Part 1 SOURCES OF LAW

Transcription

1 Part 1 SOURCES OF LAW The word source can mean severa different things with regard to aw, but for our purposes it primariy describes the means by which the aw comes into existence. Engish aw stems from eight main sources, though these vary a great dea in importance: The basis of our aw today is case aw, a mass of judge-made decisions which ay down rues to be foowed in future court cases. For many centuries case aw was the main form of aw and it is sti very important today. However, Acts of Pariament (aso known as statutes) are the most important source of aw, in the sense that they prevai over most of the other sources. As we as being a source of aw in their own right, Acts of Pariament contribute to case aw, since the courts occasionay have to interpret the Acts, and such decisions ay down new precedents. Deegated egisation is made by the administration rather than the egisature, and ays down detaied rues to impement the broader provisions of Acts of Pariament. An increasingy important source of aw is the egisation of the European Union, which is the ony type of aw that can take precedence over Acts of Pariament in the UK. Finay, custom, equity and internationa treaties are minor sources of aw. Part 1 concudes with a discussion of the process of aw reform, whereby these sources of aw can be changed to refect the changes taking pace in society.

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3 1 Case aw This chapter contains: an introduction to judicia precedent; a description of the hierarchy of the courts and judicia precedent; an anaysis of how judicia precedent works in practice; a discussion of whether judges actuay make the aw, rather than simpy decaring the aw; consideration of whether judges shoud be aowed to make aw; and an overview of the advantages and disadvantages of binding precedent.

4 10 Chapter 1 Case aw Historica background Before the Norman conquest, different areas of Engand were governed by different systems of aw, often adapted from those of the various invaders who had setted there; roughy speaking, Dane aw appied in the north, Mercian aw around the midands, and Wessex aw in the south and west. Each was based argey on oca custom and, even within the arger areas, these customs, and hence the aw, varied from pace to pace. The king had itte contro over the country as a whoe, and there was no effective centra government. When Wiiam the Conqueror gained the Engish throne in 1066, he estabished a strong centra government and began, among other things, to standardise the aw. Representatives of the king were sent out to the countryside to check oca administration, and were given the job of adjudicating in oca disputes, according to oca aw. When these itinerant justices returned to Westminster, they were abe to discuss the various customs of different parts of the country and, by a process of sifting, reject unreasonabe ones and accept those that seemed rationa, to form a consistent body of rues. During this process which went on for around two centuries the principe of stare decisis ( et the decision stand ) grew up. Whenever a new probem of aw came to be decided, the decision formed a rue to be foowed in a simiar cases, making the aw more predictabe. The resut of a this was that by about 1250, a common aw had been produced, that rued the whoe country, woud be appied consistenty and coud be used to predict what the courts might decide in a particuar case. It contained many of what are now basic points of Engish aw the fact that murder is a crime, for exampe. The principes behind this common aw are sti used today in creating case aw (which is in fact often known as common aw). From the basic idea of stare decisis, a hierarchy of precedent grew up, in ine with the hierarchy of the modern court system, so that, in genera, a judge must foow decisions made in courts which are higher up the hierarchy than his or her own (the detaied rues on precedent are discussed ater in this section). This process was made easier by the estabishment of a reguar system of pubication of reports of cases in the higher courts. The body of decisions made by the higher courts, which the ower ones must respect, is known as case aw. The Engish common aw system was exported around the word wherever British infuence dominated during the coonia period. These countries, incuding the US and many Commonweath countries, are described as having common aw systems. They are often contrasted with civi aw systems, which can be found in Continenta Europe and countries over which European countries have had infuence. The bestknown civi aw system is the French ega system, whose civi code has been highy infuentia.

5 Historica background 11 TOPICAL ISSUE Estabishing the Supreme Court Ess. Cases p. 4 Ÿ Rather unexpectedy, the Labour Government announced in June 2003 that it was going to aboish the House of Lords (which had existed since 1876) and repace it with a Supreme Court. It subsequenty issued a consutation paper, Constitutiona Reform: A Supreme Court for the United Kingdom, which considered the shape that this reform shoud take. The Constitutiona Reform Act 2005 was passed, which contained provisions for the creation of the new court. The Supreme Court (Photo 1.1) was estabished in 2009 and repaced the House of Lords. The term House of Lords is sighty confusing because this name was used to describe both the highest court, which sat in the Paace of Westminster, and the upper chamber of Pariament. The upper chamber sti remains, it is the Committee of the House of Lords sitting as a court that has been aboished. The ast case to be heard by the House of Lords was the high-profie case of Debbie Purdy, who suffers from mutipe scerosis and who was seeking carification on the criminaisation of individuas who assist the terminay i to commit suicide. The Labour Government was anxious to point out that the reform did not impy any dissatisfaction with the performance of the House of Lords as the country s highest court of aw: Photo 1.1 The Supreme Court in Pariament Square Source: Justin Kase Zeevenz/Aamy t

6 12 Chapter 1 Case aw On the contrary its judges have conducted themseves with the utmost integrity and independence. They are widey and righty admired, nationay and internationay. The Government beieves, however, that the time has come to estabish a new court reguated by statute as a body separate from Pariament. Six of the Law Lords opposed the reform, considering the change to be unnecessary and harmfu. Separation from Pariament The consutation paper stated that this reform was necessary to enhance the independence of the judiciary from both the egisature and the executive. It pointed to the growth of judicia review cases and the passing of the Human Rights Act 1998 as two key reasons why this reform was becoming urgent. Artice 6 of the European Convention on Human Rights requires not ony that the judges shoud be independent, but aso that they shoud be seen to be independent. The fact that the Law Lords sat as a Committee of the House of Lords in Pariament raised issues about whether it appeared to be dependent on the egisature rather than independent. The new Supreme Court is competey separate from Pariament. Its judges have no rights to sit and vote in the upper chamber. Ony the Law Lords who sat in the House of Lords before it was aboished have the right to sit and vote in the House of Lords in its egisative capacity after their retirement from the judiciary. One advantage of this change is that the court no onger sits in the Paace of Westminster, where there is a shortage of space. The Supreme Court is based in a refurbished neo-gothic buiding opposite Pariament in Pariament Square. Jurisdiction The Supreme Court can hear appeas from the whoe of the United Kingdom. Its jurisdiction is the same as that of the former House of Lords, except in reation to devoution cases. In the past the Privy Counci, not the House of Lords, had the jurisdiction to hear cases concerning the devoution of Scotand, Waes and Northern Ireand. This jurisdiction has been transferred to the Supreme Court. The reason for this transfer is to remove any perceived confict of interest in which the UK Pariament, with an obvious interest in a dispute about devoution, appears to be sitting in judgment over the case. The Supreme Court does not have the power to overturn egisation, a power enjoyed by the Supreme Court in America. It is not a purey constitutiona court (ike the Consei constitutionne in France), party because we do not have a written constitution so it woud be difficut to determine the jurisdiction of a constitutiona court for the United Kingdom. The new court does not have the power to give preiminary ruings on difficut points of aw because Engish courts do not traditionay consider issues in the abstract, so giving such a power to the Supreme Court woud sit uneasiy with our judicia traditions, though we are becoming accustomed to this procedure for the European Court of Justice. Membership The fu-time Law Lords from the former House of Lords are the first judges of the Supreme Court. The Government wants to keep the same number of 12 fu-time judges, but to continue to aow the court to ca on the hep of other judges on a part-time

