The Role of the Judge in Criminal Cases

The Judge in a criminal trial is responsible for all matters of law, and for making sure that all the rules of procedure are properly applied. The judge may also be involved in pre-trial matters such as whether or not to grant bail and the plea and directions hearing. He is also expected to familiarise h

imself with the details of the case by reading the case papers, various documents, such as  witness statements, details on charge and documents about admissibility of evidence in the trial. This role

also extends to the selection and swearing-in of the jury and explains to the jury what their role is in the trial. He will make it clear that they are only concerned with deciding the facts and coming to a verdict. He warns them not to discuss the case with anyone.

Once the trial has started, it is the Judges responsibility to make sure that all sides (both prosecution and defendant) have an opportunity to present their case to the court and it is considered fully and examined fairly. The Judge plays an active role during the trial, controlling the way the case is conducted according to the rules of evidence and procedure. As the case goes on the judge makes sure that all evidence is accounted of and if there are any legal issues, the judge will instruct the jury to ignore.

After all evidence in the case has been heard, the judge makes his summing-up to the jury. The Judge will explain the law on each of the charges made and what the prosecution must prove if the jury are to find the defendant guilty on each charge. He will then remind the Jury of important points of the case and outline strengths and weaknesses of the arguments for both prosecution and defence.  He will then give directions to the jury about their individual and collective duties before they go to the jury deliberation room to consider the verdict. He will then answer any queries or matters that might arise during the deliberations of the jury and will advise the jury when a majority verdict is acceptable.  If the jury find the defendant guilty, then the judge will decide on an appropriate sentence once he has considered all of the factors relevant to the case. He will then discharge the jury. If any jurors have experienced distress or the trial lasted a particularly lengthy time, the judge has the power to excuse them from any further jury service. If the jury deliver a verdict of not guilty, the judge will free the defendant, discharge the jury and make any appropriate order about the cost of the trial.

If the defendant pleads guilty, then the judge’s main function is to impose the appropriate sentence.

How judges are selected and appointed (Notes Provided by the Judicial Appointments Commission)

The Judicial Appointments Commission (JAC) is an independent commission, sponsored by the Ministry of Justice, that selects candidates for judicial office in courts and tribunals in England and Wales, and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland (set out in Schedule 14 of the Constitutional Reform Act 2005).

Established in 2006, it was set up under the CRA to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable.

The creation of the JAC enabled greater separation of powers between the legislature, the executive and the judiciary after Lord Falconer, then Secretary of State for Constitutional Affairs, asserted that it was no longer acceptable for judicial appointments to be entirely in the hands of a government minister.

In accordance with the CRA, there are fifteen Commissioners, including the Chairman. All are recruited and appointed through open competition with the exception of three judicial members who are selected by the Judges' Council. Membership of the Commission is drawn from the judiciary, the legal profession, the magistracy and the public.

The JAC selects candidates for judicial office through fair and open competition and under the CRA has the following statutory responsibilities:

• 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.

Merit is assessed through the demonstration of qualities and abilities and is the bedrock of the selection process. Once appointed, judges have security of position, a principle on which judicial independence rests. This means the decision to appoint a judicial office holder must be the right one in every case. 

There are several versions of the qualities and abilities which ensure they are appropriate to the judicial post, for example there is a generic set, and a leadership and management set for more senior roles. There are also High Court and Tribunal appointments sets, all of which may be adapted slightly for different posts. Examples of the qualities and abilities are:

Generic qualities and abilities:

1. Intellectual capacity

  • High level of expertise in your chosen area or profession
  • Ability quickly to absorb and analyse information
  • Appropriate knowledge of the law and its underlying principles, or the ability to acquire this knowledge where necessary


2. Personal qualities

  • Integrity and independence of mind
  • Sound judgement
  • Decisiveness
  • Objectivity
  • Ability and willingness to learn and develop professionally


3. An ability to understand and deal fairly

  • Ability to treat everyone with respect and sensitivity whatever their background
  • Willingness to listen with patience and courtesy


4. Authority and communication skills

  • Ability to explain the procedure and any decisions reached clearly and succinctly to all those involved
  • Ability to inspire respect and confidence
  • Ability to maintain authority when challenged


5. Efficiency

  • Ability to work at speed and under pressure
  • Ability to organise time effectively and produce clear reasoned judgments expeditiously
  • Ability to work constructively with others (including leadership and managerial skills where appropriate)


Leadership and management qualities and abilities:


Same as above except the ‘efficiency’ quality and ability is replaced with:


Leadership and management skills

  • Ability to form strategic objectives and to provide leadership to implement them effectively
  • Ability to motivate, support and encourage the professional development for whom you are responsible
  • Ability to engage constructively with judicial colleagues and the administration, and to manage change effectively
  • Ability to organise own and others’ time and manage available resources.


Also ‘personal qualities’ is enhanced with the ability to work constructively with others.

