Common Law Reasoning

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The judicial practice of precedent 1 Precedent as a judicial practice To describe precedent as a practice is to draw attention to the way in which judges interpret the law and act on the basis of those interpretations. Practices take shape within a culture that determines how they are composed. In this chapter we will thus direct our attention to the institutional context of judicial interpretation.

This will take us towards an understanding of the hierarchy of courts. Court hierarchy needs to be seen as a factor that has influenced and determined the forms of the judicial practice. As Danny Nicol says: ‘Underlying precedent is an emphasis on stability, permanence and the wisdom of the past – the common law being conceived as an accumulation of such wisdom – combined with reverence for the higher courts as the ‘elders and betters’ of the lower courts.

Precedent reflected the vision of law as an undertaking based on learning, acquired skills and experience. At the same time, since precedents exist in order to be applied, the system essentially empowered the higher courts to legislate. Presented as a restraint, precedent camouflaged law-making whilst in reality constituting law-making.’ Danny Nicol, Public Law 2006, Law and Politics after the Human Rights Act However, practices are never unitary. They are animated by tensions that reflect disagreements over the precise way in which the practice should be performed.

A consensus shared between practitioners over the techniques and performances that constitute a practice reflects the stability of the practice as a whole. We will see that judicial interpretation is a relatively stable practice. However, there have been important disputes over its precise operation and in some important areas, notably human rights, debates are ongoing. Note that a thorough study of the judicial practice of precedent would analyse the interpretative techniques that determine the statements of ratio and obita dicta. It would also have to concern itself with the techniques of over-ruling, distinguishing and following previous decisions.

The most thorough account of judicial practice would then have to go on to study the education and training of judges, and their embedding within a particular culture or cultures of legal behaviour. What are the consequences of this argument? If practices are essentially ways of acting in given circumstances, any general theory may be too distant from the practice to capture how judges actually interpret cases. Judicial interpretation is always a matter of a specific case and a singular set of facts.

To understand why a judge in a particular case comes to a particular conclusion necessitates a study of a precise legal context. In other words, a general account of precedent perhaps tells us more about the practice of academic writing than it does about the work of judges. It may be that the best way to understand the practice of judicial interpretation is to abandon any general account, and to see how it proceeds in different doctrinal areas of law. This would indicate that the best way to understand the practice of precedent is to study cases within their specific contexts†.

Precedence and judicial creativity However, given that we need a general account of precedent, we can suggest some overarching concerns that structure judicial practice. The historical beginnings of the present doctrine of precedent obscure the extent to which judicial practice is creative. Judges make law, as Lord Browne-Wilkinson said in Kleinwort Benson v Lincoln City Council [1998] 4 All ER 513: ‘The theoretical position has been that judges do not make or change the law: they discover and declare the law which is thought the same.

According to this theory, when an earlier decision is overruled the law is not changed; its true nature is disclosed, having existed in that form all along…In truth judges make and change the law. The whole of the common law is judge made and only by judicial changes in the law is the common law kept relevant in a changing world.’. It was necessary to deny this fact in order to stress stability and certainty as the primary values of the doctrine of interpretation. This was inexorably linked to the hierarchy of courts. Stability and regularity in decision-making required each court to respect its place in the hierarchy that stretched from trial courts, through to the ultimate tribunal, the House of

English legal education does not contain a formal training in precedent. The study of precedent is restricted (for the most part) to an element of a first year introductory course of the LLB (and is absent from the CPE). To understand the law is to read cases, and to engage in practical arguments about them. Likewise, professional training does not consist of training courses on the interpretation of cases.

On the whole this reflects the empirical and practical culture of the common law- and the fact that until relatively recently, legal training was more akin to an apprenticeship than a course of university study. The law in general, and precedent in particular, are thus essentially ways of ‘doing’ law that have never seen the usefulness of general or abstract accounts of their operation.

Common law reasoning and institutions Study Pack Lords. Deviations could not be tolerated. There was also a constitutional argument. Judges could not trespass on the province of Parliamentary legislation, as constitutional doctrines stressed the legal and political sovereignty of Parliament. This position proved to be untenable, in part because it went against the older doctrine of judicial competence over the common law. It also proved a difficult line to hold, because the need to do justice could not so easily be removed from judicial practice in the name of unqualified procedural regularity. The demands of justice disturbed both the settled hierarchy and the sense of constitutional boundaries.

Cases presented compelling arguments for departure from the hierarchy of courts, and even for urgent changes in the law to be made by the courts themselves. A central tension emerged between hierarchy and flexibility in judicial practice. This can be understood as an issue of institutional legitimacy. Judicial creativity raises the question of institutional legitimacy, because it puts at stake the legitimacy of judicial law making. This, of course, raises the question of the relationship of parliamentary and judicial legislation.

The present constitution affirms the priority of the former over the latter. However, given that judges do make law, the real question is the extent to which this is legitimate – ‘just’ or acceptable within current understandings of constitutional propriety. Judicial practice has responded to issues of institutional legitimacy by providing guidelines that define and regularize the practice, although a definitive articulation of the relationship of the courts and Parliament has been avoided. We will see that this debate now proceeds increasingly in human rights terms. It cannot be understood in the terms of the conventional practice of precedent. Indeed, disagreements reflect the transitional nature of the practice itself, although it would be too soon to say whether or not we are witnessing a fundamental shift in judicial practice.

Our study of precedent will begin with an overview of the tension between hierarchy and flexibility that underlies the broad issues of institutional legitimacy. We will then look specifically at the relationship between the House of Lords and the Court of Appeal, and the possible development of an alternative practice of judicial interpretation. The final sections will engage specifically with the judicial law making and human rights. The chapter will conclude with some final reflections on substantive justice and procedural legitimacy.

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Hierarchy and flexibility The practice of precedent works within the context of the court structure. Indeed, the hierarchy of the courts provides the fundamental institutional structure. This can be seen as having three distinct elements: ‘These are the respect paid to a single decision of a superior court, the fact that a decision of such a court is a persuasive precedent even as far as the courts above that from which it emanates are concerned, and the fact that a single decision is always a binding precedent as regards courts below that from which it emanated.’ Cross and Harris, Precedent in English Law, (Clarendon: Oxford, 1991), 3. The hierarchy of the courts is based on the ‘respect’ given to the decisions of superior courts. The ‘binding’ nature of precedent applies to the inferior courts.

However, as the persuasive nature of an inferior court on a superior court has not been a particularly contentious issue, we will not consider it in this chapter. However, note that these distinctive features of precedent are introduced as being an accurate description ‘[a]t present’ (5). This is somewhat peculiar. It suggests that the doctrine itself is developing and changing over time. Any global definition has to be sensitive to this particular problem; a problem that corresponds with the idea that precedent is a practice, and that practices themselves develop.

The doctrine asserts that decisions of the House of Lords bind all the courts below it in the hierarchy (this could be linked to the dominance of the declaratory theory of common law interpretation). London Tramways v London City Council (1898) was central to the foundation of what was to become the conventional form of the doctrine. In London Tramways,

The House of Lords decided that it was bound by its own previous decisions: ‘Of course, I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous; but what is that occasional interference with what is perhaps abstract justice, as compared with the inconvenience…of having each question subject to being rearguarded and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth there is no final court of appeal. My Lords, ‘interest rei publicae’ is that there should be ‘finis

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University of London External System litium’ sometime and there can be no finis litium if it were possible to suggest in each case that it might be rearguarded because it is ‘not an ordinary case’ whatever than may mean.’ (London Tramways v London City Council [1898] AC 375). Lord Halsbury acknowledges that cases of individual hardship may result from the House of Lords being bound by its own decisions. However, the need for clear general principles over-rides the hardship caused in individual instances.

Does the need for general principles also over-ride the requirement that the court make just judgments? Lord Halsbury rules that justice is of little consequence in comparison with the need for finality in litigation. His argument denies that there could be such a thing as an extraordinary case where justice may demand a departure from general principles. London Tramways is an important case because it lays down the parameters of the practice. The preference is for a clear, unambiguous statement of the binding nature of precedent. Very little allowance is made for a departure from the hierarchical ordering of the courts (Rookes v Barnard [1964] AC 1129).

The next significant moment in the development of contemporary judicial practice is the Practice Statement of 1966. The Practice Statement created principles that stress the need for the flexible development of the law: ‘Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for the development of legal rules’ (Practice Statement (Judicial Precedent) [1966]1 WLR 1234, at 1234). What does this tell us about the re-shaping of the practice?

Precedent is now described as fulfilling a dual function: it has a doctrinal aspect – the development of legal rules, and a social function as well. But note how this argument is different from that of Lord Halsbury: ‘Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law’ (ibid, 1234). The Practice Statement has reclaimed the concern for the individual case. It asserts that there is no point having general rules, if these lead to injustice in individual instances. What is to be done?

Their Lordships resolve to ‘modify’ the way they approach precedent: they will consider that they are normally bound by their previous decisions, but, in certain cases they will depart from previous decisions when ‘it is right to do so’. (Later in this chapter, we will see that this claim coordinates with one about the need to do justice in individual cases.) How are we to know when the time is right? Their Lordships will consider: ‘the danger of disturbing the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.’ (ibid, 1234)

This gives some general guidelines as to how the judges will understand the institutional legitimacy of their practice. The law would be illegitimate if it simply asserted the need for general rules, and ignored the fact that justice required general rules to be changed. However, the law would also become illegitimate if it simply treated each case as exceptional and failed to develop general rules. Law fulfils a social function: there is a social interest in settled general principles of law.

If there is an implicit acknowledgement of judicial law making in the Practice Statement, there is also an understanding that the power should be used sparingly and that stability would ultimately be preferred to creativity. In the years after 1966, it indeed became clear that departing from precedent decisions would only take place in very rare circumstances†. We can develop this point by examining some important decisions. In Miliangos v George Frank [1975] 3 WLR 758, the House of Lords departed from a previous decision, arguing that changing the law would enable the courts to ‘keep step with commercial needs’ and, furthermore, would not lead to ‘practical and procedural difficulties.’

The following passage from Lord Wilberforce’s judgment is worth considering in detail: ‘The law on this topic is judge-made: it has been built up over the years from case to case. It is entirely within this House’s duty, in the course of administering justice, to give the law a new direction in a particular case where, on principle and in reason, it appears right to do so. I cannot accept the suggestion that because a rule is long established only legislation can change it - that may be so when the rule is so deeply entrenched that it has †

Some indications are given in Jones v Secretary of State for Social Services [1972] 1 AC 944. It is insufficient that the case was wrongly decided. Lord Reid refused to give precise criteria – arguing only that experience would prove to be a guide for discretion. He indicated that it would involve ‘broad issues’- of both justice and legal principle – and that in the instant case neither of these criteria were present. Lord Wilberforce argued on slightly different grounds that if an interpretation of a statute had been given, then, unless Parliament was to change that statute, the interpretation was to stand. Lord Pearson’s argument stressed the idea of ‘finality of decision’ supported by arguments with which we are already familiar. Of all the judgments, Lord Simon’s is perhaps the most interesting, because he provides a list of reasons for not departing from the earlier case. Alongside reasons with which we are already familiar, he added a consideration of the nature of the parties and the litigation in issue – it was a revenue case with frequent litigants.

Common law reasoning and institutions Study Pack infected the whole legal system, or the choice of a new rule involves more far-reaching research than courts can carry out…Indeed, from some experience in the matter, I am led to doubt whether legislative reform, at least prompt and comprehensive reform, in this field of foreign currency obligation, is practicable.

Questions as to the recovery of debts or of damages depend so much upon individual mixtures of facts and merits as to make them more suitable for progressive solutions in the courts. I think that we have an opportunity to reach such a solution here. I would accordingly depart from the Havana Railways case and dismiss this appeal.’ (Ibid, at 470) Lord Wilberforce argues that because the law in this area is judge-made, it is legitimate to alter it provided that ‘on principle and in reason, it appears right to do so’.

The sterling principle for the award of damages had become anachronistic. The law of damages has to keep pace with modern developments. There is thus a strong argument for change. However, it is also important to note that the rule can be changed without upsetting other deepseated principles. Miliangos thus refers to a set of rules that may be of ancient providence, but, because they are in an area of judge made law, it would not be necessary to defer to Parliament. The particular mixture of ‘facts and merits’ makes this pre-eminently an area for judicial law making.

A close reading of the relevant cases might suggest the presence, or variation, of some of Lord Wilberforce’s concerns in Jones. Lying behind Herrington v British Railways Board [1972] AC 877 are arguments about social change. It is no longer acceptable that a property owner should have limited responsibilities to trespassers, and the law must be amended accordingly. However, in Knuller v DPP [1973] AC 435, the House of Lords refused to over-rule Shaw v DPP [1962] AC 220.

Does this suggest that there are slightly different considerations in criminal law? In Shaw, the court made the claim that it had a jurisdiction to try offences against good morals, even though Parliament had not legislated to cover such behaviour, or the existing law was either ambiguous or silent. In Knuller, the court refused to over-rule the earlier case, even though it was wrong.

Does this suggest that their Lordships are willing to go much further in the area of social control, than they are in commercial law or tort? Miliangos suggests that there are certain factors that legitimise judicial law making in civil law. Are there similar considerations in criminal law? Given limitations of space, we will look in detail at two important cases: Shivpuri and Howe. In R v Shivpuri [1986] 2 WLR 988., the House of Lords over-ruled itself.

The case concerned the construction of S. 1 of the Criminal Attempts Act 1981. In an earlier case, Anderton v Ryan [1985] AC 560,† the House of Lords had argued that the section could be approached on the basis of a distinction between acts that were ‘objectively innocent’, and those that were not so considered. However, in Shivpuri, they were of the opinion that Anderton had been wrongly decided. Lord Bridge’s judgment in Shivpuri is worth looking at in detail, in particular his criticisms of the notion of objective innocence.

He argues that the concept is ‘incapable of sensible application’ in criminal law. This is very emphatic language. The concept of objective innocence makes little sense because it avoids the central concept of the actor’s intention. This is the essential ingredient in the law of attempt. Thus, if a person attempts to buy drugs, but is sold a harmless substitute, the criminal law must approach the attempted offence from the viewpoint of the actor’s criminal intention. It would be wrong to argue that ‘objectively’ the act is innocent because the drugs did not exist.

Acts cannot be considered ‘independently’ of the state of mind of the actor†. Lord Bridge also stressed his own ‘conviction’ as a ‘party to the decision’ that Anderton was ‘wrong’ (ibid, 22). If Anderton was so clearly flawed, what course of action was open to the House of Lords? It was not possible to distinguish Anderton from Shivpuri. If their Lordships were bound by the unworkable test, the law of attempt would be based on flawed concepts.

The only alternative would be to invoke the Practice Statement. Was this a justifiable course of action? Departing from a precedent case would lead to uncertainty in the law. However, in Shivpuri this was justifiable. As Anderton was a recent decision, settled law had not yet developed. However, this is not the determining factor. The most pressing factor is the need to correct a ‘serious error’, ‘a distor(tion)’ in the law. It might appear, then, that any understanding of the interpretation of Shivpuri is rooted in the context of the criminal law, and the serious error in which the House of Lords had fallen into in Anderton. Can we observe a similar pattern if we turn our attention to a R v Howe?

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The section provided that a person is guilty of an offence if s/he does an act which is ‘more than merely preparatory’. 1(2) goes on to state that even if ‘the facts are such that the commission of the offence is impossible’, a person may still be found guilty of an attempt to commit an offence.

Ibid., at 22. An alternative ground to justify the decision in Anderton was to analyse attempts in terms of the actor’s ‘dominant intention.’ However, this test also runs into difficulties, because it is very difficult to distinguish between dominant intention and incidental beliefs; there are also problems in devising any way of articulating a meaningful test that would be helpful to a jury.

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University of London External System In Lynch (DPP for Northern Ireland v Lynch [1975] 2 WLR 641), the House of Lords had held that the defence of duress was available to someone who had been charged with aiding or abetting murder†. In R v Howe [1987] 2 WLR 417, the House of Lords over-ruled this decision. As with Shivpuri, we encounter very strong language. Lord Bridge asserted ‘I can find nothing whatever to be said for leaving the law as it presently stands’ (ibid. 12).

He went on to argue that an ‘odd quirk of the system’ had allowed the decision in Lynch to stand, despite the fact that four out of the seven presiding law lords (in the appellate courts in Northern Ireland and England) had rejected the reasoning in the case (ibid. at 436).

Lord Hailsham argued that R v Howe afforded an ideal opportunity to re-consider the issue from the standpoint of ‘authority’ (ibid., at 427). A review of the law of homicide stretching back to Hale and Blackstone showed that duress had never been available for murder. It was possible to invoke the Practice Statement because Lynch could not ‘be justified on authority.’ Furthermore, ‘judicial legislation [had] proved to be an excessive and perhaps improvident use of the undoubted power of the courts to create new law by creating precedents in individual cases.’

The improvident use of judicial legislation in Lynch was also indicated by Parliament’s refusal to legislate on the issue. Lord Bridge pointed out that Parliament had not acted on the Report of the Law Commission’s recommendation to allow a defence of duress (ibid. at 437). Parliament’s refusal to legislate suggests that the judges should not have taken upon themselves the reform of the law.

Lynch was fundamentally wrong in principle. Lord Hailsham justified this criticism by referring to ‘the overriding objects of the criminal law’ to set ‘standards of conduct’ that are clear in specifying how people are to ‘avoid criminal responsibility’ (ibid.). This means that the duress defence must not blur the offence of murder. The law must be based on the principle that it is never justifiable to commit murder, even to save one’s own life.

Does this mean, though, that as other offences allow a duress defence, the criminal law is inconsistent? This criticism is met with an argument from principle: ‘[c]onsistency and logic ….are not always prime characteristics of a penal code based like the common law on custom and precedent’ (ibid, 423). Indeed, if law is an art, rather than ‘an exact science’, a pragmatic response to problems is more important than a consistent development of abstract principles (ibid. 434). What, then, can Howe and Shivpuri tell us about the practice of precedent within criminal law? The law lords in both cases approach the law from the perspective that there have to be very compelling arguments for change.

The House of Lords will over-rule itself when it has fallen into serious error, and when the circumstances of the case are such that it is practical to over-rule an earlier decision. These narrow guidelines preserve the legitimacy of judicial law making. The House of Lords is ensuring the consistent development of principles. Criminal law is legitimised as the courts dispel the errors into which they have fallen. It is not necessary to depart from the hierarchical organisation of the courts to achieve this end. However, in turning to the question of the Court of Appeal’s jurisdiction, we now have to grapple with this very problem. How does this raise the problem of institutional legitimacy in a slightly different context?

Per Lord Bridge: in the law established by Lynch and Abbott, duress is a complete defence to a murderer otherwise guilty as a principal in the second degree; it is no defence to a murderer guilty as a principal in the first degree.


The House of Lords and the Court of Appeal: precedent and justice Perhaps one of the most fraught questions in the area of precedent relates to the right of the Court of Appeal to depart from a judgment of the House of Lords. This is linked to the question of whether the Court of Appeal was bound to follow its own decisions. Tensions between the Court of Appeal and the House of Lords had developed in Schorsch Meier.

The Court of Appeal had argued that circumstances had changed so much since the House of Lords ruling in Havana Railways (in Re United Railways Of Havana [1961] AC 1007) that ‘the sterling judgment rule’ principle should no longer apply. Denning MR stated that the underlying reason for damages being given in sterling was essentially ‘practical’.† He went on to invoke the principle cessante ratione legis cessat ipsa lex (Schorsch Meier v Henin [1975] QB 416., at 425.) or – as he pithily put it: ‘[s]eeing that the reasons no longer exist, we are at liberty to discard the rule itself.’

Lord Denning justified this principle by arguing that it would be wrong to abrogate substantive rights by reference to procedural concerns. However, it would appear that there are at least two factors that justify the use of the principle. In a prior case, Jugoslavenska Oceanska Plovidba v Castle Investment Co. Inc. [1974] QB 292, the court had allowed arbitrators to make awards in foreign currency. Denning MR also

It was outside the competence of the court to determine the value of a currency other than sterling; besides, it was ‘appropriate to trading conditions’ in a time before instantaneous communications (ibid).

Common law reasoning and institutions Study Pack made reference to this principle in the Court of Appeal’s hearing of Miliangos. Furthermore, in Schorsch Meier v Henin, Denning pointed out (and Lawton LJ agreed) that Article 106 of the Treaty of Rome required that judgment should be given in the currency of the member state in which the creditor resided.

This suggests the development of an alternative practice of interpretation that departs from the conventional understanding of the doctrine of the hierarchy of the courts. See also Broome v Cassell [1972] AC 1027. The Court of Appeal had attempted to show that the House of Lords had acted per incuriam, or incorrectly, in the case Rookes v Barnard [1964] AC 1129. The case concerned the issue of damages.

Lord Hailsham articulated the conventional position clearly: ‘In the hierarchical system of courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.’ Lord Hailsham’s words return to the notion that far worse than individual injustice is the compromise of general principles. The response of the House of Lords to the Court of Appeal in Schorsch Meier came in Miliangos. Lord Simon, with the explicit agreement of Lord Wilberforce, rejected Lord Denning’s use of the cessante ratione cesset ipsa lex principle.

The wide meaning of the principle would mean that any court could ‘disclaim any authority of any higher court on the ground that the reason which had led to such higher court’s formulation of the rule of law was no longer relevant.’ Application of the principle would mean that the court could even overrule Acts of Parliament, if it judged that the reasons for the rule no longer applied; as such the rule has ‘no place in our own modern constitution’. This reassertion of the conventional understanding of the practice did not prevent another deviation arising on a later occasion. However, the matter now concerned the question of whether the Court of Appeal could depart from its own previous decisions.

The conventional position, as stated in Young v Bristol Aeroplane Co. asserted that even if the Court of Appeal regretted a previous decision, it was obliged to follow it and recommend an appeal to the House of Lords.† As the Court of Appeal was created by statute, it had to adhere to its statutory powers, and could not exceed its limited role. Lord Greene concludes: ‘On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction.

The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise: (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.

(2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.’ Lord Denning attempted to avoid this rule in Davis v Johnson [1974] AC 264. In Davis v Johnson, the Court of Appeal considered the case of a victim of domestic violence. Ms Davis had unsuccessfully asked the court for an order to compel her abusive partner to leave the flat that they had been sharing.

To allow her appeal, the Court of Appeal would need to depart from previous decisions where injunctions had not been awarded in similar situations.† Lord Denning made a strong argument from principle. He began by admitting that, in normal cases, the Court of Appeal was bound by its own previous decisions. He went on to criticise the consequences of this argument.

It may be that an appeal is never made to the House of Lords, or that there is a long delay before the House of Lords has an opportunity to over turn an incorrect decision. (The example is the 60 year period before the wrong decision in Carlisle and Cumberland Banking Co. Ltd. v Bragg [1911] 1 KB 489 was corrected in Gallie v Lee [1971] AC 1004.) It may also be that an individual lacks the financial means to bring the appeal to the House of Lords.

This problem is compounded by the fact that wealthy litigants can ‘pay off’ appellants, and so perpetuate a decision erroneous in law. Moreover, in the present case, the delay that an appeal would cause would add to Ms Davis’ hardship. She was resident in a battered women’s refuge in ‘appallingly’ overcrowded conditions: ‘In order to avoid all the delay – and the injustice consequent upon it – it seems to me that this court, being convinced that the two previous decisions were wrong, should have the power to correct them and give these women the protection which Parliament intended they should have’.

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Young v Bristol Aeroplane Co., [1944] K.B. 718, at 725. This would also apply whether the Court of Appeal was sitting as a ‘full court’ or as a division with only three members present.

In B v B [1978] 1 All ER 821 and Cantliff v Jenkins [1978] 2 WLR, it was held that the county court did not in fact have the power that it claimed under the Act. The task of the court in Davis v Johnson is to ‘review’ the decisions – and if they are wrong, to articulate correct principles. Clearly, against this position is the conventional argument that the Court of Appeal is bound to follow its own previous cases in the area, and if the law is incorrect, it must be altered by an appeal to the House of Lords.

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There is a compelling case for the avoidance of delay. However, what are the consequences of allowing the Court of Appeal to overrule itself? Would the lower courts be left in confusion? For instance, a judge in a county court would not know which Court of Appeal case stated the correct law. Lord Denning argues that the lower court would simply follow the later decision, based on the principle that as long as the later case contains a ‘full consideration’ of the earlier cases, it was the preferable authority (Minister of Pensions v Higham [1948] 2 KB 153, 155).

This is a good illustration of the conflict between general procedural principles and individual injustice. But, how, as a question of law, would it be possible to get around Bristol Aeroplane Co.? Lord Denning showed that Bristol Aeroplane Co. was not an accurate statement of the law. This argument returns to roots of the jurisdiction of the Court of Appeal. When the Court was set up in 1873, it was the final appellate court, as the jurisdiction of the House of Lords was not established until 1875.

The Court ‘inherited’ the jurisdiction of the Exchequer Chamber and the Court of Appeal in Chancery. As these courts were always considered to have the power to review their own decisions, it would be fair to assume that the new court had inherited this jurisdiction. The argument also returns to Hutton v Bright (1852) 3 HL Cas 341, which held that ‘every court of justice [,] possesses an inherent power to correct an error in which it had fallen.’ What conclusion can be drawn from this argument?

As Lord Denning succinctly puts it, Young v Bristol Aeroplane Co ‘overruled the practice of a century.’ The Court of Appeal is not, as a matter of law, bound to follow its previous decisions. It does so as a ‘matter of judicial comity.’ Arguing that the 1966 Practice Statement effectively overturns the London Tramways case, Lord Denning concludes: ‘a rule as to precedent (which any court lays down for itself) is not a rule of law at all.

It is simply a practice or usage laid down by the court itself for its own guidance: and, as such, the successors of that court can alter that practice or amend it or set up other guide lines, just as the House of Lords did in 1966.’ (ibid. at 197) We are compelled to the conclusion that the Court of Appeal can follow the 1966 Practice Statement and depart from its own decisions if it considers them wrongly decided. These arguments were not ultimately successful. The conventional form of the doctrine was re-asserted by the House of Lords.† The court considered the alternative approach to the problem articulated by Sir George Barker P and Shaw LJ in the Court of Appeal.

The latter had argued that ‘stare decisis should be relaxed’ only when applying a precedent would mean that ‘actual and potential victims of violence’ would be deprived of the protection afforded them by an Act of Parliament. It was stressed that this situation would be very rare. However, Lord Diplock preferred that the House of Lords should ‘re-affirm expressly, unequivocally and unanimously’ the rule in Bristol Aeroplane Co. (ibid. at 328). Viscount Dilhorne elaborated this argument. It had to be the case that the 1966 Practice Statement applied only to the House of Lords. If it did not, any court could argue that it was not bound by its previous decisions. Lord Denning’s argument ignored ‘the unique character of the House of Lords sitting judicially’ (ibid. 336)

As the Practice Statement was based on this feature of the House of Lords, it could not be extended to another court. Lord Salmon and Lord Diplock elaborated this point by citing the concluding words of the 1966 Statement: ‘This announcement is not intended to affect the use of precedent elsewhere than in this House’.(ibid. 344) Furthermore, the fact that there are up to 17 Lord Justice in the Court of Appeal meant that, if Lord Denning’s arguments were followed to their conclusion, there was the risk that there would be a ‘plethora of conflicting decisions’ which would lead to great confusion in the law. Lord Salmon’s argument goes some way to countering some of Lord Denning’s points about the denial of justice, by proposing that the Court of Appeal could be granted a power to grant, when circumstance dictated, the payment of costs out of public funds. Davis v Johnson is a unique case. Although Lord Denning’s arguments make a compelling case for the Court of Appeal to respond to the demand for justice, the House of Lords effectively asserted that there were no exceptions to the priority of general procedural rules.

The case shows judicial law making at its most dramatic. Perhaps this is precisely the problem. Lord Denning has an eccentric appreciation of the boundaries of institutional legitimacy. He raises the protection of substantive rights over the general understanding of the limits of judicial creativity. For the purposes of our argument, we need to locate a more modest understanding of the legitimate parameters of judicial legislation. However, as we will see towards the end of the chapter, substantive issues of justice cannot be entirely expelled from judicial practice. †

The House of Lords rejected the argument that the CA could depart from its own decisions if it considered itself to be in error, and affirmed the doctrine with which we are familiar. The CA is bound by its own decisions, except in the exceptions laid down in Bristol Aeroplane Co.

Common law reasoning and institutions Study Pack

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Judicial Law Making Determining the boundaries of judicial law making is partly a doctrinal and partly a constitutional question. If we require some broad guidelines, a useful place to start is Lord Scarman’s speech in McLoughlin Appellant v O’Brian [1983] 1 AC. 410. The appeal in this case raised the very question of the relationship between the legislature and the judiciary. Lord Scarman argued that the judge had a jurisdiction over a common law that ‘knows no gaps’ and no ‘casus omissus’. If this is the case, the task of the common law judge is to adapt the principles of the law to allow a decision to be made on the facts in hand.

This may involve the creation of new law. Whatever the case, judicial reasoning begins from ‘a baseline of existing principle’. The judge works towards a solution that can be seen as an extension of principle by process of analogy. For Lord Scarman, this is the ‘distinguishing feature of the common law’: the judicial creation of new law, as the justice of the case demands.

This process may involve policy considerations, but, the judge can legitimately involve him/ herself in this activity, provided that the primary outcome is the formation of new legal principles. In those cases where the formation of principle involves too great an intrusion into the field of policy, the judge must defer to Parliament: ‘Here lies the true role of the two law-making institutions in our constitution.

By concentrating on principle the judges can keep the common law alive, flexible and consistent, and can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve. If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path’ (ibid at 430). This argument demarcates quite clearly the role of judge and Parliament. Judicial interpretation keeps the common law ‘flexible’ and responsive to change, and defers to Parliament on those issues with which the courts are not well equipped to deal. Parliament also acts as a final adjudicator.

If the courts make mistakes, they can be corrected by legislation. Whilst this argument is compelling, it is hard to see precisely where the dividing line lies between principle and policy. We will examine this issue below, but it is perhaps worth bearing in mind that where this line falls is a rather complex issue that cannot be precisely determined by some general theory.

Before we examine this issue, however, it is worth looking at another aspect of Lord Scarman’s argument: ‘The real risk to the common law is not its movement to cover new situations and new knowledge but lest it should stand still, halted by a conservative judicial approach. If that should happen, and since the 1966 practice direction of the House it has become less likely, there would be a danger of the law becoming irrelevant to the consideration, and inept in its treatment, of modern social problems. Justice would be defeated. The common law has, however, avoided this catastrophe by the flexibility given it by generations of judges’ (ibid).

This is the second reference to justice in this passage – and it might suggest that Lord Scarman’s account of judicial creativity is indeed underpinned by such a concept. It is a description of the common law judge as the guardian of the conscience of the common law. The judge is charged with the development of the law in such a way that its principles remain coherent as it develops and adapts itself to changing social conditions. Thus the flexibility of the common law is an element of what makes it just. However, things are somewhat more complicated. Flexibility is inseparable from the ‘risk’ of ‘uncertainty in the law’.

This risk varies with the context of the legal problem under consideration. In other words, problems of uncertainty take a different form in areas of ‘commercial transaction’ and ‘tortious liability for personal injuries.’ Returning to the issue of justice, Lord Scarman argues that justice can demand a degree of loss of certainty in the law (‘the search for certainty can obstruct the law’s pursuit of justice, and can become the enemy of the good.’). In the area of damages for nervous shock, certainty could have been achieved by leaving the law as it stood as stated by authorities in the early 1900s (Victorian Railways Commissioners v Coultas, 13 App.Cas. 222, Dulieu v White & Sons [1901] 2 KB 669 or in 1970 (Hinz v Berry [1970] 2 QB 40).

However, the law has had to respond to advances in ‘medical science’ and technology, and adapt the relevant test for foreseeability. The extent of these developments means that the problem has now become one for Parliament. Arguments of principle have become over-determined by arguments of policy. We could say, then, that one important element of this theory of interpretative justice is that the judge should know when it is necessary for Parliament to intervene.

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University of London External System What do we make of Lord Scarman’s presentation of the role of the judge? It would be too bold to argue that all judicial accounts of their task make use of a theory of interpretative justice.

However, in looking at some other important cases in which the role of judicial law making has been considered, we can pick up and develop the concern with judicial development of the common law. We will examine a sample of cases from different areas of law. Regina v R [1991] 3 WLR 767 is perhaps one of the best examples of judicial creativity.

The House of Lords determined that a husband could be held guilty of raping his wife. This involved a particularly bold interpretation of the Sexual Offences (Amendment) Act 1976, which would otherwise seem to perpetuate the husband’s exemption to a charge of rape. Indeed, Lord Lane asserted that this was precisely the conclusion to which a literal interpretation of the Act would come.

He proposed a ‘radical’ solution (ibid., at 609). It was necessary to: ‘disregard the statutory provisions of the Act of 1976 and [thus]… it is said that it goes beyond the legitimate bounds of judge-made law and trespasses on the province of Parliament. In other words the abolition of a rule of such long standing, despite its emasculation by later decisions, is a task for the legislature and not the courts. There are social considerations to be taken into account, the privacy of marriage to be preserved and questions of potential reconciliation to be weighed which make it an inappropriate area for judicial intervention.’ (ibid.)

Lord Lane’s interpretation of the Act is creative enough to amount to judicial legislation. However, against these ‘formidable objections’ is the authority of the judge to update the common law to ‘changing social attitudes’. Furthermore, the powerful authority S v HM Advocate [1989] LT 469 would appear to be on Lord Lane’s side. In the wake of this case, the exception is revealed as ‘a fiction’—and ‘fiction is a poor basis for the criminal law’.

The conclusion of the argument is compelling: ‘It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enactment.’ (ibid. 610) The legitimacy of the court’s action is further justified by the fact that it is not creating a new criminal offence, but removing from the ‘common law an anachronism that is ‘offensive’ to contemporary social attitudes and standards of behaviour. R v Clegg [1995] 2 All E.R. 43 suggests the kind of situation in which a judge will not legislate.

The House of Lords held that on a charge of murder, there was no distinction between the use of excessive force in self defence, and the use of force in crime prevention. Most importantly for our purposes, though, the House of Lords refused to change the law in relation to the reduction of murder to manslaughter, stating that it was a matter for Parliamentary legislation. Why, in this instance, did their lordships refuse to alter the law?

Lord Lloyd’s speech is instructive. Interestingly, he refers back to Lynch as encouraging judicial legislation. In particular he refers to Lord Wilberforce’s argument (ibid. 684-685) that asserts that in ‘the domain of the common law’ judges have the power and authority to interpret legal principles in the light of the facts that are presented to them.

There are of course problems with this position. As we know, Lynch was over-ruled in Howe. There are also important distinctions between the contexts of Lynch and Clegg. Although the defences of duress, self defence and the use of force in the prevention of crime were created by judges, the essential difference is that in the latter case, Parliament had passed the 1967 Act which did not create a defence that related to the excessive use of force.

This would make the present case very different from Lynch, precisely because one of the most compelling reasons for overruling this case was the fact that Parliament had not legislated. Lord Simon’s speech from Lynch thus becomes relevant. Although Lord Simon acknowledges that judges do make law, they have to refrain from so doing when policy matters are involved. Picking up on Lord Simon’s principle, Lord Lloyd argues that in distinction to Reg v R [1992] 1 AC 599, where the House of Lords did change the common law without waiting for Parliament to legislate, the present issue is indeed one for the legislature.

Common law reasoning and institutions Study Pack A variation on this theme can be found in C v DPP [1995] 2 WLR 383. The case concerned the concept of doli incapax, or the presumption that a child between 10 and 14 was incapable of committing a crime.

The House of Lords refused to abolish the rule, arguing that although it was not consistently applied, it was necessary for Parliament to legislate. A number of Acts showed a definite legislative position on the presumption of doli incapax. Legislation stressed that it was still necessary for the prosecution to show that the child knew that what s/he was doing was ‘seriously wrong’ (White Paper entitled Crime, Justice and Protecting the Public (1990) cited by Lord Lowry, 26).

Although this policy had met with objections and criticism, this was not enough to justify judicial legislation. Again, though, this begs the question of where the line between judicial intervention, and the correct province of Parliament lies. Lord Lowry is careful to point out that this is indeed a difficult line to draw. He draws support for the refusal to overturn the presumption from R v Kearley [1992] 2 AC 228, where the House of Lords refused to alter the hearsay rule.

This allows certain guidelines to be posited: ‘(1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. (4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty.’ It is hard to know what the status of these guidelines is.

Although C v DPP has been an influential decision in the area of criminal responsibility, Lord Lowry’s thoughts on judicial activism do not appear to have been cited. However, these principles go some way to articulating the areas where judges can safely legislate. The grounding idea appears to be in deference to Parliament when the ‘solution is doubtful’ – or Parliament has already considered the issue and refused to legislate.

There is also a presumption against changing the law; and change should only come when it brings with it ‘finality and certainty’. Lord Lowry’s guidelines are congruent with those of Lord Lloyd in Clegg. In case it seems like all the examples that we have chosen come from criminal law, we will turn our attention to Airedale NHS v Bland [1993] 1 All ER 821 – a case that raised difficult moral, ethical and legal issues about the role to be played by medicine in keeping alive someone in a persistent vegetative state (PVS).

On the facts of this case, the court had to determine whether or not the patient’s treatment could be continued. Medical opinion was unanimous that there was no hope of recovery. The court held that there could be no further benefit to the patient of continuing medical treatment; and medical staff were no longer under a duty to continue the treatment that sustained the patient’s life. For Lord Browne-Wilkinson, the case presented the opportunity to consider the correct role of the courts in such a fraught area. Precisely because there was no consensus in society about the correct values that should inform this area of medical ethics, it was not fitting for the judges to ‘develop new, all embracing, principles of law’ that only reflect ‘the individual judges’ moral stance.’

A judge thus had to work with the ‘existing law’. Although this is in itself ‘unsatisfactory’ – a judge was unsuited to consider the wider issues that were attendant on the decision in this given case. Given these circumstances, Lord Browne-Wilkinson considered that it was ‘imperative that the moral, social and legal issues raised by this case should be considered by Parliament’.

It was up to Parliament, and the ‘democratic process’ to give voice to principles that reflected a consensus. These cases show that the perceptions of the legitimate boundaries of judicial law making are difficult to draw precisely. The closest that we come to a definitive statement, Lord Lowry’s guidelines, suggest some of the factors that a judge would take into account. However, the precise dynamics of how these factors are weighed, or, indeed, the extent to which other factors may be influential, is impossible to determine in abstraction.

That common law interpretation proceeds for the most part without such guidelines being absolutely explicit, suggests that they may be embedded within judicial culture in such ways that they remain obscure to observers and commentators. A general statement about institutional legitimacy may allow us to glimpse the contours of the practice, but it will never allow us to get ‘inside’ its operation. We are able, however, to further explore the way in which the practice is transforming itself, and the parameters of institutional legitimacy are being renegotiated.

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Judicial Law Making and Human Rights The issue of judicial law making is now thoroughly bound up with the issue of human rights. The Human Rights Act 1998 has effectively brought to judicial practice new principles that are having a significant impact on its form. Whether or not we are looking at a moment as definitional as London Tramways is hard to say. Perhaps the most accurate description of the impact of The Human Rights Act is to suggest that it is transforming judicial practices within the terms of the constitution.

We will see that, whilst judges are still working within the broad terms of the doctrine of precedent, in certain areas, the courts have seized the chance to create new law and to re-shape their relationship with Parliament. Kay and others v Lambeth London Borough Council [2006] UKHL 10 concerned Article 8 of the Convention and the extent to which it could be used to defeat a local authority’s right to possession of property. The House of Lords held that as the defendants in the case had no rights under domestic law, they could not make a claim against the local authority under Article 8.

The House of Lords ruled that whilst domestic courts were not bound to follow the decisions of the ECHR, they did have to give cognisance to European jurisprudence in their decisions. However, this principle was itself subordinate to the fundamental adherence to the doctrine of precedent. It would only be in extreme cases that the Court of Appeal could overrule a decision of the House of Lords. Lord Bingham offered some guidelines that would help the court to consider when it could depart from the House of Lords, and follow a case of the ECHR.

The Strasbourg case would have to have been decided after the domestic case; the case would have to put forward a clear interpretation of both Convention law and UK law; there is an incompatibility between domestic and Convention law and the domestic law was not based on an Act of Parliament.

In these instances, the correct course of action would be to look to 6(2) of the HRA (ibid. 496). What do we make of these principles? The guiding concern of the House of Lords is to establish a constructive dialogue between the domestic courts and Strasbourg.

This concern is clearly based on fundamental principles of precedent and the relationship between the executive and the judiciary. Lord Bingham’s guidelines suggest that the instances when the Court of Appeal could depart from a precedent of the House of Lords are thus rare, applying only in very limited circumstances. In other words, a ‘mere tension or possible inconsistency’ (ibid.) would not justify the overturning of a precedent. Lord Bingham’s guidelines are also pragmatic.

The lower courts, and even different Law Lords within the appellate courts, had taken different views on the compatibility issue. The law would be left in a chaotic state if differences of opinion in the lower courts justified departure from the established rules of precedent. It is interesting that this argument is very similar to one that the House of Lords deployed in Davis v Johnson. Kay can thus be read as the re-assertion of the conventional doctrine of precedent in the wake of the Human Rights Act, in the same way that the House of Lords in Davis reasserted conventional doctrine against Lord Denning’s creative heresies.

However, the way forward proposed by Lord Bingham is also consistent with the wider Strasbourg jurisprudence, which allows a ‘margin of appreciation’ to national courts in interpreting Convention Rights. This places the primary responsibility on domestic courts as the correct forums for the determination of how European Human Rights law is to apply in a domestic context. How do Lord Bingham’s guidelines relate to the Court of Appeals decision in D v East Berkshire Community NHS Trust [2004] QB 558? In this case, it was held that a House of Lords decision, X (Minors) v Bedfordshire County Council [1995] 2 AC 633, was inconsistent with the HRA.

The House of Lords agreed with the argument of the Court of Appeal, accepting that the justification for the ruling in the case could no longer stand (see [2005] 2 AC 373). However, there were other important factors. X had been decided before the HRA, the case had made no reference to the Convention and the plaintiffs in the case later were successful in pleading a breach of Article 3