Court of Appeal judges

The literal rule gives all the words in a statute their ordinary meanings, even if the outcome is absurd, for example, in Whitely v Chappell, the accused impersonated a dead person at an election and was acquitted, because the relevant statute stated that it was an offence to impersonate any person 'entitled to vote', and clearly a dead person is not entitled to vote.

When a word in a statute is ambiguous, judges can choose the least absurd interpretation by applying the golden rule, for example, in R v Allen, judges interpreted 'shall marry' to mean going through a marriage ceremony rather than a valid marriage therefore the defendant was guilty of bigamy. In Smith v Hughes, the relevant act made it a criminal offence for a prostitute to solicit potential customers in a street or public place. In this case, the defendant was actually inside a private dwelling, knocking on the window, attracting the attention of men passing by.

The purpose of the act was to enable people to walk along the streets without being solicited. Although the prostitute was not in the street herself, the judge interpreted the act to include this activity. The mischief rule was used here in order prevent the mischief that parliament sought to extinguish. Certain rules will be favoured by certain judges depending on their own viewpoints relating to the creation of law. Lord Denning is quoted having said 'the judge should make the law correspond wit the justice that the case requires'.

It is therefore clear that Denning would favour the mischief approach when interpreting statues, however Lord Reid in the Black-Clawson case made his views very clear when he said 'we often say that we are looking for the intention of Parliament, but that it not quite accurate. We are seeking the meaning of the words which parliament used'. Therefore, Lord Reid would have favoured the Literal approach, looking at the natural meaning of the words, hence the creativity displayed by judges will be subjectively decided depending on each judges own opinion relating to their role in law creation.

In conclusion it could be argued that the necessity for judges to create law is extremely strong and powerful. The law would be unable to develop properly or at good speed if it weren't for the decisions being made in court everyday. To quote Lord Denning 'parliament does it too late' hence why the opportunity for judges to make these decisions helps maintain the law as just and as relevant as possible.

Another valid argument is that Britain is now part of the European Union and unfortunately European legislation cannot be interpreted literally. 'the right to family life' taken from the Human Rights Act will vary accordingly, thus the use of Denning's favourite mischief rule would more than likely have to be applied in order to avoid an absurdity. This would mean than whether in favour of creativity of not judges would be forced to look at the wider context and benefits of society when making judgments.

The decisions made in relation to Common Law Cases are based on real life situations hence, sometimes judges have no choice but to 'declare' the law if a new situation arises. (Re S) The decision that they make will therefore not be based on a hypothetical case but on true to life facts that will hopefully result in a just ruling. However, while the prospect of judge-made law appears relevant and useful within contemporary society, there are certain facts that cannot be ignored.

If judges take it upon themselves to create law, the elected body of Parliament will no longer be able to dictate, for it's people, what the law should be. It could therefore be argued that it is unfair to let an unelected body make the decisions on behalf of a whole country of people. The courts and judges creating this law aren't even accountable to the general public. Members of Parliament also wish to represent the views of it's constituent and can also be influenced by the public.

This is done through the media or lobbying. However a quote taken from The Times newspaper illustrates how the public feels about judges. 'A PRIVATE members club for privileged white men: this is still how Britain's senior judiciary appears to the public, undermining confidence in our whole legal system'. It is therefore clear that it is much more beneficial for the elected body of Parliament to create law as opposed to judges, who appear to be lacking a fair representation of today's multicultural society.

'For among the forty-one Court of Appeal judges, there are just two women and of the twelve judges in the House of Lords there is only one woman. Furthermore, a judge from an ethnic minority background has never been appointed to either of these courts, and there is only one black woman in the High Court'. The newly created Judicial Appointments Committee will seek to select judges to represent the wider community they're serving however, it is clear that the role of Parliament remains that favourite for the creation of law.