To encourage diversity the JAC makes selections from as wide a field as possible and works closely with a range of organisations to ensure that eligible candidates are aware of the opportunities and have the information they need to apply. The organisations include The Law Society, the Institute of Legal Executives (ILEX) and General Council of the Bar. They also work with groups who represent under-represented candidates such as the Black Solicitors Network, the Society of Asian Lawyers, the Association of Women Solicitors, the Association of Women Barristers, and the Lawyers with Disabilities Division.

The application form plays an important part in the selection process, particularly the self assessment section which requires applicants to provide clear evidence of how they meet the qualities and abilities needed for the role. The application form, along with references, may be used for shortlisting in some circumstances, for example for senior roles, where there are a small number of vacancies and in other limited circumstances. For other selection exercises, mostly large-scale exercises below Senior Circuit Judge level, qualifying tests are often used for short-listing.


Qualifying tests are written papers, used to objectively shortlist candidates by assessing their ability to perform in a judicial role, through analysing case studies, identifying issues and applying the law. Test papers are generally prepared and marked by serving judges, equality proofed by external experts and trialled in a mock environment. The results are analysed for any anomalies and any necessary corrective action is taken. 


If shortlisted, candidates are invited to a selection day, which may consist of an interview or an interview and role-play. Interview panels usually have three members: a panel chair, a judicial member and an independent member. If the selection day involves a role-play the panel may have an additional judicial member. A role play usually simulates a court or tribunal environment with the candidate being asked to take the role of a judge to assess how they would deal with situations they might face if appointed. They are normally used for exercises in which a large proportion of candidates are likely to be entering the judiciary for the first time. In line with this, for some specialist and the more senior appointments, there may only be a panel interview as the level of candidate skill in legal reasoning and judge craft is already known.


Panel members assess all the information about each candidate (application form, references, role play if applicable and interview) and agree which candidate(s) best meets the required qualities and compile a summary report of their findings.


The next stage is statutory consultation. It is required under the CRA that summary reports on candidates likely to be considered for selection by the Commission are sent to the Lord Chief Justice and to another person who has held the post or has relevant experience.


In selecting people only of good character, the JAC assesses the past conduct and present financial, criminal and professional circumstances of applicants through declarations made in the application form and formal character checks made with, for example, the police, Her Majesty’s Revenue and Customs and the legal professional bodies.


This is to ensure public confidence in the judiciary is maintained through judicial office holders and those who aspire to such office maintaining the highest standards of behaviour in their professional, public and private lives. Criminal convictions (other than some more minor motoring offences) are likely to disqualify candidates. Insolvency and bankruptcies will be considered on a case by case basis and generally VAT and tax affairs should be in good order. Matters of professional negligence, complaints and disciplinary action will also be examined.


When it makes selections, the Commission considers the statutory consultation responses, together with all the other information that has been gathered about the candidate(s).


The Commission then selects those who will be recommended to the Lord Chancellor for appointment. The JAC writes to candidates to inform them if they have been successful in being recommended for appointment and that future contact will be by the Ministry of Justice.

Model Answer by Afseen

Explain what is meant by the Principle of Judicial Independence?

Judicial independence is part of Doctrine of Separation of Powers which the Executive, Legislative and Judicial functions of government should be performed by different people in order that no one group should have too much power. Judges must be able to organize the law justly without pressure from the government to help maintain public confidence in the judicial system.

Judicial independence may rule in England and Wales but not for all countries, i.e. Zimbabwe were independent up to 2001 from government but have been put under pressure from government to decide cases in favour of government. Judges have been bribed, harassed, assaulted by government supporters. A free society is able to live the rule of law not dictatorship.

Lorel Bingham suggested that the key features of the rule of law are that the law must be accessible, clear and predictable. The questions of legal right and liability should be resolved by the law and not the exercise of discretion. Also the law of land should be equal to all. The law must afford adequate protection of fundamental human rights. Means must be provided for resolving without too much costs or delays. Ministers and public officers must exercise the powers given to them reasonably and within limits of their powers. Adjudicative procedures provided by the state should be fair. Lastly, the state much comply with its obligations in International Law.

Judges have to make sure Government acts within the law defend human rights. They cannot do this unless they are independent of government and of all powerful groups. With the help of the Human Rights Act 1998, this will enable more applications for judicial review of government action. Judges have proved quite resilient in defending human rights against politicians and public opinion. English judges can and do rule against the government when the law requires it.

Judicial independence is protected in many different ways, one way is the Constitutional Reform Act 2005. Lord Chancellor’s role changed dramatically. This was the first time in 900 years, judicial independence is now official. The changes include, duty on government ministers to uphold the independence of Judiciary, cannot influence judicial decisions. The Lord Chancellor transferred his judicial functions to be the president of the Courts of England & Wales. Lord chief justice responsible for training, guidance deployment of judges and represents the views of judiciary of England and Wales to parliament and ministers. An independent Supreme Court which separate from the House of Lord, own independent appointments system, stuff, budget and own building. A new independent Judicial Appointments Commission responsible for selecting candidates to recommend for judicial appointments to Secretary of State for Justice. New judicial appointments and conduct commission are responsible for investigation and making recommendations concerning complaints about judicial appointments.