COURTSCOURTS ANDAND TRIBUNALSTRIBUNALS

XII SEMINARIO DE ESTUDIO COMPARADO DE SISTEMAS JUDICIALES Y DE COOPERACIÓN JUDICIAL INTERNACIONAL A TRAVÉS DEL LENGUAJE JURÍDICO Águilas 2010 ConstitutionalConstitutional ReformReform ActAct 20052005 Key changes brought in by the Act:

- Duty on government ministers to uphold the independence of the judiciary. - Reform of the post of Lord , transferring his judicial functions to the President of the Courts of and – a new given to the Lord Chief Justice. - Establishment of a new, independent , separate from the and with its own independent appointments system, staff and budget. - A new independent Judicial Appointments Commission, responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Justice (now Minister of Justice). - A new Judicial Appointments and Conduct Ombudsman, responsible for investigating and making recommendations concerning complaints about the judicial appointments process, and the handling of judicial conduct complaints

ÁguilasÁguilas 2010 2010 2 BODIES RESPONSIBLE FOR JUSTICE

ÁguilasÁguilas 2010 2010 3 CourtsCourts andand tribunalstribunals

Lord Chancellor’s Department Ð Department for Constitutional Affairs (created 2003, started 2005) Ð Ministry of Justice (as of 9th May 2007)

ÁguilasÁguilas 2010 2010 4 MinistryMinistry ofof JusticeJustice ((MoJMoJ)) MINISTRY OF JUSTICE (as of 9th May 2007):

¾Replaces ’s Department & Department for Constitutional Affairs.

¾Responsibilities: reforms to Constitution, administration of courts, appointment of judiciary (Judicial Appointments Commission, JAC), human rights, data protection, freedom of information, coroners, local government elections, etc. ÁguilasÁguilas 2010 2010 5 LordLord ChancellorChancellor

Lord Chancellor and Secretary of State for Justice: Rt. Hon. Jack Straw

ÁguilasÁguilas 2010 2010 6 LordLord ChancellorChancellor

¾The Lord Chancellor is now the government minister responsible to Parliament for the courts and the justice system.

¾He is a Cabinet Minister and a Member of the House of Commons.

ÁguilasÁguilas 2010 2010 7 LordLord ChancellorChancellor CHANGES IN THE ROLE OF THE LORD CHANCELLOR: ¾ Not the Head of the Judiciary anymore. [Lord Chief Justice].

¾ He was the Speaker of the House of Lords, now he is a Member of the House of Commons. ¾ Not a of the Court of Appeal and of the Judicial Committee of the House of Lords.

Lord Chancellor HAD legislative, judicial and executive powers Î not in conformance with the European Convention on Human Rights [separation of powers]

NOW: Distinction between Government, Parliament and the Judiciary (UK Parliament webpage, (http://www.parliament.uk/about/how/principal/lord_chancellor.cfm)

ÁguilasÁguilas 2010 2010 8 TheThe LordLord ChiefChief JusticeJustice

LORD CHIEF JUSTICE OF

• President of the Courts of England and Wales. • Head of the Judiciary of England and Wales.

• Head of the Criminal Division of the Court of Appeal. Igor Judge, Baron Judge, PC, QC (born 19 May 1941)[2] is the Lord Chief Justice of England and Wales.

ÁguilasÁguilas 2010 2010 9 LordLord ChiefChief JusticeJustice

Sir Igor Judge

[CoA: Lord Justice Judge]

ÁguilasÁguilas 2010 2010 10 LordLord ChancellorChancellor && formerformer LordLord ChiefChief JusticeJustice

ÁguilasÁguilas 2010 2010 11 LordLord ChancellorChancellor andand currentcurrent LordLord ChiefChief JusticeJustice

ÁguilasÁguilas 2010 2010 12 HerHer MajestyMajesty’’ss CourtCourt ServiceService (HMCS)(HMCS)

• HER MAJESTY’S COURTS SERVICE (HMCS), of the Ministry of Justice (MoJ): manages the business of the courts, including infrastructure and resources.

• All staff in HMCS owe a joint duty to the Lord Chancellor and the Lord Chief Justice.

• It also administers the Service.

