Overview of the judiciary
An ancient system
The English and Welsh legal system has evolved over more than a 1,000 years and is still changing to meet the needs of modern society. It is widely regarded as one of the best and most independent in the world.
A real ordeal
Justice in Anglo-Saxon times (and even after the Norman invasion of 1066) was a combination of local and royal government. Local courts were presided over by a lord or one of his stewards, whereas the King’s court – the Curia Regis – was (initially at least) presided over by the King himself.
Until the end of the 12th century, guilt or innocence in criminal cases was determined through the process of ‘trial by ordeal’. Under this system, the accused would undergo a painful and dangerous ‘ordeal’. They might be forced to pick up a red-hot bar of iron, pluck a stone out of a cauldron of boiling water, or something equally as painful. If their hand had begun to heal after 3 days, they were considered to have God on their side – thus proving their innocence.
Another extremely popular ordeal involved water. The accused would be tied up and thrown into lake or another body of water. If innocent, they were expected to sink.
The number of ‘not guilty’ verdicts recorded under the ‘trial by ordeal’ system is not known. William II (1087-1100) eventually banned trial by ordeal – reportedly because 50 men accused of killing his deer had passed the test – and it was condemned by the Church in 1216.
Fighting for freedom?
Criminal and civil disputes could also be decided by trial by combat, but this gradually fell into disuse for civil cases. It was banned outright in 1818, when a litigant insisted that it was allowed for his dispute, and it was realised that trial by combat was technically still an option!
The earliest judges and seeds of modern justice
During this period, judges gradually gained independence from the monarch and the government. The very first judges, back in the 12th century, were court officials who had particular experience in advising the King on the settlement of disputes. From that group evolved the ‘justices in Eyre’, who possessed mixed administrative and judicial powers. The justices in Eyre were not popular, and in fact came to be regarded as instruments as oppression.
Seeds of change
The seeds of the modern justice system were sown by Henry II (1154-1189), who established a jury of 12 local knights to settle disputes over the ownership of land. When Henry came to the throne, there were just 18 judges in the country – compared to more than 40,000 today.
In 1166, Henry issued a Declaration at the Assize of Clarendon (an assize was an early form of the King’s Bench). The Assize of Clarendon ordered the remaining non-King’s Bench judges to travel the country – which was divided into different areas known as circuits – deciding cases.
To decide cases, they would use the laws made by the judges in Westminster, a change that meant many local customs were replaced by new national laws. These national laws applied to everyone and so were common to all. Even today, we know them as the ‘common law’.
The system of judges sitting in London while others travelled round the country became known as the ‘assizes system’. Incredibly, it survived until 1971. The circuits remain in place today.
Origins of the King’s Bench
In 1178, Henry II first chose 5 members of his personal household – 2 clergy and 3 lay – “to hear all the complaints of the realm and to do right”. This, supervised by the King and “wise men” of the realm, was the origin of what was known as the Court of Common Pleas.
Eventually, a new permanent court, the Court of the King’s Bench, evolved, and judicial proceedings before the King came to be seen as separate from proceedings before the King’s Bench. Changes evolved slowly; even in the middle of the 14th century, under Edward III, there could be close collaboration between the Court of King’s Bench and the King’s Council. A 3rd common law court of justice, the Court of Exchequer, eventually emerged as the financial business of the Royal Household was split off to a specialist group of officials. The Chancellor of the Exchequer used to be a judge of that court.
The first professional judges and magistrates
Martin de Pateshull, Archdeacon of Norfolk and Dean of St Paul’s, became a Justice of the bench in 1217. By the time he died in 1229 he was known as one of the finest lawyers in England – even 60 years after his death, his judgments were being referenced.
Like Martin, many judges of this era were members of the clergy – although this did not necessarily mean they were parish priests. In an era when the church was rich and the King poor, joining the clergy was often just seen as a sensible means of support.
By the middle of the 13th century, knights had begun to join members of the clergy on the bench. The first professional judges were appointed from the order of serjeants-at-law. These were advocates who practised in the Court of Common Pleas. Lawrence de Brok, a serjeant, became a judge in 1268, starting the tradition, which lasted until 1875, of serjeants being the group from which judges were chosen.
