black Asian and Minority Ethnic background. This is an area of concern and one where the Committee will be considering what more needs to be done.

The judiciary must be truly open to everyone of the requisite ability and we are hopeful that the variety of initiatives being actively pursued – led by the Judicial Diversity Committee of the Judges’ Council – will bring more diversity to the judiciary, more quickly.

The headline figures from the latest statistical report show:

The number of woman Court of Appeal Judges remains the same as last year at eight out of 39 (21 per cent).
Twenty two out of 106 High Court Judges are women (21 per cent). In April 2015 the number was 21 (20 per cent).
In the courts the percentage of female judges has increased from April 2015 to April 2016 from 25 per cent to 28 per cent. In tribunals it remained stable at 45 per cent.
The number of female Circuit Judges increased from 146 in April 2015 to 160 in April 2016 (from 23 per cent to 26 per cent).
More than half (51 per cent) of the 85 courts judges under 40 years of age are women (53 per cent last year). In tribunals, 64 per cent of the 56 judges under 40 are women (56 per cent last year).
The percentage of judges who identify as Black, Asian and Minority Ethnic is 5 per cent in courts (6 per cent last year), and in tribunals 9 per cent (stable since 2015). This is higher for judges under 40–8 per cent (6 per cent last year) for courts and 14 per cent (15 per cent last year) for tribunals.
A third (34 per cent, compared with 36 per cent in 2015) of court judges and two thirds (65 per cent, compared with 67 per cent in 2015) of tribunal judges are from non-barrister backgrounds, This varies by jurisdiction for both courts and tribunals, with judges in lower courts more likely to come from a nonbarrister background.

For further information see www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2016/. The first progress report of the Judicial Diversity Committee of the Judges’ Council emphasising the role of Diversity and Community Relations Judges can also be found on the judiciary website.

Case study: does the gender of the judge matter? Radmacher v Granatino

In Radmacher (formerly Granatino) v Granatino (the clue of the substance being in the full title of the case), for the first time the highest court in England was required to consider the issue of prenuptial agreements in which the parties, as a precursor to their marriage, establish a limit on subsequent claims on the event of the marriage breaking up. The question before the court was whether such ‘freely entered into’ contractual agreements are binding in law to the degree that they override the usual principles of fairness at the time of divorce in such a way as to limit the rights of the parties that the courts would otherwise apply.

There were two particular twists in the case:

Whereas usually it is the husband looking to protect his interests upon divorce, in this instance it was the ex-wife who was trying to enforce the agreement.
In recognition of the importance of the case the Supreme Court heard it as a panel of nine justices, including the first and, to date, only woman member of the UK’s highest court, Baroness Hale.

In a judgment of 69 pages and 195 paragraphs, the court, by a majority of eight to one, determined that such prenuptial agreements were legal and enforceable. The one dissenting voice was Lady Hale. While seven of the justices produced a single majority judgment of 123 paragraphs, and Lord Mance delivered his own judgment, in essential agreement, in seven paragraphs, Hale delivered her minority judgment in 69 extensive paragraphs. However, the core of her difference may be found in paragraph 137:

Above all, perhaps, the court hearing a particular case can all too easily lose sight of the fact that, unlike a separation agreement, the object of an ante-nuptial agreement is to deny the economically weaker spouse the provision to which she – it is usually although by no means invariably she – would otherwise be entitled… This is amply borne out by the precedents available in recent text-books… Would any self-respecting young woman sign up to an agreement which assumed that she would be the only one who might otherwise have a claim, thus placing no limit on the claims that might be made against her, and then limited her claim to a pre-determined sum for each year of marriage regardless of the circumstances, as if her wifely services were being bought by the year? Yet that is what these precedents do. In short, there is a gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman (emphasis added).

The questions that cannot be avoided in relation to this case are whether Baroness Hale’s gender gave her an insight/awareness that was not shared with, or indeed open to, the other eight male judges and, if so, whether this awareness should have been allowed to influence her judgment (this last could of course be rewritten to question the privileging of the assumedly male perspective of the majority of the judges).

As a matter of coincidence, and no doubt one much appreciated by the authors, a book entitled Feminist Judgments: From Theory to Practice (Hunter, McGlynn and Rack-ley) had come out in September 2010 and had set itself the task of reconsidering and ‘re-judging’ several notable cases from a feminist perspective, the application of which, they argued, would have led to very different decisions. Ironically, Baroness Hale’s judgments were not found to be beyond criticism.

12.4.5 Alternative Approaches to Appointing Judges

Figure 12.1 The Judiciary: selection and appointment.

A different approach, following the example of the United States, might be for the holders of the higher judicial offices to be subjected to confirmation hearings by, for example, a select committee of the House of Commons. Lord Mackay dismissed any such possibility as follows:

The tendency of prior examination… is to discover and analyse the previous opinions of the individual in detail. I question whether the standing of the judiciary in our country, or the public’s confidence in it, would be enhanced by such an inquiry, or whether any wider public interest would be served by it (emphasis added).

It is perhaps unfortunate that the italicised words in the above passage can be interpreted in a way that no doubt Lord Mackay did not intend but which, nonetheless, could suggest a cover-up of the dubious opinions of those appointed to judicial office.

The 2011 House of Lords Constitution Committee report also expressly rejected the possibility of parliamentarians being involved in pre- or post-appointment hearings of judicial candidates (see immediately above).

An even more radical alternative would be to open judicial office-holding to election as they also do in the United States, although in this case, one might well agree with Lord Mackay that:

The British people would not feel that this was a very satisfactory method of appointing the professional judiciary.

Alternatively, and following Lord Mackay’s emphasis on the professional nature of the judiciary, the UK could follow continental examples and provide the judiciary with a distinct professional career structure as an alternative to legal practice.

As has been seen, the changes made under the Constitutional Reform Act were subjected to many criticisms from the judges to the Commons Committee on Constitutional Affairs, with many social commentators and journalists joining in the attack. It is true that the reforms were an unlooked-for consequence of an ill-thought-out Cabinet reshuffle, and equally true that the proposed alterations provided the possibility of political interference with the independence and operation of the judiciary, especially with the future possibility of a weak Secretary of State for Justice and an overly strong Prime Minister or Home Secretary. Nonetheless, it was surely not appropriate, indeed it was inconsistent, for those concerned to resort to an uncritical pragmatic defence of the status quo on the basis that it had worked so far. The system may have worked, but did it do so in an open and transparent manner, and in whose interests did it operate? The opportunity for more radical reforms may not have been taken, but the measures that have been taken surely represent an improvement in the structure and operation of the judicial system.

