The UK Courts System

The nature of the senior judiciary British courts

The term ‘judiciary’ refers to all the judges and courts that operate in the UK. At the lowest level we can f nd magistrates’ courts and tribunals which are presided over by a mixture of amateur, semi-professional and fully professional lawyers. These courts and judges hear criminal cases and civil disputes, and deliver verdicts in accordance with law. Though important, we are not concerned with these courts here as they are not involved with political issues. The political role of the judiciary does not become significant until we look at the higher levels.

The High Court

The High Court is where appeals against decisions made by public bodies tend to appear first. It is also where judges may first be asked to interpret laws and define their meaning or application.

The Appeal Court

The Appeal Court is divided into criminal and civil appeal courts. These may hear appeals from the High Court where it is felt that a further look at the interpretation of the law and the constitution by more senior judges is needed.

The Supreme Court

The 12 most senior judges sit in the Supreme Court. They (usually five of them on each case, occasionally more) hear appeals from lower courts. The judgements of the Supreme Court are considered to be binding on the whole legal system. Cases which may have wide and important political significance usually end up in the Supreme Court.

European courts

In addition to the above British courts, there are two significant European Courts.

The European Court of Human Rights

The European Court of Human Rights hears appeals concerning possible infringements of human rights. Appeals to this court take place when the British courts, including the Supreme Court, have already considered the issues. The decisions of the European Court of Human Rights are based on the European Convention on Human Rights (ECHR). This is controlled by the Council of Europe (a separate body from the EU —the council has more members than the EU and is concerned mainly with culture and rights issues). The decisions of the European Court of Human Rights are not binding on the UK Parliament, but they are very authoritative

The European Court of Justice (EC))

The European Court of Justice is part of the EU. It hears appeals concerning the meaning and application of EU law. Its decisions were binding on the British government and Parliament, however it has no jurisdiction in the UK following Brexit.

The role of judges

• Preside over court and tribunal proceedings. In this role, judges make sure that the rules of court procedure are properly followed by both sides in a case. A judge acts rather like an umpire or referee in a sporting competition. Their job is to ensure a ‘fair trial’. In carrying out this role, judges also serve as a source of specialist knowledge, providing, for example, advice to juries in criminal cases on points of law and, possibly, directing a verdict.

Interpret and apply the law. All lawyers and judges have to interpret the meaning of law, but it is the three top levels of the judiciary that concentrate on this function. The precise meaning of a statute (law) is not always clear, however well the drafters of legislation have done their job, and however much parliamentary legislative committees may have tried to make the law easy to understand. There will always be circumstances where those in court — disputants in a civil case, defenders and prosecutors in a criminal case — come into conflict over what the law is supposed to mean. In such cases it is for judges to interpret the meaning of law. In cases involving the powers of government or its agencies, or the rights of citizens, such interpretations may be of great public signifcance. In a sense, interpretation can be seen as the fnal stage in the legislative process, tying up loose ends and unclear meanings. Here, judicial precedents become important. Once a senior judge has interpreted the law in a certain way, and if this is a new interpretation, other judges must follow the same interpretation. A judicial precedent can only be changed or overturned by a higher-level court.

• ‘Make’ law, in certain cases. In a sense, all law is ‘judge-made’ law. This is because laws ultimately mean what judges say they mean. But some laws are more ‘judge-made’ than others. Whereas judges can only interpret Acts of Parliament, they effectively determine the nature of common law. Common law, which is particularly important in the English legal tradition, is built up on the basis of judicial precedent. This happens as judges in one case accept judgements in earlier similar cases as binding, through what is known as ‘case law’. Such law is therefore, in effect, made up of a collection of decisions made by judges

Decide sentencing in criminal cases. This is a further important area of discretion, as judges have traditionally had a free hand in deciding what sentences to hand out. Nevertheless, this role has been reduced in recent years, as a result of the wider use of minimum or mandatory sentences. Some judges have argued, in turn, that mandatory sentences allow politicians to encroach on the role of the judiciary.

• Chair public inquiries and commissions. Judges are used for this purpose because of their reputation for being independent and impartial. Public enquiries are also run like court proceedings, and may even have a quasi- judicial character. Such a role has also led to criticism, however. In chairing inquiries, judges inevitably come into close contact with ministers and senior officials, and this may compromise their independence and tend to give them a pro-government bias.

Examples of prominent public inquiries chaired by judges include:

• Sir William Macpherson’s inquiry into the killing of the black teenager, Stephen Lawrence (reported 1999)

• Lord Hutton’s inquiry into the circumstances of the death of the weapons expert, David Kelly (2003)

• Lord Saville’s inquiry into the Bloody Sunday massacre in 1972 in Northern Ireland (reported in 2010)

Lord Leveson’s inquiry in to the ‘culture, practices and ethics of the press’(2012)

• Al-Sweady inquiry into allegations that British service personnel had murdered and ill-treated detainees in Iraq in 2004 (2014)

How significant are public Inquiries ?