Her Majesty’s Court Service: http://www.hmcourts-service.gov.uk/

ÁguilasÁguilas 2010 2010 13 HerHer MajestyMajesty’’ss CourtCourt ServiceService (HMCS)(HMCS)

At present there are 652 courts (around 2,600 courtrooms) in England & Wales (of which 400 are magistrates’ courts) staffed by some 20,000 members of HMCS.

ÁguilasÁguilas 2010 2010 14 COURTS

ÁguilasÁguilas 2010 2010 15 CourtsCourts

• THE SUPREME COURT [of the ]. Constitutional Reform Act 2005. In Guildhall.

• SENIOR COURTS OF ENGLAND AND WALES (since Constitutional Reform Act 2005; formerly The Supreme Courts of Judicature): The of Justice, The , The Court of Appeal (Criminal & Civil Division).

• INFERIOR COURTS: County Courts, Magistrates’ Courts, (Family Proceedings Courts, Youth Courts). • Her Majesty’s Court Service Annual Report and Accounts: http://www.hmcourts-service.gov.uk/cms/files/HMCS- AnnualReportAndAccounts-2008-09.pdf

ÁguilasÁguilas 2010 2010 16 CourtsCourts:: judgesjudges && magistratesmagistrates

ÁguilasÁguilas 2010 2010 17 CourtsCourts OTHER COURTS:

• Judicial Committee of the Privy Council: 5 Lords of Appeal. Court of final appeal for UK Overseas Territories (Falklands, Cayman, Islands, Gibraltar, Bermuda, etc.), Crown Dependencies (Jersey, Guersey, Isle of Man) + some Commonwealth countries. Also for devolution issues and some domestic jurisdiction. “HoL wearing a different wig”.

• Coroner’s Court (suspicious deaths). Inquests.

• Ecclesiastical Courts (church property, errant clergy).

• Courts-Martial (military).

• The Restrictive Practices Court (competition).

• The Court of Chivalry (heraldry).

ÁguilasÁguilas 2010 2010 18 COURTS EXERCISING CIVIL COURTS EXERCISING JURISDICTION CRIMINAL JURISDICTION

THE SUPREME COURT OF THE UK

COURT OF APPEAL

Civil Division Criminal Division

HIGH COURT OF JUSTICE CROWN COURT Chancery Family Queen’s criminal Division Division Bench Division

Divisional Divisional Administrative Senior Court Court Court courts

COUNTY Inferior courts COURTS

MAGISTRATES’ COURTS

TRIBUNALS ÁguilasÁguilas 2010 2010 19 ÁguilasÁguilas 2010 2010 20 MAGISTRATES’ COURTS

ÁguilasÁguilas 2010 2010 21 MagistratesMagistrates’’ CourtsCourts Bow Street Magistrates’ Court ()

ÁguilasÁguilas 2010 2010 22 MagistratesMagistrates’’ CourtsCourts 2008/2009: 2.03 million criminal cases heard in magistrates’ courts (as compared with approximately 120,000 in the Crown Court). http://www.justice.gov.uk/publications/judicialand courtstatistics.htm

ÁguilasÁguilas 2010 2010 23 MagistratesMagistrates’’ CourtsCourts 2009:

29,270 magistrates

ÁguilasÁguilas 2010 2010 24 MagistratesMagistrates’’ CourtsCourts

• They include Family Proceedings Courts & Youth Courts.

• Panel (Bench) of 3 magistrates (Justices of the Peace) supported by a legally qualified/trained court clerk (Legal Advisor). Advice given in open court or summarised in open court → transparency.

• Not paid (but allowances).

ÁguilasÁguilas 2010 2010 25 MagistratesMagistrates’’ CourtsCourts

• Also District (“stipendiary magistrates” until August 2000) sitting alone. Requirements: 7 years’ experience (minimum) as Barrister or and 2 years’ experience as Deputy District Judge.

• Maximum penalty available to Magistrates’ Courts: 6 months imprisonment and/or a fine of £5,000.00.

• Also deal with some civil cases (family matters, betting and gaming).

