Law 04 Judicial creativity essay


Precedent and creativity

In precedent there used to be a thought that judges didnt 'make' new law; they merely discivered it. However, it is now recognised that judges do use precedent to create new law nd to extend old principles. There are many areas of law which awe theire exsitence to decisions by the judges. 

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Precedent in criminal law

In ncriminal law, judges have played a major role in developing the law on intention in criminal law. For example:

  • Vickers - Created the rule that the intention fo rmurder covers an intention to cover grevious bodily harm as well as the intention to kill 
  • Cunningham - Confrimed Vickers 

The relationship of foresight of consequences to intention has also been formulated by judical decisions. For example: 

  • Moloney, Nedrick and Woolin - Supporting a foresight of consequences to intention relationship this was furthered with the statutory starting point by s8 Criminal Justice Act 1967 where Parliament provided guidance 

Judicial decisions have also effected new crimes. For examples: 

  • Shaw v DPP - Which created the offence of conspiracy to currupt public morals 
  • R v R - When it was decided that **** within marrige could be a crime 
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Precedent and tort law

The law of negligence in the law of tort is another major area which has been developed and refined by judical decsions 

  • Donogue v Stevenson - Starting point in this area of law in which the House of Lords when recognising that the manufacturer owed a duty of care to the 'ultimate consumer', created what is known as the 'neighbour test'
  • Caparo Industries plc v Dickman -With the three-stage test of first, the consequences being reasonably foreseeable, proximate relationship and third, whether it is fair, just and reasonable to impose a duty of care. 
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The doctrine of precedent

The basic doctrine means that in England and Wales the courts operate a very rigid doctrine of judical precedent which has the effect that:

  • Every court is bound to follow any decision made by a court above it in the hierarchy; and
  • In general appellate courts are bound by their own past decisions 

Although this is ridgid and does not allow much room for the courts to create law, there are ways in which the doctrine of judicial precedent can be avioded. There are 4 main ways on how this occurs:

  • the Practice Rules of the Supreme Court (and previous use of the Practice Statement of the House of Lords) 
  • the exceptions in Young's case for the Court of Appeal 
  • the extra exception for the Court of Appeal 
  • distinguishing, used in all courts 
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Original precedent

The courts will on some occasions have to create new law when deciding a case on an area of law for which no law exsists. For example: 

Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation 

- Part of this decision in this case involved where the interference in this situation, there was no previous cases that has simular issues and a new decision was made. It resulted in no claim as the law of nuisance had never allowed a claim of interference with a veiw.

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The Practice Statement

1966 to 2009 the Practice Statement was used in the House of Lords allowing them to change the law if they believed an earlier case was wrongly decided 

- It allowed flexibility to refuse to follow an earlier case when 'it apears right to do so'. This phrase was very vague and gave little guidence as to when the House of Lords might overrule a previous decision

The law lords had considerable scope as to when to use the Practice Statement and change the law

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Supreme Court and the PS

When the Supreme Court replaced the House of Lords in 2009, the Practice Direction was considered to be part of the established jurisprudence relating to appeals. It was then transferred to the Supreme Court under S40 of the Constitutional Reform Act 2005 

Austin (FC) v Mayor and Burgesse of the London Borough of Southwalk - On tenancy law, the Supreme Court confimed the Practice Statement and that they could overrule a previous decision 'when it was right to do so'. (The PS was'nt used in this case only confrimed its ability)

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Practice Statement on criminal law

Shivpuri - Was the first use of the Practice Statement in criminal law, overruling the decision in Anderton v Ryan, on attempts to do the impossibe, eventhough Anderton had only been case law for less than a year 

Was used several times: 

Howe - Overruling DPP v Lynch on whether the defence of duress was available to a secondary part to murder 

Gemmell and Richards - Overruling Caldwell on the meaning of recklessness, abolishing the inclusion of objective recklessness in the mens rea of criminal damage. Now the liability is based on intention to cuase the damage or subjective recklessness 

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Practice Statement in tort law

British Railways Board v Herrington Involved the law on duty of care owed to a child trespasser, overruling Addie v Dumberk decided that an occupier of land would only owe a duty od care for injuries to a child trespasser if those injuries had been cause deliberately or recklessly. In Herrington, the Lords held that social and physical conditions had changed since 1929 and so the law should to

Murphy v Brentwood District Council The House of Lords overruled the decision in Anns v Merton London Borough regarding the test for negligence in the law of tort

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The CoA and Young’s case

The Court of Appeal is normally bound by its own previous decisions

Young v Bristol Aeroplane Co Ltd States that courts should be bound by previous decisions but also the exceptions the CoA have

However, 3 exceptions state where the Court of Appeal doesn’t need to follow past decisions:

1-    There are conflicting decisions in past Courts of Appeals, the court can choose which one it will follow and which to reject

2 - There is a decision in the Supreme Court or House of Lords which effectively overrules a Court of Appeal decision; the Court of Appeal must follow the decisions of the SC or CoA

These 2 don’t give the CoA any power to create or change law

3 - The decision was made per incuriam, meaning carelessly or by mistake because a relevant Act of Parliament or other regulation has not been considered by the court

This last exception gives a very small degree of flexibility to correct errors. It is not often used but in Rakhit v Carty The CoA refused to follow decisions made in 1982 and 1988 because the Rent Act hadn’t been considered

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The CoA Criminal Division

The Criminal Division can also refuse past decisions of its own if the law has been ‘misapplied or misunderstood’ supported by Gould

Spencer There shouldn’t be any difference in the way that precedent was followed in the Criminal and Civil Division.

