Interpreting the Politics of the Judiciary: The British Senior Judicial Tradition and the Pre‐emptive Turn in Criminal Justice

Abstract

This article presents an interpretive politics of the judiciary, arguing for the value of interpretive political analysis in understanding developments in case law and judicial activity. It sketches out a senior judicial tradition, which is argued to guide but not predetermine the actions of the British senior judiciary. A case study, the senior judiciary's response to the Imprisonment for Public Protection (IPP) sentence, is presented, drawing on case law, extra‐judicial speeches, and interviews with five serving or retired senior judges. It is argued that this demonstrates the senior judiciary to be politically attuned actors, often highly sensitive to the broader context, while equally determined to act with fidelity to the law and the responsibilities inherent in an independent, impartial judiciary. The IPP case law suggests that the senior judicial tradition, and its inherent tensions, limits the extent to which the senior judiciary feel equipped to oppose the ‘pre‐emptive turn’ in criminal justice.

Discerning Penal Values and Judicial Decision Making: The Case of Whole Life Sentencing in Europe and the United States of America

“…The actions, beliefs and traditions of judges clearly affect penal policies and there are many possible ways of exploring how judicial decisions interact with other elements of the policy process. Annison's () account of the senior judicial tradition in England and Wales has, for example, shown how judges feel constrained by conventions and their place in legal and judicial history, and that this sense of restraint can act to limit the influence which courts could have in shaping policy.…”

“…One of the most attractive features of interpretive policy analysis, as Annison demonstrates, is its ability to provide a detailed and nuanced account of how the actions of policy makers interact with, shape, and are shaped by, broader social and cultural forces (Annison , , and article in this special issue). Interpretive policy analysis seeks to diversify the sources which permit us to draw conclusions about a state's approach to criminal justice and penal policy.…”

Judging in lower courts: Conventional, procedural, therapeutic and feminist approaches

“…Judicial performance is undertaken in a context made up of many different elements including local practices and case variation, organisational requirements and wider social or political structures (Annison, 2014; Gibson, 1980). Courts and judging are bounded and diverse at all levels, so it is necessary to articulate the institutional context of courts generally and lower courts specifically, to identify ways that different approaches to judging can be manifest even within a bounded location.…”

Interpreting Influence: Towards Reflexivity in Penal Policymaking?

“…3 There is no prima facie reason that these considerations should not apply equally to policymakers. Indeed, such questions have been addressed, at different levels of abstraction, in my own work (Annison, (2014a;2014b) and by scholars including Bauman (1989), Barker andWilson (1997) Carlen (2008) and Fielding (2011).…”