The right to appeal
The most obvious way in which individual judges are accountable is through the right of the party to the proceedings to appeal any judicial decision, in some cases through several higher courts. In this way the losing party is able to have the decision reviewed by another independent judge or judges. The court determining an appeal will correct errors by the trial judge and the right of appeal ensures that, as far as possible, courts arrive at correct decisions. The decisions of appellate courts are fully reasoned, widely available and they do not always pull their punches.
Only a small number of the millions of cases commenced each year are subject to a successful appeal. For example, 1,553,983 civil (non-family) cases started in 2011, whilst just 1,269 appeals were filed in the Court of Appeal Civil Division in the same period. It is vital the right exists as it ensures that if a judge does make an error of law or fact the means exist to correct it. In this sense the right of appeal as a form of explanatory accountability has two distinct (but overlapping) functions, one private and one public. These were first noted by the Roman legal scholar Justinian.
The private function is to provide accountability to the individual litigants. The public function is that enabling errors to be corrected maintains and enhances the confidence of citizens in the justice system. Another aspect of the public function is that the appeal court can provide guidance for future cases and thus facilitate certainty. In these ways the right of appeal furthers the rule of law.
Examples of the many contexts in which there may be a right of appeal are:
- In criminal cases there may be an appeal against conviction or sentence by the defendant, and a reference to the Court of Appeal by the Attorney General against a sentence that is considered to be unduly lenient in more serious cases.
- In family cases, an appeal against a judge’s decision to place a child in care, to grant custody of a child to one parent rather than the other, or to determine how the matrimonial assets should be divided on divorce;
- In civil cases the examples include: appeals against a judge’s determination of a contractual dispute (for example between consumer and supplier, builder and house-owner, or two businesses), a boundary dispute between neighbours, or a claim for compensation for personal injuries sustained in an accident or because of negligence by a doctor;
- Against decisions of judges ruling on challenges by citizens to the decisions of public authorities; for examples challenges to decisions of NHS Trusts as to the availability of medicines, and decisions of planning authorities granting or refusing permission to build or extend houses, roads or motorways;
- Procedural decisions made by judges in all parts of the justice system, such as whether to allow or disallow certain evidence to be put before the court, whether or not to require disclosure of certain evidence, or whether or not to grant an adjournment are also subject to appeal.
In 2012 just 62 individuals had their sentence increased after having their cases referred to the Court of Appeal by the Attorney General as ‘unduly lenient’ – a small fraction of the 138,808 cases dealt with by the Crown Court that year. There is also a proportionately small number of appeals against conviction or sentences. It is important to remember that these references and appeals represent only a small minority of those cases which are decided in the course of a year, and that they are not representative of the vast majority of appeals by those who have been convicted of a criminal offence where the sentencing decision of the court is upheld. This is despite the very strong criticism which is levelled at judges on the grounds that sentences are insufficiently severe.
It is tempting to try to analyse the performance of individual judges by looking at the number of appeals against them and then drawing the conclusion that those judges who are often successfully appealed are in some way less than competent. Such a conclusion cannot properly be drawn. The number of successful appeals against an individual judge’s decisions is not necessarily indicative of competence. Figures on successful appeals against a judge’s decisions can only begin to have relevance if they are set against the total number of decisions made by the judge in question, and those where there has been no appeal, or an appeal has been rejected. It should also be borne in mind that some judges have caseloads involving more complex and serious cases, so they might be more likely to feature in appeal cases. In any event, there are many cases where the Court of Appeal will overturn decisions without implying any criticism of the original judge, for example, where the lower court was required to follow an earlier decision of the Court of Appeal which is subsequently found to be incorrect.