Version 1 Page 1 25/3/12
Judicial Creativity
Key definitions
Judicial: Judge made law, ie cases either interpreting other cases or the wording of acts.Creativity: The ability of judges to create new laws either through the interpretation of statutes or development of common law.
Precedent: The rules that set out how courts should deal with cases to those similar to those in the past and new and developing issues coming before the courts.
Statutory Interpretation: The methods available to judges when deciding what parliaments intentions were in an act when applied to a specific case.
Retrospective law-making: all judge-made law is necessarily retrospective; statute law is only occasionally retrospective; the War Crimes Act 1991.
Declaratory law making: William Blackstone, a famous 18th century legal writer, said the law has always been in existence waiting for judges to find and declare it to the world. Therefore judges do not strictly create the law.
Karl Llewellyn (1893–1962): an American legal scholar, Llewellyn argued that judges are influenced by a range of factors that are unrelated to the law; he was therefore critical of those who viewed the law as something that operated simply as a system of objective rules.
Ronald Dworkin: an American legal philosopher who was, until 2008, a professor of Jurisprudence at UCL; he argues that judges should apply legal principles, and leave matters of policy to the legislature.
Relationship between Parliament and the Judiciary: according to the unwritten constitution, Parliament is responsible for making law, and judges for interpreting and
applying law.
Public Policy: The role of the elected government/parliament to decide what the law should be on current topical issues.
Separation of Powers: The view that to achieve a fair and democratic process of applying the and making the law parliament should exclusively create law and judges should only apply the law.
Parliamentary Sovereignty: It makes Parliament the supreme legal authority in the UK, which can create or end any law.
Creativity within the doctrine of judicial precedent
This topic deals with the role of judges when operating the doctrine of judicial precedent and when interpreting statutes, material that is familiar from summer term teaching. However, the emphasis is no longer merely on the rules adopted by judges when engaging in these two activities, but rather on the degree of flexibility, or creativity, they enjoy. It therefore examines the extent to which they are bound by existing rules on the one hand, and the extent to which they are free to change and develop the law on the other.
The operation of judicial precedent
The basic principles
When hearing cases, judges apply existing law where it is available. However, they often have to develop it to fit new circumstances. This adds to the body of law, which can then be used by other judges in later cases. Known as the doctrine of precedent (or as stare decisis, meaning ‘standing by decisions’) this has certain key features:
Ratio decidendi: is the ‘reason for the decision’. It is the legal principle upon which the outcome of a case is decided. This then sets a precedent for future judges to follow, such as the neighbour principle established in Donoghue v Stevenson (1932); or the point of law established in R v G and R (2003) that the test for recklessness in criminal damage is subjective, not objective; or the decision in Williams v Roffey (1990) that the completion of an existing obligation on time, thereby avoiding consequential loss to the other party, can provide sufficient consideration.
Obiter dicta: means ‘other things said’. This refers to all other legal arguments and comments made by a judge that were not central to deciding the case before him. For example, he might consider a range of possible outcomes had the facts of the case been different. As a result, it is often difficult to draw a clear line between the ratio decidendi and the obiter dicta contained within the judgment. For example the Court of Appeal followed the Obiter of the House of Lords in the case of R v Gotts 1993 and decided that the defence of Duress of Threats was not available for a crime of Attempted murder (R v Howe 1987 HL had bound the CA only murder).
Types of precedent
Precedents are described as original whenever the court addresses a point of law for the first time. For example, in Re A (2000) the court established a new precedent when it declared that the operation to separate conjoined twins was lawful, even though it would result in the immediate death of one of the girls.
Precedents are binding when they must be followed by a court in a later case. This will occur when the precedent was set by a higher court, or set by a court with limited powers to overrule its own previous decisions.
Precedents are persuasive when they are not binding on future cases. Judges, however, are free to adopt persuasive precedents. There are many reasons why precedents are merely persuasive. They may have been set in a lower court; or were part of the obiter dicta of the case; or they were set by the Privy Council, such as the decision of a nine-man Privy Council in
Attorney-General for Jersey v Holley (2005). In Holley the Privy Council also changed the rules of Stare Decisis so that effectively this court bound English courts where a large amount of judges was sitting. The Privy Council was recognised as the Supreme Court in all but name as the same judges sit on each.
The hierarchy of the courts
Judicial precedent operates within the hierarchy of the courts. Decisions of the House of Lords (no Supreme Court) are binding on all lower courts, including the Court of Appeal. Since issuing its Practice Statement in 1966, the House may depart from its own previous decisions ‘when it appears right to do so’. However, it will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the need for certainty in the criminal law.
This new freedom would therefore be used sparingly. The Court of Appeal is bound by decisions of the House of Lords, and it is generally bound by its own previous decisions. The justification for this is that the House of Lords exists to provide a remedy in cases where the Court of Appeal cannot. The Court of Appeal has limited powers to depart from its own previous decisions. Both divisions may take advantage of the three exceptions identified in Young v Bristol Aeroplane (1944), and the criminal division is free to depart from its own earlier decision in cases where the freedom of an individual is at stake, as in R v Gould (1968) CA.
Law reporting
Reports of the facts and judgments of cases are required for judicial precedent to operate successfully. Since 1865, law reports have been published under the auspices of the Incorporated Council of Law Reporting for England and Wales, which is a joint society of the Inns of Court, the Law Society and the Bar Council. In 1953, the Council began publishing the Weekly Law Reports, which are available either weekly or in annual bound volumes. The All England Reports are also published weekly, by LexisNexis Butterworths. Some newspapers publish summaries of important cases, and computerised law reporting systems are increasingly available.
