The administration of the law Essay

Essay question 

‘The creation of a Supreme Court was an unnecessary and overly expensive reform. The Appellate  Committee of the House of Lords was independent, effective, inexpensive, and was regarded as one of  the finest courts in the world.’ 

Discuss the above statement.

• The Supreme Court came into operation on the 1st October 2009. Given it is such a topical reform,  examiners are likely to set questions which, in some way, require you to discuss the advantages and  disadvantages of replacing the Appellate Committee of the House of Lords with the Supreme Court. 

Advantages of the reform 

• The first advantage relates to the doctrine of the separation of powers. Under this doctrine, the State  is split into three branches, namely: 
• You should discuss the advantages of abolishing the Appellate Committee of the House of Lords and  replacing it with a Supreme Court. 
  • The legislature, which consists of Parliament 
  • The executive, which consists of the government, and 
  • The judiciary, which consists of the judges. 
• In order to avoid possible abuses deriving from a concentration of power, no person or body should  occupy a role in more than one branch of the State. The problem was that the Lords of Appeal in  Ordinary were members of the judiciary and, by virtue of their membership of the Upper Chamber of  Parliament (the House of Lords), were also members of the legislature. 
• Article 6 of the European Convention on Human Rights provides for the right to fair trial. It could be  argued that having members of the judiciary who are also part of the legislature could jeopardize the  right contained in Art 6, especially if a Lord of Appeal in Ordinary were to comment on a proposed  piece of legislation that he might be subsequently required to adjudicate on once passed. 
• Having an independent Supreme Court with Justices who are not part of any other branch of the  State would secure adherence to the doctrine of separation of powers. 
• The second advantage concerns facilities. The Lords of Appeal in Ordinary were housed in the Palace  of Westminster – in other words, they shares offices with MPs and did not have their own dedicated  building (one Lord of Appeal in Ordinary did not even have his own room). The Supreme Court is  housed within its own building (Middlesex Guildhall) which provides the Justices with the facilities  that they need. 
• The third advantage relates to the first. Over the years, the Lords of Appeal in Ordinary played an  ever-decreasing role in legislative debates, but they did still occasionally participate. This can create  the appearance of a lack of independence. For example, in 2001, only one Lord of Appeal in Ordinary  spoke in a legislative debate. It was Lord Scott and the debate was on the issue of hunting.  However, he is a master of foxhounds. Clearly, even if no actual conflict of interest exists, the  appearance of a conflict exists.
• The fourth advantage relates to the increased jurisdiction of the Supreme Court. Prior to the 1st October 2009, the Appellate Committee of the House of Lords was the final appeal court in all cases,  except cases relating to devolution – for such cases, the final court was the Judicial Committee of the  Privy Council. This created the appearance of having two top courts. Now that the Supreme Court  has assumed the devolution function of the Privy Council, it is clear which is the top court in the land  in relation to domestic cases. 

Disadvantages of the reform 

• However, the Lords of Appeal in Ordinary were fully aware of this criticism and had put in place  mechanisms to ensure their independence, namely: 
• The second reason concerns the independence of the Lords of Appeal in Ordinary. Proponents of the  Supreme Court argue that the Appellate Committee was not independent as the Lords of Appeal in  Ordinary were members of the legislature and the judiciary. 
• Given this, the majority of the Lords of Appeal in Ordinary argued that “the cost of the change would  be wholly out of proportion to any benefit.”1 Lord Falconer has estimated the cost of the new  system at £10.8 millions per year (he previously estimated it at £7 millions). Excluding salaries,  running the Appellate Committee cost just £600,000 per year. The initial cost of setting up the new  system has been estimated by the Secretary of State at £32 millions, although the Lord Chief Justice  has indicated it may rise as high as £50 millions. 
• Ten of the twelve Lords of Appeal in Ordinary became ‘Justices of the Supreme Court.’ Although, as  noted above, devolution will fall within the jurisdiction of the Supreme Court, in all other respects  the jurisdiction and operation of the Supreme Court is exactly the same as the Appellate Committee. 
• The first disadvantage relates to the similarities between the Appellate Committee and the Supreme  Court. When the structure and operation of the Supreme Court were being discussed, numerous  innovative suggestions were proposed, virtually all of which were rejected. The result is that the  Supreme Court will be virtually identical to the Appellate Committee. 
• There are several reasons why it could be argued that the Appellate Committee of the House of Lords  should have been retained, and that the creation of the Supreme Court has resulted in several  disadvantages. 
  • The Lords of Appeal in Ordinary indicated that they would not interfere in areas of strong  party political controversy. 
  • If a Lord of Appeal in Ordinary contributed to a legislative debate, he would not be able to sit  on any cases concerning that legislation once it was passed (e.g. Lord Scott who, as noted  above contributed to the debates leading to the Hunting Act 2004, was barred from sitting  on any cases involving the Act). If the judge contributes to a debate, which is of no partisan  significance, it could be argued that this does not create any greater lack of independence  than if a judge contributed to a law reform commission. 
• The third disadvantage concerns the speed with which the decision to abolish the Appellate  Committee was made. Some argue that a course of action of this significance should have received  much more due consideration. 
• The consultation document that led to the Constitutional Reform Act 2005 indicated that the  government had long-believed that the Appellate Committee should be replaced with a Supreme  Court, but as recent as 2001, in a White Paper on House of Lords reform, the government stated that it was committed to maintaining judicial membership within the House of Lords, and that the  expertise of the Lords of Appeal in Ordinary can be used outside their judicial functions.
• A change of mind in so short a space of time indicates that the issue may not have received the  debate and discussion that it deserved. Certainly the manner of the announcement of the Appellate  Committee’s abolition was evidence of this. The decision to abolish the Appellate Committee was  made without any consultation with the Lords of Appeal in Ordinary. Indeed, a consultation  document was only published after the decision to abolish the Appellate Committee was made. 