12.5 Training of the Judiciary

Following the Constitutional Reform Act 2005, two new judicial institutions were established: the Judicial Office and the Judicial College, both of which operate as independent judicial bodies within the Judicial Office for England and Wales and are funded directly by the Ministry of Justice.

Judicial Office (JO)

This was set up in 2006 to support the judiciary in discharging its responsibilities under the CRA 2005. It reports to the Lord Chief Justice and the Senior President of Tribunals. The Lord Chief Justice as head of the judiciary, has the responsibility for:

representing the views of the judiciary of England and Wales to Parliament, the Lord Chancellor and ministers generally;
maintaining arrangements for the welfare, training and guidance of the judiciary, within the resources made available by the Lord Chancellor;
maintaining arrangements for the deployment of judges and the allocation of work within the courts.

The Senior President of Tribunals has parallel responsibilities for the First-tier and Upper Tribunals as well as the Employment Tribunals (for England and Wales; and Scotland) and the Employment Appeal tribunal.

The creation of the JO brought together and replaced several units that had previously existed independently, including the Judicial Studies Board (JSB) and the Judicial Communications Office. In 2010 it assumed responsibility for providing secretariat support and sponsorship of the Family and Civil Justice Councils, both of which provide independent advice to government, and in 2011 it assumed responsibility for the work of the Office for Judicial Complaints. Also in 2011 the JO took over responsibility for the Tribunals Judicial Office and for provision of judicial training for the courts’ and tribunals’ judiciary through a new body, the Judicial College, which replaced the Judicial Studies Board.

The JO provides a broad range of support to the judiciary, including:

administrative support and advice for training and development for judicial office-holders;
research, analysis, legal and secretarial support for the senior judiciary and its governance bodies on a wide range of jurisdictional, constitutional and other strategic matters;
dealing with official complaints against judicial office-holders through the Office for Judicial Complaints;
human resources and welfare support services;
communication and media advice and information.

Judicial College

In April 2011, the newly established Judicial College brought together and replaced the Judicial Studies Board and the Tribunals Judicial Training Group and assumed responsibility for training judicial office-holders in the courts and in most tribunals. The Judicial College ensures that high-quality training is provided to enable judicial office-holders to carry out their duties effectively and in a way which preserves judicial independence and supports public confidence in the justice system.

The Judicial College aims to meet the highest professional standards in judicial learning and development.

The College is directly responsible for the development and delivery of training to judges in the Crown, county and higher courts in England and Wales and to tribunals, judges and members who come under the leadership of the Senior President of Tribunals. The Senior President’s responsibilities extend to judges and members within reserved tribunals across the UK. The College also provides some direct training to those who exercise judicial functions in the magistrates’ courts (in England and Wales), as well as training materials, advice and support to those providing training in the magistrates’ courts. In April 2013, the training of all coroners and coroners’ officers became part of the Judicial College’s responsibilities.

Prior to the establishment of the JSB, now the JC, the training of judges in the UK was almost minimal, especially when considered in the light of the Continental practice where being a judge, rather than practising as an advocate, is a specific and early career choice, which leads to specialist and extensive training.

The Judicial College’s activities fall under three main headings (what follows is taken from the publications of the JSB, but remains pertinent to the operation of the JC):

initial training for new judicial office-holders and those who take on new responsibilities;
continuing professional education to develop the skills and knowledge of existing judicial office-holders;
delivering change and modernisation by identifying training needs and providing training programmes to support major changes to legislation and the administration of justice.

The Judicial College provides training and instruction to all part-time and full-time judges in judicial skills. As stated in its strategy document for 2015–17, judicial training has three elements:

substantive law, evidence and procedure and, where appropriate, expertise in other subjects;
the acquisition and improvement of judicial skills including, where appropriate, leadership and management skills;
the social context within which judging occurs, this latter including diversity and equality.

An essential element of the philosophy of the College is that the training is provided by judges for judges.

The Board of the Judicial College is the governing body of the College. It sets the overall strategy for the College, agrees business plans and oversees the delivery of training within the budget allocated to the College.

The Board is supported by a series of committees responsible for the various detailed training programmes as follows:

The Tribunals Committee. It considers the subject expertise required within tribunals as well as considering the overall training needs across the tribunals’ judiciary;

The Courts’ Committee. It discusses plans and priorities for training across the entire courts’ system;

The Diversity and Development Committee. It functions across the entire College to identify issues common to all judiciary and areas of innovation and development for the Judicial College, the dissemination of best practice and ensure that issues of diversity and fair treatment are embedded in all areas of the College;

The Wales Training Committee. It monitors issues that arise from the Welsh Assembly that impact on judicial training;

The International Committee. It implements the College’s international strategy to participate in international training projects that strengthen judicial independence, the rule of law and judicial skills.

Judicial training has probably never been of greater public concern or been executed with such rigour since the JSB was established in 1979. For example, the judiciary were subject to thorough retraining in the new civil procedure. This training included residential seminars for all full-time and part-time judges dealing with civil work, local training and conferences held at various national locations. In an interview in October 2009, Judge John Phillips, who was involved in devising the JSB’s new programme, emphasised a change in judicial training, ‘with less emphasis on the letter of the law and more on the acquisition of judicial skills’. As he added: ‘There are, in any event, many ways for judges to keep pace with developments in the law – via JSB e-learning packages and e-letters, and other channels of communication such as professional legal publications, websites, law reports, judgments, textbooks and other sources.’

12.5.1 Equal Treatment Training

Law is supposed to operate on the basis of formal equality: everyone is assumed to be equal before the law and to be treated equally, regardless of their personal attributes or situation (see Chapter 2). In the past, however, accusations have been levelled at the judiciary that allege that, at the very least, they themselves are insensitive to the sensitivities of others, particularly in matters of race, gender, sexual orientation and in relation to people with disabilities. Not only have they been accused of lacking understanding and sympathy towards others with different values or practices from their own, but it has also been claimed that many of them have been resistant to changing their attitudes.

However, such resistance runs the risk of alienating large sections of the population over which the judiciary exercises its power and, when law is reduced to the level of mere power rather than legitimate authority, its effectiveness is correspondingly reduced. In the light of the recognition that something had to be done to forestall such potential damage, the JSB instituted seminars for training part-time and circuit judges in racial awareness, for example, reminding them that, in a multicultural/multi-faith society, it is offensive to ask for people’s ‘Christian’ names, as well as warning them as to the dangers of even more crassly offensive language and racial stereotyping that appears to be so much a part of the English use of metaphor.

