Develop a critique of the court

Certainty in the law is achieved through the rules of statutory interpretation and through the operation of the doctrine of precedent. " Discuss. In England and Wales, as well as in other common law countries, the judicial process of decision making relies heavily on the doctrine of precedence. 'Judicial precedence' has two distinct meanings, it may either refer to a leading decision which should be followed in the future, or it may be understood as a process of applying previously decided cases.

(Terence Ingman , The English Legal Process, p. 297) Only the obiter dicta, that is the statement of relevant legal principles, has a binding force, additional comments, known as ratio decidendi, are merely persuasive. One of the reasons why precedent has been successfully relied on for so many centuries is the doctrine of stare decisis, the doctrine compels lower courts to abide by the decisions of higher courts whenever the facts of the cases are similar.

However, it should also be stressed that every case is unique and although the doctrine of stare decisis may appear straightforward its application is known to have caused difficulty. Consequently, even though this paper will attempt to show that certainty can only be achieved through uniform application of legal principles it will also acknowledge the fact that excessive rigidity tends to produce unfair decisions. In 1898 Lord Halsbury confirmed existence of precedent and explained that, according to the doctrine, the House of Lords must adhere to its own decisions until the law is amended by statute.

(London Street Tramways v London County Council [1898] AC 375) What this meant in practice is that the House of Lords did not have the power to overturn its own decisions and consequently judgments on the point of law could not be re-examined. The law was amended by the Practice Statement of 1966 which gave judges a greater degree of flexibility. Lord Gardiner said: "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 degree of certainty upon which individuals can rely in the conduct of their affairs, as well as the basis for orderly development of legal rules. " (Practice Statement (Judicial Precedent) [1966] 3 All ER 77, emphasis added ) Yet, Lord Gardiner did not omit to mention that indiscriminate application of precedent may result in injustice and hinder development of legal principles. Clearly, the Practice Statement allows the House of Lords to depart from its previous decisions but it is advisable that the Lords use their power sparingly.

In the article Consequences of an overrule Francis Bennion examined the disadvantages of allowing the House of Lords to overrule its previous decisions. He identified a number of reasons due to which overrule may be an undesirable development; firstly, it encourages judicial activism and consequently allows the judiciary to usurp powers to which, constitutionally, they are not entitled. In other words, although overrule makes it possible for judges to correct their mistakes it also allows them to modify the law the way they consider appropriate.

Secondly, the risk of potential overrule makes it impossible for lawyers to provide their clients with accurate legal advice; therefore, substantial changes in the law at an unforeseeable time introduce an element of uncertainty. Thirdly, there are problems associated with retrospective operation of the law, in R. v. Governor of H. M. Prison Brockhill ex p. Evans (No. 2) ([2000] 4 All E. R. 15. ) the defendant received damages for false imprisonment when the subsequent overruling reduced prison sentences by two months.

Finally, the ratio decidendi of a case may be difficult to ascertain if the Lords are not consistent in their approach, this in turn makes it is difficult to determine what direction the law will take. (Bennion, Consequences of an overrule, (2001), Sweet & Maxwell, WestLaw ) To illustrate this point Bennion referred to criminal law where the decision to overrule Caldwell (Metropolitan Police Commissioner v Caldwell [1982] AC 341, [1981] 2 WLR 509) meant requirement of mens rea with a reasonable man test.

The result was that the defendant could be found guilty irrespective of his state of mind. (For a longer discussion of similar problems in criminal law see Smith & Hogan p. 69 - 106 and p. 359) There are three rules of statutory interpretation: the literal rule, the mischief rule and the golden rule; (Ingman, Learning Legal Rules, p. 189 - 228) the rules cannot be applied simultaneously. According to the first rule statues should be understood literally, as will be shown below this seemingly straightforward principle may be very difficult to apply in practice.

Problems arise mainly due to lack linguistic clarity - words have several meanings and this opens the possibility of alternative interpretations, for example in R v Maginnis ([1987] 2 W. L. R. 765) problems were caused by the word 'supply,' it was debatable whether return of drugs should amount to supply as intended by section 4(1) of the Misuse of Drugs Act 1971. Even if a word is capable of precise definition strict adherence to its literal meaning may lead to paradoxical results.

In R v Harris ((1836) 7 C & P 446) the defendant bit her friend, the relevant statute implied use of weapons and the court decided weapons do not include teeth. The defendant was found not guilty. If application of the literal rule proves unsuitable the court may decide to resort to the golden rule. The rule may be applied in the narrower or wider meaning depending on the difficulties which have been encountered. The narrow meaning is used if there are alternative ways in which a word can be understood, the judges should choose the meaning which would lead to the most rational result.

