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The English Judge: Text of an Address Given at a Conference of German Judges and Lawyers Held under the Auspices of the Educational Interchange Council on Wednesday, May 18, 1966 Author(s): Leslie Scarman
Source: The Modern Law Review, Vol. 30, No. 1, (Jan., 1967), pp. 1-5 Published by: Blackwell Publishing on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1093121
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THE |
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MODERN |
LAW |
REVIEW |
Volume 30 |
January 1967 |
No. 1 |
THE ENGLISH JUDGE
TEXT OF AN ADDRESS GIVEN AT A CONFERENCE OF GERMAN JUDGES
AND LAWYERS HELD UNDER THE AUSPICES OF THE EDUCATIONAL INTERCHANGE COUNCIL ON WEDNESDAY, MAY 18, 1966
IT is not possible to understand the English legal system without
proper appreciation of the position of the English judge. By and large there are two sources of English law: Parliament, whose enactments are to be found in the Statute Book, and the judges, whose decisions are to be found in the Law Reports. Statute law is to a large extent formalised in its arrangement and language but the decisions of the judges are the free composition of the judges themselves. A judge may give the reasons for his decision extempore immediately following the argument of counsel. On the other hand, he may decide to take time to consider his judgment, in which event he will probably prepare a written judgment which he reads in open court. It is entirely his choice whether he gives judgment immediately or takes time to consider it; whether he writes it out in full or speaks from his notes or his recollection. Equally, it is entirely his choice whether he gives judgment in a few words or commits himself to a complex technical statement of his reasons. A glance at the Law Reports will reveal the astonish-
ing variety in style of the English judges.
of Re Diplock 1 the Court of Appeal deployed their reasons in such
detail that the report of the case occupies ninety-nine pages in the Law Reports. When the case went on appeal to the House of Lords, the judgment of the House was given quite shortly, the five
speeches of the Law Lords occupying only twenty-seven pages.2 It cannot be doubted that the vigour of English law derives
largely from the breath-taking freedom of choice allowed to English judges in the style and substance of the reasoning which they adduce to support the orders that they make. From this freedom
1 [1948] 1 Ch. 465.
2 [1951] A.C. 251.
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is derived also the high literary quality which is one of the most stimulating and refreshing features of the Law Reports. Laymen as well as lawyers can find good reading in the decisions of the judges, as indeed is evidenced by the anthologies of judgments chosen for their literary quality which are published from time to time. It is no exaggeration to say that some judgments rank as
great literature, as full of passion and eloquence as they are of technical learning. Let me quote a famous illustration from the speech of Lord Atkin in Liversidge v. Anderson:
" In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of
freedom . . . that the judges are no respectors of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified by law. In this case, I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I."
You will observe his description of the English judge as one of the pillars of freedom and his emphatic declaration that it is a judge's duty to stand between the subject and any attempted encroachment on his liberty-alert to see that coercive action is justified by law.
Who are these men, entrusted as they are with tremendous
responsibilities, yet permitted almost complete freedom of choice as to the manner in which they will discharge them? How are they appointed ? What is the judicial system within which they operate? I will endeavour to make some answer to these questions-though in the time at my disposal my answer is bound to be incomplete.
The central figure is the High Court judge. There are only sixty-four High Court judges. The High Court is a court of first instance; broadly speaking, its jurisdiction is unlimited and, within the territory of England and Wales, universal.
appeal judges who man the Court of Appeal, to which court appeals, as of right, lie from the High Court and the county court. Above the Court of Appeal there sits the House of Lords, the judicial members of which number only ten, though they are augmented from time to time by peers who have held high judicial office. The higher judiciary thus consists only of some eighty-six judges and
theirs are the judgments which, if important for the development or declaration of the law, are reported in the Law Reports.
In addition to the higher judiciary, there are some eighty-five county court judges who exercise a limited civil jurisdiction. It is almost true to say that the judicial members of the House of Lords, the judges of the Court of Appeal, of the High Court and of the
county court-in |
all under two hundred-constitute |
the professional |
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judiciary of a country of forty-six million people. |
It |
is not quite |
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true, because in |
addition there are some stipendiary |
magistrates |
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JAN. 1967 THE ENGLISH JUDGE 8
exercising criminal jurisdiction, some criminal judges who, though not judges of the High Court, exercise in certain places a criminal jurisdiction nearly as extensive as that of the courts of assize, and a number of important, though minor, judicial officers attached to the High Court and county court. Nevertheless, it is a remark- able feature of the English legal system, which depends for its quality so largely upon the work of the judges, that it makes do
with a tiny professional judiciary.
There is no professional judicial career. The judges are drawn from the small profession of the Bar, the practising members of which number only slightly more than two thousand. A man comes to the judicial bench after successful practice as a barrister.
A necessary qualification for a High |
Court judge is that he must |
be a barrister of at least ten years' standing. Upon appointment |
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he retains his close relationship with the Bar through his member- |
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ship of one of the four Inns of Court, who alone have the right to |
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call men and women to the Bar. |
Barristers have the exclusive |
right of audience in the High Court, Court of Appeal, and House of Lords, and in matters of professional discipline are subject to the ultimate control of the judges. Thus, the links between the judges and the Bar are very close indeed. Some would say that the Bar constitutes within the legal profession a corps of experienced trial lawyers from which the judges are drawn; others would say that the field of choice is altogether too restricted and that the Bar is too small a profession to constitute a sufficient reservoir of talent for the High Court bench.