In 1999, for the first time, JSB training included new guidance for all judges on equal treatment issues such as disability, gender and sexual orientation, and litigants in person. In announcing that equal treatment training was to be integral to all induction courses, Lord Justice Waller (the then chairman of the JSB) stated:

There is absolutely no room for complacency in these areas. And I am not going to say just because someone has been on our course, they will be perfect, but I hope that, as a result, judges are better equipped to do their jobs (The Times, 13 July 1999).

A key component in the now Judicial College’s strategy of overcoming the appearance of insensitivity and related perception of prejudice was the production of the Equal Treatment Bench Book (last updated in November 2013 specifically to take account of the Equality Act 2010), which it has to be said provides a truly comprehensive, first-class guide for the judiciary in ensuring awareness of the need to treat all those who come before them equally and with sensitivity and civility.

Ethnic minorities in the Criminal Justice System

An opportunity to assess the success of the then JSB’s policy in assuring equality of treatment was provided in March 2003 by the publication of a research report entitled Ethnic Minorities in the Criminal Court: Perceptions of Fairness and Equality of Treatment.

The research project investigated the extent to which ethnic minority defendants and witnesses in Crown Courts and magistrates’ courts perceived their treatment to have been unfair and whether those who did perceive unfairness attributed it to racial bias.

The conclusion of the research project was that there had been:

a substantial change for the better in perceptions of ethnic minorities of racial impartiality in the criminal courts. Several judges mentioned that attitudes had altered markedly in recent years and magistrates reported a substantial decline in the frequency of racially inappropriate remarks. Many lawyers also reported that racial bias or inappropriate language was becoming ‘a thing of the past’.

However, there was an undercurrent in the report which supported a more critical reading. While it was concerned with ‘perceptions of racial bias’, dealing with such perceptions may not wholly correct the underlying reality. Eliminating inappropriate language may well be a good thing in itself, but if it merely provides camouflage for a system that remains fundamentally biased in terms of its outcomes, then doubts have to be raised about its fundamental worth. The difference in perception of the black lawyers and court staff as to the true nature of the system would seem to provide grounds to support such a possibility. Given that differential sentencing remains the major ground of complaint relating to allegations of racial bias, that surely remains the most pressing issue in relation to equality. As the report states:

The findings of this study may go some way to dispelling the view that most minority ethnic defendants believe that their treatment by the courts has been racially biased. But if it could be shown that the ‘cultural change’ which this study has identified has had a real impact on eliminating differential sentencing of white and ethnic minority defendants, this would further encourage the confidence of ethnic minorities in the criminal courts (emphasis added).

Unfortunately, a remarkably unheralded report published by the Ministry of Justice in November 2013 appeared to confirm the continuation of the practice of differential sentencing. The report, Statistics on Race and the Criminal Justice System 2012, compared statistics relating to various criminal justice actions on both white and BME individuals during the period 2008–12. The conclusions would appear to indicate a disparity of treatment between the various groups over that period and, not unsurprisingly, the chair of the Society of Black Lawyers, Peter Herbert, was quoted as saying that the figures showed ‘institutional racism’, within the justice system that needed urgent attention. As he said, ‘I am not sure what else you can call it. The effect is right across the criminal justice system. From stop and search, to arrest, to charge and to sentencing, every aspect of the process is stacked against defendants from ethnic minority backgrounds. It is not a pretty picture.’

The following are the report’s most telling findings:

Victims

The 2012/13 Crime Survey for England and Wales shows that adults from self-identified Mixed, Black and Asian ethnic groups were more at risk of being a victim of personal crime than adults from the White ethnic group.

Suspects

Stop and search

A person aged ten or older (the age of criminal responsibility), who self-identified as belonging to the black ethnic group was six times more likely than a white person to be stopped and searched under section 1 (s 1) of the Police and Criminal Evidence Act 1984 and other legislation in England and Wales; persons from the Asian or mixed ethnic group were just over two times more likely to be stopped and searched than a white person.

Arrest

For those aged 10 or older, a black person was nearly three times more likely to be arrested per 1,000 population than a white person, while a person from the mixed ethnic group was twice as likely to be arrested. There was no difference in the rate of arrests between Asian and white persons.

Defendants

Black persons were less likely to receive an out of court disposal for an indictable offence, and more likely to be proceeded against at magistrates’ court, than all other ethnic groups. This remained consistent between 2009 and 2012 despite the overall decrease in the proportion of out of court disposals of those formally dealt with by the criminal justice system.

Between 2009 and 2012, for indictable offences, there was a decrease across all ethnic groups in the proportion receiving community sentences. In contrast there was an increase for most ethnic groups in the proportion receiving an immediate custodial sentence for an indictable offence. The most common sentence outcome for white and mixed ethnic group offenders was a community sentence, whilst for black, Asian and Chinese or other offenders the most common sentence outcome was immediate custody.

The average custodial sentence length for indictable offences was higher in all years between 2009 and 2012 for offenders from a BAME group compared with those from a white ethnic group. Different types of crime also show sentencing differences. A white person pleading guilty to burglary was sentenced to, on average, 25 months in prison compared with a black person who typically received a 28-month sentence. Of those pleading not guilty but convicted by the courts, the sentences were 40 months and 47 months respectively.

Similarly, 76 per cent of white people convicted of production or supply of a class A drug were sentenced to immediate custody compared with 84.8 per cent of black people.

The 2014 report, which continued to find that [i]n general, Black, Asian and Minority Ethnic (BAME) groups appear to be over-represented at most stages throughout the CJS, compared with the White ethnic group, together with an interesting ‘info graphic’ for those who are visual learners are available at www.gov.uk/government/statistics/race-and-the-criminal-justice-system-2014.

