Strasbourg, 17 March 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: Reply submitted by the delegation of the United Kingdom
1. (a) Is there a specific model to be followed in drafting judicial decisions? (b) Can each individual judge choose his own style of drafting his decision?
ANSWER: (a) No. (b) Yes, within reason.
2. Where a court is composed of more than one member, (a) do judicial decisions have to be taken unanimously or (b) [is] a majority decision equally effective and binding?
ANSWER: (a) Not in general. There are limited exceptions in practice, particularly in the Court of Appeal Criminal Division (though not in the House of Lords in the rare criminal appeals which reach that final level). The convention in the Court of Appeal Criminal Division is that judgments are unanimous.
3. (a) Do judicial decisions have to deal with all points raised by the parties or their lawyers or (b) is a synthetic or concise approach sufficient?
ANSWER: (a) Judgments have to be adequately reasoned. This certainly does not mean dealing with every argument raised - many of them may have become irrelevant because of findings of fact or decisions on other legal points. Judges must motivate their decisions in order adequately to explain why they have reached them, and in doing so should cover the parties’ contentions on the essential points. Judges do quite often deal with other points which are not strictly essential, for example in order to assist an appellate court if it should take a different view from the judge on the facts or on the points of law that he considers conclude the case.
4. (a) In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?
(b) (i) How in general terms is an appeal (supreme court) decision drafted? (ii) Is the appeal in your country by way of rehearing the case or not?
ANSWER: (a) In general terms, first instance decisions should follow the sort of pattern which the question indicates in the brackets. Before or after stating the broad factual background, the judge should however identify the general issues of fact and/or law arising in the case which he is going to address. Having done this, he will be better placed to identify and evaluate the relevant evidence and the relevant legal principles which he is applying. Sometimes, it may be better to decide an issue of legal principle before addressing and making findings on the evidence, because until the legal principle is clear it will not be known what the judge is looking for in the evidence. Judges may take an issue by issue approach, deal with the facts and law and making findings and reaching conclusions on each issue in turn.
(b)(i) In similar fashion, although judges in the highest court are much less often concerned with issues of fact. Sometimes the House of Lords (or Court of Appeal or, in Scotland, Inner House) will issue a single judgment, but more often individual judges give their own judgments. The desirability of more co-ordinated judgments is a matter about which there has been some current discussion. (ii) Appellate courts have in general the power to redetermine facts, but, since the judge at first instance will usually have had the advantage of seeing and hearing the witnesses, this is a power sparingly exercised.
5. Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?
ANSWER: Small criminal cases are decided in the UK by magistrates and the larger (5% of all criminal cases) are decided by juries. Magistrates have briefly to motivate their decisions. Juries do not give reasons (though they may very occasionally be asked to answer limited specific questions). Otherwise, there is no fundamental difference in the way judgments are drafted in different fields of law.
6. (a) How is the decision transmitted to the parties? (b) Is it only binding on the specific litigants or does it affect the public in general? (c) Does your country acknowledge a difference in judicial decisions in personam and in rem?
ANSWER: (a) By delivery in open court. This used to mean reading the judgment out. Now the judgment is often handed to the parties two or so days in advance (giving them the opportunity to point out any obvious mistakes, though NOT to re-argue points), and then formally handed down in writing (without being read) in open court. Argument on costs, or an appeal, etc may then also be heard.
(b) In general only on the specific litigants (and their “privies” – e.g. their successors and assignees). But some judgments affect the public at large, e.g. an order for sale of property to a third party to satisfy a debt, or because it is a perishable or wasting asset in relation to which there is on-going litigation.
(c) Yes, see the second sentence of paragraph (b).
7. (a) How is a judicial decision enforced in your country? (b) Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
ANSWER: (a) By various means, including attachment or “garnishee” of assets or bank accounts, appointment of a receiver to manage and/or sell property and use of the court bailiff to seize and sell property.
(b) Yes, in cases of deliberate default by a party who could comply.
8. (a) Are judicial decisions handed down/announced in open court? (b) Always or can the public/journalists be excluded – if so, on what grounds?
ANSWER: (a) Yes. (b) Only exceptionally, in accordance with the European Convention on Human Rights, for example in cases involving children, some matrimonial proceedings and national security.
9. To what extent to judicial decisions take into account personal date protection legislation (i.e. publication of litigants’ names, other personal details, etc)?
ANSWER: This is perhaps a subject to which more attention should be given in the UK. Traditionally, the media is regarded as free to publish such details. It is regarded as part of the process of ensuring that justice is not only done, but seen to be done, and sometimes publicity given to cases does yield further material evidence during a trial. But there may be cases where more attention should be paid to the interests of innocent third parties mixed up in litigation.
10. Are judicial decisions available to persons or authorities other than the litigants themselves? If so, on what terms and prerequisites? Are they published/available on the internet?
ANSWER: Yes, the public can search the judgments’ register, and judgments at High Court level and above are available on the internet.
EVALUATION OF THE JUDICIAL DECISION
11. Is a system of evaluation of quality of justice in force in your country?
ANSWER: Not formally. Bad judgments will receive criticism on appeal. And a number of bad judgments is likely to lead to adverse informal comment by a presiding judge.