What a judge is: the office, the systems, independence and impartiality

Societies need a way of settling disputes that does not depend on force or on who is more powerful. The judge is the person at the centre of that way. In most systems a judge does four things: decides disputed facts, decides what the law is and how it applies, gives a decision with reasons and, in many courts, controls the procedure so that the hearing is fair and orderly.

• Disputes between private parties, such as contracts, property, family and employment.
• Criminal cases, where the state accuses a person and the judge, alone or with a jury or lay colleagues, decides whether guilt is proved and what the sentence should be.
• Disputes between people and the state, such as challenges to government decisions, taxes, benefits and immigration.
• Constitutional and rights questions, in courts that can review laws or decisions against a constitution or a charter of rights.
• Urgent and protective orders, such as injunctions, protection from abuse and decisions about children and incapacitated adults.
• Supervision of the process: warrants, bail, detention and the lawfulness of searches in some systems.

• Many systems have layers: trial courts that hear the evidence, appeal courts that review decisions for error, and top courts that settle the law. The work differs at each layer. See Module 2.
• Tribunals and specialist bodies decide many disputes outside the ordinary courts: employment, immigration, tax, social security, professional discipline. Their members may be lawyers, experts or lay people.
• International and regional courts, such as courts of human rights, of trade or of criminal justice, have judges drawn from many countries.
• Judges, magistrates and arbitrators are different. A magistrate in some systems is a lay or junior judge, in others a prosecutor or an officer of the court. An arbitrator is chosen by the parties to decide their dispute privately.

Learn the shape of your own system first: how judges are chosen, where they sit, who decides the facts and what the layers are.

Judicial independence means that a judge decides cases free from improper influence by the government, the legislature, the parties, the media, powerful interests or other judges. Without it a court is not a court but a branch of whoever controls it. International principles, such as the United Nations Basic Principles on the Independence of the Judiciary and the Bangalore Principles of Judicial Conduct, set out the idea, and national constitutions protect it in different ways.

• Independence has two sides: independence of the judiciary as an institution, and independence of each judge from colleagues and superiors. A senior judge should not tell a junior judge how to decide a case.
• Independence is not unaccountability. Judges decide in public, give reasons, can be reviewed on appeal and are bound by a code of conduct and disciplined for misconduct.
• Independence is under threat in many countries, through pressure, attacks on judges, packing of courts, loss of budget or threats. Understanding why it matters is part of the job.

Impartiality is about the judge’s own mind and about how the judge appears. A judge must have no personal interest in the outcome, no hidden bias and an open mind, and a fair-minded observer who knew all the facts should not reasonably doubt it.

• Actual bias, where the judge is in fact biased, is rare. Apparent bias, where a fair-minded person would reasonably suspect it, is the more common problem and is a reason for stepping aside.
• Sources of bias include financial interest, family or close relationships, earlier involvement in the case, public statements, contact with a party and hostility or favour. Module 6 and the Recusal Check cover them.
• Hidden bias is not always conscious: assumptions about class, race, gender, age, religion, accent and appearance can affect how a judge weighs a person’s evidence. Awareness and training help.
• Open-mindedness means being able to change your mind during the hearing. A judge who has decided before hearing the case has failed at the first step.
• Courtesy and fairness to everyone in court are part of impartiality: the way the judge speaks tells people whether they have been heard.

In some systems judges also do other things: supervise investigations, oversee prisons and detention, run registers, issue warrants and administer their courts. The range of work is much wider than the courtroom hearing. Module 2 follows it.

1. What kinds of courts and tribunals are there, and what does each decide?
2. How are judges chosen, by whom and on what criteria?
3. How long do they serve, and how can they be removed?
4. Who decides the facts: a judge, a jury or a mixed panel?
5. What role does the judge play in the hearing: umpire or inquirer?
6. How are judges supervised and disciplined, and by whom?
7. What are the rules on bias and stepping aside?
8. How can I see judges at work? Public hearings, published judgments and the judiciary’s own website teach a great deal.
9. How do people become judges here? See Module 7.