Essay question 

‘The historic decline of trial by jury is to be welcomed. Trial by jury serves no useful function and should  therefore be abolished.’ 

Discuss.

Introduction 

• The introduction should state that the objective of the essay is to subject the jury system to critical  analysis by considering its strengths and weaknesses. You should continue by stating that the essay  will also discuss suggested reforms of the jury system to determine whether any such reforms would  improve the system as it currently operates. The essay will conclude with a recommendation as to  whether the current system should be retained, reformed or abolished. End the introduction with a  statement that the essay will first provide a brief account of the development of the jury system and  how the system currently operates. 

Development of the jury and its current operation 

• Explain that the origin of the jury system lies in the concept of a right to be tried by one's peers.  Bushell's Case2should be referred to as this established the modern role of the jury as the sole judges  of fact. 
• Outline the main provisions of the Juries Act 1974 (as amended by the Criminal Justice Act 2003) to  explain who is eligible to sit on a jury and how jury selection should be random – the case of R v Ford3 should also be mentioned. 
• The answer may make brief reference to jury vetting and the challenging of jurors but would not go  into detail on these issues as the focal point of the essay must be the advantages and disadvantages  of the current system.  

Advantages 

Advantages of a system of trial by jury includes: 

1. The value of public participation, public confidence and the jury acting as an indicator of  public feeling. Case law examples should be provided (e.g. R v Ponting).4Both Lords Denning  and Devlin have spoken extra-judicially about the value of the jury system.
2. Juries provide certainty, insomuch as they either convict or acquit – they do not reveal the  reasoning behind their decision. 
3. Juries have a higher acquittal rate (depending on your viewpoint, this may be regarded as a disadvantage). 
4. Juries can act on their conscience (again, depending on your viewpoint, this may also be  regarded as a disadvantage – see later). 
5. Juries can be used as a counterbalance to improper or politically motivated prosecutions.  Again, the case of R v Ponting would be a good example. 

Disadvantages 

In discussing possible disadvantages, students may mention: 

1. It is arguable that juries lack the competence to fulfil the role. Students should cite the work  of the Roskill Committee. 
2. Juries often make decisions that are clearly counter to the law (this is known as the ‘perverse  verdicts’ problem). This should be backed up with several case law examples (e.g. R v Owen;5 R v Kronlid). 
3. Juries may display bias. Students may refer to appropriate case law (e.g. Sutcliffe v  Pressdram Ltd).6
4. Cost – the jury system (£7,400 per day) is significantly more expensive than decision by judge  alone (£1,000 per day). 
5. Ethnic groups tend to be underrepresented on juries. The case of R v Bansal7is worth  mentioning. 
6. The jury system can be manipulated by defendants. 
7. Jury tampering. 
8. That juries are not required to state the reasoning behind their decisions could be a cause for  concern. 
9. Jury service can have a negative effect on jury members (e.g. certain types of case, notably  cases involving violence or abuse, may be distressing for juries to decide). 

Reform 

Possible discussions relating to reform may include: 

1. Should pre-emptory challenges be introduced to make juries more representative?
2. Should jury trial be abolished for complex fraud cases? 
3. Should the jury be abolished completely? Given the question makes this contention,  students should discuss this. The declining role of jury trial should be emphasised here – juries decide only 1% of criminal cases and a tiny minority of civil cases. 
4. Current Government proposals to further restrict jury trial should be discussed.

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