ÁguilasÁguilas 2010 2010 26 MagistratesMagistrates’’ CourtsCourts Magistrates deal with three kinds of cases: • Summary offences: less serious cases, such as motoring offences and minor assaults, where the defendant is not usually entitled to trial by jury. • Either-way offences: these can be dealt with either by the Magistrates or before a judge + jury at the Crown Court. Examples: theft, handling stolen goods. A defendant can insist on their right to trial in the Crown Court. Similarly, Magistrates can decide that a case is sufficiently serious that it should be dealt with in the Crown Court – which can impose tougher sentences if the defendant is found guilty. • Preliminary stages of indictable-only offences, such as murder, manslaughter, rape and robbery. These must be heard at a Crown Court (commit for trial). ÁguilasÁguilas 2010 2010 27 FamilyFamily ProceedingsProceedings CourtsCourts && YouthYouth CourtsCourts

• Specialised form of Magistrates’ courts.

• Youth Courts not open to general public.

• Youth Courts: 10 to 17 year olds (BUT NOT serious offences, homicide & rape -Crown Court-).

ÁguilasÁguilas 2010 2010 28 YouthYouth CourtsCourts

ÁguilasÁguilas 2010 2010 29 COUNTY COURTS

ÁguilasÁguilas 2010 2010 30 CountyCounty CourtsCourts

Manchester’s Civil Justice Centre (houses ).

Crown Court + County Court= combined court

ÁguilasÁguilas 2010 2010 31 CountyCounty CourtsCourts

• 218 across England & Wales.

• Majority of civil litigation, subject to nature of the claim: debt repayment, personal injury, breach of (concerning goods or property), family issues (divorce or adoption), housing disputes (mortgage, etc.).

• Governed by County Courts Act 1984 + 1998 (CPR).

• District judges.

ÁguilasÁguilas 2010 2010 32 CROWN COURT

ÁguilasÁguilas 2010 2010 33 CrownCrown CourtCourt (London), Central Criminal Court

ÁguilasÁguilas 2010 2010 34 CrownCrown CourtCourt

• 78 centres across England and Wales. • Trials for indictable offences (serious criminal cases: murder, rape, robbery), appeals from magistrates’ courts, cases for sentence. • Except in very limited circumstances, all trials take place with a jury. • Trials: 1 judge + 12-person (randomly selected citizens) jury. • Presided over by High Court Judges, Circuit Judges or Recorders. • Divided into regions, not circuits.

ÁguilasÁguilas 2010 2010 35 CrownCrown CourtCourt.. TrialTrial withwith juryjury

ÁguilasÁguilas 2010 2010 36 HIGH COURT OF JUSTICE

ÁguilasÁguilas 2010 2010 37 HighHigh CourtCourt ofof JusticeJustice (The Strand) (+ District Registries. It also houses the Court of Appeal)

ÁguilasÁguilas 2010 2010 38 HighHigh CourtCourt ofof JusticeJustice

ONE JUDGE SITTING ALONE EXCEPT DIVISIONAL COURT OF QBD • QUEEN’S (OR KING’S) BENCH DIVISION: + Commercial Court + Technology and Construction Court, TCC. ¾ President: The Right Honourable Lord Justice Anthony May (as of 1st October 2008). (My Lord/Lady).

• CHANCERY DIVISION: Patents Court & Companies Court. ¾ Chancellor of the High Court: (The Right Honourable) Sir Robert Andrew Morritt. (My Lord/Lady).

• FAMILY DIVISION. ¾ President: (The Right Honourable) Sir Nicholas Peter Rathbone (from 13 April 2010). (My Lord/Lady).

• ADMINISTRATIVE COURT (QBD): judicial review (supervisory & apellate jurisdiction over legality of decisions & actions of inferior courts, tribunals, local authorities). • DIVISIONAL COURTS: appeals. Three judges in QBD (in theory).

ÁguilasÁguilas 2010 2010 39 HighHigh CourtCourt ofof JusticeJustice

• Queen’s (or King’s) Bench Division (72 judges): contract and tort (civil wrongs), judicial reviews and libel. Also claims for judicial review of administrative decisions or decisions of inferior tribunals.

• Chancery Division (18 judges): company law, partnership claims, conveyancing, land law, probate, patent and taxation cases. It handles cases involving large sums of money and nationally important legal financial issues.

• Family Division (19 judges): family law and probate cases.