Means of avoiding precedent
At first sight judicial precedent seems to operate restrictively, preventing judges from creative development of the law. The very name ‘stare decisis’ implies rigidity and inflexibility, and the use of terms such as ‘binding precedent’ and ‘hierarchy of the courts’ reinforces this point.
Furthermore, the fact that the House of Lords is often reluctant to use its powers under the Practice Statement, and the fact that the Court of Appeal has only limited powers to overrule its own previous decisions, confirm the impression that judicial precedent straightjackets judges.
However, further examination reveals that judges are able to perform a delicate balancing act between the undoubted advantages of consistency and fairness on the one hand, and flexibility and creativity on the other.
Within the operation of the doctrine, a range of factors provide judges with flexibility, enabling them to avoid precedents that they deem inappropriate, or to develop new precedents when the situation requires.
Distinguishing
A precedent set in Case A should be followed in the later Case B where the facts of the two cases are similar. However, where the facts are distinguishable, the judge in Case B may choose not to apply the precedent set in Case A. For example, a contract is not formed unless the two parties intended to enter into a legally binding agreement. Where an agreement is made in a domestic setting, such as a husband promising to buy his wife an eternity ring for their silver wedding, the courts presume that it was not intended to be legally binding. In the case of Balfour v Balfour (1919), Mr Balfour agreed to pay his wife monthly maintenance while he was posted to Ceylon. Soon after, they separated, and the payments ceased. Mrs Balfour then took action to hold him to his promise. However, her action failed: the court decided that this was a domestic arrangement rather than a legally enforceable contract.
However, the presumption in favour of a domestic arrangement can be rebutted by evidence showing that the parties had intended to enter into a legal relationship. This occurred in Merritt v Merritt (1971). After moving out of the family home, Mr Merritt made a signed, written agreement with his wife. Under this agreement he would pay his wife maintenance, and she would continue the mortgage repayments. Furthermore, he would eventually transfer the home into her name. When he later refused to do so, Mrs Merritt brought a court action to seek enforcement of this part of their agreement. The court decided that the facts were distinguishable from those in Balfour v Balfour (1919), and therefore the presumption in favour of a domestic arrangement had been successfully rebutted. Their agreement, therefore, was legally enforceable as there had been an intention to enter into a legal relationship.
The key differences between the two cases were that in Merritt v Merritt (1971), the husband and wife had separated before making their agreement, and secondly that their agreement had been written down and signed. These points allowed the court to distinguish the precedent set in Balfour v Balfour (1919). Theoretically, at least, the power to distinguish offers judges unlimited discretion to avoid existing precedents.
Reversing
Sometimes the higher court will decide that a lower court reached the wrong decision in a case. The higher court will then alter the decision made by the lower court. This is known as reversing the decision of the lower court. This famously occurred twice in R v Kingston (1994). The case concerned the defence of intoxication: Kingston, a known paedophile, was drugged by
blackmailers and lured into abusing a 15-year-old boy. His conviction for indecent assault was overturned by the Court of Appeal on the grounds of involuntary intoxication. However, the House of Lords reinstated a guilty verdict: Kingston’s inhibitions had been severely impaired by the drugs he had involuntarily taken, but he was still capable of forming the mens rea of the offence. In the words of Mustill LJ: ‘mere disinhibition’ is insufficient to found a defence.
Overruling
In reversing, only one case is involved. In overruling, at least two cases are involved. In Case B, the court decides that the point of law decided previously in Case A was wrong and so changes it. In Addie v Dumbreck (1929) a four-year-old trespasser wandered onto the defendant’s land and was crushed in the wheel of a machine operated by a colliery. The colliers had ‘NoTrespassing’ signs in place, but were aware that these were regularly ignored by children. Nevertheless, the House of Lords decided that there was no general duty of care to trespassers.
Forty years on, attitudes had changed. In British Railways Board v Herrington, the claimant was a six-year-old boy who suffered serious burns and injuries on an electrified railway line. He had stepped over a damaged fence running alongside the line. The House of Lords decided that, in the years since the decision in Addie v Dumbreck (1929), social and physical conditions had changed dramatically: in particular the growth of towns had brought about a lack of play areas for children, leading to an increased temptation to trespass. In view of this, it would now be right for an occupier to owe a duty of care to trespassers.
Other features offering flexibility
Other features within precedent also provide flexibility for judges. Decisions of the judicial committee of the Privy Council are not binding upon judges. Dissenting judgments may also establish an argument about a point of law that is later adopted as a ratio decidendi. Obiter dicta
are persuasive rather than binding. And new situations arise which allow judges to establish original precedents.
Privy Council decisions
Decisions of the Judicial Committee of the Privy Council are outside the UK court structure, and so are merely persuasive. Students of negligence will be familiar with The Wagon Mound (1961).Prior to this decision, damages in negligence were available for all damage ‘directly traceable to the negligent act’ (Re Polemis (1921)). InThe Wagon Mound (1961), the Privy Council limited damages to harm that was reasonably foreseeable. In the words of Lord Simonds: ‘After the event even a fool is wise. Yet it is not the hindsight of a fool; but it is the foresight of the reasonable man which alone can determine responsibility.’ In Doughty v Turner Manufacturing Co. Ltd (1964) the principle of reasonable foreseeability was adopted into English law. According to Lord Justice Harman: ‘We ought to start with the premise that the criterion in English law is foreseeability. I take it that whether The Wagon Mound is or is not binding on this court we ought to treat it as the law’.