Judicial Creativity

  • Created by: Amy
  • Created on: 17-06-15 10:01


Judges are there to apply the law that Parliament makes.

Judges have the power to change rule or make new rules.

They do this through Judicial Precedence or Statutory Interpretation.

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Judicial Precedent 1

Doctrine - judges must follow past decisions - seem to limit creative freedom.

Hierarchy of Courts - Couts bound by decisions of courts higher in the hierarchy.

1966 Practice Statement - HofL depart from own previous decisions (Hetherington V British Rail and R v Shivpuri). 

Court of Appeal bound by previous decisions (despite Lord Dennikin's efforts)

Ratio Decidendi - Binding part, bound to follow the legal principles on which a decision was made. 

Obiter Dicta - Other things said, not binding, rather they are persuasive. 

Judicial prescedence requires detailed and accurate law reports

Judges able to exercise creativity despite JP constraints. In some areas JP make all the legal rules. Donogue Stevenson - creative judgement establishing the modern law on negligence.   R v R - Man can **** his wife - creative judgement. 

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Judicial Precedent 2

1966 Practice Statement - HofL theroretical unlimited creative power. Rarely used. R v G overturned R v Caldwell on recklessness test.

Original Precedent - Judge creates law through legal reasoning, presuasive precedents and argue from analogy. Hunter v Csnary Wharf.

Distinguishing - Facts are materially different. Merritt v Merritt and Balfour v Balfour, Balfour argument in writing. 

Reversing - Higher courts reverse decisions from lower.  Gillick and Tmlinson v Congleton - HofL reveresed CofA. 

Overruling - Higher courts can overrule decsions from lower courts. 

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Statutory Interpretation 1

Statutory Interpretation - Courts have less opportunity to be creative. Powers limited to explaining ambiguous working. 

Sometimes rule on wording which is clear but goes against common sense and the intentions of the Act.

Aids - Internal and exteranl aids to help with interpretation. Refer to other parts of the Act, Reports or Hansard (Parliament debate) after the decision in Pepper v Hart (limited circumstances).

Controversial - Should they change the wording to arrive at what 'parliament intended' when making the Act?

Supporters of the Literal Rule like Simmonds says that it seizes the role of Parliament and so is wrong. But creative judges like Lord Denning say its their duty to fill in the gaps and look for intention. 

Mischief/ Purposive - Judges willing to change the literal and clear meaning of words to arrive at parliment intention. Royal College of Nursing v DHSS changed the Abortion Acts wording from "by a registered medical practisioner" to "under the supervision of..."

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Statutory Interpretation 2

Literal Rule - less creative. Prefer secure status quo. Justification for this it that they respect parlimentary sovereignty. Fisher V Bell shop window is not 'offering for sale' D not guilty. Parliament created the situation - Parliament should fix it. 

Golden Rule - Wording creates an absured or repugnant situation. Re Sigsworth inherit after killing his mother. Adler v George. 

Purposive Approach - Encouraged more recently - thus be more creative. Partly because of influence of EU law which is drafted in general terms and judges are seen to have to fill in the detail. Human Rights Act is also important and judges are allwed to consider whether an act complies with the European Convection on Human Rights. 

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Arguments Against Judicial Creativity

1. Parliamentary Supremacy - Ronald Dworkin 'policy issues left to parliament, issues which are controversial and what people vote for MP's on.

2. Not elected - Undemocratic to allow judges to make law.

3. No consultation - Parliament have huge resorses, large debates and extensive research, judges are guessing what parliament intend.

4. Reactive - Courts only make law when it arises in a case. Areas remain untouched.

5. Hasty decisions - judges under pressure that MP's are not. Have to make a decision in the case. Public policy issues risk being rushed and the law decided incorrectly

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Arguments For Judicial Creativity

1. Practical - deal with cases immefiately, have no choise than to be creative if leagl problems arise.

2. Reflects social change - Cases that are too rigid fail to meet society's changing needs.

3. Flexible - Judges can address technological improvements (Evans - IVF)

4. Considers each case in detail - Parliament cannot reform OAPA so judges interpret the old act to meed social needs - psyciatric harm now injury as well as transmission of disease (Dica HIV)

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Comparing Judges to Parliament

Obvious place for both in law making. 

Parliament chose not to become involved in many areas of law, increasingly less time for reform.

Nothing anti-democratic in judicial creativity as long as Parliament has the right to ultimately overrule decisions. Statute Law trumps Common Law.

Parliament is able to be much more creative than judge:

  • unlike judges they choose the time to legislate - judges have to wait for a case.
  • Judges can only consider evidence presented even if their decisions have implications for society generally.
  • Parliment legislated with the views of all interested people actively sought.
  • Judges can only make law on the facts before them and cannot set out a code of rules to cover all similar situations. 
  • Judges can only make small changes - Parliament legislate the whole area of law.
  • Judges make law retrospectively - When D committed the act it was not criminal. 
  • Changing the law frequently creates uncertainty (suggests why the HofL is reluctant to use Practice Statement 
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