The Myth of Judicial Independence

ISBN : 9780198822103

Mike McConville; Luke Marsh
320 Pages
156 x 234 mm
Pub date
Jun 2020
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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.


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

About the author: 

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.

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