However, must be remembered that ‘we may be dealing with the liberty of the subject and if a departure from authority in necessary in the interests of justice to an appellant then this court shouldn’t shrink from so acting’

It is not often used but it does give the CoA the power to alter law when necessary

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A method which is used by a judge to avoid following a past decision which they would otherwise have to follow. If the judges find the material facts of the case are sufficiently different from him to draw a distinction between the present case and the pervious precedent, they are not bound by the previous case. Used at any level of court.

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Distinguishing in Criminal cases

Used on the law of duress Sharp Held that duress wasn’t available as a defence where D joined a criminal gang which carried out robberies

Shepherd D joined a gang of shoplifters, this was distinguished from Sharp

There was a distinction drawn between a gang known to violence and a gang which took part in non-violent criminal activity, Shepard could use the defence

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Distinguishing in contract cases

Balfour v Balfour and Merritt v Merritt Both making a claim of husband for breach of contract. In Balfour the claim couldn’t succeed as there was no intention to create legal relations; only a domestic argument no legal binding. In Merritt it was successful as the court held that the facts of the cases were different even though husband and wife it was a legally enforceable contract.

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Distinguishing in tort cases

Evans v Triplex Safety Glass Co Ltd distinguished from Donoghue v Stevenson – The manufactures were not liable in negligence to the ultimate consumer of their goods where there were several other potential causes of the fault

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Statutory interpretation

The judges are being asked to decide the precise meaning of words in an Act of Parliament. But comes with conflicting roles.

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Literal Rule

Some follow the literal rule stating that the words should be given their plain, ordinary, grammatical meaning. Even if it doesn’t fit with the situation. Lord Simmonds Judge supporting the literal rule ‘if a gap is disclosed the remedy lies in an amending act’

Fisher v Bell - An example of judges refusing to create law but applying the strict legal meaning of the phrase. The decision can be criticised because it meant that the Act was partially ineffective and another amending Act was passed to ensure that shop-keepers who displayed flick-knifes in a shop window would be guilty. Phrase of interpretation ‘offers for sale’

The literal rule was used mostly in the 19th century, and recognised other methods of interpretation were needed.

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Mischief Rule

The Mischief Rule was formulated 1548, giving more discretion than the Literal Rule. It states that the judge should look to see what the law was before the Act was passed to understand what the gap or ‘mischief’ that the Act intended to cover.

Smith v Huges Decided that prostitutes that were calling from a house were soliciting in a public place

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Purposive Approach

The Purposive approach goes beyond the other rules, the judges rule on what they believe Parliament meant to achieve. Lord Denning is one judge who preferred to use this approach. He explained why in the case Magor and St Mellows v New Port Corporation:We sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than opening it up to destructive analysis”

This was criticised by judges in the House of Lords. Lord Simmonds called it ‘a naked usurpation of the legislative function under the thin disguise of interpretation’ Highlighting the conflict between whether the judges should make the law or whether they should only apply it mechanically and leave any reform to the law of Parliament.

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Parliament and the Judiciary

Parliament is the sovereign law making body and would therefore be undemocratic for judges to have great influence on making of laws. Therefore, precedent is subordinate to statute law and delegated legislation ie. The Act of Parliament. Cases follow the acts and not old not past judicial decisions eg the Contracts (Rights of Third Parties) Act 1999

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Parliamentary powers of law

In theory, there is no limit. The Government can choose to change any area that needs reform allowing major changes.  For example, the law on sexual offences was rewritten with the Sexual Offences Act 2003 and fraud offences by the Fraud Act 2006.

There are however limitations on what Parliament can do. One limit is time. They also have debate matters of national/international importance ie, Iraq 2003. They must consider financial and social problems of the UK. For example, a yearly budget and taxation change to ensure there is enough money to finance factors. Leaving limited time to consider new law such as criminal. Secondly another limitation is public opinion to ensure voting support at general elections. If they pass unpopular laws they are unlikely to gain public support.

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Limitations on judicial law

Judges are limited to the extent of law making. They can only change or create law when suitable and a case is taken to court. Even then they can only change law on the point raised by the case they are hearing, limiting potential.

Creates a problem that law can only be changed by the judges in a piecemeal way, cannot tackle problems known to exist in the law. Not very active.

Parliament are reluctant to change the law especially in criminal law where a draft Criminal Code was proposed but never was enacted on. The wording of the law is also causing difficulty for example the Offences Against the Pearson Act 1861, judges have tried to bring senses to it but can only create minor attempts through their interpretation of the Act.

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