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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

19 APR 2013

New appointees to the Supreme Court

Justin Leslie

On 9 April 2013, the United Kingdom Supreme Court will formally swear in two of the three new Justices to be welcomed in 2013. Announced in early March, the three will replace retirees Lords Walker and Hope, and Lord Dyson, who last year became Master of the Rolls.

The Honorary Lord Hodge, the youngest appointee at just 59, will succeed Lord Hope, the current Deputy President of the Supreme Court. He joins Lord Reed as one of the two Scottish judges who, by convention, sit in the Supreme Court. He will take up his post in October 2013, following Lord Hope's retirement. Lord Hodge currently sits in the Outer House of the Court of Session. He is the first Scottish Supreme Court Justice or judge in the House of Lords to have been elevated from this level, rather than the Inner House. However, this is unlikely to be to the detriment of his abilities. He has sat in the High Court of the Justiciary, which hears the highest criminal appeals in Scotland, and the nature of the Scottish court system means he has a very broad range of judicial experience. He is an Exchequer Judge, meaning that he sits on appeals arising from decisions of the Special Commissioners on Income Tax. He is also an intellectual property and commercial law judge, and sits in the Land Valuations Appeal Court. A graduate of the Universities of Cambridge and Edinburgh and former civil servant at the Scottish Office, he was admitted to the Faculty of Advocates in 1983. His practice at the bar primarily concerned commercial and property law, and judicial review and has been Standing Junior Counsel to both the Department for Energy (as it then was) and the Inland Revenue. He has also served as a Judge of the Courts of Appeal of Jersey and Guernsey, and was a part-time Law Commissioner at the Scottish Law Commissioner between 1997 and 2003. His work at the Law Commission included overseeing a significant project on the law of partnership, undertaken in conjunction with the Law Commission for England and Wales.

Lord Justice Hughes, currently Vice President of the Criminal Division of the Court of Appeal, succeeds Lord Dyson. Whilst still in the High Court, Lord Justice Hughes sat for a time in the Family Division, although it is his criminal expertise which commentators say will bring real value to the Supreme Court. Whilst at the High Court, Lord Justice Hughes was also the presiding judge on the Midland Circuit. Lord Justice Hughes was educated at the University of Durham and was formerly head of chambers at No 1 Fountain Court, Birmingham. Lord Justice Hughes is currently deputy Chairman of the Sentencing Council. On the bench, his significant cases have included R v Smith and others,[1] in which he set out clear guidance on the use of Sexual Offences Prevention Orders. He also sat on R v Keane and others,[2] the first case to consider the relationship between the statutory provisions on reasonable force in self-defence set out in section 76 of the Criminal Justice and Immigration Act, and the common law defence. More recently, Lord Justice Hughes has made known his views on changes to legal aid, noting that attempts to save money on legal aid can ultimately cost the public purse more by forcing cases to carry on through the courts.[3] Lord Justice Hughes' appointment also removes him from contention to be to next Lord Chief Justice. His name had been frequently cited in connection with this post.

Lord Justice Toulson, who replaces Lord Walker, has sat in the Court of Appeal since 2007. During this time he has sat on such high profile cases as Tony Nicklinson's attempt to be allowed to lawfully end his life with medical assistance, in which the court made it clear that such a significant change to the law could only be made by Parliament. Prior to this he was Chairman of the Law Commission from 2002 to 2006, during which time he oversaw projects on the law of homicide, the forfeiture rule, monetary remedies in public law and renting homes. Legislation enacted pursuant to projects completed during Lord Justice Toulson's tenure at the Law Commission include those provisions of the Domestic Violence, Crime and Victims Act 2004 relating to the deaths of children; reform of the partial defence of provocation contained in the Coroners and Justice Act 2009, and the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011. In being appointed to the Supreme Court, he joins former Law Commissioner Baroness Hale. Lord Justice Toulson has served on the Judicial Appointments Commission and is also co-author of a book on Confidentiality.

It will have escaped no one's attention that this year's appointments drew a great deal of attention to the lack of female judges in the Supreme Court. Lady Hale herself has not been shy to criticise this situation, and it was widely reported that the appointment process was, at least to some extent, tailored in order to try to find suitable female candidates. Whether or not that is true, no further retirements are expected until 2018, giving limited scope for further female appointees during Baroness Hale's time at the Supreme Court.

 


[1]           [2011] EWCA Crim 1772.

[2]           [2010] EWCA Crim 514.

[3]              Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234, at para 33.

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