3

Specifically with regard to the level of district judges in England & Wales (and sheriffs in Scotland?), what means and methods - if any - are used for 'quality control'?

Are judges regularly assessed and their work peer reviewed, for instance, as is the case for the medical profession? If a judge generates a greater number of appeals than their colleagues, whether successful or not, does this act as a warning sign to encourage additional education?

Relevant but not identical: Do judges get penalised when their decisions are quashed by a higher court? . I am interested more in processes which help maintain quality by way of positive influences, support, and developmental training, rather than negative outcomes and punishments: carrot instead of stick.

2

1 Answer 1

7

Background and Appointment Process

The United Kingdom has separate judicial systems for England and Wales, Scotland, and Northern Ireland, respectively. This answer does not consider judges in the judiciary of Scotland (which serves 5.45 million people) or Northern Ireland (which has 84 judges including four coroners who serve 1.89 million people).

Overall, there are about 3,174 judges in England and Wales. Pay for judges who are lawyers starts at £126,514 per year at the District Judge level and can get as high as £294,821 per year for the Lord Chief Justice, which affords a judge in the U.K. a very comfortable upper middle class life, although it doesn't pay as well as the highest paid barristers and solicitors in private practice.

Above the level of volunteer magistrates (who serve in panels of three), who may be non-lawyers, and some specialized tribunals like the Mental Health Tribunal (which includes licensed mental health practitioners who are not lawyers, sitting with a licensed lawyer on each panel), all judges in England and Wales are experienced lawyers, and higher level judges are generally experienced barristers who have usually worked their way up through the judicial ranks over years with one or more promotions after first being appointed as a judge.

District judges can be either experienced barristers or experienced solicitors, and due to a recent change, so can recorders (a type of English judge) as well (this position was previously restricted to barristers). Circuit court judges and more senior judges are drawn from the ranks of experienced barristers, who are specialist trial court advocates who are generally more "elite" on average than solicitors.

There are about 18,000 practicing barristers and 161,000 practicing solicitors in England and Wales, serving a population of 60 million people.

All U.K. judges are appointed on a merit basis that is at least nominally non-partisan (at least below the Supreme Court of the United Kingdom). For the High Court and above, except the Supreme Court of the United Kingdom, this is handled by the Judicial Appointments Commission (JAC). The formal criteria applied by the JAC are:

  • to select candidates solely on merit;

  • to select only people of good character; and

  • to have regard to the need to encourage diversity in the range of persons available for judicial selection.

The JAC nominations must be given a thumbs up or thumbs down decision by the highest judge in the court to which the new judge is appointed, and a thumbs down decision must be accompanied by a reasoned explanation. As explained at the Wikipedia JAC link above: "the JAC's set-up means that any ministerial discretion in the choice of judges is purely nominal, with the JAC being the final appointer[.]"

The usual pattern in the English judiciary is for a judge to be appointed to a lower court and work his or her way up the ranks. Eligibility for higher appointments is mostly a function of seniority in lower judicial ranks, but the judge's performance in office is not irrelevant, especially when there is more than one candidate for a vacancy in a judicial office.

Conduct review and quality control

what means and methods - if any - are used for 'quality control'? Are judges regularly assessed and their work peer reviewed, for instance, as is the case for the medical profession? If a judge generates a greater number of appeals than their colleagues, whether successful or not, does this act as a warning sign to encourage additional education?

Quality control is primary a result of the hiring process, which in England and Wales is one of the most rigorous and non-partisan systems of global judicial systems. Experienced barristers who are hired over other applicants in a competitive application process by a commission of highly qualified commission members are an extremely elite subset of individuals.

Judges in England and Wales, as in most common law countries, are very independent. Most of their formal evaluation takes place in an interview process, in cases where they seek appointment to a higher judicial office when a judicial vacancy arises.

Their work is not audited in a formal sense, and there is not a formal process of assessment and peer review of their work outside applications for high judicial offices.

