The Need for a Criminal Division of the High Court?

Abstract

Abstract It seems to be assumed by some that ‘crime is easy’. Not the commission of it, nor the securing of ill-gotten gains from it, but the study, practice, and judging of it. In this paper, I challenge what might be a significant consequence of such an assumption—the systemic impacts on the appointment and deployment of High Court judges and the structure of the High Court. I argue that criminal judging at both first instance and on appeal is distinctive and demands a cadre of expert judges. I explore two core criminal roles performed by High Court Judges—one as a first-instance trial judge trying the most serious offence of murder, and the other sitting in an appellate capacity reviewing applications for leave to appeal from the Crown Court. This leads me to conclude that the current system of recruitment to the King’s Bench Division (KBD) of the High Court fails to guarantee that all KBD judges who sit in crime have the ideal level of expertise in criminal judging to equip them for that role. In turn, this prompts consideration of a range of solutions including, most radically, a proposal for the creation of a Criminal Division of the High Court, and the benefits that might offer.