The Jury Finds Charles Bell Guilty

During the trial Country judge Ernest Brain asked the witness, defendant, barrister, solicitor questions and after the announcement (оголошення) of the decision of the jury he makes a short speech and passes a sentence (виносити вирок): “Sentenced to 6 years of imprisonment and partial confiscation of the property in order to satisfy the suit of the victim of Ј40,000”.

 

SUPLEMENTARY READING

Appointment and Tenure

The act of settlement 1700 laid down the statutory foundation for the appointment of judges. Judges held office quamdiu se bene gesserint (if they were of good behaviour). This gave judges security of tenure, and they could be removed only upon address of both House of Parliament. However, no English judge has been removed under this procedure. This security of tenure available to the superior judge is not enjoyed by circuit judges of recorders; they can be removed by the Lord Chancellor for misbehaviour or incapacity. From April 1995, posts for circuit judges and district judges must be advertised, applicants being selected by a panel. This move was intended to combat some of the criticisms in respect of the appointment of judges.

 

The Independence of the Judiciary

Judges must be completely impartial when applying the law and should not allow any political favour or bias to influence their judgment. The idea of the independence of the judiciary from the state is important to the legal system; protection from removal and the doctrine of judicial immunity reinforces this. Mush stress is laid upon the constitutional importance of the independence of judges, and accords with Montesquieu’s theory of separation of the powers. To maintain the idea of non-political interference, judges cannot be Members of Parliament. However, the Lord Chancellor’s position is rather incongruous, having a foot in both camps – being a political appointee and member of the government.

Judicial immunity from civil suit protects superior judges in respect of their activities during the course of judicial office.

 

Social Background of the Judiciary.

The judiciary is criticised because its members are usually drawn from a very elite social background, mostly from public schools and Oxford or Cambridge universities. They are from upper-middle-class origins, and it is suggested that because of this and their isolation from life within society they are out of touch with the moral values of the generation they are trying and sentencing.

 

Judicial Officers

The Lord High Chancellor ↓ Lord Chief Justice ↓ Master of the Rolls ↓ Vice Chancellor ↓ Lords of Appeal in Ordinary ↓ High Court judges ↓ Circuit judges ↓ District judges

Training of Judges

Judges receive very little training, although some seminar training is given to assistant recorders. Training of judges was considered, by the Runciman Committee which made recommendations in this area.

 

Magistrates

Lay justices. Lay justices sit in magistrates’ courts, are part-time and are unpaid, receiving only expenses. They try the majority of minor criminal offences; approximately 98% of all criminal offences are processed through the magistrates’ court. Lay justices are vital to the legal system as they provide a cheap and quick system of justice. They are appointed by the Lord Chancellor from individuals put forward by local organizations. They must be over 21, not be over 60, and, usually, must live or work in the particular area.

Unlike superior judges, magistrates are not subject to the doctrine of judicial independence; many are local councilors. Though a balance is attempted to ensure that certain groups in the population are represented, many groups are in fact excluded. Magistrates are predominantly white, middle-class males and this imbalance causes concern. There are not enough women magistrates: research by Baldwin (1976) showed this tendency to be prevalent and the feeling is that magistrates are not a true representation of the community.

Stipendiary magistrates. The term “magistrate” incorporates the professional stipendiary magistrate, as well as the lay justice of the peace. Stipendiary magistrates are paid, usually barristers or solicitors. They preside over busy magistrates’ courts where the use of lay justices would be impracticable; they can preside on their own.

The justices’ clerk. Lay magistrates can only sit if they have a qualified clerk to assist them. He advises the justices as to the law and practice; however, he is not allowed to interfere with their decision. The clerk is salaried, usually a barrister or solicitor.

 

Judicial Reasoning

Case law and judicial precedent. A prominent element of common law is the principle of stare decisis. It is common to speak today of law being “judge-made”. When deciding a case, judges must look to previous case law decided in similar case. Judges are bound to decide cases using existing legal principles. The doctrine of judicial precedent depends on the hierarchy of the courts for its operation; courts are bound to follow decisions of higher courts, and, usually, previous decisions of its own.

Hierarchy of English courts. The House of Lords. Since 1966, the House is no longer bound by its own decisions. All decisions of the House of Lords are binding on all other courts.

Court	Courts bound by it	Courts it must follow
European Court	All courts	None
House of Lords	All English courts	European Court
Court of Appeal	Divisional courts High Court Crown Courts County courts Magistrates’ courts	European Court House of Lords
Divisional courts	High Court Crown Courts County courts Magistrates’ courts	European Court House of Lords Court of Appeal
High Court	County courts Magistrates’ courts	European Court House of Lords Court of Appeal Divisional courts
Crown Courts County courts Magistrates’ courts	None	European Court House of Lords Court of Appeal Divisional courts High Court

Statutory Interpretation

It is not an easy task to interpret Acts of Parliament. Problems of construction arise when judges have to use their traditional skills to resolve them. There is no Act of Parliament to guide judges in the interpretation of other Acts, although the Interpretation Act 1978 gives some assistance. Judges can refer to the European Commission’s explanations when dealing with issues of EC law. As more laws become statute-based, interpretation of these statutes is a key role of a judge.

Since the decision in Pepper v Hart (1993) a judge can refer to Hansard to aid him in interpretation of a statute. However, the rule has its limitation: it can only be used if the statute is ambiguous, or if the use of the literal meaning would lead to an absurdity.

Rules of statutory construction. When statutory words are ambiguous, judges can use rules of construction to aid them in determining what it was Parliament had intended.

 

THE POLITICAL SYSTEM OF THE USA. THE LEGISLATIVE BRANCH.

Warming-up:

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