But the judiciary of England and Wales has a fairly vigorous system for investigating judicial misconduct and incompetence that can result in recommendations for corrective action in some cases:

Where the Court of Appeal criticises a trial judge, the judgment is always sent to the judge concerned. Where there is any reason for concern about the conduct of the judge it is sent to another, more senior judge; in the case of High Court Judges the head of that judge’s Division, and in the case of circuit judges to the Presiding Judge of that circuit. From time to time, if the Court of Appeal raises particular concerns, judges may be given advice and guidance, or training, or different workloads or types of workload by the responsible senior judiciary. In cases where the judge’s conduct is seriously impugned, the relevant Head of Division or Presiding Judge will refer the matter to the Lord Chief Justice and Lord Chancellor. This is another way in which individual judges are accountable.

So, in England and Wales, while trial court decisions aren't audited when neither party to the case raises a concern about a judgment, when the Court of Appeals sees a particularly problematic ruling from a lower court judge, it actually initiates the process of further inquiry that can give rise to a demand for further training or other corrective action. The judicial conduct review process in England and Wales can result in a judge's suspension from office. Serious judicial misconduct and incompetence by a judge is evaluated on an individualized basis at the highest levels of the judiciary of England and Wales.

In most countries, the process of investigating judicial conduct is much more anemic, and the appellate courts do not play as much of a pro-active role in this process.

Private Law v. Public Law and Partisan Bias

Historically, judges in England and Wales could be relatively apolitical because the principle of parliamentary sovereignty removed judges from the politically sensitive act of engaging in judicial review of legislation.

But England and Wales, unlike most civil law countries, does not have a separate set of public law courts. The higher ordinary courts of England and Wales have long been involved in disputes between the government and private individuals, particularly in connection with writ practice.

The fact that parliament refrains from meddling for political purposes in the courts in England and Wales to the extent that it does, despite this fact, when this is common in many other countries, is a function of British political culture rather than being a matter of formal authority or any binding constitutional structure.

Other Jurisdictions

Law.SE encourages answers from other jurisdictions and I've provided some here:

In France, and almost all civil law countries, being a judge is a civil service career that one enters right out of college after passing a civil service exam, typically, in one's twenties, starts out at in the lowest level courts, and is promoted based upon merit in over time, with the highest court judges having had decades of exemplary service. Higher court judges are always chosen from the ranks of lower court judges.

In France, judging is a separate licensed profession. Some civil law countries make prosecuting attorneys and judges part of the same profession which is a different licensed profession from practicing attorneys. Other civil law countries have different boundaries between the legal professions.

In France, a certain low percentage of lower court judge judgments are reviewed by a higher court on appeal, even when none of the parties appeal it, as a quality control and audit mechanism, and accuracy of judgments is considered when promoting judges. The outcome of both litigated and audited appeals is used to evaluate the judge in question as a civil servant.

In France, and in most other civil law countries, there is a separate legal system for constitutional disputes (in France, the Constitutional Council) and there is a separate legal system for public law matters (in France, the Council of State) staffed by senior civil servants rather than people trained as ordinary judges and lawyers. These public law courts are also appointed, and in the case of public law litigation, this is handled by senior civil servants rather than political appointees. The political culture is France is such that its senior civil servants are generally graduates of some of its very most prestigious universities and it is a calling favored by people from high social classes. The separate court for constitutional law and the separate legal system public law, greatly depoliticizes the ordinary courts that handle lawsuits between private individuals and criminal cases.

In the U.S., there are about 1.33 million lawyers (with no barrister-solicitor distinction) serving about 333 million people. The U.S. has about 30,000 state court judges and 1,700 federal judges. State court judiciaries are organized in a variety of ways, sometimes using different systems for appointing judges and for judicial personnel management even within a state in different courts. For example, in Colorado, the process for appointing and managing municipal court judges (who are mostly part-time judges) is different from the process used for state court judges. Pay varies greatly for U.S. judges.

In the U.S., the only form of quality control is in judicial appointment and that is weak. There is no U.S. court where good performance in terms of producing good judgments as a lower court judge is evaluated systemically and results in promotions to higher judicial office if good and removal from the bench is bad.