In January 2016, the former Prime Minister David Cameron, asked David Lammy MP to lead a review to investigate evidence of possible bias against black defendants and other ethnic minorities in the Criminal Justice System in England and Wales. Although the final findings were not due until 2017, the interim findings, released in November 2016 caused major concern. The core findings were:

For every 100 white women handed custodial sentences at Crown Courts for drug offences, 227 black women were sentenced to custody. For black men, the figure is 141 for every 100 white men.
Among all those found guilty at Crown Court in 2014, 112 black men were sentenced to custody for every 100 white men.
Of those convicted at Magistrates’ Court for sexual offences, 208 black men and 193 Asian men received custodial sentences for every 100 white men.
BAME men were more than 16 per cent more likely than white men to be remanded in custody.
In prisons, BAME males are almost five times more likely to be housed in high security for public order offences than white men.
Mixed ethnic men and women were more likely than white men and women to have adjudications for breaching prison discipline brought against them – but less likely to have those adjudications proven when reviewed.
41 per cent of youth prisoners are from minorities backgrounds, compared with 25 per cent ten years ago, despite prisoner numbers falling by some 66 per cent in that time.
The number of Muslim prisoners has almost doubled in the last decade.
BAME defendants are more likely than their white counterparts to be tried at Crown Court. The interim report notes that ‘black individuals account for about 3% of the total population of England and Wales yet make up about 9% of defendants prosecuted for indictable offences’ at Crown Court.
Court – with young black men around 56 per cent more likely than their white counterparts to be tried at the Crown Court rather than the Magistrates’ Court.
BAME men were 52 per cent more likely than white men to plead ‘not guilty’ at Crown Court.
51 per cent of the UK-born BAME population agree that ‘the criminal justice system discriminates against particular groups’, compared to 35 per cent of the UK-born white population.

12.9 Magistrates

The foregoing has concentrated attention on the professional and legally qualified judges. It should not be forgotten, however, that there are some 17,500 unpaid part-time lay magistrates, 140 full-time professional magistrates (known as district judges (magistrates’ courts)) and 125 deputy district judges (magistrates’ courts) operating within some 300 or so magistrates’ courts in England. These magistrates are empowered to hear and decide a wide variety of legal matters, and the amount and importance of the work they do should not be underestimated: as much as 90 per cent of all criminal cases are dealt with by the magistrates’ courts.

Magistrates currently deal with around 500,000 traffic cases each year, which take up a great deal of their time and the time of those whose cases they hear. On average, traffic cases take nearly six months to reach completion, despite the fact that over 90 per cent of cases result in a guilty plea or are proved in the absence of the defendant. In an attempt to speed up the process, specialist traffic courts were established in nine pathfinder areas in England and the government subsequently announced that, from April 2014, there will be a specialist traffic court in each police area (see www.gov.uk/government/news/traffic-courts-in-every-area).

The operation of the magistrates’ courts and the powers of magistrates have been considered in detail above at 6.3 and 9.2. Since April 2005, magistrates’ courts in England and Wales have been administered by Her Majesty’s Courts Service (HMCS, now the HMCTS). This amalgamation ended the previously long-standing separation between magistrates’ courts, which were administered by a total of 42 independent local committees, and the government-run Court Service that ran the Court of Appeal, the High Court and all Crown and County Courts.

It remains, however, to examine the manner in which magistrates are appointed to their positions.

There is no requirement for lay magistrates to have any legal qualifications. On being accepted onto the bench, however, magistrates undertake a training process, under the auspices of the JC. Magistrates are required to attend training courses, with a special emphasis being placed on Equal Treatment Training. The way in which the training programme seeks to overcome conceptions as to the politically narrow nature of the magistracy is evident in the content of the extensive training materials produced for the magistrates. These include modules on raising awareness and challenging discrimination; discretion and decision-making; prejudice and stereotype; thus, the overall emphasis may be seen to be on equality of people, and equality of treatment. There is, however, a new emphasis on the practical skills involved in performing the duties placed on magistrates, and consequently much of the training will actually be based on sitting as magistrates with the input of specially trained mentors to give guidance and advice on how the new magistrates perform their tasks and fulfil their roles. About 12 to 18 months after appointment the new magistrate is appraised against a set of the competences covering each courtroom role from basic magistrates to chairmen in adult, youth and family courts. Competences include a checklist of observable behaviour and knowledge.

The training course is designed to give new magistrates an understanding of the functions and powers of the bench generally, and to locate that understanding within the context of national practice, particularly with regard to sentencing. On the topic of discretion and sentencing, Lord Irvine provided the magistrates with the following strong advice, not to say warning:

You… must exercise your discretion in individual cases with great care within a system that needs to secure continuing public confidence. This is what makes the sentencing guidelines produced by the Magistrates’ Association so important. They are guidelines – they do not curtail your independent discretion to impose sentences you think are right, case by case. But the guidelines exist to help you in that process, to give you more information in reaching your decision. And they help to assist the magistracy, to maintain an overall consistency of approach… I urge you to follow the guidelines, which are drawn up for your benefit and the magistracy as a whole (Speech to the Council of the Magistrates’ Association, March 1999).

One aspect of sentencing that merits attention arises in relation to the increasingly important area of environmental crime. In response to this, and to make magistrates fully aware of its importance, the Magistrates’ Association website made available an extremely useful guidance entitled ‘Costing the Earth – guidance for sentencers’.

Justices’ Clerk

Although particular key legal issues may be considered in the course of the training, it is not the intention to provide the magistrate with a complete grasp of substantive law and legal practice. Indeed, to expect such would be to misunderstand both the role of the magistrates and the division of responsibility within the magistrates’ court. Every bench of magistrates has a legally qualified justices’ clerk, whose function it is to advise the bench on questions of law, practice and procedure, leaving matters of fact to magistrates to decide upon (see above, 9.2). This division of powers raises a further possible area of contention with regard to the operation of magistrates’ courts, for in the case of some particularly acquiescent benches, the justices’ clerks appear to run the court, and this leads to the suspicion that they actually direct the magistrates as to what decisions they should make. This perception is compounded by the fact that the bench is entitled to invite their clerk to accompany them when they retire to consider their verdicts. A Practice Direction (Justices: Clerks to the Court) (2000) set out the role and functions of the clerk to the court. Thus the clerk, or legal adviser who stands in for the clerk, is stated to be responsible for providing the justices with any advice they require to properly perform their functions, whether or not the justices have requested that advice, on the following matters:

questions of law (including ECHR jurisprudence and those matters set out in s 2(1) of the HRA 1998);
questions of mixed law and fact;
matters of practice and procedure;
the range of penalties available;
any relevant decisions of the superior courts or other guidelines; other issues relevant to the matter before the court;
the appropriate decision-making structure to be applied in any given case; and
in addition to advising the justices, it shall be the legal adviser’s responsibility to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons.