This was important, because it meant that the judiciary now had real professional experience of the law before moving on to the bench.
Over the years, serjeants were overtaken in popularity by barristers, solicitors and members of the Chartered Institute of Legal Executives. Today these are the groups from which the judiciary is appointed.
Growth of independence
Even though bribes and payments were commonplace during this era, in the mid-13th century the judiciary was openly accused of corruption.
In 1346, judges were obliged to swear that “they would in no way accept gift or reward from any party in litigation before them or give advice to any man, great or small, in any action to which the King was a party himself”.
Judicial salaries were also increased, possibly to make them less dependent on other forms of income.
This didn’t always help; in 1350 the Chief Justice of the King’s Bench, William de Thorpe, was sentenced to death for bribery (he was later pardoned, but demoted).
The first Magistrates’ courts
Meanwhile, a new type of court began to evolve, which we now recognise as the Magistrates’ court. Magistrates’ courts hark back to the Anglo-Saxon moot court and the manorial court, but their official birth came in 1285, during the reign of Edward I – when ‘good and lawful men’ were commissioned to keep the King’s peace.
From that point, and continuing today, magistrates (also known as Justices of the Peace) have undertaken the majority of the judicial work carried out in England and Wales (today, about 95% of criminal cases are dealt with by magistrates).
Until the introduction of our modern system of councils in the 19th century, Justices of the Peace also governed the country at a local level.
Problems with politics
During the 14th century, members of the judiciary were still involved in politics to some extent. For example, Edward III’s Chancellors were common-law judges for a period of 10 years.
In 1387, 6 judges advised Richard II that a parliamentary commission set up to limit his own powers was ‘invalid and traitorous’. They were all impeached, convicted and sentenced to death. Although only 1 was executed, the rest were banished to Ireland.
Unsurprisingly, for the 2 centuries which followed, the judiciary kept almost entirely away from politics.
Moving away from politics
During the turbulent 15th century – the Wars of the Roses – judges stood apart from both the warring Houses of Lancaster and York and were largely unaffected by the changes in government.
From 1540 onwards, Henry VIII had no judges in the Privy Council – his advisory body. While his son Edward VI and daughter Mary I did include judges on their own Privy Councils, Mary I removed 3 judges from office, while Elizabeth I then excluded them entirely for 40 years.
Slowly, the judiciary were becoming separate from the government. Although it was generally accepted at this time that even the King was subject to the laws of the land, the Reformation added to the sovereign’s powers – the state had taken over the Church’s privilege to define the laws of God and had removed the influence of the Pope as the ultimate arbiter on Earth.
So, the King remained principal lawmaker, with the judges as interpreters of that law, a potentially uneasy relationship.
Meanwhile, by the Elizabethan and early Stuart periods, assize judges on the 6 circuits in England were mainly dealing with the most serious crimes not normally handled by the local Quarter Sessions, run by Justices of the Peace. They also took a role in local administration, although this was much reduced following the English Civil War.
A risky business
On the face of it, the judiciary was becoming steadily more independent – in 1642, Charles I was forced to agree to the appointment of judges “during good behaviour”, and in 1645, their salaries were raised from under £200 to £1,000 a year.
On the restoration of the monarchy in 1660, all judges – and there were just 12 at this point, 4 in each of the common law courts – remained in office.
But in 1668 the system of appointments “during pleasure” was reintroduced, and in the last 11 years of his reign Charles II sacked 11 of his judges. The next king, Charles’s brother, James II, sacked 12 in just 3 years.
This was bound to affect the quality and independence of the judiciary; judges knew very well their jobs were at risk if the sovereign did not like their judgments.
A new independence…
The day after the House of Commons resolved that James II had abdicated, a parliamentary committee drew up Heads of Grievances to be presented to the new King and Queen, William III and Mary II.
This document contained, among other things: items on paying judges’ salaries out of public funds, and preventing judges being removed or suspended from office, “unless by due cause of law”. These grievances eventually appeared in much the same form in the Act of Settlement (1701) and have remained in place ever since.
