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Homework Question - Judges and Magistrates Above the Law and Police?

Discussion in 'Australian Law Students Forum' started by old grumpy, 19 October 2016.

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  1. old grumpy

    old grumpy Member

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    Speaking of criminals, why are judges and magistrates above the law?

    If a person allows a dangerous dog out on the street and it bites someone, they are prosecuted to the fullest extent of the law. Now, my question is, if a judge or magistrate allows a criminal out on bail against the wishes of the police, (which can and does happen) why are they not held responsible (legally, morally and financially) for any crimes that that person commits while out on bail?
     
  2. Iamthelaw

    Iamthelaw Well-Known Member

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    Magistrates or judges are not above the law - This is a basic premise of the rule of law and, to a distant extent the separation of powers in that no arm of government (including the judiciary) may enjoy paramount power. As for the second part of your question, it's pretty obvious isn't it?
     
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  3. AllForHer

    AllForHer Well-Known Member

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    This is, in many ways, Kable doctrine stuff.

    Basically, a judge must have certain freedoms in order to retain procedural fairness for all defendants who come before him/her. If they're asked to speculate about whether or not a person might offend in future, and then make a decision to imprison that person based on that speculation, they're not affording that person procedural fairness, nor are they being affording the freedom to exercise judicial power as they are required to do.

    In short, a judge can only imprison someone for what they have done. They cannot imprison someone for what they might do.
     
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  4. qarmatian

    qarmatian Well-Known Member

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    A thousand years ago Muslim jurists considered this sort of matter on a theological level. It was whether judges will be punished by God if they make a wrong verdict. The answer was that it was putatively said by Muhammad that if the judge rules correctly he earns two rewards. If he rules erroneously he earns one reward. This is in a Hadith.
     
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