In Adler v George ([1935] Ch 89, [1934] All ER Rep 133) the court decided not to apply literal interpretation to section 3 of the Official Secrets Act 1920, section 3 prohibited obstruction of security officers "in the vicinity of" the station while the defendant argued the obstruction took place inside the station. The court disagreed and found guilty. In Re Sigsworth ([1935] Ch 89, [1934] All ER Rep 133) use of the wider meaning was dictated by the fact that strict application of the literal rule would lead to an absurd result.

The court was asked to consider whether a son who murdered his mother could inherit her property. Mrs Sigsworth did not leave a will but her son was entitled to the inheritance by virtue of section 46 of the Administration of Estates Act 1925. Application of the golden rule made it possible for the court to decide that murderers should not be permitted to inherit from their victims. The mischief rule focuses on the social and political climate in which legislation came into existence and pays less attention to the literary meaning of the text.

The reasons behind Parliamentary decisions are given priority, the court looks at the mischief the Parliament intended to remedy. The mischief rule was applied in Smith v Hughes. ([1960] 1 WLR 830, [1960] 2 All ER 859) Section 1 of the Street Offences Act 1959 made it an offence to: "loiter or solicit in a street or public place for the purposes of prostitution. " In order to evade section 1 prostitutes began to attract clients from balconies and windows which, strictly speaking, are private and not public places. The question before the court was whether this could still constitute an offence.

(Learning Legal Rules, p. 199) The court ruled that the purpose of the legislation was to reduce prostitution and to protect the public; consequently, soliciting from balconies, doorways or windows was held unlawful. The three rules discussed above are complimented by additional legal principles, namely ejusdem generis, expressio unius est exculsio aleterius and noscitur a socis. According to ejusdem generis if one or two objects are mentioned before a word of a general type it implies that all objects of this type should be included, for example 'cats, dogs and other pets' is likely to include hamsters but not tigers.

The second rule provides that if the statue mentions one or two things other objects of a similar type should be excluded. Finally, noscitur a socis requires the judiciary to appreciate the context in which a word is found. Another aid to statutory interpretation is the Interpretation Act 1978, the Act clarifies simple grammatical matters such as use of plurals and singulars or feminine and masculine forms ('he' applies to men as well as women). Having discussed the legal principles it is now time to consider whether they have ensured a sufficient degree of legal certainty.

The authors of the Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61 - 2000) (from link) argued that statutory interpretation suffers from a degree of vagueness, they attributed this to an overlap between the literal and purposive approach. The Report concluded that judges are not consistent as to when the purposive approach should take preference over the literal rule. The courts are not permitted to arbitrarily select the most 'convenient' rule of statutory interpretation, they must first apply the literally rule and only if this leads to nonsensical results they can consider the purpose of the legislation.

In recent years, the tendency to apply purposive interpretation has been steadily increasing, in Pepper (Inspector of Taxes) v Hart ([1992] 3 WLR 1032) Lord Griffiths said: "The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.

" The emphasis on the purpose of statutes led to a debate about admissibility of Parliamentary debates reported by Hansard, following Paper v Hart ([1992] 3 WLR 1032 ) Hansard can be quoted in the courts of law as long as it serves to clarify the will of Parliament and not express criticism. Finally, in the book Statutory Interpretation Sir Rupert Cross argued it is possible to interpret legislation literally and at the same time remain faithful to its context, this is known as a 'contextual approach.

' (Cross, Sir Rupert, Statutory Interpretation, (1995), LexisNexis UK) As has been mentioned above, Francis Bennion (Bennion, Francis A. R, Consequences of an overrule, (2001), WestLaw ) believes more effort should be made to increase legal predictability in accordance with requirements imposed by the rule of law. At present, a judge who disagrees with higher court's judgement can circumvent it by distinguishing the decision. In many cases high costs prevent the loosing party from pursuing an appeal and the result is that the decision of a lower court remains valid.

Moreover, Bennion points out that the existing system leaves too much scope for judicial activism and consequently, empowers the judiciary to an extent which is not desirable. On the other hand, however, lack of flexibility leads to injustice: R v Harris ((1836) 7 C & P 446) shows what problems may arise as a result of excessive rigidity. Overall, it is clear that precedence, along with the rules of statutory interpretation, achieve some degree of certainty but stop short of providing unwavering assurances. Yet, one must also remember that unwavering assurances are neither desirable nor possible.