Judging the judges part 2 PDF

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Judging the judges part 2 – 13/10/19 - Next week’s lecture, law librarian on how to utilise my MMU and accessing research tools for assignments - Week after, visit Civil Justice Centre (no lecture). Sit on a case to observe court proceedings - Third week: PDP week, see PAT tutors to discuss progress and any issues you may have - Andrew Francis will give a lecture on access to justice and ethics - Vital for judges to be independent (not bowing down to external pressures, no bribery. When they fulfil their roles they are independent – not influenced by government, interpret the rule of law). - Non-Financial Bias: are there any other reasons where judges should not be biased? Judge has an interest in case which may not be financial. Here, they should avoid sitting on the case and disqualify themselves. - Pinochet Visited UK for medical treatment. Extradition treaty (can send individuals back to a country if they have had allegations made against them). Spain wanted to extradite Pinochet due to human rights allegations. Concerns immunity from prosecution as a head of state. R v Bow Street Metropolitan Stipendiary Magistrates ex parte Pinochet (ex parte – on behalf of) – case went to High Court and then went to HL. Case regarding crimes against humanity, human rights organisations also became involved (third party interveners/representatives) and formed part of proceedings and provided evidence against Pinochet. Hostage taking, murder, genocide etc – not proper functions as head of state. Majority decision Lord Hoffman – not a director but was involved in the charity side of Amnesty International. Not a financial bias, but personal, charitable – should Lord Hoffman have disqualified himself from this case? YES (No suggestion of actual bias, but it was enough that there was an appearance of bias). Pinochet was not extradited as a result, should have been a number 3 case but lawyers kept submitting proceedings and applications that he was getting older and getting ill, eventually died. Never any justice – victims and families felt great sense of justice. This shows the importance of judiciary and why they should be independent as it is enshrined into the legal system. Conscious or Subconscious bias? – Is it possible to divorce one’s pre-conceived notions from judicial reasoning?

- Judges may bring backgrounds into decision making subconsciously as they are human beings and it is normal. Legal Formalism – judges’ task of providing a literal interpretation of the law (to interpret and apply, not to make law) - No judicial activism in construction and interpretation of law - Violates SP (Alternative meanings to words in statute, almost elasticing the meaning which is not Parliament’s intention. Extending meaning, greater impact to applicability of law). Legal Realism – no creativity means we cannot adapt laws or policy. - Judges can also help develop law due to their morality and how justice may be served. - Parliament does not meet very often, reforms may take a long time whereas as the courts sit every day, they can deal with interpretation and application there and then. In some way, Parliament is stagnant. Should we advocate judicial activism? Should appreciate this and view it positively, some of the best judges are known as activists due to interpretation of the law (i.e Lord Denning – regarded as one of the most famous judges in ELS/of all time) Read ‘Lord Denning on his Death in 1999’: Claire Dyer’s The Guardian Article What is the point in having law if we cannot make it applicable? Wanted to move away from complicated judgements as he wanted ordinary people to understand the reason for passing judgements. National Provincial Bank Ltd v Ainsworth - Lord Denning was prepared to give a right to interest in property when her husband divorced her and he had taken out a loan. Bank wanted to repossess house Cooke v Head / Hazell v Hazell – proprietary rights. Couple split up after making payments for mortgage (can sell property and split shares). Problems when male defaulted on payment, if he didn’t bring in enough income, female partner supplemented payments. Lord Denning said even though mortgage is on male’s name, female was paying other living expenses which allowed the upkeep of house; therefore, female partner awarded an equitable share of the house. (Legal champion for women’s rights, especially for property) RCN v DHSS – Could nurses undertake abortions on the part of doctors, even though under s1 they are not registered legal practioners. HL said nurses can as Parliament envisaged a holistic/team working approach which are not necessarily undertaken alone, usually with provision of medial practioners. Limited number of doctors. Ultimate control is still medical practioners. Lord Denning adopted a strict, literal approach of s1 Abortion Act (appeared to be a legal formalist).

He held family very tightly, was brought up with strict Christian views which would affect his views on right to life – subconsciously affected judgement? Stronger stance against abortion than other judges. R v R – could a husband be guilty of the rape of his wife? HL said yes as the definition of rape of SOA (S1) explains there must be absence of consent. Despite marriage, women can still fail to provide consent if they say no, enough to justify arrest and trial and conviction. EXAMPLE OF JUDGES MAKING LAW – went through court as a question of law. HL felt it was important to extend offence of rape through cases rather than wait for Parliament. Judges said they are making amendments for social aspects – is it judges role to make these legal roles? From a constitutional perspective, no. Already a Bill in Parliament to discuss making it possible to rape your wife. We need judges to be sensitive to issues before them in cases, they are human. Cannot expect them to leave all bias behind as we do want them to apply their backgrounds (for example, Lady Hale has sat on cases concerning women’s rights. Peoples understanding can enhance judgement when sitting on cases). Will have to read judgements for assignments. Do research about judgements and judges on particular cases – creativity? Bias? Impact the way they have decided? Read case comments and also the case judgements – written by academics about political nature of any biases that may be present. Will make you more critically aware of judgement being delivered....