ÁguilasÁguilas 2010 2010 40 QueenQueen’’ss BenchBench DivisionDivision

ÁguilasÁguilas 2010 2010 41 COURT OF APPEAL

ÁguilasÁguilas 2010 2010 42 CourtCourt ofof AppealAppeal ofof EnglandEngland andand WalesWales Royal Courts of Justice (London). [Also houses HCJ]

ÁguilasÁguilas 2010 2010 43 CourtCourt ofof AppealAppeal ofof EnglandEngland andand WalesWales

• CRIMINAL DIVISION: Lord Chief Justice. Lord Judge. President of the Courts of England and Wales, Head of the Judiciary of England & Wales and President of the Criminal Division of the Court of Appeal (The Right Honourable). (My Lord/Lady).

• CIVIL DIVISION: (The Right Honourable) Sir Anthony Clarke. (My Lord/Lady).

• Rest: Lords (Justices) of Appeal. • Three judges sitting as a panel.

ÁguilasÁguilas 2010 2010 44 CourtCourt ofof AppealAppeal ofof EnglandEngland andand WalesWales

• Civil Division:

¾Appeals from:

• HCJ (three divisions);

• County Courts (sometimes);

• Certain Tribunals (Employment Appeal Tribunal, Land Tribunal, Asylum and Immigration Tribunal, Social Security Commissioners).

ÁguilasÁguilas 2010 2010 45 CourtCourt ofof AppealAppeal ofof EnglandEngland andand WalesWales

• Criminal Division:

¾Appeals from Crown Court cases.

ÁguilasÁguilas 2010 2010 46 HOUSE OF LORDS

ÁguilasÁguilas 2010 2010 47 TheThe HouseHouse ofof LordsLords

• Official title: Lords of Appeal in Ordinary; however, usually known as Law Lords. Usually promoted • 12 Law Lords. • Senior Lord of Appeal in Ordinary: Lord Phillips of Worth Matravers (formerly Lord Chief Justice)

• They heard cases from the lower courts, most often the Court of Appeal. • As members of the House of Lords the Law Lords could participate in the debate and enactment of Government legislation, although in practice they rarely did so.

ÁguilasÁguilas 2010 2010 48 TheThe HouseHouse ofof LordsLords October 2009 With the opening of the Supreme Court, the highest appeal court was separated from the second house of Parliament (HoL), and the Lords of Appeal in Ordinary were removed from the legislature.

ÁguilasÁguilas 2010 2010 49 THE SUPREME COURT

ÁguilasÁguilas 2010 2010 50 http://www.supremecourt.gov.uk/

ÁguilasÁguilas 2010 2010 51 TheThe SupremeSupreme CourtCourt [[ofof thethe UnitedUnited Kingdom]Kingdom] • Middlesex Guildhall (Parliament Sq.)

• Senior Law Lord: President of the Supreme Court (Lord Phillips of Worth Matravers) ÁguilasÁguilas 2010 2010 52 TheThe SupremeSupreme CourtCourt

• The Supreme Court is the final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases.

• UK body legally separate from the England and Wales Courts since it will also be the Supreme Court of both Scotland and Northern Ireland. As such it falls outside of the remit of the Lord Chief Justice of England and Wales in his role as head of the judiciary of England and Wales.

ÁguilasÁguilas 2010 2010 53 TheThe SupremeSupreme CourtCourt • The Supreme Court

¾ hears appeals on arguable points of law of general public importance; ¾ acts as the final court of appeal in England, Wales and Northern Ireland; ¾ hear appeals from civil cases in England, Wales, Northern Ireland and Scotland; ¾ hears appeals from criminal cases in England, Wales and Northern Ireland; ¾ assumes the devolution jurisdiction of the Judicial Committee of the Privy Council (Commonwealth jurisdiction of the Council remains unchanged). • NOT part of HMCS. Started operating in October 2009.

ÁguilasÁguilas 2010 2010 54 TheThe SupremeSupreme CourtCourt • Ex Lords of Appeal in Ordinary (Law Lords) are the first justices of the 12-member Supreme Court and remain members of the House of Lords.

• Appointed by the Queen on the recommendation of the Prime Minister. • Selection commission for appointments of Justices of the Supreme Court when vacancies arise (new judges not members of the House of Lords anymore).

