Judicial Independence

The concept of judicial independence, deriving in the United States from the separation of powers, means that in deciding cases judges are free from control by the executive and legislative branches of government as well as from control by the popular will of the moment. In other words, judges act free of extrajudicial controls in determining the facts, ascertaining and enunciating the law, and applying the law to the facts to arrive at decisions of cases. Although this concept is widely believed in and supported in the United States, it does not mean, and has never meant, an absolute and complete independence of the judiciary. That would not be tolerable in a democracy. Under democratic theory the people are sovereign. The judiciary, like the rest of government, must be ultimately accountable to the people. However, too much accountability can unduly impair independence. The tension between judicial independence and accountability cannot be altogether resolved. What one finds among the American judicial systems, therefore, are varying degrees of independence. The key element is tenure of office.

The highest degree of judicial independence is found in the federal system. All federal judges hold office during good behavior and can be removed only through impeachment by Congress. In an impeachment proceeding the House of Representatives must prefer charges against the judge by a majority vote, and the Senate must try the judge on those charges. The judge can be removed only if the Senate finds him guilty by a two-thirds vote. Impeachment is a formidable procedure, not easily invoked.

At the other end of the spectrum, affording the smallest degree of independence, are those state judicial systems in which judges hold office for terms of years, at the end of which they must stand for reelection by the voters. A judge with a term as short as four or six years, no matter how conscientious he may be, can hardly be unaware that his judicial decisions could become a political issue in the next election, never more than a few years away. Even if the judge himself can perform judicial duties without regard to such considerations, public suspicion of political influence will be a lurking threat to the appearance of justice. Short terms of office and popular election seem inconsistent with the concept of judicial independence. Yet such arrangements exist in many states along with praise for the virtues of judicial independence.

Judges whose terms are substantially longer are less likely to be influenced by political concerns. Longer terms also strengthen the appearance of judicial independence. Terms of twelve or fifteen years, found in some states, provide a higher degree of independence than terms of four or six years, but not as high a degree as tenure during good behavior.

Text F. Read and translate the text. Make up the summary of the text in writing

The United States Sheriffs’ Work

When English settlers began to arrive in America early in the 17th century they established systems of government with which they were familiar in England. Magna Carta applied in the colonies and so American sheriffs could not act as judges but had all the legal powers of English sheriffs. These powers were still extensive even though English sheriffs made little use of them.

In America, the powers were used to the full. For example, English sheriffs had the role of "delivering" accused persons to the Assize for trial. In America, however, there were no Assize courts and all crimes were dealt with locally. American sheriffs could not adopt the passive role of English sheriffs by holding accused persons to await trial at some date in the future; instead they adopted an active law enforcement role by catching accused persons and delivering them to the local court for trial. Many of the traditional powers of sheriffs proved to be well-suited to frontier conditions and the mediaeval power.

By the end of the 19th century, therefore, the sheriff was firmly established in America as an elected official responsible for law enforcement within the county system of local government and that is still the position today. Within urban areas law enforcement is carried out by town police forces but, in rural states, particularly in the South and the Mid-West, the county sheriff and his deputies remain the principal law enforcement officers. Even where urban police forces exist, sheriffs retain responsibility for county jails and for providing the security element within courts. The enforcement of court orders, whether civil or criminal, also remains a sheriff rather than a police function. The differences between the present position of sheriffs in England and America is an example of an old political truth. Either you use power or you lose power.

Sheriffs in Great Britain

Sheriffs in England may have survived for 1,000 years but it is questionable whether they will survive for the next century if they cannot find a real role to perform. They cannot, of course, be­come law enforcement officers as in America, and it would be difficult to make them judges as in Scotland because that would mean tampering with Magna Carta and would in any event merely be duplicating the already ex­isting tasks of JPs and circuit judges. Despite these problems, however, it is quite possible that sheriffs could find a real role to play within the existing courts system. Magna Carta, after all, merely prevents sheriffs from sitting as judges by reason of their office as sheriff. It does not prevent someone who is already a judge from being ap­pointed as a sheriff.

Since the abolition of quarter sessions in 1974, there has been a noticeable lack of any real regional structure within the courts system. The six circuits are too large and the 200 magistrates' county courts are too small to fulfill that role properly. However, now that magistrates' courts are being reorganized into the 40 to 50 county magistrates' court committees, why not appoint the chairman of each committee as sheriff of the county served by that magistrates' court? This would be a personal honour and a recognition of their important role in the legal system.

Another possibility could be for local circuit judges to be appointed as sheriffs perhaps for a period of three years at a time. Such circuit judges/sheriffs could continue to sit as ordinary judges in the Crown and county courts but could also be given a general responsibility for supervising and representing all the magistrates', county and Crown courts within their county. They would have the task of meeting regularly with local judges, JPs and members of the legal profession and reporting to the Lord Chancellor on local views and problems. In carrying out such a role, they could provide liaison between the Lord Chancellor and local courts without creating new bureaucratic structures.

Both of these suggestions would create new and relevant roles for the office of sheriff and return it to the legal system where it truly belongs. Because one thing is certain. If no real role is created, then the sheriffs of England will simply ride away and disappear into the sunset.

Summing up

Speak on: 1.Legal aid organised in England.

2. The three main legal professions in England.

3. Lawyers in the United States.

4. Entering the judiciary (England, the USA).

5. Functions of judges (England, the USA)

6. Judicial independence and immunity.

7. Sheriff’s responsibilities in Great Britain and the USA.