7 Judicia precedent 13 basis. Members of the Supreme Court are caed Justices of the Supreme Court. The Lord Chanceor was a member of the Appeate Committee of the House of Lords, but does not have a right to sit in the Supreme Court. The judges no onger automaticay become Lords, instead the new mae appointments take the tite of Sir and the femae appointments Dame. Quaifications for membership have remained the same as for the House of Lords. The Government rejected the idea that changes shoud be made to make it easier for distinguished academics to be appointed in order to enhance the diversity of the court. This is disappointing, as the Government itsef acknowedges that the current poo of candidates for the court is very narrow, and the Government s statistics show that the current senior judiciary are not representative of society. The appointment process is discussed on p Candidates are not subjected to confirmation hearings before Pariament as these woud risk poiticising the appointment process. In the Supreme Court five judges normay sit together as they did in the House of Lords. An option for serious cases woud be to aow a 12 judges to hear the case, but this woud be an expensive procedure. The rues for permission to appea have remained argey unchanged, so the range and number of cases is ikey to be simiar to those of the House of Lords. The senior Law Lord, Baroness Hae, has predicted that the opening of the Supreme Court wi amount to business as usua. Judicia precedent Case aw comes from the decisions made by judges in the cases before them (the decisions of juries do not make case aw). In deciding a case, there are two basic tasks: first, estabishing what the facts are, meaning what actuay happened; and secondy, how the aw appies to those facts. It is the second task that can make case aw, and the idea is that once a decision has been made on how the aw appies to a particuar set of facts, simiar facts in ater cases shoud be treated in the same way, foowing the principe of stare decisis described above. This is obviousy fairer than aowing each judge to interpret the aw differenty, and aso provides predictabiity, which makes it easier for peope to ive within the aw. The judges isten to the evidence and the ega argument and then prepare a written decision as to which party wins, based on what they beieve the facts were, and how the aw appies to them. This decision is known as the judgment, and is usuay ong, containing quite a ot of comment which is not stricty reevant to the case, as we as an expanation of the ega principes on which the judge has made a decision. The expanation of the ega principes on which the decision is made is caed the ratio decidendi Latin for the reason for deciding. It is this part of the judgment, known as binding precedent, which forms case aw. A the parts of the judgment which do not form part of the ratio decidendi of the case are caed obiter dicta which is Latin for things said by the way. These are often discussions of hypothetica situations: for exampe, the judge might say Jones did this, but if she had done that, my decision woud have been.... None of the obiter dicta forms part

8 14 Chapter 1 Case aw of the case aw, though judges in ater cases may be infuenced by it, and it is said to be a persuasive precedent. In deciding a case, a judge must foow any decision that has been made by a higher court in a case with simiar facts. The rues concerning which courts are bound by which are known as the rues of judicia precedent, or stare decisis. As we as being bound by the decisions of courts above them, some courts must aso foow their own previous decisions; they are said to be bound by themseves. When faced with a case on which there appears to be a reevant earier decision, the judges can do any of the foowing: Foow If the facts are sufficienty simiar, the precedent set by the earier case is foowed, and the aw appied in the same way to produce a decision. Distinguish Where the facts of the case before the judge are significanty different from those of the earier one, then the judge distinguishes the two cases and need not foow the earier one. Overrue Where the earier decision was made in a ower court, the judges can overrue that earier decision if they disagree with the ower court s statement of the aw. The outcome of the earier decision remains the same, but wi not be foowed. The power to overrue cases is ony used sparingy because it weakens the authority and respect of the ower courts. Reverse If the decision of a ower court is appeaed to a higher one, the higher court may change it if they fee the ower court has wrongy interpreted the aw. Ceary when a decision is reversed, the higher court is usuay aso overruing the ower court s statement of the aw. In practice, the process is rather more compicated than this, since decisions are not aways made on the basis of ony one previous case; there are usuay severa different cases offered in support of each side s view of the question. Numerous cases are pubished in aw reports, ega databases and on-ine. In R v Erskine (2009) the Court of Appea said awyers needed to seect carefuy the cases they Figure 1.1 How judicia precedent works

9 The hierarchy of the courts 15 referred to in court or the justice system woud be suffocated. Ony cases which estabished the principe of aw under consideration shoud be cited. Authorities that merey iustrated the principe, or restated it, shoud not be cited. The Court was thereby seeking to ensure that the doctrine of precedent is not overwhemed by the sheer number of pubished judgments. The hierarchy of the courts The European Court of Justice Decisions of the European Court of Justice on European aw are binding on a Engish courts (European Communities Act 1972, s. 3(1)). Athough the European Court tends to foow its own previous decisions, it is not bound to do so. The Supreme Court Ess. Cases p. 7 Ÿ Apart from cases concerning European aw, the Supreme Court is the highest appea court on civi and crimina matters, and a other Engish courts are bound by it. The Supreme Court repaced the ong-estabished House of Lords in 2009 and the rues of precedent are expected to be exacty the same for the Supreme Court as they were for the House of Lords before it. The House of Lords was traditionay bound by its own decisions, but in 1966 the Lord Chanceor issued a Practice Statement saying that the House of Lords was no onger bound by its previous decisions. In practice, the House of Lords ony rarey overrued one of its earier decisions, and this reuctance is iustrated by the case of R v Kansa (No. 2) (2001). In that case the House of Lords hed that it had probaby got the aw wrong in its earier decision of R v Lambert (2001). The atter case had rued that the Human Rights Act 1998 woud not have retrospective effect in reation to appeas heard by the House of Lords after the Act came into force, but which had been decided by the ower courts before the Act came into force. Despite the fact that the majority thought the earier judgment of Lambert was wrong, the House decided in Kansa to foow it. This was because Lambert was a recent decision, it represented a possibe interpretation of the statute that was not unworkabe and it ony concerned a temporary transitiona period. There is, however, a range of cases where the House of Lords had been prepared to appy the 1966 Practice Statement. In Ha v Simons (2000), the House of Lords refused to foow the earier case of Ronde v Worsey (1969), which had given barristers immunity against caims for negigence in their presentation of cases. In R v G and another (2003), the House of Lords overrued an estabished crimina case of R v Cadwe (1981). Under R v Cadwe, the House had been prepared to convict peope for crimina offences where the prosecution had not proved that the defendant personay had intended, or seen the risk of causing, the reevant harm, but had simpy shown that a reasonabe person woud have had this state of mind on the facts. This was particuary harsh where the actua defendant was incapabe of seeing the risk of harm, because, for exampe, they were very young or of ow inteigence. Cadwe had been heaviy criticised by academics over the years, but when the House of Lords

10 16 Chapter 1 Case aw originay reconsidered the matter in 1992, in R v Reid (1992), it confirmed its origina decision. However, when the matter again came to the House of Lords in 2003, the House dramaticay admitted that it had got the aw wrong. It stated: Ess. Cases p. 98 Ÿ The surest test of a new ega rue is not whether it satisfies a team of ogicians but how it performs in the rea word. With the benefit of hindsight the verdict must be that the rue aid down by the majority in Cadwe faied this test. It was severey criticised by academic awyers of distinction. It did not command respect among practitioners and judges. Jurors found it difficut to understand; it aso sometimes offended their sense of justice. Experience suggests that in Cadwe the aw took a wrong turn. In Re Pinochet Ugarte (1999), the House of Lords stated that it had the power to reopen an appea where, through no faut of his or her own, one of the parties has been subjected to an unfair procedure. The case was part of the itigation concerning Genera Augusto Pinochet, the former Chiean head of state. The Lords reopened the appea because one of the Law Lords who heard the origina appea, Lord Hoffmann, was connected with the human rights organisation Amnesty Internationa, which had been a party to the appea. This meant that there was a possibiity of bias and so the proceedings coud be viewed as unfair. The Lords stressed, however, that there was no question of them being abe to reopen an appea because the decision made originay was thought to be wrong; the Pinochet appea was reopened because it coud be said that there had not been a fair hearing, and not because the decision reached was wrong (athough at the second hearing of the appea, the Lords did in fact come to a sighty different decision). Photo 1.2 Demonstrators ceebrate the House of Lords decision for the deportation of the former Chiean President, Augusto Pinochet Source: PA Archive/Press Association Images

11 The hierarchy of the courts 17 Privy Counci Ess. Cases p. 12 Ÿ The Privy Counci was estabished by the Judicia Committee Act It is the fina appea court for many Commonweath countries. The judges of the Supreme Court have become the judges of the Privy Counci and its other members have remained the same. The Privy Counci sits in the new buidings of the Supreme Court but remains a separate entity. Under the traditiona rues of precedent, the decisions of the Privy Counci do not bind Engish courts, but have strong persuasive authority because of the seniority of the judges who sit in the Privy Counci (de Lasaa v de Lasaa (1980)). This we-estabished rue of precedent has been thrown into doubt by the recent Court of Appea judgment of R v James and Karimi (2006). The Court of Appea hed that, in exceptiona circumstances, a Privy Counci judgment can bind the Engish courts and effectivey overrue an earier House of Lords judgment. This conficts with the traditiona approach to such judgments (and the expected approach to judgments of the Supreme Court), confirmed by the House of Lords in Miiangos v George Frank (Texties) Ltd (1976) that the ony judicia means by which decisions of this House can be reviewed is by this House itsef. TOPICAL ISSUE Increased infuence of the Privy Counci Ess. Cases p. 10 Ÿ Recent deveopments in crimina aw suggest that Privy Counci decisions can occasionay make important changes to the common aw, even indirecty overruing an earier House of Lords decision and therefore aso decisions of the Supreme Court. The cases which highighted the potentia power of the Privy Counci were concerned with the partia defence of provocation in crimina aw which if successfu can reduce a defendant s iabiity from murder to mansaughter. The defence is aid down in s. 3 of the Homicide Act This section has been interpreted as aying down a two-part test. The first part of the test requires the defendant to have suffered from a sudden and temporary oss of sef-contro when he or she kied the victim. The second part of the test provides that the defence wi ony be avaiabe if a reasonabe person woud have reacted as the defendant did. This is described as an objective test, because it is judging the defendant s conduct according to objective standards, rather than their own standards. However, in practice reasonabe peope amost never ki, so if this second requirement was interpreted stricty, the defence woud rarey succeed. As a resut, in R v Smith (Morgan James) (2001) the House of Lords hed that, in determining whether a reasonabe person woud have reacted in this way, a court coud take into account the actua characteristics of the defendant. So if the defendant had been depressed and was of ow inteigence, then the test woud become whether a reasonabe person suffering from depression and of ow inteigence woud have reacted by kiing the victim. In an appea from Jersey on the defence of provocation, Attorney Genera for Jersey v Hoey (2005), the Privy Counci refused to foow the case of Smith (Morgan James), stating that the case misinterpreted Pariament s intention when it passed the Homicide Act It considered that the ony characteristics that shoud be taken into account when considering whether the defendant had reacted reasonaby were t

12 18 Chapter 1 Case aw Ess. Cases p. 12 Ÿ characteristics that were directy reevant to the provocation itsef, but not genera characteristics which simpy affected a person s abiity to contro him or hersef. The Court of Appea in James and Karimi decided to appy the Privy Counci s judgment in Hoey rather than the House of Lords judgment in Smith (Morgan James). The Court of Appea acknowedged that this went against the estabished rues of judicia precedent. It gave various justifications for treating this as an exceptiona case in which those estabished rues shoud not appy. It pointed out that the Privy Counci had reaised the importance of its judgment and had chosen to have an enarged sitting of nine judges, a drawn from the House of Lords: The procedure adopted and the comments of members of the Board in Hoey suggest that a decision must have been taken by those responsibe for the constitution of the Board in Hoey... to use the appea as a vehice for reconsidering the decision of the House of Lords in Morgan Smith, not just as representing the aw of Jersey but as representing the aw of Engand. A decision was taken that the Board hearing the appea to the Privy Counci shoud consist of nine of the tweve Lords of Appea in Ordinary. The emphasis on the enarged formation of the Privy Counci potentiay eaves the status of its judgments dependent upon an administrative decision as to how many judges shoud sit, a decision which has never been the subject of any ega contros. The judges in Hoey were divided in their verdict six to three. The start of the first judgment of the majority stated: This appea, being heard by an enarged board of nine members, is concerned to resove this confict [between the House of Lords and the Privy Counci] and carify definitivey the present state of Engish aw, and hence Jersey aw, on this important subject. The dissenting judges stated: We must however accept that the effect of the majority decision is as stated in paragraph 1 of the majority judgment. Thus, even the dissenting judges appear to accept that the majority decision ays down the aw in Engand. The Court of Appea aso considered that if an appea was taken to the House of Lords, the outcome was a foregone concusion and the House woud take the same approach as Hoey: Haf of the Law Lords were party to the majority decision in Hoey. Three more in that case accepted that the majority decision represented a definitive statement of Engish aw on the issue in question. The choice of those to sit on the appea might raise some nice questions, but we cannot conceive that, whatever the precise composition of the Committee, it woud do other than rue that the majority decision in Hoey represented the aw of Engand. In effect, in the ong term at east, Hoey has overrued Morgan Smith. This argument woud be more convincing if the Hoey case had been decided by a unanimous verdict. In fact, there are sti potentiay six House of Lords judges who coud prefer the Smith (Morgan James) approach: the three dissenting judges and the three House of Lords judges who did not hear the Hoey case. Lord Woof recognised in R v Simpson (2003) that the rues of judicia precedent must provide certainty but at the same time they themseves must be abe to evove in order to do justice:

13 The hierarchy of the courts 19 The rues as to precedent refect the practice of the courts and have to be appied bearing in mind that their objective is to assist in the administration of justice. They are of considerabe importance because of their roe in achieving the appropriate degree of certainty as to the aw. This is an important requirement of any system of justice. The principes shoud not, however, be regarded as so rigid that they cannot deveop in order to meet contemporary needs. The Court of Appea presumaby concuded in James and Karimi that this was a situation where justice coud ony be achieved by shifting the estabished rues of judicia precedent. The actua outcome of the case makes it more difficut for a partia defence to murder, reducing iabiity to mansaughter, to succeed. This may be considered to achieve justice for victims famiies, but it may be an injustice to the mentay i defendant. The Court of Appea This is spit into Civi and Crimina Divisions; they do not bind each other. Both are bound by decisions of the od House of Lords, and the new Supreme Court. KEY CASE In Young v Bristo Aeropane Co Ltd (1946) the Court of Appea stated that the Civi Division is usuay bound by its own previous decisions. There are four exceptions to this genera rue: Ess. Cases p. 8 Ÿ 1 the previous decision was made in ignorance of a reevant aw (it is said to have been made per incuriam); 2 there are two previous conficting decisions; 3 there is a ater, conficting, House of Lords (or Supreme Court) decision; 4 a proposition of aw was assumed to exist by an earier court and was not subject to argument or consideration by that court. The ast of these exceptions was added by R (on the appication of Kadhim) v Brent London Borough Housing Benefit Review Board (2001). Lega Principe The Civi Division of the Court of Appea is usuay bound by its own previous decisions. In the Crimina Division, the resuts of cases heard may decide whether or not an individua goes to prison, so the Crimina Division takes a more fexibe approach to its previous decisions and does not foow them where doing so coud cause injustice. The High Court This court is divided between the Divisiona Courts and the ordinary High Court. A are bound by the Court of Appea, the od House of Lords and the new Supreme Court.

14 20 Chapter 1 Case aw The Divisiona Courts are the Queen s Bench Division, which deas with crimina appeas and judicia review, the Chancery Division and the Famiy Division, which both dea with civi appeas. The two civi Divisiona Courts are bound by their previous decisions, but the Divisiona Court of the Queen s Bench is more fexibe about this, for the same reason as the Crimina Division of the Court of Appea. The Divisiona Courts bind the ordinary High Court. The ordinary High Court is not bound by its own previous decisions. It can produce precedents for courts beow it, but these are of a ower status than those produced by the Court of Appea, the od House of Lords or the new Supreme Court. The Crown Court The Crown Court is bound by a the courts above it. Its decisions do not form binding precedents, though when High Court judges sit in the Crown Court, their judgments form persuasive precedents, which must be given serious consideration in successive cases, though it is not obigatory to foow them. When a circuit or district judge is sitting no precedents are formed. Since the Crown Court cannot form binding precedents, it is obviousy not bound by its own decisions. Magistrates and county courts These are caed the inferior courts. They are bound by the High Court, Court of Appea, the od House of Lords and the new Supreme Court. Their own decisions are not reported, and cannot produce binding precedents, or even persuasive ones; ike the Crown Court, they are therefore not bound by their own decisions. European Court of Human Rights The European Court of Human Rights (ECtHR) is an internationa court based in Strasbourg. It hears cases aeging that there has been a breach of the European Convention on Human Rights. This court does not fit neaty within the hierarchy of the courts. Under s. 2 of the Human Rights Act 1998, an Engish court is required to take account of the cases decided by the ECtHR, though its decisions do not bind the Engish courts. This woud suggest that the decisions of the ECtHR are not competey binding on UK courts. In practice, when considering a Convention right, the domestic courts try to foow the same interpretation as that given by the ECtHR. In R (on the appication of Aconbury Deveopments Ltd) v Secretary of State for the Environment, Transport and the Regions (2001), the House of Lords said: In the absence of some specia circumstances it seems to me the court shoud foow any cear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at east a possibiity the case wi go to that court which is ikey in the ordinary case to foow its own constant jurisprudence. Despite this, the House of Lords (now the Supreme Court) has, on occasion refused to foow an earier decision of the ECtHR on the basis that the ECtHR has not fuy understood the UK common aw on this subject. In Morris v UK (2002), the ECtHR rued that the courts martia system (which is the courts system used by the army) breached the

15 The hierarchy of the courts 21 European Convention on Human Rights as it did not guarantee a fair tria within the meaning of Art. 6 of the Convention. Subsequenty, in Boyd v The Army Prosecuting Authority (2002), three sodiers who had been convicted of assaut by a court martia argued before the House of Lords that the court martia had vioated their right to a fair tria under the Convention. Surprisingy, the argument was rejected and the House of Lords refused to foow the earier decision of the ECtHR. It stated: Whie the decision in Morris is not binding on the House, it is of course a matter which the House must take into account [s. 2(1)(a) of the Human Rights Act 1998] and which demands carefu attention, not east because it is a recent expression of the European Court s view on these matters. The House considered that the European Court was given rather ess information than the House about the courts martia system, and in the ight of this additiona information it concuded that there had been no vioation of the Convention. In R v Horncaste (2009) two appeas were heard together by the Supreme Court where defendants had been convicted using witness statements and the witness was not avaiabe to be cross-examined. In one case, the defendant was on tria for causing grievous bodiy harm and the victim was a key witness but had died of natura causes before the tria. In the other case, the tria was for kidnapping and the victim had run away the day before the tria because she was too frightened to give evidence. The defendants appeaed against their convictions arguing that they had not received a fair tria in breach of Art. 6 of the European Convention. They referred, in particuar, to the Figure 1.2 The routes for civi and crimina cases

16 22 Chapter 1 Case aw case of A-Khawaja and Tahery v UK (2009) where the European Court of Human Rights (ECtHR) had stated that convictions coud not be based soey or to a decisive extent on the evidence of a witness who coud not be cross-examined (known as hearsay evidence). The defendants appeas were rejected by the Supreme Court, which commented that the ECtHR had deveoped its case aw without giving fu consideration to the safeguards against an unfair tria that existed under the common aw. The A- Khawaja and Tahery v UK decision was given in Chamber and the UK Government has requested that the case be reheard by the Grand Chamber (see p. 300). The Supreme Court hopes that the Grand Chamber wi reconsider the case in the ight of its decision in R v Horncaste. Where there is a confict between a decision of the ECtHR and a nationa court which binds a ower court, the ower court shoud usuay foow the decision of the binding higher nationa court, but give permission to appea. Thus, in Kay v Lambeth London Borough Counci (2006) the Court of Appea had been faced with a binding precedent of the House of Lords which conficted with a decision of the ECtHR. The Court of Appea had appied the House of Lords decision but gave permission to appea. In the subsequent appea the House had agreed that this was the appropriate course of action. We can expect to see simiar tensions in the reationship between the Supreme Court and the ECtHR. How do judges reay decide cases? The independence of the judiciary was ensured by the Act of Settement 1700, which transferred the power to sack judges from the Crown to Pariament. Consequenty, judges shoud theoreticay make their decisions based purey on the ogica deductions of precedent, uninfuenced by poitica or career considerations. The eighteenth-century ega commentator, Wiiam Backstone, introduced the decaratory theory of aw, stating that judges do not make aw, but merey, by the rues of precedent, discover and decare the aw that has aways been: [the judge] being sworn to determine, not according to his private sentiments...not according to his own private judgment, but according to the known aws and customs of the and: not deegated to pronounce a new aw, but to maintain and expound the od one. Backstone does not accept that precedent ever offers a choice between two or more interpretations of the aw: where a bad decision is made, he states, the new one that reverses or overrues it is not a new aw, nor a statement that the od decision was bad aw, but a decaration that the previous decision was not aw, in other words that it was the wrong answer. His view presupposes that there is aways one right answer, to be deduced from an objective study of precedent. Today, however, this position is considered somewhat unreaistic. If the operation of precedent is the precise science Backstone suggests, a arge majority of cases in the higher courts woud never come to court at a. The awyers concerned coud simpy ook up the reevant case aw and predict what the decision woud be, then advise whichever of the cients woud be bound to ose not to bother bringing or fighting the case. In a civi case, or any appea case, no good awyer woud advise a cient to bring or defend a case that they had no chance of winning. Therefore, where such a case is contested, it can be

17 How do judges reay decide cases? 23 assumed that, uness one of the awyers has made a mistake, it coud go either way, and sti be in accordance with the aw. Further evidence of this is provided by the fact that one can read a judgment of the Court of Appea, argued as though it were the ony possibe decision in the ight of the cases that had gone before, and then discover that this apparenty inevitabe decision has prompty been reversed by the House of Lords. In practice, then, judges decisions may not be as neutra as Backstone s decaratory theory suggests: they have to make choices which are by no means spet out by precedents. Yet, rather than openy stating that they are choosing between two or more equay reevant precedents, the courts find ways to avoid awkward ones, which give the impression that the precedents they do choose to foow are the ony ones that coud possiby appy. In theory, ony the Supreme Court, which can overrue its own decisions as we as those of other courts, can depart from precedent: a the other courts must foow the precedent that appies in a particuar case, however much they disike it. In fact, there are a number of ways in which judges may avoid awkward precedents that at first sight might appear binding: By distinguishing the awkward precedent on its facts arguing that the facts of the case under consideration are different in some important way from those of the previous case, and therefore the rue aid down does not appy to them. Since the facts are unikey to be identica, this is the simpest way to avoid an awkward precedent, and the courts have made some extremey narrow distinctions in this way. By distinguishing the point of aw arguing that the ega question answered by the precedent is not the same as that asked in the present case. By stating that the precedent has been superseded by more recent decisions, and is therefore outdated. By giving the precedent a very narrow ratio decidendi. The ony part of a decision that forms binding precedent is the ratio, the ega principe on which the decision is based. Since judges never state this is the ratio decidendi, it is possibe to argue at some ength about which bits of the judgment actuay form the ratio and therefore bind courts in ater cases. Judges wishing to avoid an awkward precedent may reason that those parts of the judgment which seem to appy to their case are not part of the ratio, and are ony obiter dicta, which they are not obiged to foow. By arguing that the precedent has no cear ratio decidendi. There are usuay three judges sitting in Court of Appea cases, and five in the Supreme Court. Where each judge in the former case has given a different reason for coming to the same decision, or where, for exampe, two judges of the Supreme Court take one view, two more another, and the fifth agrees with none of them, it can be argued that there is no one cear ratio decidendi for the decision. By caiming that the precedent is inconsistent with a ater decision of a higher court, and has been overrued by impication. By stating that the previous decision was made per incuriam, meaning that the court faied to consider some reevant statute or precedent. This method is used ony rarey, since it ceary undermines the status of the court beow. By arguing that the precedent is outdated, and no onger in step with modern thinking. We can see that there is considerabe room for manoeuvre within the doctrine of precedent, so what factors guide judicia decisions, and to what extent? The foowing are some of the answers that have been suggested.

18 24 Chapter 1 Case aw Dworkin: a seamess web of principes Ronad Dworkin argues that judges have no rea discretion in making case aw. He sees aw as a seamess web of principes, which suppy a right answer and ony one to every possibe probem. Dworkin reasons that athough stated ega rues may run out (in the sense of not being directy appicabe to a new case) ega principes never do, and therefore judges never need to use their own discretion. In his book Law s Empire (1986), Professor Dworkin caims that judges first ook at previous cases, and from those deduce which principes coud be said to appy to the case before them. Then they consut their own sense of justice as to which appy, and aso consider what the community s view of justice dictates. Where the judge s view and that of the community coincide, there is no probem, but if they confict, the judges then ask themseves whether or not it woud be fair to impose their own sense of justice over that of the community. Dworkin cas this the interpretive approach and, athough it may appear to invove a series of choices, he considers that the ega principes underying the decisions mean that in the end ony one resut coud possiby surface from any one case. Dworkin s approach has been heaviy criticised as being unreaistic: opponents beieve that judges do not consider principes of justice but take a much more pragmatic approach, ooking at the facts of the case, not the principes. Critica theorists: precedent as egitimation Critica ega theorists, such as David Kairys (1998), take a quite different view. They argue that judges have considerabe freedom within the doctrine of precedent. Kairys suggests that there is no such thing as ega reasoning, in the sense of a ogica, neutra method of determining rues and resuts from what has gone before. He states that judicia decisions are actuay based on a compex mixture of socia, poitica, institutiona, experientia and persona factors, and are simpy egitimated, or justified, by reference to previous cases. The aw provides a wide and conficting variety of such justifications from which courts pick and choose. The process is not necessariy as cynica as it sounds. Kairys points out that he is not saying that judges actuay make the decision and then consider which precedents they can pick to justify it; rather their own beiefs and prejudices naturay ead them to give more weight to precedents which support those views. Nevertheess, for critica ega theorists, a such decisions can be seen as refecting socia and poitica judgments, rather than objective, purey ogica deductions. Critica theory argues that the neutra appearance of so-caed ega reasoning disguises the true nature of ega decisions which, by the choices made, uphod existing power reations within society, tending to favour, for exampe, empoyers over empoyees, property owners over those without, men over women, and rich deveoped countries over poor undeveoped ones. Griffith: poitica choices In simiar vein, Griffith (1997) argues in his book The Poitics of the Judiciary that judges make their decisions based on what they see as the pubic interest, but that their view of this interest is cooured by their background and their position in society. He suggests

19 How do judges reay decide cases? 25 that the narrow socia background usuay pubic schoo and Oxbridge of the highest judges (see p. 161), combined with their position as part of estabished authority, eads them to beieve that it is in the pubic interest that the estabished order shoud be maintained: in other words, that those who are in charge whether of the country or, for exampe, in the workpace shoud stay in charge, and that traditiona vaues shoud be maintained. This eads them to a tenderness for private property and disike of trade unions, strong adherence to the maintenance of order, distaste for minority opinions, demonstrations and protests, the avoidance of confict with Government poicy even where it is manifesty oppressive of the most vunerabe, support of governmenta secrecy, concern for the preservation of the mora and socia behaviour [to which they are] accustomed. As Griffith points out, the judges view of pubic interest assumes that the interests of a the members of society are roughy the same, ignoring the fact that within society, different groups empoyers and empoyees, men and women, rich and poor may have interests which are diametricay opposed. What appears to be acting in the pubic interest wi usuay mean in the interest of one group over another, and therefore cannot be seen as neutra. Wadron: poitica choices, but why not? In his book, The Law (1989), Wadron agrees that judges do exercise discretion, and that they are infuenced in those choices by poitica and ideoogica considerations, but argues that this is not necessariy a bad thing. He contends that whie it woud be wrong for judges to be biased towards one side in a case, or to make decisions based on poitica factors in the hope of promotion, it is unreaistic to expect a judge to be a poitica neuter emascuated of a vaues and principed commitments. Wadron points out that to be a judge at a means a commitment to the vaues surrounding the ega system: recognition of Pariament as supreme, the importance of precedent, fairness, certainty, the pubic interest. He argues that this itsef is a poitica choice, and further choices are made when judges have to baance these vaues against one another where they confict. The responsibe thing to do, according to Wadron, is to think through such conficts in advance, and to decide which might generay be expected to give way to which. These wi inevitaby be poitica and ideoogica decisions. Wadron argues that since such decisions have to be made the thing to do is not to try to hide them, but to be as expicit as possibe. Rather than hiding such judgements behind smokescreens of ega mystery... if judges have deveoped particuar theories of moras, poitics and society, they shoud say so up front, and incorporate them expicity into their decision-making. Wadron suggests that where judges fee uncomfortabe about doing this, it may be a usefu indication that they shoud re-examine their bias, and see whether it is an appropriate consideration by which they are to be infuenced. In addition, if the pubic know the reasoning behind judicia decisions we can evauate them and see whether we want to rey on reasons ike that for the future. Some support for Wadron s anaysis can be found in Lord Hoffmann s judgment in Arthur JS Ha & Co v Simons (2000). In that case the House of Lords dramaticay removed the estabished immunity of barristers from iabiity in negigence for court work. Lord Hoffmann stated:

20 26 Chapter 1 Case aw I hope that I wi not be thought ungratefu if I do not encumber this speech with citations. The question of what the pubic interest now requires depends upon the strength of the arguments rather than the weight of authority. Do judges make aw? Athough judges have traditionay seen themseves as decaring or finding rather than creating aw, and frequenty state that making aw is the prerogative of Pariament, there are severa areas in which they ceary do make aw. In the first pace, historicay, a great dea of our aw is and aways has been case aw, made by judicia decisions. Contract and tort aw are sti argey judge-made, and many of the most important deveopments for exampe, the deveopment of negigence as a tort have had profound effects. Even though statutes have ater been passed on these subjects, and occasionay Pariament has attempted to embody whoe areas of common aw in statutory form, these sti embody the origina principes created by the judges. Secondy, the appication of aw, whether case aw or statute, to a particuar case is not usuay an automatic matter. Terminoogy may be vague or ambiguous, new deveopments in socia ife have to be accommodated, and the procedure requires interpretation as we as appication. As we have suggested, judicia precedent does not aways make a particuar decision obvious and obigatory there may be conficting precedents, their impications may be uncear, and there are ways of getting round a precedent that woud otherwise produce an undesirabe decision. If it is accepted that Backstone s decaratory theory does not appy in practice, then ceary the judges do make aw, rather than expaining the aw that is aready there. The theories advanced by Kairys, Griffith and Wadron a accept that judges do have discretion, and therefore they do to some extent make aw. Where precedents do not spe out what shoud be done in a case before them, judges nevertheess have to make a decision. They cannot simpy say that the aw is not cear and refer it back to Pariament, even though in some cases they point out that the decision before them woud be more appropriatey decided by those who have been eected to make decisions on changes in the aw. This was the case in Airedae NHS Trust v Band (1993), where the House of Lords considered the fate of Tony Band, the footba supporter eft in a coma after the Hisborough stadium disaster. The court had to decide whether it was awfu to stop suppying the drugs and artificia feeding that were keeping Mr Band aive, even though it was known that doing so woud mean his death soon afterwards. Severa Law Lords made it pain that they fet that cases raising whoy new mora and socia issues shoud be decided by Pariament, the judges roe being to appy the principes which society, through the democratic process, adopts, not to impose their standards on society. Nevertheess, the courts had no option but to make a decision one way or the other, and they decided that the action was awfu in the circumstances, because it was in the patient s best interests. Thirdy, our judges have been eft to define their own roe, and the roe of the courts generay in the poitica system, more or ess as they pease. They have, for exampe, given themseves the power to review decisions of any pubic body, even when Pariament has said those decisions are not to be reviewed. And despite their frequent pronouncements

21 Do judges make aw? 27 that it is not for them to interfere in Pariament s aw-making roe, the judges have made it pain that they wi not, uness forced by very expicit wording, interpret statutes as encroaching on common aw rights or judge-made aw (see p. 62). They aso contro the operation of case aw without reference to Pariament: an obvious exampe is that the 1966 Practice Direction announcing that the House of Lords woud no onger be bound by its own decisions, which made case aw more fexibe and thereby gave the judges more power, was made on the court s own authority, without needing permission from Pariament. The House of Lords has expained its approach to judicia aw-making (which is ikey to be the same for the Supreme Court) in the case of C (A Minor) v DPP (1995) which raised the issue of chidren s iabiity for crime. The common aw defence of doi incapax provided that a defendant aged between 10 and 14 coud be iabe for a crime ony if the prosecution coud prove that the chid knew that what he or she did was seriousy wrong. On appea from the magistrates court, the Divisiona Court hed that the defence was outdated and shoud no onger exist in aw. An appea was brought before the House of Lords, arguing that the Divisiona Court was bound by precedent and not abe to change the aw in this way. The House of Lords agreed, and went on to consider whether it shoud change the aw itsef (as the 1966 Practice Direction ceary aowed it to do), but decided that this was not an appropriate case for judicia aw-making. Expaining this decision, Lord Lowry suggested five factors were important: where the soution to a diemma was doubtfu, judges shoud be wary of imposing their own answer; judges shoud be cautious about addressing areas where Pariament had rejected opportunities of cearing up a known difficuty, or had passed egisation without doing so; areas of socia poicy over which there was dispute were east ikey to be suitabe for judicia aw-making; fundamenta ega doctrines shoud not be ighty set aside; judges shoud not change the aw uness they can be sure that doing so is ikey to achieve finaity and certainty on the issue. This guidance suggests that the judges shoud take quite a cautious approach to changing the aw. In practice, however, the judges do not aways seem to be foowing these guideines. For exampe, in an important crimina case of R v Dica (2004) the Court of Appea overrued an earier case of R v Carence (1888) and hed that crimina iabiity coud be imposed on a defendant for reckessy infecting another person with HIV. This change in the aw was made despite the fact that the Home Office had earier decided that egisation shoud not be introduced which woud have imposed iabiity in this situation (Vioence: Reforming the Offences Against the Person Act 1861 (1998)). The Home Office had observed that this issue had ramifications going beyond the crimina aw into wider considerations of socia and pubic heath poicy. Some commentators fee that the judiciary s current approach is tending to go too far, and straying outside its constitutiona pace. Writing in the New Law Journa in 1999, Francis Bennion, a former pariamentary counse, criticised what he caed the growing appetite of some judges for changing the aw themseves, rather than waiting for Pariament to do it. Bennion cites two cases as exampes of this. The first, Keinwort Benson Ltd v Lincon City Counci (1998), concerns contract aw, and in particuar, a ong-standing rue, originating from case aw, that where someone made a payment as a

22 28 Chapter 1 Case aw resut of a mistake about the aw, they did not have the right to get the money back. The rue had existed for neary two centuries, and been much criticised in recent years so much so that a previous Lord Chanceor had asked the Law Commission to consider whether it shoud be amended by egisation, and they had concuded that it shoud. This woud normay be taken by the courts as a signa that they shoud eave the issue aone and wait for Pariament to act, but in this case the Lords decided to change the rue. In doing so, Lord Keith expressed the view that a robust view of judicia deveopment of the aw was desirabe. Bennion argues that, in making this decision, the Lords were usurping the authority which constitutionay beongs to Pariament. He aso points out that judicia, rather than pariamentary, change of the aw in this kind of area causes practica difficuties, because it has retrospective effect; a arge number of transactions which were thought to be setted under the previous rue can now be reopened. This woud not usuay be the case if Pariament changed the aw. The second case Bennion criticises is DPP v Jones (1999), which concerned a demonstration on the road near Stonehenge. In that case the Lords ooked at another ong-hed rue, that the pubic have a right to use the highway for passing and repassing (in other words, waking aong the road), and for uses which are reated to that, but that there is no right to use the highway in other ways, such as demonstrating or picketing. In Jones, the House of Lords stated that this rue paced unreaistic and unwarranted restrictions on everyday activities, and that the highway is a pubic pace that the pubic has a right to enjoy for any reasonabe purpose. This decision ceary has major impications for the powers of the poice to break up demonstrations and pickets. Bennion argues that, in making decisions ike these, the judiciary are taking powers to which they are not constitutionay entited, and that they shoud not extend their aw-making roe into such controversia areas. When shoud judges make aw? Again, this is a subject about which there are different views, not east among the judiciary, and the foowing are some of the approaches which have been suggested. Adapting to socia change In 1952, Lord Denning gave a ecture caed The Need for a New Equity, arguing that judges had become too timid about adapting the aw to the changing conditions of society. They were, he fet, eaving this roe too much to Pariament, which was too sow and cumbersome to do the job we (by 1984, he fet that judges had taken up the task again). Lord Scarman, in McLoughin v O Brian (1982), stated that the courts function is to adjudicate according to principe, and if the resuts are sociay unacceptabe Pariament can egisate to overrue them. He fet that the risk was not that case aw might deveop too far, but that it stood sti and did not therefore adapt to the changing needs of society. Paterson s (1982) survey of 19 Law Lords active between 1967 and 1973 found that at east 12 thought that the Law Lords had a duty to deveop the common aw in response to changing socia conditions. A case where the judges did eventuay show themseves wiing to change the aw in the ight of socia change is Fitzpatrick v Stering Housing Association Ltd (2000). The case concerned a homosexua man, Mr Fitzpatrick, who

23 When shoud judges make aw? 29 had ived with his partner, Mr Thompson, for 18 years, nursing and caring for him after Mr Thompson suffered an accident which caused irreversibe brain damage and severe paraysis. Mr Thompson was the tenant of the fat in which they ived and, when he died in 1994, Mr Fitzpatrick appied to take over the tenancy, which gave the tenant certain protections under the Rent Acts. The andords refused. The Rent Act 1977 states that when a statutory tenant dies, the tenancy can be taken over by a spouse, a person iving with the ex-tenant as wife or husband, or a member of the famiy who was iving with the tenant. Mr Fitzpatrick s case sought to estabish that he was a member of Mr Thompson s famiy, by virtue of their cose and oving reationship. The Court of Appea agreed that if endurance, stabiity, interdependence and devotion were the soe hamarks of famiy membership, there coud be no doubt that the coupe were a famiy. They aso pointed out that discriminating against stabe same-sex reationships was out of step with the vaues of modern society. However, they recognised that the aw on succession to statutory tenancies was firmy rooted in the idea that famiies were based on marriage or kinship, and this had ony ever been reaxed in terms of heterosexua coupes iving together, who were treated as if married. As a resut, the court concuded that it woud be wrong to change the aw by interpreting the word famiy to incude same-sex coupes; a three judges agreed that such a change shoud be made, in order to refect modern vaues, but it shoud be made by Pariament. The House of Lords, however, overturned the Court of Appea s decision. It rued that the appeant coud not be treated as the spouse of the deceased tenant, but as a matter of aw a samesex partner coud estabish the necessary famiia ink for the purposes of the egisation. Types of aw Lord Reid has suggested that the basic areas of common aw are appropriate for judge-made aw, but that the judges shoud respect the need for certainty in property and contract aw, and that crimina aw, except for the issue of mens rea, was best eft to Pariament. Consensus aw-making Lord Devin (1979) has distinguished between activist aw-making and dynamic awmaking. He saw new ideas within society as going through a ong process of acceptance. At first society wi be divided about them, and there wi be controversy, but eventuay such ideas may come to be accepted by most members of society, or most members wi at east become prepared to put up with them. At this second stage we can say there is a consensus. We can see this process in the way that views have changed over recent decades on subjects such as homosexuaity and sex before marriage. Law-making which takes one side or another whie an issue is sti controversia is what Devin caed dynamic aw-making, and he beieved judges shoud not take part in it because it endangered their reputation for independence and impartiaity. Their roe is in activist aw-making, concerning areas where there is a consensus. The probem with Devin s view is that in practice the judges sometimes have no choice but to embark on dynamic aw-making. In Giick v West Norfok and Wisbech Area Heath Authority (1985), the House of Lords was asked to consider whether a gir under 16 needed her parents consent before she coud be given contraceptive services. It was an issue on which there was by no means a consensus, with one side caiming that teenage pregnancies

24 30 Chapter 1 Case aw woud increase if the courts rued that parenta consent was necessary, and the other caiming that the judges woud be encouraging under-age sex if they did not. The House of Lords hed, by a majority of three to two, that a gir under 16 did not have to have parenta consent if she was mature enough to make up her own mind. But the decision did not end the controversy, and it was widey suggested that the judges were not the right peope to make the choice. However, since Pariament had given no ead, they had no option but to make a decision one way or the other, and were therefore forced to induge in what Devin woud ca dynamic aw-making. Respecting pariamentary opinion It is often stated that judges shoud not make aw where there is reason to beieve Pariament does not support such changes. In President of India v La Pintada Compañia Navigación SA (1984), the House of Lords fet that there was a strong case for overruing a nineteenth-century decision that a party coud receive no interest on a contract debt, but they noted that the Law Commission had recommended that this rue shoud be aboished and the egisators specificay decided not to do so. Lord Brandon said that to make new aw in these circumstances woud be an unjustifiabe usurpation of the function which propery beongs to Pariament. Simiary, it is sometimes argued that judges shoud avoid making aw in areas of pubic interest which Pariament is considering at the time. Lord Radciffe suggested that, in such areas, judges shoud be cautious not because the principes adopted by Pariament are more satisfactory or more enightened, but because it is unacceptabe constitutionay that there shoud be two independent sources of aw-making at work at the same time. Protecting individua rights In a 1992 ecture, the human rights awyer, Anthony Lester QC, argued that whie judges must have regard to precedent, they coud sti use their discretion within the system of precedent more effectivey. He argued that, in the past, judges have abdicated responsibiity for aw-making by surrounding themseves with sef-made rues (such as the pre-1966 rue that the House of Lords was bound by its own decisions). Since the 1960s, however, he fees that this tendency has graduay been reduced, with judges taking on more responsibiity for deveoping the common aw in accordance with contemporary vaues, and being more wiing to arbitrate fairy between the citizen and the state. Lester praises this deveopment, arguing that the judges can estabish protection for the individua against misuse of power, where Pariament refuses to do so. Advantages of case aw Certainty Judicia precedent means itigants can assume that ike cases wi be treated aike, rather than judges making their own random decisions, which nobody coud predict. This heps peope pan their affairs.

25 Disadvantages of case aw 31 Detaied practica rues Case aw is a response to rea situations, as opposed to statutes, which may be more heaviy based on theory and ogic. Case aw shows the detaied appication of the aw to various circumstances, and thus gives more information than statute. Free market in ega ideas The right-wing phiosopher Hayek (1982) has argued that there shoud be as itte egisation as possibe, with case aw becoming the main source of aw. He sees case aw as deveoping in ine with market forces: if the ratio of a case is seen not to work, it wi be abandoned; if it works, it wi be foowed. In this way the aw can deveop in response to demand. Hayek sees statute aw as imposed by socia panners, forcing their views on society whether they ike it or not, and threatening the iberty of the individua. Fexibiity Law needs to be fexibe to meet the needs of a changing society, and case aw can make changes far more quicky than Pariament. The most obvious signs of this are the radica changes the House of Lords made in the fied of crimina aw, foowing announcing in 1966 that its judges woud no onger be bound by their own decisions. Disadvantages of case aw Compexity and voume There are hundreds of thousands of decided cases, comprising severa thousand voumes of aw reports, and more are added a the time. With the deveopment of the Internet, amost every decided case is avaiabe on-ine or in ega databases. Judgments themseves are ong, with many judges making no attempt at readabiity, and the ratio decidendi of a case may be buried in a sea of irreevant materia. This can make it very difficut to pinpoint appropriate principes. A possibe soution to these difficuties woud be to foow the exampe of some European systems, where courts hand down a singe concise judgment with no dissenting judgments. However, some of these decisions can become so concise that awyers are required to do considerabe research around the specific words used to discover the ega impact of the case, because no detaied expanation is provided by the judges. Rigid The rues of judicia precedent mean that judges shoud foow a binding precedent even where they think it is bad aw, or inappropriate. This can mean that bad judicia decisions are perpetuated for a ong time before they come before a court high enough to have the power to overrue them.

26 32 Chapter 1 Case aw Iogica distinctions The fact that binding precedents must be foowed uness the facts of the case are significanty different can ead to judges making minute distinctions between the facts of a previous case and the case before them, so that they can distinguish a precedent which they consider inappropriate. This in turn eads to a mass of cases a estabishing different precedents in very simiar circumstances, and further compicates the aw. Unpredictabe The advantages of certainty can be ost if too many of the kind of iogica distinctions referred to above are made, and it may be impossibe to work out which precedents wi be appied to a new case. Dependence on chance Case aw changes ony in response to those cases brought before it, so important changes may not be made uness someone has the money and determination to push a case far enough through the appea system to aow a new precedent to be created. Unsystematic progression Case aw deveops according to the facts of each case and so does not provide a comprehensive code. A whoe series of rues can be buit on one case, and if this is overrued the whoe structure can coapse. Lack of research When making case aw the judges are ony presented with the facts of the case and the ega arguments, and their task is to decide on the outcome of that particuar dispute. Technicay, they are not concerned with the socia and economic impications of their decisions, and so they cannot commission research or consut experts as to these impications, as Pariament can when changing the aw. Increasingy, the senior courts have been wiing to aow interveners to make representations in the pubic interest during court proceedings. Such an intervener might be, for exampe, a charitabe body, such as Liberty or JUSTICE, and it wi present to the court arguments about the broader impact of the case on society, provide comparisons with practice abroad and refer to socioeconomic research in the fied. In the House of Lords ast year of operation, it aowed third-party interveners to make representations in amost a third of its cases. Retrospective effect Changes made by case aw appy to events which happened before the case came to court, unike egisation, which usuay ony appies to events after it comes into force. This may be considered unfair, since if a case changes the aw, the parties concerned in that case coud not have known what the aw was before they acted. US courts sometimes get round the probems by deciding the case before them according to the od aw, whie

27 Disadvantages of case aw 33 decaring that in future the new aw wi prevai: or they may determine with what degree of retroactivity a new rue is to be enforced. KEY CASE In SW v United Kingdom (1995), two men, who had been convicted of the rape and attempted rape of their wives, brought a case before the European Court of Human Rights, aeging that their convictions vioated Art. 7 of the European Convention on Human Rights, which provides that crimina aws shoud not have retrospective effect. The men argued that when the incidents which gave rise to their convictions happened, it was not a crime for a man to force his wife to have sex; it ony became a crime after the decision in R v R (1991). The court dismissed the men s argument: Art. 7 did not prevent the courts from carifying the principes of crimina iabiity, providing the deveopments coud be ceary foreseen. In this case, there had been mounting criticism of the previous aw, and a series of cases which had chipped away at the marita rape exemption, before the R v R decision. Lega Principe There is no breach of the European Convention when courts carify the aw provided ega deveopments can be foreseen. The same issue came before the courts again in R v C (2004). In that case the defendant was convicted in 2002 of raping his wife in On appea, he argued that this conviction breached Art. 7 of the European Convention and tried to distinguish the earier case of SW v United Kingdom (1995). He said that whie in SW v United Kingdom the defendant coud have foreseen in 1989 when he committed the offence that his conduct woud be regarded as crimina, this was not the case in This argument was rejected by the Court of Appea. It caimed, rather unconvincingy, that a husband in 1970 coud have anticipated this deveopment in the aw. In fact, the eading textbooks at the time ceary stated that husbands were not iabe for raping their wives. Recent crimina cases have shown that the retrospective effect of case aw can aso work to the benefit of the defendant. In R v Powe and Engish (1999) the House of Lords carified the aw that shoud determine the crimina iabiity of accompices. An earier controversia case that had invoved the crimina iabiity of an accompice was that of R v Bentey (1953), whose story was made into the Hoywood fim Let Him Have It. Bentey was caught and arrested after being chased across rooftops by poice. Craig had a gun and Bentey is aeged to have said to Craig, Let him have it. Craig then shot and kied a poiceman. Craig was charged with murdering a poice officer (at that time a hanging offence) and Bentey was charged as his accompice. In court Bentey argued that when he shouted, Let him have it, he was teing Craig to hand over his gun rather than, as the prosecution caimed, encouraging him to shoot the poice officer. Nevertheess both were convicted. Craig was under the minimum age for the death sentence, and was given ife imprisonment. Bentey, who was oder, was hanged. The conviction was subsequenty overturned by the Court of Appea in Juy 1998, foowing a ong campaign by his famiy. In considering the tria judge s summing up to the jury, the Court of Appea said that crimina iabiity must be determined according to the common aw as now understood. The common aw that appied in 1998 to accompice iabiity

28 34 Chapter 1 Case aw was more favourabe than the common aw that appied in The danger in practice is that every time the common aw shifts to be more favourabe to defendants, the foodgates are potentiay opened for defendants to appea against their earier convictions. To try to avoid this probem, the Crimina Justice and Immigration Act 2008 provides that the Court of Appea can reject as out of time references made to it by the Crimina Cases Review Commission which are based purey on a change in the common aw. The court is ikey to do this where a rejection of the appea wi not cause substantia injustice. Undemocratic Lord Scarman pointed out in Stock v Jones (1978) that the judge cannot match the experience and vision of the egisator; and that unike the egisator the judge is not answerabe to the peope. Theories, ike Griffith s, which suggest that precedent can actuay give judges a good dea of discretion, and aow them to decide cases on grounds of poitica and socia poicy, raise the question of whether judges, who are uneected, shoud have such freedom. Answering questions 1 What do we mean when we say that the Engish Lega System is a common aw system? London Externa LLB The meaning of common aw is discussed at p. 10. The term common aw has different meanings depending on the context in which it is being used. In the context of this question the focus is on common aw being a product of Engand s ega history. It can be contrasted to the civi aw systems which can be found in Continenta Europe (for exampe, France) and countries which were infuenced by Continenta Europe. This essay is not concerned with the distinction between equity and common aw which is discussed at p One approach to this essay woud be to first provide a historica anaysis of the common aw (found on p. 10). Secondy, contrast the common aw systems which emphasise judge-made aw and the doctrine of judicia precedent, with the civi aw systems which pace a greater emphasis on egisative codes. Finay, provide some exampes of the common aw working in practice. For exampe, the fact that the definition of murder can be found in case aw and the way that definition has been deveoped by the courts. 2 Judicia reasoning in case aw consists in the appying to new combinations of circumstances those rues of aw which we derive from ega principes and judicia precedents... and we are not at iberty to reject them, and to abandon a anaogy to them. (Mr Justice Peak, 1833) Does this statement refect the operation of precedent today? London Externa LLB Your answer coud be divided into two parts. The first part coud discuss how the statement of Mr Justice Peak fits within the cassic decaratory theory of aw provided by Wiiam Backstone (p. 22). The basic rues that underpin judicia precedent with the hierarchy of

29 Answering questions 35 the courts, and the ways that cases can be foowed, distinguished, overrued and reversed support this view (p. 14). The second part of your answer coud point to theories and practice which undermine this view so that it may not refect the operation of precedent today. Thus, you coud discuss the work of the critica theorists (p. 24), and Griffith (p. 24). The materia under the subheadings Do judges make aw? (p. 26) woud aso be usefu to answer this part of the essay. You might concude that whie Mr Justice Peak s statement might suggest that the judges are simpy appying existing ega principes and judicia precedents to a particuar set of facts, there may be some fexibiity in the way in which those principes and precedents can be appied, and there may be other factors that hep determine the outcome of a case. 3 Precedent must, on the one hand, provide certainty, but on the other hand, it must be fexibe in adapting to socia change. In view of the so-caed binding nature of precedent, how are judges abe to reconcie these seemingy contradictory characteristics in their use of precedent? You shoud begin by expaining what precedent is and how stare decisis operates, drawing on the materias in the section on Judicia precedent (p. 13). Certainty and fexibiity are two of the advantages of precedent. Preoccupation with certainty coud ead to an overyrigid system where bad decisions have to be foowed. However, there are a number of ways in which judges can exercise fexibiity, and indeed, are permitted to do so. Exampes that coud be given incude: Use of the 1966 Practice Statement. The rues in Young v Bristo Aeropane Co Ltd (1946) (reevant materia can be found under the heading The Court of Appea p. 19); The practice of distinguishing earier cases on their facts (see the section entited How do judges reay decide cases? on p. 22). You coud argue that this fexibiity invoves judges in making aw, as opposed to appying the aw, and you coud express your view as to whether you think this is acceptabe. You might concude with your view on how effectivey (or not) you think judges baance certainty and fexibiity, and indeed, whether you think they have to. 4 Criticay evauate the extent to which the doctrine of binding precedent inhibits judicia creativity. The phrase judicia creativity is a reference to the judges abiity to create or make aw. Your essay coud start by expaining the rues reating to judicia precedent incuding a cear expanation of the judicia hierarchy, and the exceptiona rues reating to both the Court of Appea and the Supreme Court (drawing upon materia contained under the headings Judicia precedent and How judicia precedent works. The reevance of the distinction between ratio decidendi and obiter dicta shoud be expained and the importance of decisions of the European Court and the European Court of Human Rights coud aso be mentioned. Expain some of the arguments in favour of precedent, such as certainty and consistency. This part of your answer woud aim to show how far the rues of judicia precedent inhibit judicia freedom. The second part of your essay coud then expore how far, despite the rues of judicia precedent, judicia creativity sti exists. You might discuss some of the materia contained under the heading Do judges make aw? in this chapter. You coud discuss:

30 36 Chapter 1 Case aw the sheer amount of case aw in our system (especiay in contract and tort); appying the aw is not usuay an automatic matter in practice; judges have been eft to define their own roe in the system, in the context of the principe of the separation of powers; and the increased avaiabiity of reported materia can afford significant judicia opportunities to distinguish cases, and thus to infuence the future direction of case aw. You shoud finish with a concusion, drawing on the points you have made, that states how far you think precedent does inhibit judicia creativity. 5 Evauate the advantages of aboishing the doctrine of binding judicia precedent. You first need to describe the doctrine of binding precedent, but do not spend too much time on this, as pure description is not what the question is asking for. You shoud then consider what the aw woud ose if precedent were abandoned the materia on the advantages of precedent is reevant here. Then tak about the disadvantages of the system of precedent, and what might be gained by aboishing it. You coud bring in the effects of the 1966 Practice Direction as an exampe of the reaxation of precedent, and tak about whether you fee it has benefited the aw or not, mentioning appropriate cases. You might mention innovations which woud essen the roe of precedent, such as codification, and say whether you fee they woud be desirabe and why. Your concusion coud state whether or not you fee precedent serves a usefu roe, and outine any changes which you fee shoud be made to its operation. Summary of Chapter 1: Case aw Judicia precedent In deciding a case, a judge must foow any decision that has been made by a higher court in a case with simiar facts. Judges are bound ony by the part of the judgment that forms the ega principe that was the basis of the earier decision, known as the ratio decidendi. The rest of the judgment is known as obiter dicta and is not binding. The hierarchy of the courts The European Court of Justice is the highest authority on European aw, in other matters the Supreme Court is the highest court in the UK. Under the 1966 Practice Direction, the Supreme Court is not bound by its previous decisions. How do judges reay decide cases? According to the traditiona decaratory theory aid down by Wiiam Backstone, judges do not make aw but merey discover and decare the aw that has aways been. Ronad Dworkin aso accepts that the judges have no rea discretion in making case aw, but he bases this view on his concept that aw is a seamess web of principes. Very different views have been put forward by other academics. Critica theorists argue that judicia decisions are actuay infuenced by socia, poitica and persona factors and that the doctrine of judicia precedent is merey used to egitimate the judges decisions. Griffith aso thinks that judges are infuenced by their persona

31 Reading ist 37 background. Wadron accepts that judges make poitica choices but sees no fundamenta probem with this. When shoud judges make aw? There is no doubt that on occasion judges make aw. There is some debate as to when judges ought to make aw. When judges make aw they can adapt it to socia change, but Francis Bennion has highighted the danger that if the courts are too wiing to make aw, they undermine the position of Pariament. Advantages of binding precedent The doctrine of judicia precedent provides: certainty; detaied practica rues; a free market in ega ideas; and fexibiity. Disadvantages of binding precedent Case aw has been criticised because of its: compexity and voume; rigidity; iogica distinctions; unpredictabiity; dependence on chance; retrospective effect; and undemocratic character. Reading ist Bennion, F. A. R. (1999) A naked usurpation, 149 New Law Journa 421. Devin, P. (1979) The Judge, Oxford: OUP. Dworkin, R. (1986) Law s Empire, London: Fontama. Griffith, J. A. G. (1997) The Poitics of the Judiciary, London: Fontana. Hae, Sir M. (1979) The History of the Common Law of Engand, Chicago: University of Chicago Press. Hayek, F. (1982) Law, Legisation and Liberty: A New Statement of the Libera Principes of Justice and Poitica Economy, London: Routedge. Hohfed, W. N. and Cook, W. W. (1919) Fundamenta Lega Concepts as Appied in Judicia Reasoning, London: Greenwood Press. Kairys, D. (1998) The Poitics of Law: A Progressive Critique, New York: Basic Books. Lawson, C. M. (1982) The famiy affinities of common aw and civi aw ega systems, 6 Hastings Internationa Comparative Law Review 85. Lennan, J. (2010) A Supreme Court for the United Kingdom: a note on eary days, [2010] Civi Justice Quartery 139. MacCormick, N. (1978) Lega Rues and Lega Reasoning, Oxford: Carendon. Paterson, A. (1982) The Law Lords, London: Macmian.

32 38 Chapter 1 Case aw Summers, R. (1992) Essays on the Nature of Law and Lega Reasoning, Berin: Duncker & Humbot. Wadron, J. (1989) The Law, London: Routedge. Weinreb, L. (2004) Lega Reason: The Use of Anaogy in Lega Argument, Cambridge: Cambridge University Press. www Reading on the Internet Decisions of the Supreme Court can be found on the website of the Supreme Court at: The former House of Lords judgments are avaiabe on the House of Lords judicia business website at: Some important judgments are pubished on the Court Service website at: Visit to access the Pearson etext version of Engish Lega System, mutipe choice questions, practice exam questions, and fashcards to test yoursef on this chapter.