The U.S. judicial appointment process is also heavily influenced by the fact that in the U.S., at least at the general jurisdiction trial court level and at the appellate court level, ordinary judges handle private law, criminal law, and public law disputes over constitutional issues and government policies.

Most new judicial appointments are from the practicing bar, rather than from lower level judges, so the prospects of promotion as a driving force for quality in judicial decision-making is highly diluted. The U.S. Supreme Court and state supreme courts tend to be filled with judges with prior appellate court experience, but many judges without that background are also appointed. But in those appointments, the focus is on predictable results in partisan matters, not on competence, per se.

Judging is essentially entirely a second career in the U.S. for lawyers who practiced for a number of years as lawyers, in most cases developed political connections, and who performed at least somewhat well as lawyers. The biggest source of judges are former prosecuting attorneys, government lawyers, public defenders, and personal injury lawyers, although experienced and politically connected lawyers with some trial practice experience from other backgrounds (such as commercial dispute and family law lawyers) are sometimes appointed.

Despite a lack of formal quality control, the requirement of having passed the bar exam and having not failed as a practicing lawyer, and the de facto requirement of being politically connected while not doing so in so blatant a way as to be impossible to confirm, means that U.S. judges are often smarter than the average state or local legislature or official, and are often adept at exercising political influence in subtle ways.

Removal from the bench is limited to disability such as early stage dementia (often only acted upon after many, many bad decisions that are very damaging to the litigants), ethical scandals (like taking bribes or having affairs with lawyers who appear before them without disclosure), highly scandalous decisions even if legally correct (in states with some sort of election for judges), and outright defiance of direct higher court orders. Mere mediocre performance and questionable judicial judgment usually has no consequences on a judge continuing to hold office.

At the very bottom of the pile are limited jurisdiction court judges who are not required to be, and often are not, lawyers, who are elected, such as justices of the peace in New York State.

Many state courts have elected judges to positions where you have to be a lawyer, often with some minimum level of experience, like five years. This keeps non-lawyers off the bench but elected judges often get their positions because they are partisans, politically connected and likely to be biased in their decision-making, and self-select for not having particularly high incomes as practicing lawyers. Some level of success in law practice (especially as a prosecuting attorney) often helps someone to be nominated as a judge in a primary election, but the bar is pretty low. Members of the public have little or no ability to judge the quality of the work of judges who face re-election absent an extreme scandal (which can sometimes strike otherwise competent judges).

The federal courts (for all Article III judges) and many judicial positions in state courts in imitation of the federal system, appointment is by the President in the federal case, or the Governor, in the state case, with legislative approval. This produces higher quality judges than electing judges, because Presidents and Governors fairly carefully vet judges and legislators also vet judges fairly carefully, but still makes political connections and partisan leanings more important than competence. These judges often serve either de facto or de jure for life, with judges having fixed terms routinely reappointed. State courts unlike federal courts, usually have a mandatory retirement age and sometimes have a commission that can remove judges for cause without an impeachment which removes the worst judges from the bench. In federal courts below the U.S. Supreme Court, retirements are heavily driven by eligibility to receive a full pension that fully or mostly replaces their salary without having to do any work, and those judges often continue to work on a part-time basis as relief judges when non-retired judges are overburdened with case loads.

The best quality judges, on average, are in states where there is a merit selection plan for judges with the Governor picking only from one of the top three, something called the Missouri plan, after the first state to adopt it. These judges face periodic retention elections, but because the public, even if commissions designed to assist them with research, is ill-equipped to evaluate judicial quality, less than 1% of judges are not retained in any given year's retention elections. These judges are still not evaluated meaningfully on the quality of their judgments and are instead evaluated to a greater extent on issues like docket management and judicial demeanor in reports issued to voters. Non-retention usually follows a high profile decision that the public viewed as scandalous, like giving a light sentence or releasing on bond a criminal who goes on to commit a grievous future crime, or getting into an ethics scandal.

There is a low level of auditing on U.S. bankruptcy court cases and decision-making, but this is mostly targeted at exposing fraud by debtors, not judicial performance.

1
  • This is a fantastically comprehensive answer.
    – Cosmittus
    Apr 24 at 11:30

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .