Common Law Reasoning and Institution Study Guide

This introduction to the English legal system seeks to convey what is distinctive about the common law approach as a legal methodology as it reflects the history and politics of England and Wales.

The course is vital in initiating students into the process of legal research.

Course aims To achieve an overview of the central institutions and processes of the English legal system and to introduce students to techniques of legal interpretation and legal research.

Learning outcomes On successful completion of the course you should be able to: Understand the structure and operation of the central institutions and processes of the English legal system and to have a basic facility with techniques of legal interpretation Conduct of legal research using primary and secondary resources Understand techniques of legal reasoning covering precedent and statutory interpretation Describe the role of judges; in particular the Law Lords and the Supreme Court Explain the basic structures of civil and criminal justice Understand the role of due Process and the importance of Article 6 (European Convention on Human Rights) in civil and criminal justice Explain the key concepts of legal aid.

Assessment

Formative assessment is conducted through interactive online activities. Summative assessment is through a three hour unseen examination.

Introduction

Common law reasoning and institutions (CLRI) is a foundational subject that gives you an understanding of the basic institutions and structures of the common law. It also introduces you to fundamental skills that are essential to your work as a student of law. These skills relate to legal reasoning, to how you read cases and statutes and to how you use electronic databases and archives. CLRI covers many themes and concepts, which we will introduce to you through this subject guide. We hope that as you read your way through the subject guide and the set textbooks, you will begin to appreciate that there is a set of core themes, and that rather than a mass of detail, there is a ‘logic’ to the subject.

The key thing is: don’t panic. Work slowly and methodically through the materials, and the shape of the subject will slowly reveal itself. At the end of this chapter, we will look at the syllabus for the course. For the moment, though, we will look at how to approach the CLRI course. We will first outline the course then turn to some specific issues. Later in the chapter we will provide a note on the examination and describe how you can get the best use out of the relevant textbooks. The textbooks and the subject guide work hand in hand to develop your thinking on law. We will also give you further tips about how to use the course materials in later chapters.

Common law reasoning and institutions 1 Introduction page 5 1.1 An outline of the CLRI course In our description of the course below, we have divided the syllabus into two parts. This is purely for ease of understanding and overview. It does not reflect the way that the course is examined. Part I consists of Chapters 3–5; Part II consists of Chapters 6–10.

1.2 Part I

Part I of the subject guide focuses on: identifying key features of the common law tradition and the way they have developed within the English legal system the principles of legal research and identifying the sources of law being able to use the legal resources in the online library as well as paper-based resources  becoming familiar with case law, being able to critically read case reports and understand the forms of legal reasoning involved in the development of the common law; being able to make case notes understanding the legal reasoning involved in the application of statute law essay writing and critical thinking. 1.2.1 Legal Research Skills:

Chapter 3 The relevant skills that will be tested via the CLRI examination (directly and indirectly) are set out in Chapter 3 (the examination is described below, and in more detail in Chapters 4 and 5). It is worth concentrating on the key skills specified in Chapter 3 rather than attempting to acquire expertise in all the areas covered in the chapter. 1.2.2 Case noting, reading statutes and essay writing: Chapters 4 and 5 Chapters 4 and 5 are part of a whole: when you have worked your way through these chapters a couple of times, you will appreciate how research skills, case noting skills and essay writing all interface with each other.

Chapter 5 focuses on reading cases and statutes. It builds on the case noting and the comprehension skills introduced in the previous chapter, but also introduces us to reading statutory language and the kind of question that you will encounter in Part C of the examination (see Section 1.5, below).

When you have read through Chapters 4 and 5 you will be moving towards a more sophisticated understanding of how to ‘think like a lawyer’. However, in order to advance in your understanding, you need to combine what you have learnt in the first part of the course with the second part of the course. 1.3 Part II Part II covers the following themes:

the practices of precedent and statutory interpretation the relationship of the common law courts to the European Court of Human Rights

in Strasbourg the issues surrounding the judiciary; the politics of the judiciary and the selection of suitable persons to become judges the criminal justice system in outline, with particular reference to the jury, policing, prisons and sentencing the idea of human rights in the legal system; in particular the importance of Article 6 of the European Convention on Human Rights: the right to a fair trial page 6 University of London International Programmes the normative theory of the civil and criminal trial; in particular the principles of integrity, participation and open justice.

The themes relevant to the second part of the course will be examined through a series of essays that you will write in the examination. It is therefore important to link together your approach to these themes with the essay writing skills that are outlined in Chapter 4. Please also bear in mind that case noting skills are essential to building your understanding of the topics outlined above. Each chapter contains a list of essential cases which you need to read and make case notes on. The title of this course is Common law reasoning and institutions. Our focus is very much on courts, but we will also consider other institutions involved in dispute resolution. However, we use the word institution in a wide sense: an ‘institution’ can refer to a physical place like a court, but it can also refer to ideas and doctrines that give a set of practices (or ‘ways of doing things’) a form and an identity. Furthermore, we are very much concerned with the values that should underlie the law, and we need to understand common law institutions and processes (the processes of criminal and civil justice) from the perspective of fair trial rights. 1.4

Online study resources

In addition to the subject guide and the Essential reading (see below), it is crucial that you take advantage of the study resources that are available online for this course,including the virtual learning environment (VLE) and the Online Library . You can access the VLE, the Online Library and your University of London email account via the Student Portal at:

http://my.londoninternational.ac.uk

On registration you will automatically have been granted access to the VLE, Online

Library and your fully functional University of London email account.

If you have forgotten your login details, please click on the ‘Forgotten your password’

link on the login page.

1.4.1 The VLE

The VLE, which complements this subject guide, has been designed to enhance your

learning experience, providing additional support and a sense of community. It forms

an important part of your study experience with the University of London and you

should access it regularly.

The VLE provides a range of resources for Laws courses:

Online audio presentations – recorded audio lectures which cover most of the

material for the core subjects which are intended to complement your studies.

Latest news and updates – provide information on both the programme and your

courses (e.g. information on how to book the Laws weekend courses).

Student discussion forums – An opportunity to debate and interact with other

students on your course.

Electronic versions of your study materials – to provide you with flexibility in how

and where you study.

Computer marked assessments and exercises - multiple choice questions with

feedback which allow you to test your knowledge and understanding of the key

topics in your course.

Past examination papers and Examiners’ reports – are vital to developing your

examination technique as they provide advice as to how questions might be

answered.Be aware that the format of examinations might change from year to

year. The format of the CLRI examination will change for the session 2013.

Common law reasoning and institutions 1 Introduction page 7

Recent developments– Recent developments are published in February each year

for each course. They cover any significant changes in the law since the publication

of the subject guide which are included in the examinable material, including key

cases or updates on the coming into force of new legislation, plus updates on new

editions of recommended reading.

VLE subject newsletters - Remember to check the VLE for the newsletters from the

University of London. You may also register to have these newsletters sent to you

directly.

Video introductions – There are also video introductions to the Intermediate

courses recorded by the Subject Convenor on the Course webpage as well as at

www.youtube.com/user/UOLIAulp

All of the above resources are available for CLRI and most will be available for our other

courses as well. Check the VLE for the most up to date materials for each course.

1.4.2 Making use of the Online Library

The Online Library contains a huge array of resources including journal articles, case

reports, legislation and newspapers. The specialist legal databases will help you read

widely and extensively.

The Online Library Laws Gateway contains resources and support materials which

are relevant to your course. You can access the Online Library by selecting the Online

Library tab within your portal, or directly at:

www.external.shl.lon.ac.uk/res/subjects/index.php?group=law

To access the majority of resources via the Online Library you will either need to use

your University of London Student Portal login details, or you will be required to

register for, and use, an Athens login:

www.external.shl.lon.ac.uk/contact/index.php

The Online Library Laws Induction Guide introduces you to the extensive resources

and support guides which are provided, and is a good starting point if you are new to

the Online Library:

www.external.shl.lon.ac.uk/interactive/law_induction/page_01.htm

The easiest way to locate relevant journal and newspaper articles in the Online Library

is to use the Summon search engine:

www.external.shl.lon.ac.uk/summon/index.php

For further advice on searching Summon, see the Summon for Law Students guide:

www.external.shl.lon.ac.uk/info_skills/law/search_summon.php

If you have any questions about the Online Library you can contact the Online Library

Enquiry Service. The Enquiry Service is staffed by a team of professional Librarians

Monday to Friday 09.00 – 17.00 GMT.

Contact the Online Library by:

email: [email protected]

Complete the enquiries form: www.external.shl.lon.ac.uk/help/enquiries/index.php

Telephone: +44 (0) 20 7862 8478

1.5 Core textbooks

It is important to familiarise yourself with the core textbooks. The subject guide is your

basic point of reference, and it is important to always start with this guide and the

relevant chapters. The subject guide will point you to the relevant sections in the core

textbooks. The course books are:

page 8 University of London International Programmes

Holland, J.A. and J.S. Webb Learning legal rules. (Oxford: Oxford University Press,

2013) eighth edition [ISBN 9780199657490]. (Referred to as ‘Holland and Webb’

in this guide).

Gearey, A., W. Morrison and R. Jago The politics of the common law. (Oxford:

Routledge, 2013) second edition [ISBN 9780415662369]. (Referred to as ‘Gearey et

al.’ in this guide.)

Different chapters of the subject guide will refer you to different Essential reading

from the books above.

Gearey et al. provides you with critical arguments that will help you write essays. You

are not expected to sit down and read it from cover to cover in a single sitting (unless

you really want to). The book is meant to be digested slowly and worked through as

you work through this subject guide.

Holland and Webb contains a great deal of useful information about the institutions

and structures of the legal system in England and Wales. Gearey et al. is organised

more thematically, and encourages you to think about what you have read in a critical

way.

Familiarise yourself with the basics of the subject using Holland and Webb before

you start reading Gearey et al.. To get the most out of Gearey et al., see it as a way of

developing your thinking. Read the chapters slowly and carefully, make notes on them

and ensure that you link together your reading of the book with the essential cases

detailed in the latter chapters.

It is important to have some basic idea of how Gearey et al. is laid out and the central

arguments that run through it. The first section of Chapter 1 of Gearey et al. outlines

how the argument develops. You might find it useful at this stage to read this section

and makes notes on the structure of the book.

Detailed reading references in this subject guide refer to the editions of the set

textbooks listed above. New editions of one or more of these textbooks may have

been published by the time you study this course. You can use a more recent edition

of any of the books; use the detailed chapter and section headings and the index

to identify relevant readings. Also check the VLE regularly for updated guidance on

readings.

FURTHER READING

Please note that as long as you read the Essential reading you are then free to read

around the subject area in any text, paper or online resource. You will need to support

your learning by reading as widely as possible and by thinking about how these

principles apply in the real world. To help you read extensively, you have the VLE,

Online Library and other legal resources.

Other useful texts for this course include:

Askey, S. and I. McLeod Studying law. (London: Palgrave Macmillan, 2011) [ISBN

9780230302792]. (Referred to as ‘Askey and McLeod’ in this guide.)

Slapper, G. and D. Kelly The English legal system: 2013–2014. (London: Routledge,

2012) fourteenth edition [ISBN 9780415639989].

Cownie, F., A. Bradney and M. Burton The English legal system in context. (Oxford:

Oxford University Press, 2010) fifth edition [ISBN 9780199567409].

Zander, M. The law-making process. (Cambridge: Cambridge University Press,

2004) sixth edition [ISBN 0521609895].

Zander, M. Cases and materials on the English legal system. (Cambridge:

Cambridge University Press, 2007) tenth edition [ISBN 9780521675406].

Common law reasoning and institutions 1 Introduction page 9

1.6 Assessment

Important: the information and advice given here are based on the examination

structure for the session 2013/14. Please note that as from 2013/14 the assessment

for CLRI has changed so materials on the VLE and previous subject guides will not

necessarily be geared towards the current assessment structure. Because of this

we strongly advise you to always check both the current Regulations for relevant

information about the examination, and the VLE. You should also carefully check the

rubric/instructions on the paper you actually sit and follow those instructions.

As the examination is described in more detail in Chapters 4 and 5, the following

note provides a basic overview. Please read this carefully as it is different from the

examination previously set in CLRI.

The examination is divided into three parts: A, B and C. All parts are compulsory. No

materials can be taken into the examination.

Part A requires you to make a case note. The relevant case will be released to you

in October 2013. You will be required to submit the case note through the VLE. The

questions in Part A of the examination will examine your understanding of the case

note. Part A will also contain an unseen extract from a case and questions that test

your comprehension of the case and the issues that it raises. You will not be allowed to

take the case note into the examination.

Part B requires you to answer two out of a choice of questions that are based on

material contained in the last section of Chapter 2 and Chapters 6–10 of the subject

guide.

Part C is based on an extract from a statute. The extract will be released to you at the

same time as the case. Part C of the examination will contain a number of questions

that test your understanding of the statutory extract, in particular, your ability to apply

the relevant law to a series of imaginary facts.

Parts A, B and C carry equal marks.

1.6.1 Preparing for the examination

The best way to prepare for Part A is to complete the activities outlined in Chapters

3 and 4 of this subject guide. Make sure you practice making case notes, and read as

many cases as possible.

The best way to prepare for Part B is to make sure you are familiar with the techniques

of essay writing outlined in Chapter 4 of this subject guide. Be aware that you need

to build up a body of notes on the examined areas. This means reading the relevant

chapters of the subject guide and the textbooks and using the online resources.

Gearey et al. is particularly relevant to this part of the course.

The best way to prepare for Part C is to practice reading statutes, and to ensure you

have worked through the exercises in Gearey et al..

Note: examples of Part A, B and C questions are given in this subject guide. An

Examiners’ report on the previous year’s examinations will be published on the VLE

before you take your examinations, make sure to read this report but bear in mind

that the examination it refers to will be different from the examination you will sit.

The other essential skill that you should practice is writing against the clock. Make sure

that you gain experience of answering unseen questions in a limited time frame.

Remember, it is important to check the VLE for:

up-to-date information on examination and assessment arrangements for this

course

where available, past examination papers and Examiners’ reports for the course

which give advice on how each question might best be answered.

page 10 University of London International Programmes

Summary

This chapter has laid out a basic overview of the course, the relationship between the

subject guide and the textbooks and provided an introduction to the examination. It

is important to realise that you need to work on both the skills detailed in this subject

guide and the substantive areas of the legal system that the course considers. It is also

essential to work on your essay writing skills, and practice writing timed essays. Above

all, work your way slowly and carefully through the subject guide, the textbooks

and the online resources and allow yourself sufficient time to read and digest the

materials.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

2.1 Studying the common law . . . . . . . . . . . . . . . . . . . . . . . . .13

2.2 What is the common law? . . . . . . . . . . . . . . . . . . . . . . . . .13

2.3 Acts of Parliament (statutes or legislation) . . . . . . . . . . . . . . . . .14

2.4 Judicial law making and the development of the common law . . . . . .15

2.5 Judicial reasoning and the doctrine of precedent . . . . . . . . . . . . .15

2.6 The Human Rights Act 1998 and European Communities Act 1972 . . . . .15

2.7 Human rights, judges and the rule of law . . . . . . . . . . . . . . . . .16

2.8 Thinking about trials and courts . . . . . . . . . . . . . . . . . . . . . .17

2.9 The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

2.10 Article 6, due process and the right to a fair trial . . . . . . . . . . . . . .20

2.11 Histories of the common law . . . . . . . . . . . . . . . . . . . . . . .22

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Am I ready to move on . . . . . . . . . . . . . . . . . . . . . . . . . .25

2 The contemporary legal system in England

and Wales

page 12 University of London International Programmes

Introduction

This chapter introduces the basic ideas and themes that run through the course.

We will look first at cases and statutes as sources of law; a theme that we will place

in its historical context. Our attention will then turn to an outline of judicial law

making and the doctrine of precedent. We will then examine the impact of European

Union (EU) law and European human rights law on common law. The next section

of the chapter will reflect upon the way in which the Human Rights Act 1998 (HRA)

has redefined the relationship of the courts to Parliament, and examine elements

of the doctrine of the rule of law. This section will also examine the idea of law in a

democracy. The latter sections of the chapter will overview essential themes that

relate to courts and trials and a concluding section will outline some themes that

relate to the recent history of the common law.

ESSENTIAL READING

Holland and Webb, Chapter 1 ‘Understanding the law’.

Gearey et al., Chapters 1 ‘Introduction Part I’ and 2 ‘Introduction Part II’.

Common law reasoning and institutions 2 The contemporary legal system in England and Wales page 13

2.1 Studying the common law

The first section of this chapter outlines the main institutions of the common law

that we will study and the contemporary situation of the common law in England and

Wales. Later, we will turn to some historical perspectives.

It is important that you:

know how the hierarchy of courts operates and understand the dynamic nature of

the doctrine of precedent (this will be covered in Chapter 5).

know how the judges and magistrates work (Chapter 8).

are able to read cases and statutes (Chapters 6 and 7).

understand the way the criminal and civil courts operate (Chapters 9 and 10).

For the moment, however, we want you to get an overview of these matters.

The common law is often presented through its history. This makes it difficult

to begin thinking about the common law today, as one has to go back to its

‘beginnings’. In this chapter we will outline the history of the key institutions of the

common law, but our focus is the contemporary situation of the common law.

The contemporary common law cannot be studied in a vacuum. As we will outline

below, there are two significant ‘events’ that we need to take into account:

the point at which the United Kingdom became part of the EU in 1972, and the

enactment of the HRA. This means that the common law is now inseparable from

the law of the EU and the law of international human rights, as defined by the

European Convention on Human Rights (ECHR).

In this chapter, we will also introduce our concerns with courts and trials.

At this stage in our studies we are not concerned with the functions, ends or social

context of the law. We will deal with all these concerns in the latter part of the

subject guide.

2.2 What is the common law?

The phrase ‘common law’ is used to denote the law applied by the courts as developed

through the system of precedent. Historically, the common law can be dated to the

early 1100s and the work of the Norman Kings in developing a single body of rules with

which to govern England. Roman law had an important influence on the development

of the common law, but we cannot trace this important theme in this subject guide.

Commentaries were central to the development of the common law. There were

important studies of the common law written throughout the medieval period (for

instance, Henry de Bracton’s De Legibus et Consuetudinibus Angliae, 1235) but we will

take Sir William Blackstone (1723–80) as our main point of reference. Blackstone was

a Justice of the Court of the King’s Bench and a commentator on the common law.

He wrote one of the most influential and systematic studies of the common law.

Blackstone’s Commentaries on the laws of England (1765−69) described the common

law as ‘unwritten law’ in contrast with the written law of statutes or codes. Blackstone

presented the common law as a form of oral tradition derived from general customs,

principles and rules handed down from generation to generation by the court lawyers

and judges, who participated in a common life in one of the Inns of Courts to which

all had to belong. Eventually this oral tradition was reflected in the reports of the

decisions of the important courts and the ‘knowledge’ was then stored in a ‘written’

form, namely the Law or Case Reports.

You should note, however, that there was no organised system of court reporting until

the late 19th century and prior to that all reports were private initiatives (reports were

made by barristers in the courts and circulated privately for a fee).

Historically, the common law tradition has always placed the judiciary at the centre of

things. Judicial decisions are seen as constituting the written law – a body of maxims,

page 14 University of London International Programmes

precedents and reported decisions that constantly need to be rationalised and

developed into a coherent ‘system’.

FURTHER READING

Holland and Webb, Chapter 1 ‘Understanding the law’, Section 1.5 ‘Regulation:

Legal rules and social rules’.

2.3 Acts of Parliament (statutes or legislation)

ESSENTIAL READING

Holland and Webb, Chapter 1 ‘Understanding the law’.

Although the common law is judge made, and case law remains a source of law,

influential legal reformers active in the early 1800s were critical of what they saw as

the incoherent nature of case law. They drew on traditions of British political thinking

that focused on the importance of sovereign power rather than the law making power

of the judges. In particular, Hobbes’ Leviathan (1660) proved an important reference

point. Hobbes argued that there should be a single source of sovereign power in a

nation. Political events allowed this source of power to be associated with Parliament;

and the influence of radical thinkers like Jeremy Bentham (1748–1832) and John Austin

(1790–1859) further developed what became known as the positivist approach to law.

The positivists stressed the importance of a coherent, logical analysis of the law; and

Bentham pushed forward various reform projects that were designed to give the law a

single, informing philosophy. Bentham particularly disliked the old fashioned nature of

the common law; likening it to a crumbling gothic castle. Law had to become modern

and linked to the rational government of the country.

By the late 19th century, statutes, or Acts of Parliament, had become a major source of

law in England and Wales. As the state took on increasing responsibility for economic

management and social regulation, the volume of statute law continued to grow.

Whilst Bentham and Austin might not have agreed with the growth of state power,

and certainly did not anticipate the welfare state of the late 20th century, it would be

fair to say that social and economic policy required a great deal of legislation.

One must also remember the political changes that underlay the sovereignty of

Parliament. From the 1830s onwards, the franchise (i.e. those who had the right

to vote) also expanded. This was due to popular agitation, as well as the work

of reforming governments, who sensed that a broad franchise was necessary to

legitimise (i.e. make acceptable) the power of Parliament. Shortly after the First World

War, when the right to vote was granted to women, the franchise included most adults

in England, Wales, Scotland and Northern Ireland.

We can link this point about the legitimacy of Parliament with the idea that statutes

are the supreme source of law. A statute will override inconsistent case law. This

is because Parliament is a democratic body, elected by ‘the people’. It is therefore

justifiable that Parliament creates supreme law.

Perhaps the most accurate contemporary statement about the sources of authority of

the law follows H.L.A. Hart’s argument in The concept of law (1961). We can refer to two

sources of law in the United Kingdom (or, in Hart’s language two ‘rules of recognition’

that allow us to specify the sources of UK law): cases and statutes. Statutes are the

supreme source of law; a fact that recognises the sovereignty of Parliament. We could

say that this element of law reflects the legitimacy of Parliament. Judges have a law

making power to develop the rules of the common law. Note, however, that although

this power is subordinate to Parliament, it should properly be seen as a law making

power. We will return to the question of its legitimacy in the section below and in later

chapters of this subject guide. We will see that, since the HRA, the relationship of the

judges to Parliament has become a ‘live’ issue.

FURTHER READING

Askey and McLeod, Chapter 2 ‘The sources of English law’.

Common law reasoning and institutions 2 The contemporary legal system in England and Wales page 15

2.4 Judicial law making and the development of the common law

One of the main concerns that we will deal with relates to judicial law making. As Sir

Edward Coke† (1552–1634) put it in the preface to his Ninth report:

it is one amongst others of the great honors of the common law that cases of great

difficulty are never adjudged or resolved in tenebris or sub silentio suppressis relationibus,

but in open court: and there upon solemn and elaborate arguments, first at the bar by the

counsel learned of either party, (and if the case depend in the court of common pleas,

then by the sergeants at law only); and after at the bench by the judges, where they argue

(the presiding judge beginning first) seriatim, upon certain days openly and purposely

prefixed, delivering at large the authorities, reasons, and causes of their judgments and

resolutions in every such particular case, (habet enim nesio quid energia viva vox:) a

reverend and honorable proceeding in law, a grateful satisfaction to the parties, and a

great instruction and direction to the attentive and studious hearers.

Note how important the idea of decision in open court is for Coke. We will argue that

these elements of the common law became adapted for a democratic context many

years after Coke was writing. Our key point is that judicial law making is legitimate in a

democracy because it takes place in open court, and judges justify and give reasons for

their decisions. We will also argue that judicial law making is legitimate because it is

restrained and, for the most part, defers to Parliament.

Summary

Judges make law; the pressing issues relate to the legitimacy of judicial law making.

This takes us to a number of concerns, including the relationship between the

courts and Parliament and the impact of the HRA. We will now begin to develop our

understanding of these themes.

FURTHER READING

Askey and McLeod, Chapter 3 ‘The constitutional context of English law’ is a good

overview of the basic constitutional structure and context of the law of England

and Wales.

2.5 Judicial reasoning and the doctrine of precedent

The development of the common law is guided by the doctrine of precedent: this

means that cases that are judged to be similar are decided in the same way. In order

to understand what judges are doing we will suggest that judicial reasoning can be

understood as a structure (or institution, see above) that allows the common law to

develop coherently. It also limits judicial law making. We will investigate this issue

in depth in Chapter 6. We will argue that precedent is a practice, and a significant

element of this practice is the restraint it places on judicial discretion to make law. We

will also argue that precedent is itself structured by the idea that judges must explain

their decisions and justify them. We will call this the requirement that judges give

public reasons for their decisions.

2.6 The Human Rights Act 1998 and European Communities Act 1972

From the contemporary perspective, the most important concerns in relation to the

modern common law are perhaps the HRA and the European Communities Act 1972

(ECA). You are beginning your study of the common law in a period of unprecedented

change.

The HRA ‘domesticated’ the ECHR. This means that Convention rights are part of

English law. Prior to 1998, the Convention was only binding on the United Kingdom as

an international treaty. Convention rights could not be relied upon in English courts.

The important consequence of the domestication of the Convention is that we can

now begin to speak of an indigenous law of human rights.

† Coke was Chief Justice

of the King’s Bench. His

Institutes of the lawes of

England and Reports laid

the foundations for much

contemporary thinking on

the common law.

page 16 University of London International Programmes

As Convention rights are now available in English courts, it is no longer necessary to

take the United Kingdom to the European Court of Human Rights (ECtHR) in Strasbourg

if one’s human rights have been infringed. One of the consequences of the HRA is thus

to increase the influence of European human rights law on common law.

The ECA makes the law of the EU part of the law of the United Kingdom. This is because

the United Kingdom is part of the EU. Thus, since 1972, it is no longer possible to

think of the common law as somehow separate from the civilian law traditions of

continental Europe. The common law and European forms of civil law are now linked

together in the law of the EU.

Don’t confuse the law of the EU with the law of the ECHR. They are different sources of

law, and their effect on English law is also different. In this subject guide we focus more

on the ECHR than EU law. You might want to look at your Public law notes, as they

go into much more detail on EU law. Other than this basic outline of EU law, the sole

issue we will investigate is that of the effect of European matters of interpretation on

common law methods of reading statutes.

FURTHER READING

Holland and Webb, Chapter 1 ‘Understanding the law’, Section 1.5 ‘The courts’.

2.7 Human rights, judges and the rule of law

The HRA incorporates the ECHR into UK law. Under s.2 of the HRA, when deciding on

questions under the Convention, courts must ‘take into account’ the case law of the

ECtHR. They are therefore not explicitly bound by those decisions, but are under a

duty to consider them. These provisions mean that when any court is considering a

case which raises human rights issues, it must look at the case law from the ECtHR and

interpret the requirements of the ECHR in the light of that case law. We look at these

issues in detail in Chapter 6.

Under s.3 of the HRA, the courts are obliged to interpret legislation ‘in so far as it is

possible’ in a way which is compatible with the ECHR. This requirement means that the

rules of interpretation by which the courts have been guided up until now must take

second place to the requirement that statutory provisions should be compatible with

the ECHR. We examine these issues in detail in Chapter 7.

Later we will be concerned with the developing relationship between the ECtHR in

Strasbourg and the domestic courts. We will see that this relationship raises important

questions about the common law, human rights and the balance of power in the

constitution. Building these points means that we have to think a little more about the

HRA, the judges and the doctrine of the rule of law.

Up until the HRA, it would probably have been inaccurate to refer to human rights at

common law in the United Kingdom. Indeed, British common lawyers preferred the

language of civil liberties to that of human rights. Since 1998, however, a catalogue of

human rights exists at common law. Certain judges have seized upon the possibilities

that this offers. It is outside the scope of this chapter (and this course) to describe

all the effects of the HRA. Suffice to say that there are very few areas of public law

that the HRA has not touched. Perhaps one of the most interesting areas of law

is the development of privacy rights at common law – an area of protection that

was traditionally rather weak. The Act is also having an interesting effect on the

relationship between Parliament and the judges.

The HRA was meant to redress the balance between the courts and Parliament. The

Act allows judges to protect human rights against executive power. The difficult

question is: has judicial power now begun to trespass on the power of Parliament (in

order to become the ‘ultimate controlling factor’ in the constitution)? The judges have

argued that they should be less deferential to Parliament, and more willing to use

their enhanced powers to protect human rights. This is because Parliament itself has

become too powerful and has, on occasions, not governed within the law.

Common law reasoning and institutions 2 The contemporary legal system in England and Wales page 17

These points can be illustrated by reference to some recent cases. In R (on the

application of ProLife Alliance) v BBC (2003) Laws LJ argued that the courts had a

‘constitutional duty to protect and enhance the democratic process.’ In R (Jackson and

others) v A-G (2005) Lord Bingham pointed out that the constitutional balance has

been thrown out, and the ‘Commons, dominated by the executive, [has become] the

ultimately unconstrained power in the state’ [50]. The courts appear to be asserting

their constitutional competence against the executive. Other cases show similar

evidence of judicial activism. Director of Public Prosecutions of Jamaica v Mollison (2003)

shows that the independence of the judiciary is a ‘constitutional fundamental’ and

cannot be trespassed upon by other branches of government. In Anufrijeva (2003)

the House of Lords held that the executive could not make unilateral determinations

of people’s rights which bypassed the scrutiny of the courts. This right of ‘access to

justice’ could also be considered a ‘fundamental’ constitutional principle. In A and

others v Secretary of State for the Home Department (the Belmarsh case) (2004) the

House of Lords stated that indefinite detention of foreign terrorism suspects was in

breach of the ECHR.

Tensions between the courts and Parliament over their respective roles have recently

become more pronounced. Although divided on the issue, certain members of the

present Coalition Government want to either repeal or limit the HRA. Conservative

backbench Members of Parliament (MPs) are particularly angry over rulings of the

Strasbourg court and the Attorney General, Dominic Grieve (appointed 2010), has

stated that the ECtHR has become too intrusive.

These themes clearly connect with those considered in Public law. Our themes are a

little more limited. We will be interested in the impact of human rights on the ‘politics

of the judiciary’ and on the common law. We will also make references to human

rights – particularly fair trial rights – in our analysis of civil and criminal justice.

FURTHER READING

Askey and McLeod, Chapters 3 ‘The constitutional context of English law’ and 5

‘The protection of human rights and fundamental freedoms’.

Holland and Webb, Chapter 10 ‘“Bringing rights home”: legal method and the

Convention rights’.

Gearey et al., Chapter 2, Introduction Part II.

2.8 Thinking about trials and courts

Fair trial rights can be organised around three key principles:

those that relate to the integrity of procedure

those that inform the participation of the parties in the trial

those that inform the principle of open justice.

These principles will be explained as we go along, but they are founded on common

sense, and should not confuse you.

We now want to explain what we mean by a normative theory of the trial.

Examination questions (in CLRI and other first year subjects) will ask you to discuss or

critically assess the law. In order to discuss or critically assess you need a standard of

judgement from which to offer your assessment. So, as far as common law institutions

are concerned, you need to know what they should do, in order to offer an assessment

as to whether or not they do achieve these ends.

Imagine that a trial has taken place before His Honour, Justice Bent. The judge tells the

court:

Ladies and Gentlemen, my decision is as follows: I took an instant dislike to the

plaintiff, and so have decided in favour of the defendant. Furthermore, as the defendant

page 18 University of London International Programmes

runs a company in which I have a significant share holding, I would be much poorer if

he lost.

One’s reaction to this decision would be: ‘The judge is clearly biased. This is not a just

decision.’

When we said above that we are putting forward a normative account of the trial and

that this is based on common sense we had in mind (albeit at a more sophisticated

level) problems like that of the biased judge. If we think that a biased decision is not

a just decision, then we must (perhaps without knowing it) have a sense of the norms

(rules and principles) that should underlie the trial. Thus, the prohibition on bias is an

important part of a normative theory. If you object to Justice Bent you therefore must

have an implicit normative theory of the trial.

The point of your studies is to help you bring out and develop ideas that you already

have. This involves structured thinking: thus a ‘normative theory of the trial’ goes

beyond common sense insights, because it is trying to provide a more coherent and

rigorous way of thinking about legal institutions.

If we want a normative account of common law trials then we can build our account

on the international right to a fair trial (Article 6 of the ECHR). This is an important

reference point because it provides a statement of the values that should inform a fair

trial.

Our starting point for critical thinking is: if courts and trials should be fair, are

common law courts and trials fair? This means a) knowing how trials and courts work

(i.e. questions of information, facts and detail) and b) thinking critically about this

information from the perspective of a question of value (i.e. what should be the case).

In Justice Bent’s decision, above, the first question would relate to the court that

Justice Bent was sitting in; his powers as a judge, etc. The second question is: has

Justice Bent made a fair decision? This is the process of critical thinking on which you

will be tested in the examination. So, from the very beginning, it is important to start

reflecting upon this process.

If you still don’t understand these ideas, try reading Holland and Webb, Chapter 1

‘Understanding the law’. Although we will not use ‘functional thinking’ to organise our

account of the law, it is coherent with the ideas that Holland and Webb put forward.

You could also re-read Chapter 1 of Askey and McLeod.

2.9 The courts

ESSENTIAL READING

Holland and Webb, Chapter 1 ‘Understanding the law’, Section 1.3 ‘What is law?’.

2.9.1 The basics of procedure

It is useful to think about some basic points in relation to how procedure works.

A court can be seen as an arena, wherein a contest is waged between parties in which

one emerges the winner. In the adversarial system practiced in common law courts,

the parties dictate, within the constraints of traditional forms and packages (such as

writs, forms of action and pleadings), the form, content and pace of proceedings. The

pre-trial proceedings are arranged such that by the time of the trial, each side should

have gained as much information as possible both to support their own case and to

exploit any weaknesses in the opposition’s arguments. The agent of the court (i.e. the

judge) should stand back and wait for the case to proceed to trial. During the trial, the

judge in civil cases, and the judge and jury in criminal cases, should allow themselves

to be guided, at least initially, as to the relevance of questions of fact and law by the

parties’ advocates. The judge should take a procedural ‘back seat’ and intervene only

to ensure that fair play is operating – or where the pu