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The Myth of Judicial Independence By Mike McConville (Founding Dean, Founding Dean, Faculty of Law, The Chinese University of Hong Kong)


This book contests the existence of "judicial independence". It maintains that civil servants, historically and up to the present day, have advanced executive mission-creep and eroded common law principles via their influence over the Judges' Rules.

The Myth of Judicial Independence Summary

The Myth of Judicial Independence by Mike McConville (Founding Dean, Founding Dean, Faculty of Law, The Chinese University of Hong Kong)

Through an examination of the history of the rules that regulate police interrogation (the Judges' Rules) in conjunction with plea bargaining and the Criminal Procedure Rules, this book explores the 'Westminster Model' under which three arms of the State (parliament, the executive, and the judiciary) operate independently of one another. It reveals how policy was framed in secret meetings with the executive which then actively misled parliament in contradiction to its ostensible formal relationship with the legislature. This analysis of Home Office archives shows how the worldwide significance of the Judges' Rules was secured not simply by the standing of the English judiciary and the political power of the empire but more significantly by the false representation that the Rules were the handiwork of judges rather than civil servants and politicians. The book critically examines the claim repeatedly advanced by judges that "judicial independence" is justified by principles arising from the "rule of law" and instead shows that the "rule of law" depends upon basic principles of the common law, including an adversarial process and trial by jury, and that the underpinnings of judicial action in criminal justice today may be ideological rather than based on principles.

The Myth of Judicial Independence Reviews

This book offers a fascinating analysis of behind-the-scenes interplay between English judges, politicians, Whitehall, and the police over the non-statutory rules which throughout the twentieth century were meant to secure the liberty of the subject from oppressive police action. In a democracy, of course, these should have been decided by Parliament, but hidden from public gaze, the judges - those alleged custodians of liberty - allowed their rules to be weakened and undermined by the executive. So can we boast of a judiciary that is truly independent of the state and its power establishment when called upon to restrain police powers, and when making other decisions on crime and the constitution? * Geoffrey Robertson QC, Doughty Street Chambers *
The publication more than four decades ago of research which demonstrated the pervasiveness of the unmentionable practice of plea bargaining provoked fury, consternation, and threats of suppression. Mike McConville and Luke Marsh's book The Myth of Judicial Independence is certain to generate an even greater furore. Rather than focusing on the roles of individual judges, police, prosecutors, and defence lawyers, this book (based on original archival data) exposes the politicization of criminal justice at its core - debunking the policies crafted and implemented by the Home Office and senior judges. It will force a fundamental reconsideration of the 'Westminster Model' at the very moment when it is under enormous stress. * Richard Abel, Connell Distinguished Professor of Law Emeritus and Distinguished Research Professor, UCLA *

About Mike McConville (Founding Dean, Founding Dean, Faculty of Law, The Chinese University of Hong Kong)

Mike McConville is Honorary Professor at the University of Nottingham and Founding Dean of the faculty of law, at the Chinese University of Hong Kong. Mike has been the Head of Law at the University of Warwick, the City University of Hong Kong, and the Chinese University of Hong Kong. He has researched and published widely in the area of socio-legal research in England and Wales, the USA, and China. Areas that he has covered include, the investigative and prosecution process, plea bargaining, the jury, policing, neighbourhood watch, criminal defence. Luke Marsh is Associate Professor at the faculty of law at the Chinese University of Hong Kong and Door Tenant at 25 Bedford Row, London. He has held visiting appointments at the Universities of Oxford, Cambridge, Columbia (New York), Auckland, Waseda (Tokyo), Nottingham, and UCL. Luke was the co-founding General Editor of Archbold News (Hong Kong) and is widely published in the area of criminal justice and human rights. His most recent work examines the erosion of the adversarial process in the English criminal justice system.

Table of Contents

1: Introduction and Overview 2: The Management of Criminal Justice: An Early Challenge 3: The Origin of the Judges' Rules 4: The Aftermath: 1918-1960 5: The First Draft: The Judges and the Home Office 6: The War of Attrition and the Vanquishing of the Judges 7: The Legacy of the 1964 Rules 8: Rule of Law and Common Law 9: Constitutionalism and the Westminster Model 10: The Politics of the Judiciary 11: The Global Diaspora 12: Appraisal and Review

Additional information

The Myth of Judicial Independence by Mike McConville (Founding Dean, Founding Dean, Faculty of Law, The Chinese University of Hong Kong)
Oxford University Press
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