ÁguilasÁguilas 2010 2010 55 OfficesOffices ofof TheThe SupremeSupreme CourtCourt

1. The Office of Court Funds, the Official Solicitor and Public Trustee: protect the interests of mentally incapacitated adults and children who are under a legal disability and to act as trustee when there is no-one else suitable to do so. 2. The Tipstaff: enforcement of warrants and orders issued by Judges throughout all divisions of the High Court. Much of its work relates to children who either have been, or are at risk of being abducted. 3. The : management and administration of property and affairs of people who lack the mental capacity to perform these tasks for themselves. 4. The Office of the Public Guardian (PGO), administrative arm of Court of Protection. It supervises the use of monies held “in court” on behalf of people lacking mental capacity, and oversees registration of Enduring Powers of Attorney (nomination of sby to act on your behalf if you become mentally incapacitated in the future). ÁguilasÁguilas 2010 2010 56 APPEAL ROUTES

ÁguilasÁguilas 2010 2010 57 ÁguilasÁguilas 2010 2010 58 TRIBUNALS

ÁguilasÁguilas 2010 2010 59 TribunalsTribunals • Tribunals Service created in April 2006, executive agency of Ministry of Justice. • See www.tribunals.gov.uk. • The Tribunals, Courts and Enforcement Act 2007 creates a two-tier system: First-tier tribunals and Upper Tribunals. • Separate Chambers within each Tier. • First phase: November 2008; second phase: April 2009. ÁguilasÁguilas 2010 2010 60 TribunalsTribunals

FIRST-TIER TRIBUNALS • Social Entitlement Chamber - Tribunals: Asylum Support, Social Security and Child Support, Criminal Injuries Compensation. • Health, Education and Social Care Chamber - Tribunals: Care Standards, Mental Health, Special Educational Needs and Disability. • War Pensions & Armed Forces Compensation Chamber • Land, Property & Housing Chamber - Tax Chamber (from April 09) • Tribunals: Tax. • General Regulatory Chamber (from September 09)

ÁguilasÁguilas 2010 2010 61 TribunalsTribunals UPPER TRIBUNALS

• Administrative Appeals Chamber • Finance and Tax Chamber • Lands Chamber (June 2009)

Further appeal, with permission, to the Court of Appeal (always on a point of law)

ÁguilasÁguilas 2010 2010 62 TribunalsTribunals EMPLOYMENT TRIBUNALS EMPLOYMENT APPEAL TRIBUNALS

Separate from First Tier and but close links between them.

ÁguilasÁguilas 2010 2010 63 JUDICIAL REVIEW

ÁguilasÁguilas 2010 2010 64 TheThe functionfunction ofof courtscourts

• Judicial review: a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body (includes lower courts). • Judicial reviews only deals with judges being wrong in law, not whether their decision was right or wrong.

Judicial reviews are a challenge to the way in which a decision has been made, rather than to the rights and wrongs of the conclusion reached. They are on a point of law. ÁguilasÁguilas 2010 2010 65 TheThe functionfunction ofof courtscourts Examples of judicial review: • Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education.

• Certain decisions of the immigration authorities and Immigration Appellate Authority.

• Decisions of regulatory bodies:

• Decisions relating to prisoner’s rights.

ÁguilasÁguilas 2010 2010 66 TheThe functionfunction ofof courtscourts Judicial review in the US • Judicial review in the US also refers to the power of courts to review the constitutionality of legislation arisen from the legislative branch and states legislatures. Ð • ‘Diffuse control of constitutionality’: unlike the TC in Spain, any court in the US can and must pass on the constitutionality of the legislation invoked

ÁguilasÁguilas 2010 2010 67 SENTENCING COUNCILS

ÁguilasÁguilas 2010 2010 68 The Sentencing Guidelines Council Members

ÁguilasÁguilas 2010 2010 69 TheThe SentencingSentencing AdvisoryAdvisory PanelPanel • Chaired by the Lord Chief Justice, has seven further judicial members from every tier of court that deals with sentencing in criminal cases. • Judicial members are appointed by the Lord Chief Justice, after consultation with the Lord Chancellor. • Four non-judicial members, with experience of policing, criminal prosecution, criminal defence and the interests of victims, are appointed by the Lord Chancellor after consultation with the Lord Chief Justice and Home Secretary. • http://www.sentencing- guidelines.gov.uk/about/sgc/members.html

ÁguilasÁguilas 2010 2010 70