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In what is necessarily only a sketch, I cannot enter this sort |
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of |
controversy. Suffice it to say, |
that over the years |
the quality |
of |
the English judge has not been |
found to be lacking. |
It may be |
that there is much to commend the present system in that it ensures that judges will have had substantial experience as trial lawyers, that they will know the Bar, that the Bar will know them, and that the whole field of choice for appointment to the judicial bench is small enough for the effective scrutiny and assessment by one man-the Lord Chancellor-who, in effect, appoints them.
A High Court judge holds office during good behaviour and is subject to removal only by the Sovereign upon an address presented by both Houses of Parliament. He is therefore virtually irremovable. He has to retire at the age of seventy-five, but if he completes fifteen years' service before that age he is entitled to retire on full pension. His salary is ?10,000 a year, his full pension is half that sum, and upon retirement or death he or his estate receives a lump sum equivalent to double the amount of his annual pension, though that lump sum may be abated to pay for the judge's widow's pension. Provisions exist for pensions for his widow and dependent children. I would emphasise three points: first, a judge does not come to the bench looking for further promotion; judicial office is itself the apex of a legal career and it
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difference, financially or otherwise, whether a man finds himself a High Court judge, a judge of the Court of Appeal or a judicial member of the House of Lords. Secondly, he is financially secure. Thirdly, he is irremovable. These three features underpin the independence which is the hallmark of his office.
County court judges are also recruited from the Bar. They also enjoy a substantial salary with retirement pension and benefits, though not on quite the same scale as that of the High Court judge. They are removable by the Lord Chancellor for inability or misbehaviour and, unlike the High Court judge, have to satisfy the Lord Chancellorthat their health is satisfactory before appointment. Although the detail is different, the principle is the same; they are drawn from the same small profession and enjoy security of tenure
and independence.
Upon appointment the judge is required to swear not only the oath of allegiance but also the judicial oath. Its terms summarise the duty of the English judge and constitute the only direction that he receives from authority as to the way in which he is to conduct himself judicially. The oath reads as follows:
"I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will. "
Though the appellate courts will correct his decisions if they err in law or are palpably wrong in fact, they cannot really touch the quality of the justice that he administers. This is his responsibility alone, under the guidance of his oath.
The work of the High Court judge is centred in London at the Royal Justice, Strand. The High Court consists of three divisions: the Queen's Bench Division, the Chancery Division, and the Probate, Divorce and Admiralty Division, to one or other of which the judges are assigned. In addition to the business of the High Court in London, the judges of the Queen's Bench administer criminal justice at the Central Criminal Court in London and at assize courts outside London. Outside London criminal justice at High Court level is administered by means of the circuit system. The circuits of the judges are seven in number and embrace sixty- one different assize towns. Today the whole business of administer-
ing justice at High Court level outside London is under consideration by a Royal Commission and it is likely that drastic changes may be made to a very ancient system which has its origins in feudal times.
Civil cases are usually tried by a judge alone. Criminal cases, when they are of sufficient gravity to be tried at assizes, are tried by judge and jury. But whether he sits alone in the exercise of his civil jurisdiction or with a jury trying crime, the judge in his court is supreme. He has the power to imprison for contempt of court and enjoys, together with witnesses and advocates, complete
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THE ENGLISH |
JUDGE |
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freedom of speech. |
The business |
that the High |
Court bench |
transacts in any one year is formidable. In 1964, for instance, there
were tried at assizes (including the Central Criminal Court and the two Crown Courts of Manchester and Liverpool) 5,797 criminal cases. In its civil jurisdiction the High Court tried some 7,499 cases and with the aid of county court judges sitting as Commissioners disposed of over 36,000 undefended divorce cases. During the same year the county courts disposed of 23,354 cases.
It would not be possible to administer justice in England relying only upon the small number of professional judges that we have. Whereas the civil litigation of the country is largely determined by professional judges, only a tiny proportion of the criminal cases ever reaches them. Lying behind the corps d'elite of professional
judges is the great army of lay magistrates, the justices of the peace, who try the great bulk of the less serious cases. These unpaid lay- men appointed by the Lord Chancellor are the real work-horse of the English legal system. Without them the administration of justice would collapse. They were organised into courts known as quarter and petty sessions covering the whole country. Those who are active and able to exercise the justices' full powers number
They exercise not only criminal jurisdiction but a very wide jurisdiction in matrimonial matters. When a court of lay magistrates sits, it is advised by a justice's clerk who is himself a lawyer. But theirs is the decision. They are subject to the
guidance and supervision of the High Court by a process of appeal which enables their decisions on questions of law to be corrected but not their decisions of fact.
From this necessarily incomplete and abridged sketch of the English judge, it is to be observed how the English system combines a degree of almost super professionalism with a widespread reliance upon the amateur. It may be that this is the secret of its vitality. I would leave you with this reflection: that justice does require the co-operation of lawyer and layman. Over the centuries
the English legal system has produced professional judges of tremendous quality, while entrusting a great part of its day-to-day work to laymen. If reform is to come to either the professional or lay part of the system, let us beware lest a balance which has proved itself successful over the years be wantonly destroyed.
LESLIE SCARMAN *
* o.B.E., T.L.D., Judge of the High Court, Chairman of the Law Commission.