As regards when and where this advice should be given, the Practice Direction states that:

At any time, justices are entitled to receive advice to assist them in discharging their responsibilities. If they are in any doubt as to the evidence which has been given, they should seek the aid of their legal adviser, referring to his/her notes as appropriate. This should ordinarily be done in open court. Where the justices request their adviser to join them in the retiring room, this request should be made in the presence of the parties in court. Any legal advice given to the justices other than in open court should be clearly stated to be provisional and the adviser should subsequently repeat the substance of the advice in open court and give the parties an opportunity to make any representations they wish on that provisional advice.

In October 2007 the senior presiding judge for England and Wales issued new guidelines for the conduct of justices’ clerks and assistant justices’ clerks. These emphasise the independence and impartiality of clerks.

12.9.1 Appointment

Under the Justices of the Peace Act 1997, magistrates are appointed to, and indeed removed from, office by the Lord Chancellor on behalf of the Queen, after consultation with local advisory committees. Following the Constitutional Reform Act 2005 it was the intention for the Judicial Appointments Commission eventually to deal with the appointment of magistrates. However, at least for the moment, the Ministry of Justice handles such appointments. In this interim period, recommendations on the appointment of magistrates continue to be made by local advisory committees. These are then passed to the Lord Chief Justice for approval, before being submitted to the Lord Chancellor to make the appointment.

Section 50 of the Employment Rights Act 1996 provides that employers are obliged to release their employees, for such time as is reasonable, to permit them to serve as magistrates. In the event of an employer refusing to sanction absence from work to perform magistrate’s duties, the employee can take the matter before an employment tribunal. Understandably, there is no statutory requirement for the employer to pay their employees in their absence, but magistrates are entitled to claim expenses for loss of earnings in the exercise of their office.

Once candidates of a suitable quality have been identified, the local advisory committee is placed under the injunction to have regard to the need to ensure that the composition of the bench broadly reflects the community that it serves in terms of gender, ethnic origin, geographical spread, occupation and political affiliation. It may even be that individuals who are otherwise suitably qualified may not be appointed if their presence would exacerbate a perceived imbalance in the existing bench. Nonetheless, there remains a lingering doubt, at least in the minds of particular constituencies, that the magistracy still represents the values, both moral and political, of a limited section of society. A further significant step towards opening up the whole procedure of appointing magistrates was taken when local advisory committees were granted the power to advertise for people to put themselves forward for selection. As the chairman of the Mid-Staffordshire Magistrates’ Bench stated in a local newspaper, although previously rank and social position were the main qualifications, nowadays:

it is important a bench has a balance of sexes, professions and political allegiances.

In March 1999, the LCD launched a campaign to attract a wider section of candidates to apply to be magistrates. In announcing the campaign, Lord Irvine stated that:

Magistrates come from a wide range of backgrounds and occupations. We have magistrates who are dinner ladies and scientists, bus drivers and teachers, plumbers and housewives. They have different faiths and come from different ethnic backgrounds, some have disabilities. All are serving their communities, ensuring that local justice is dispensed by local people. The magistracy should reflect the diversity of the community it serves… Rest assured appointments are made on merit, regardless of educational background, social class or ethnic background.

The campaign was supported by adverts in some 36 newspapers and magazines, from broadsheets to tabloids, from TV listings to women’s magazines. The campaign was particularly aimed at ethnic minorities, its adverts being carried in such publications as the Caribbean Times, the Asian Times and Muslim News. The 1999 campaign was followed in 2001 by a Judiciary for All scheme, which aimed to encourage more people from ethnic minority groups to apply to become magistrates. The next initiative to make the bench more reflective of the public was the ‘National Strategy for the Recruitment of Lay Magistrates’ announced by Lord Falconer in October 2003. As he stated:

I consider it particularly important that the magistracy is seen to be representative of all sections of our society and that no one group of people should feel that they are under-represented on the magistrates’ bench. My Department is already involved with a number of initiatives aimed at encouraging young people and minority ethnic groups to become involved in the judicial process and, although the ethnic make-up of the magistracy countrywide is close to the national average for cultural representation per head of population there are still regional variations, both in age and ethnicity, that need to be addressed.

The statistics demonstrate that the gender balance and ethnic mix of the magistracy does not appear to pose a major problem, but the same certainly cannot be said in terms of its class mix. In 1998, the Lord Chancellor’s Department issued a consultation paper relating to the political balance in the lay magistracy, which suggested that political affiliation was no longer a major issue, and therefore did not have to be controlled in relation to the make-up of benches of magistrates. As support for its suggestion, the consultancy document made three points. First, that actually ensuring a political balance on the bench raises:

the danger of creating a perception that politics do play a part in the administration of justice, notwithstanding that it is agreed on all sides that, in a mature democracy, politics have no place in the court room.

Secondly, that advisory committees:

have increasingly found that many magistrates have declined to provide the information [relating to their political allegiance] or classed themselves as ‘uncommitted’.

Thirdly, it claimed that in any case, ‘geodemographic classification schemes’, based on an analysis of particular personal attributes such as ethnicity, gender, marital status, occupation, home ownership and car-owning status, are much more sensitive indicators for achieving social balance on benches than stated political allegiance.

Such ‘geodemographics’ might well represent the emergence of the truly classless society. Alternatively, they might represent a worrying denial of the importance of political attitudes within law generally, and the magistrates’ bench in particular.

In any case, in March 2001, Jane Kennedy MP, Parliamentary Secretary to the LCD, announced that, at least for the moment, the Lord Chancellor had reluctantly decided that political balance would have to remain an issue. This statement was made in response to the disclosure that the Magistrates’ Advisory Committee in Stoke-on-Trent had sent out a letter to several local organisations, which stated that:

whilst the overriding criterion for appointment is always the suitability of the candidate, the Advisory Committee is particularly keen to receive applications from members of ethnic minorities, shop floor workers, the unemployed and Labour Party supporters.

In answering charges that such a letter was politicising the magistracy, Ms Kennedy pointed out that:

Public confidence in lay magistrates is vital. This is achieved, first and foremost, by individual magistrates discharging their duties effectively. It is also achieved when Benches reflect the diversity of the communities which they serve. In Stoke-on-Trent the Labour vote is significantly under-reflected on the magistrates’ Bench. Of those who expressed political affiliation 40 per cent were Labour, compared to 60 per cent who voted Labour in the area at the last General Election. This compares to 47 per cent of the Bench being acknowledged Conservative voters, compared to 27 per cent in the area.

The Advisory Committee was simply and correctly trying to attract more Labour voters to apply to become magistrates, in order that the composition of the bench more broadly reflected the local voting pattern.

Figure 12.2 Magistrates: an aide-mémoire.

The age profile of magistrates

If the class make-up of the magistracy is possibly a problem, then a look at the current statistics will immediately show that the age profile and distribution of the current magistrates is certainly a matter for concern: 57 per cent of magistrates are aged 60 or above, 86 per cent of magistrates are at least 50 and only 0.19 per cent are below the age of 30. Given the strictures that are involved in being a magistrate, they have to commit to 13 full or 26 half-days sitting in court in addition to training days, it is obvious that the older members of society are more likely to have time to offer their services as magistrates, especially those who have retired. However, the inescapable question arises as to the representative nature of such a body, especially when the core clientele is likely to be a great deal younger than they are. It was an attempt to address this problem, at least of perception if not substance, that the age for service as a magistrate was reduced from 27 to 18 in 2003. Statistics on the magistracy are available at: www.judiciary.gov.uk.

12.9.2 The Future of the Magistrates’ Courts

In December 2000, the results of a report, The Judiciary in the Magistrates’ Courts, were published. The extensive report was jointly commissioned by the Home Office and the LCD and provided an extremely valuable comparison between the lay magis-tracy and stipendiaries, now known as District Judges (magistrates’ courts). It found as follows.

As regards the lay magistracy

they are drawn overwhelmingly from professional and managerial ranks;
40 per cent of them are retired from full-time employment;
the cost of an appearance before lay magistrates was £52.10 per hour.

As regards the stipendiaries

they are younger, but are mostly male and white;
they hear cases more quickly;
they are more likely to refuse bail and to make use of immediate custodial sentences;
they are less likely to need legal advisers;
the cost of an appearance before stipendiary magistrates was £61.78 per hour.

Those findings were essentially replicated in a later study conducted by Ipsos MORI for the Justice Ministry in 201. It was entitled The strengths and skills of the Judiciary in the Magistrates’ Courts and is available at: www.justice.gov.uk.

In January, 2001, a report entitled Community Justice by Professor Andrew Sanders for the Institute for Public Policy Research called for the replacement of panels of lay justices by panels composed of district judges, the former stipendiary magistrates, assisted by two lay magistrates.

The Magistrates’ Association saw the proposals as an attack on what was an extremely representative system of justice. According to its then Chair, Harry Mawdsley:

Lay magistrates provide community justice: they are ordinary people who live and work in the local community and who have an intimate knowledge of that community.

Although praising the magistracy’s gender and ethnic make-up, Mr Mawdsley nevertheless recognised the need to recruit more magistrates from working-class backgrounds.

Among many recommendations made by the House of Commons Justice Committee in its sixth report: The role of the magistracy, published in October 2016 it concluded that:

The magistracy faces a range of unresolved issues relating to its role and its workload, together with serious problems with recruitment and training; we conclude that these now must be addressed as a matter of urgency. The wide range of recommendations that we have made indicate a need for strategic leadership. It is unfortunate that the Government’s evident goodwill towards the magistracy has not yet been translated into any meaningful strategy for supporting and developing it within a changing criminal justice system.

Magistrates’ sentencing power

The Auld Report into the criminal court system, issued in 2001, suggested a compromise between these two positions: the retention of the magistrates’ courts as one division in a unified criminal court, with the creation of a new District Division, made up of a district judge and two magistrates, to hear mid-range either-way offences (the third division, the Crown Division, retained the role of the current Crown Court). In the event, the government declined to adopt the Auld recommendations in this regard, but instead proposed to increase the sentencing powers of the magistrates to 12 months in detention in s 154 of the Criminal Justice Act 2003.

However, as yet, the increased sentencing power under s 154 of the Criminal Justice Act 2003 has not been implemented. Under the coalition government, the Justice Ministry had intended to remove this power to increase the sentencing powers of magistrates and included a section to that end in its Legal Aid, Sentencing and Punishment of Offenders Bill. However, following the riots that took place across England in the summer of 2011, the Attorney General, Dominic Grieve, put himself at odds with the then Justice Minister, Ken Clarke, by suggesting that increasing the sentencing powers of magistrates would make the court system more efficient. To the pleasure of the Magistrates’ Association, Grieve would appear to have won any argument that took place as the proposal was omitted from the subsequent Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012.

LASPO 2012, however, did increase magistrates’ powers in relation to the fines they could impose. Criminal offences are divided into five levels, on an ascending scale of seriousness. Before LASPO 2012, the general maximum fine for a level 5 offence was £5,000, but subsequently magistrates have the power to impose unlimited fines in the most serious cases.

The 2016 House of Commons Justice Committee report, The role of the magis-tracy, supported increasing magistrates’ sentencing powers to 12 months’ custody by commencing s 154 of the Criminal Justice Act 2003, and recommended that the Ministry of Justice provide a timetable for implementation. However, it also, and perhaps more worryingly, recommended that the Ministry of Justice publish any modelling of the potential impact on the prison population of extending magistrates’ sentencing powers.

Criminal Justice and Courts Act 2015: trial by single justice on the papers

The Criminal Justice and Courts Act 2015 (ss 30, 31) introduced a new single-justice procedure under which proceedings against adults charged with summary-only, nonimprisonable offences can be considered by a single magistrate, on the papers. This means that the trial will take place without the attendance of either prosecutor or defendant, the defendant being able to engage with the court in writing. The stated purpose of this new procedure is to deal more proportionately with straightforward, uncontested cases, involving offences such as road traffic offences. Previously, many defendants either chose not to engage with the process or returned a written guilty plea. In such instances, hearings took place in an empty courtroom with only magistrates, prosecutors and court staff present. The new procedure allows such cases to be dealt with much more efficiently. Cases which prosecutors identify as being suitable for this process will be commenced by a written charge and a new type of document called a ‘single justice procedure notice’. This notice will give a defendant a date to respond in writing to the allegation rather than a date to attend court; it will also be accompanied by all the evidence which the prosecutor would be relying on to prove the case. If a defendant pleads guilty and indicates they would like to have the matter dealt with in their absence, or doesn’t respond to the notice, then a single magistrate will consider the case on the basis of the evidence submitted in writing by the prosecutor, and any written mitigation from the defendant. They can dismiss the charge, or convict and sentence as appropriate. However, if a defendant wishes to plead not guilty, or otherwise wants to have a hearing in a traditional courtroom, they can indicate their wishes and the current arrangements will apply.

In an article in Criminal Law & Justice Weekly in September 2010, entitled ‘The future of the magistracy’, Noel Cox used some recent changes in New Zealand practice to offer some suggestions as to the way that the role of the magistrates may evolve in England and Wales.

He sees two related processes emerging. First, the jurisdiction of magistrates has expanded in terms of number and complexity over the past few decades as a result of existing crimes being downgraded to summary or offences triable either way, with new offences tending to be categorised in that way from the outset. However, the increased use of fixed penalties for minor summary offences (see below) is a related, if apparently contradictory, development in that it reduces the number of less serious cases coming before the magistrates’ courts. It should also be remembered that, to a very large extent, the role of the magistrates’ courts as licensing bodies has been removed. Consequently there has been a radical shift of work to magistrates’ courts and one that Cox sees as likely to continue. The threat for the lay magistracy is that the increase in the seriousness and complexity of the cases dealt with in their courts will lead, necessarily, to the further professionalisation of the magistracy in the form of increased use of district judges, and their role will be reduced to that of almost lay assessors or jury members, rather than judges.

Cox’s conclusion, although not amounting to a death sentence, raised concerns among the magistracy. As he saw it:

In England and Wales the work of District Judges is currently expanding and their importance is likely to increase, as trial by jury is effectively restricted to the most serious cases. It is also possible that the powers of justices’ clerks will continue to expand. They have acquired case management powers that were once reserved to magistrates and the Justices’ Clerks Society have argued that its members should sit as chairmen of the bench. The days of the justice of the peace as an active lay magistrate may be drawing to a close. As a consequence, a long tradition of voluntary community service may be lost. But it would be premature to toll the death knell of the lay magistracy.

12.9.3 Magistrates’ Courts and Out-of-Court Disposal of Criminal Offences (OOCDs)

In 2005 the government issued its Supporting Magistrates’ Courts to Provide Justice initiative, which went out of its way to assure the magistracy of its support. However, in July 2006 a three-department initiative involving the then Constitutional Affairs Department, the Home Office and the Attorney General announced a new initiative: Criminal Justice: simple, speedy, summary or CJSSS.

Simple – dealing with some specific cases transparently by way of warning, caution or some effective remedy to prevent re-offending without the court process;
Speedy – those cases that need the court process will be dealt with fairly but as quickly as possible;
Summary – a much more proportionate approach still involving due process – dealing with cases during the same week.

The intention was to improve the procedure within the lower courts so that those who pleaded guilty were dealt with as quickly as possible and those who elected to go for trial did not have to wait as long as previously for their hearing. The apparent success of CJSSS in four pilots led to its rollout to all magistrates’ courts.

However, at the same time, the government was pursuing the increased use of non-court procedures for dealing with low-level criminal behaviour and disorder such as fixed penalty notices, penalty notices for disorder, and simple and conditional cautioning.

Fixed penalty notices

Similar to the already common road traffic fixed penalty notices, these generally deal with environmental offences such as litter, graffiti, fly posting and dog fouling. They can be issued to anyone over 10 years old by police, local authority officers and police community support officers.

Penalty notices for disorder

These procedures were introduced to address low-level anti-social behaviour, while also reducing police bureaucracy and paperwork. They can be issued to anyone over 16 years old. The Home Office suggests that such orders may be issued in relation to:

intentionally harassing or scaring people;
being drunk and disorderly in public;
destroying or damaging property;
petty shoplifting;
selling alcohol to underage customers;
selling alcohol to somebody who is obviously drunk;
using fireworks after curfew.

Although not the same as criminal convictions, failure to pay the penalty may result in higher fines or imprisonment.

Simple cautions

These are used to deal quickly and simply with those who commit less serious crimes, without the need to take them through the court procedure. A caution is not a criminal conviction, but it will be recorded on the police database and may be used in court as evidence of bad character, or as part of an anti-social behaviour application (see above, 1.3.5). Cautions are issued where:

there is evidence of criminal activity;
the offender is 18 years of age or over (under the Crime and Disorder Act 1998 younger offenders are given ‘reprimands’ and ‘final warnings’ instead of simple cautions);
the offender admits they committed the crime;
the offender agrees to be given a caution; if they refuse they may be charged instead.

The use of cautions rather than court proceedings is at the discretion of senior police officers. However, the more serious crimes like robbery or assault must be referred to the Crown Prosecution Service.

Conditional cautions

These were introduced in the Criminal Justice Act 2003 and differ from simple cautions to the extent that the recipient must comply with certain conditions to receive the caution and to avoid prosecution for the offence allegedly committed.

The nature of the conditions that can be attached to a conditional caution must have one or more of the following objectives:

rehabilitation – such conditions are aimed at helping to change the behaviour of the offender, in order to reduce the likelihood of their re-offending or help to reintegrate the offender into society. They may require attendance at drug or alcohol misuse programmes, or interventions tackling other addictions or personal problems, such as gambling or debt management courses;
reparation – conditions that aim to repair, or compensate for, the damage done either directly or indirectly by the offender;
retribution – conditional cautions can include punitive elements, which are designed to penalise the offender for their criminal activity. Such conditions, introduced in the Police and Justice Act 2006, may require the payment of a financial penalty, unpaid work for a period not exceeding 20 hours, or attendance at a specified place for a period not exceeding 20 hours.

The recipient of the caution must admit their guilt or they will be charged and face trial. As with the simple caution, a conditional caution is not a criminal conviction as such. However, it will be recorded on the police database and may be considered in court in the event of another offence. In addition the record will remain on the police database along with photographs, fingerprints and any other samples taken at the time. If the recipient breaches the condition, then they may be arrested and charged with the original offence.

It has been suggested that in the early enthusiasm for the CJSSS programme, the magistracy had not paid sufficient attention to the ‘simple’ aspect of CJSSS as set out above. However, it was not long until the magistrates and their association were complaining about the bypassing of the courts through the use of the non-court procedures.

The suspicion of the magistrates appears to be that the use of alternative mechanisms meant that incidents that should have been heard by them were being dealt with inappropriately and perhaps more leniently than they should have been in order to save police time and state money: it was estimated in October 2009 that only half the 1.4 million offenders dealt with by the justice system each year were actually prosecuted in the courts.

