Judiciary Creativity

  • Created by: Teganwi
  • Created on: 19-05-21 10:45

Judiciary Creativity


Judges are there to apply law that Parliament makes. Judges have the power to change and make new rules, they do this through Judicial Precedent or Statutory Interpretation


The doctrine of precendent is that judges must follow past decisions - this sets a limit to their creativity. The effect of precedent is;

  • every court is bound to the decisions made by a court higher up in the hierachy
  • In general most courts are bound by their own decisions

Although this is a rigid scheme, there are ways of avoiding the doctrine to allow for creativity;

  • The Practice Statement
  • The Young v Bristol case for Court of Appeal
  • Extra exceptions for Court of Appeal
  • Distinguishing in all courts

Originial Precedent

The courts have occasions to create new laws when deciding a case on an area of law which does no currently have any statute under. For example, the Hunter and others v Canary Whaf Ltd and London Docklands Development Corporation where part of the decision involved areas of law that no previous cases had issued before.

In criminal law;

  • R v R- **** within marriage could be a crime

In tort law;

  • Donogue v Stevenson- manufacturer owed a duty of care to the 'ultimate consumer'

Practice Statement

1966 to 2009 the Practice Statement was used in the HoL allowing them to change the law is they believed an earlier case was wrognly decided. This allowed flexibility to not follow a previous decision when it 'appears right to do so'. This is very vague and allowed the HoL more chance to change old decisions, but it also meant there is uncertainty when they may use this.

When the Supreme Court replaced the HoL in 2009, the Practice Statement was confirmed it could be used to overrule a previous decision.

But, it is recognised that judges use precedent to create new laws, many areas of law are in existence due to decisions made by judges.

In criminal law;

  • Howe- overruling DPP v Lynch on whether defence of duress was available 
  • Gemmell and Richards- overruling Cladwell on the meaning of recklessness, abolishing the inclusion of objective recklessness in the mens rea of criminal damage

In tort law;

  • British Railways Board v Herrington- overruled Addie v Dumberk on duty of care owed to child trespasser 

The CoA and Young's case

CoA is normally bound by its own decisions

  • Young v Bristol Aeroplane Co Ltd- courts should be bound by its own decisions but there are 3 exceptions

1. There are conflicting decisions in the past, choose…


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