Tag Archives: judges

Judging Judges – Is there a need for greater judicial scrutiny?

I attended Cheryl Thomas‘ inaugural lecture at the Judicial Institute at UCL last Wednesday where she talked about judicial studies and in particular, the study of judges and juries. I’d never really thought about judicial studies until I was trying to find empirical evidence of the behaviour of juries in criminal trials for a paper I was writing. All I found was a study from the early 1990s – The Crown Court Study, by Professor Michael Zander and Paul Henderson, so I used this slightly outdated evidence, feeling a little disheartened about my research skills. At the lecture I found out that this paper was in fact one of the few empirical studies of juries in the UK. Thomas described the study of juries in the UK as a as a “black hole” with academics remaining cautious about conducting research in the area, for fear of breaching Section 8 of the Contempt of Court Act.

Royal Courts of Justice Photo courtesy of Gareth Davies

However it is not only the study of juries that is largely neglected in the UK, but perhaps more surprisingly, the study of judges is also neglected even though this wouldn’t be limited by the Contempt of Court Act. This paucity of research could be due to a number of factors, most notably the commonly held belief that the judiciary should not be interfered with. In 1955 Lord Kilmuir famously claimed that there is a need for ignorance to “protect” the judiciary from scrutiny, establishing the so-called Kilmuir rules. This changed in the 1980s when these rules were revoked. In March, the current master of the rolls, Lord Neuberger, stated in a speech to the Student Law Society at Birmingham University:

“it seems to me only proper that judges, with their wisdom and experience, should be free to comment extra-judicially on a wide range of issues. In doing so they play an educative role. In areas such as constitutional principles, the role and independence of the judiciary, the functioning of the legal system, and access to justice, and even important issues of law, this role cannot be underestimated.”

His assertion that members of the judiciary should be able to make extra-judicial comments as well as having a public profile also came with a warning that judges must be cautious about what they say publicly.

In the US the area of judicial studies has greatly evolved since the 1950s with prominent academics such as Theodore L. Becker making it a well respected field of study. In the UK there has been little attempt to study the work of judges, the book by JAG Griffith on politics of the judiciary is based on very little empirical evidence and has failed to encourage further study. This also means that assertions made by those who write or comment on behaviour of the judiciary, as well as assumptions or sweeping statements, often go unchallenged regardless of their accuracy.

Thomas claimed that academics in England and Wales lack curiosity in relation to the judiciary, but she also stated that while they are not in opposition with judges, they do not have a great deal of contact with one another. It appears to her that academics have lost touch and no longer have the appropriate skills to study the judiciary.

The key problem in the judiciary of England and Wales lies with judicial appointments and the failure to improve diversity. While there is some progress being made in relation to the number of women appointed in the judiciary, the number of black, Asian and minority ethnic (BAME) candidates remains very low. The current appointments to the judiciary of England and Wales are significantly unrepresentative of society, this is not only regarding gender and ethnicity but also taking into account socio-economic background.

The judiciary of England and Wales is often cited as being one of “the best” legal systems in the world. Although there is no international study to confirm or reject such an assumption, there is evidence to suggest that it fares very well in comparison to other states in terms of corruption and speed. Nevertheless it’s reputation is tainted by its poor diversity statistics, the public debate on the issue of diversity has become sterile and unproductive as a result of progress being so slow.

Establishing judicial studies as a respectable and rigorous academic field could not only increase public understanding and interest in the judiciary, but it could also serve to improve the quality and openness of our legal system.

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Should Government Intervene in the Judicial Process? — Home Secretary criticises judges on application of right to family life

Theresa May stated today that judges must follow stricter rules on the application of human rights laws in relation to immigration and deportation of criminals. She also claimed that Article 8 of the European Convention on Human Rights (ECHR) – the right to family life, is not an absolute right and must be weighed up against public interest. The cross government agreement approved by Ken Clarke encourages judges to interpret Article 8 in a way that would put the state before the right to family life.

On the BBC’s Andrew Marr show the Home Secretary revealed plans to tighten immigration laws and to prevent criminals using Article 8 to avoid deportation.  The UK is introducing “financial independence” rules which will make it more difficult for tens of thousands of families to bring relatives into Britain. When the measures come into force next month, individuals must earn at least £18,600 to bring in a non-EU  spouse into the UK and additional income for each child. May is emphasising that this will prevent foreign partners from “relying on benefits” for when they settle in the UK. She claims that these moves seek to largely reduce net migration as well as ensuring integration and economic independence of immigrants.

She also referred to plans to introduce “Britishness tests” which will consist of English language as well as a “life in the UK” tests. Marr pointed out the challenges that may arise in relation to Article 8 ECHR, however May argued that states have the ability to “qualify” the right to family life i.e. apply their own interpretation. She argued that the courts have not been correctly qualifying that right “not even in the way stated by the Convention”. Ultimately she is pressuring judges to enforce more stringent legal controls on the immigration of relatives of British residents as well as making it easier to deport foreign criminals.

The Home Secretary stated that she will outline the rules and guidelines in qualifying the right in the courts. “[I am going to] set out the rules that say this is what parliament, this is what the public, believe is how you balance the public interest against the individual’s interest” According to May the ECtHR has actually been tougher than some English courts in this area, she claimed that in many European cases judges differentiate between a foreign nationals who have been in the country illegally  or legally.

Her proposal for tighter rules emphasises the governments view that the right to family life doesn’t necessarily take precendence over other factors. The government plans to introduce legislation if the judges do not follow the motion set out by the Commons. She warned: “I would expect that judges will look at what parliament will say and that they will take into account what parliament has said. If they don’t then we will have to look at other measures and that could include primary legislation.”

It is unclear how exactly the government is to assess whether or not judges have taken on board the government’s wishes. For May to publicly criticise the work of judges for not being in line with the governments policies seems a  little worrying as surely judges should be expected to act within the framework of the law rather than according to the interests of the government. Lawyers have stated that implementing legislation to amend the human rights act or to change its proper application would most likely be contrary to the convention.

Critics have argued that it is not the job of Parliament to interpret the law but that of the judges. May’s comments on the Marr show could be seen to be labelling immigrants as benefit scroungers or criminals who are abusing human rights laws such as Article 8 in order to stay in the country. The governments intervention on the current approach taken by judges seems both unnecessary and inappropriate. While many judges inevitably reflect public opinion to a degree they should primarily base their judgments on the law. Government has no place to enforce their political agenda onto court decisions, and judges should act in the public interest to uphold a fair and legitimate legal system that upholds human rights.