A report published in August 2008 by the Centre for Crime and Justice Studies at King’s College London, entitled ‘Summary Justice: fast – but fair?’, written by Professor Rod Morgan, argued that the government policies aimed at diverting minor offences from court had actually resulted in an extensive widening of the criminal net, with individuals being brought within the ambit of the criminal justice system who would have previously been ignored or dealt with informally.

The report highlighted a rise in the numbers of convictions for violent offences, but much larger rises in the resort to cautions. Thus, convictions for serious indictable violent offences were 11 per cent higher in 2006 compared with 2001, but cautions increased by 92 per cent. The comparable figures for less serious indictable offences included a rise of 19 per cent for convictions but 195 per cent for cautions. Such findings would appear to suggest that cautions have been issued where previously no official sanction would have been applied. It also suggested that regional differences in the use of summary powers, and the fact that decision-making was made in private rather than in open court, resulted in an ‘accountability deficit’.

In December 2011, the coalition Minister for Policing, Nick Herbert, addressed the National Council of the Magistrates’ Association on the issue of summary justice in which he addressed some of their major concerns. He recognised the need to ask fundamental questions about the system of summary justice in order to reverse the proliferation of administrative disposals that had taken place over the previous few years. He also insisted that the magistracy should have an early role in overseeing how out-of-court sanctions are applied within their locality.

In January 2013, the then chairman of the Magistrates’ Association wrote to the then Justice Secretary, Chris Grayling, calling for an inquiry into the police use of cautions, saying that the practice had ‘got out of hand’. A subsequent review of simple cautions which were reported in November 2013 recommended that restrictions on their use be introduced and that a wider review of OOCDs be conducted. In response, in November 2014, the government published revised guidance on simple cautions and announced the introduction of a pilot scheme in three areas, to replace cautions with more stringent measures. It was revealed that in the 12 months to the end of March 2014, there had been 391,171 out-of-court disposals comprising 235,323 cautions, 77,933 cannabis warnings and 77,915 penalty notices for disorder.

Subsequently, in March 2015, the House of Commons Home Affairs select committee issued a report on use of out-of-court disposals and found that although the use of such measures had indeed declined from a high point in 2008, they were still being used inappropriately in up to 30 per cent of all cases. As the committee reported:

Out-of-court disposals are not designed to deal with serious offences, nor with persistent offenders. It is alarming that they are used inappropriately in up to 30% of cases, although there might be certain circumstances where issuing an OOCD for a serious or repeat offence could be justified. One of the attractions of OOCDs is that they save the police time and administrative cost, allowing officers to spend more time on the front line, policing the community, but they must not be used by police merely as a time-saving tool when the circumstances of the offence suggest that prosecution is the right course of action. This is especially the case when there is a pattern of behaviour that needs to be addressed by the type of sentence that only a court can administer. The way in which OOCDs have originated, and how local police forces have used them, has created a postcode lottery. It is wrong that an offence committed in Cumbria should go to court, while the same offence, if it was committed in Gloucestershire, might be dealt with by a caution. The way in which OOCDs are recorded by the police does not help to instil public confidence in the system.

As the committee recognised, its conclusions were forestalled by provisions in the Criminal Justice and Courts Act 2015, s 17 of which placed restrictions on the circumstances in which cautions could be used. The restrictions are greater the more serious the offence. Thus:

for indictable-only offences, a police officer will not be able to give a caution except in exceptional circumstances and with the consent of the Director of Public Prosecutions (DPP).
for either-way offences, which have been specified in an order made by the Secretary of State, a police officer can only give a caution in exceptional circumstances but does not need the permission of the DPP.
for repeat summary, or non-specified either-way offences, where a person has been convicted of, or cautioned for, a similar offence in the previous two years, a police officer may not give a caution except in exceptional circumstances.

Criminal Courts Charges

A more recent issue to cause perturbation among the magistracy was the compulsory requirement to charge people found guilty of criminal offences. By virtue of the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015, any person over the age of 18 who was convicted of a criminal offence was required to pay relevant court costs in addition to any other payments due such as fines or compensation orders.

The mandatory nature of the charge was objected to by a number of magistrates. While they are required to enquire into the means of the defendant before imposing compensation orders, there was no such discretionary element in relation to the court charges which had to be levied, irrespective of the defendant’s wherewithal to pay the charge.

However, at the start of December 2015, the then Justice Minister Michael Gove announced that the criminal courts charge would no longer be imposed.

Magistrates and the public

In May 2012 the Magistrates’ Association published the conclusions of what it described as ‘a public engagement programme designed to gain an understanding of people’s views on the future of summary justice and the role of magistrates’. The material gathered generated the following conclusions:

Members of the public believe it is essential that those sitting in judgement on others should be people living or working in the communities they serve but, as judicial office-holders, should be totally independent, impartial, properly trained and competent.

There is a lack of understanding about the extent of the role of the magistracy, although there does seem to be a belief that magistrates should be involved in all parts of the justice system including out-of-court disposals.

The magistracy is not yet truly representative of the communities it serves especially in terms of class, age and diversity.

For most people, and particularly victims, the processes of the justice system are still very difficult to comprehend and access.

Punishment is expected to be part of a sentence but the priority for the public is for visible action such as community payback to stop re-offending and for magistrates to monitor and review sentences.

The public wants to know more about the justice system from the practitioners themselves.

In the light of such conclusions, the association recognised the need to build the public’s confidence in the magistracy and proposed that it should be the foundation of a community-focused justice system. However, in order to achieve such an objective, it also recognised and adopted the slogan that the magistracy must become more ‘active, accessible and engaged’ through strengthening and more clearly defining its roles and responsibilities.

12.2.1 The Constitutional Role of the Lord Chancellor

The Constitutional Reform Act 2005

12.2.2 The Constitution and the Role of the House of Lords and the Supreme Court

12.2.3 Judicial Impartiality

Re Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (1999)

Locabail (UK) Ltd v Bayfield Properties Ltd (1999)

Lord Chancellor

Lord Chief Justice

President of the Supreme Court and Deputy President of the Supreme Court

Master of the Rolls

President of the Family Division of the High Court of Justice

President of the Queen’s Bench Division and Judge in Charge of the Administrative Court

Chancellor of the High Court

12.3.1 Judicial Hierarchy

Justices of the Supreme Court

Lords of Appeal in Ordinary

Lords Justices of Appeal

High Court judges

The Lord Chancellor may also appoint deputy judges

Circuit judges

Recorders

District judges

12.3.2 Legal Offices