When common law failed
As the judiciary and its associated independence developed, so did the avenues of redress open to aggrieved parties. The common law system was an improvement on what had gone before, but it was still slow, highly technical, and vulnerable to corruption, especially when civil juries were used.
Fortunately, those who felt they had been failed by the common law system could still petition the King with their grievances. Gradually, these cases were delegated to the King’s Council, and eventually to one individual – the Lord Chancellor. Because of this, the Lord Chancellor came to be known as the ‘Keeper of the King’s conscience’, and began to preside over his own court, the Court of Chancery. This dealt only with civil disputes (for example property and contract cases) and applied the law of equity – even-handedness or fairness.
By the time of Henry VIII, the Court of Chancery had become a rival to the common law courts.
But as the years went by, the Court of Chancery began to be known for the same problems it had been set up to combat: complexity, expense and delay. Also, the Lord Chancellor was free to give whatever ruling he liked in a Chancery court, unbound by the law – which made it almost impossible for lawyers to advise their clients correctly.
Changes to the system
It was not until 1830 that there was any change to the 300-year-old assize courts.
By the Law Terms Act of that year, the Court of Great Sessions was abolished, and the Welsh counties and Chester were brought into the general circuit system. Shortly afterwards, the new Central Criminal Court – the Old Bailey – was set up, unifying the administration of justice in London and surrounding areas.
In 1856, judges of the Central Criminal Court were also given the right to hear cases outside the court’s ordinary jurisdiction, to ensure a fair trial where local prejudice existed or when it could offer an early trial and so avoid the delay involved in waiting for the next assizes.
County Courts, dealing with civil cases, were created under the County Courts Act 1846. In 2013 the individual County Courts were unified to form a single County Court for England and Wales.
The Judicature Act 1873 and after
In 1873, Parliament passed the Judicature Act which merged both the common law and equity and the common law courts and Court of Chancery. Although one of the Divisions of the High Court is still called the Chancery Division, all courts could now administer both equity and common law – with equity to reign supreme in any dispute.
The same Act established the High Court and the Court of Appeal and provided a right of appeal in civil cases to the Court of Appeal. Criminal appeal rights remained limited until the establishment of a Court of Criminal Appeal under the Criminal Appeal Act 1907.
The Court of Criminal Appeal sat for nearly 60 years, until its existence as a separate body was ended by the Criminal Appeal Act 1966. Its power passed to the Court of Appeal.
The Crown Court is created
Crown Courts as we know them today were not actually established until 1956, and then only in Liverpool and Manchester. These courts also took over the quarter sessions work in their cities.
The Royal Commission on Assizes and Quarter Sessions, 1966-1969, led to the abolition of courts of assize and quarter sessions and the establishment of a new unified Crown Court to deal with business from both, under the terms of the Courts Act 1971.
…But still not separate
Hundreds of years of evolution may have resulted in an independent judiciary – but that doesn’t mean they were entirely separated from government. For example, Lord Mansfield was Lord Chief Justice and also occupied a position in the Cabinet between 1757 and 1765. More recently, Lord Cave was Home Secretary for a couple of months at the end of the First World War whilst also a serving Lord of Appeal in Ordinary.
Additionally, until 2006, the Lord Chancellor was part of the government, Parliament, and the judiciary. The Lord Chancellor’s role changed drastically on 3 April 2006 as a result of the Constitutional Reform Act 2005. This major change has been described as the most significant to affect the justice system since Magna Carta. The Act establishes the Lord Chief Justice as President of the Courts of England and Wales and Head of its Judiciary, a role that from 1873 had been performed by the Lord Chancellor. For the first time an express statutory duty was placed on the Lord Chancellor and other Ministers of the Crown to protect the independence of the judiciary. For the first time in its 1,000-year history, the judiciary is officially recognised as fully independent from the government and Parliament and a fully equal branch of the State.
Geoffrey Rivlin, Understanding the Law, Oxford, 2004
Theodore FT Plucknett, A Concise History of the Common Law, Butterworth & Co, 1956
Judy Hodgson (ed), The English Legal Heritage, Oyez Publishing, 1979