We have already discussed the peculiar constitutional position of the judiciary and the conventions that protect their independence. In this section we look at the numerous ways in which judges are restrained and which together, ensure that judges are accountable for their actions.
We must first ask what it means to say someone is accountable for their actions. In many areas accountability means that, just like football managers, an individual who fails to perform satisfactorily in their job should be sacked or should resign. Some people have called this form of accountability, ‘sacrificial accountability’, meaning that the only solution is for the individual concerned to no longer continue in their role.
In the case of the judiciary, however, safeguards are needed to ensure that Judges are free to make their judicial decisions without fear or favour and thus to preserve their independence. For example, if a politician or senior judge felt able to sack a particular judge, or remove him or her from a case, simply because they did not like the decision reached, the principle of judicial independence would be greatly undermined and there could be no possibility of a fair trial. It could also lead judges to make decisions they felt might be more acceptable to whoever had the right to decide whether they should continue serving as judges or be promoted. If, for instance, the permanent or continued appointment of a part-time temporary judge was in some way determined by one of the parties to the case, there would be a real risk that independent and impartial judicial decision-making could be subverted by self-interest. Prior to 2000 this was the position in Scotland in respect of temporary criminal court judges, or sheriffs, who were appointed for a fixed period of twelve months and the renewal of their appointment was effectively at the discretion of the Lord Advocate, a government minister who is the head of the prosecuting authority In other words there might well be a risk that such judges could improperly favour the prosecuting authority with an eye to securing a permanent appointment. The Scottish Courts recognised this in 1999 in Starrs v Ruxton  SCCR 136
This risk is perhaps best demonstrated – albeit as an extreme example – in dictatorships where judges are often appointed specifically because of their loyalty to the regime, and will almost always make decisions in favour of it, regardless of the interests of the individual, the facts and the law. The independence and transparency of the appointments process in England and Wales rebuts any suggestion that such factors could be relevant to the appointment of judicial office holders in this jurisdiction.
We have stated that judges who commit a criminal offence may be subject to an investigation by the Office for Judicial Complaints and may be subject to a disciplinary sanction in accordance with the relevant statutory provisions. Apart from this, however, it is clear that judges are not subject to this ‘sacrificial accountability’. However, they are subject to a different form of accountability, which has been referred to as ‘explanatory accountability’. Put simply this form of accountability means that individuals can be asked to give an account as to why they have behaved in a particular way. The judiciary is subject to this form of accountability in a multitude of ways. Taken together, these ensure a considerable degree of accountability.
The following pages set out briefly some elements of this form of accountability. A more detailed overview is contained in the Judicial Executive Board’s paper, The Accountability of Judiciary.
- Judges on Trial (A study of the appointment and accountability of the English Judiciary), a book by Shimon Shetreet (North Holland, 1976)
- Independence, Accountability and the Judiciary, a collection of essays edited by Canivet, Andeanas and Fairgrieve (BIICL, 2006)
There is also material on accountability in the lectures, articles and books listed at the end of the section on independence
When examining explanatory accountability it is important to distinguish between the institutional accountability of the judiciary and the accountability of individual judges. Both are explored in further on subsequent pages.