Judges should be involved in law making

A court has to be in the right place in the hierarchy to overrule a precedent. Overruling is retrospective, I. e. the judge's statement of the legal rule in the new case applies to the old cases as well. When they overrule they are stating that the law has always been as they are now stating it and that the judges decisions in past cases were wrong, however, this does not mean that the old cases can be re-tried. E. g. after R v. R two men were convicted of raping their wives, even though at the time of raping their wives the decision of R v.R had not been made, so at the time of raping their wives they were acting lawfully. Overruling is different from reversing.

Overruling is where a court in one case corrects the law in an earlier but different case. Reversing is what happen in cases that are being appealed and involves a higher court changing the decision of the lower court in that particular case. In Arthur Hall v. Simon the House of Lords relied on the 1966 Practice Statement to overrule the rule in Rondel v. Worsley that lawyers owed no duty of care for negligent advocacy.

The House of Lords believed that the public had different expectations, and that most of the justifications for treating lawyers differently from other professionals had gone as a result of changes in the way litigation is conducted. Therefore, they believed the old rule could no longer be justified. This retrospective nature of overruling can lead to unjust results; in Sandhar. Dept of Transport 2004 the Court of Appeal reluctantly dismissed a claimants appeal whilst acknowledging that this was "a significant injustice" This is a method by which a judge avoids having to follow a previous binding precedent.

It involves a judge drawing out 'sufficient differences' between the case he currently is deciding and the old one which would bind him to give what he believes would be a unjust decision. A judge can also distinguish based on a point of law by arguing that the legal question answered in the previous case is not the same as the one in his present case. For example, in R v. Brown the H of L decided that the consent of the victim for assault could not be a defence to a charge of assault under s47 of s20 of the Offence Against the Person Act 1861 where those assault had taken place in sado-masochistic sex.

The assaults had been committed by a group of men, in private, and involved branding. The case which it was distinguished from was Wilson which was dealt with by the C of A in 1996 which involved a man who branded his initials into his wife's buttocks. The C of A decided that he was entitled to use his wife's consent as his defence. They distinguished from the H of L in Brown by saying that in Wilson the purpose of the branding was different as it was done for personal adornment rather than sexual pleasure. Also in R v.Kelly and Lindsay 1999 where two men had been convicted of stealing body parts from the Royal College of Surgeons in order to use the dead body parts for sculptures.

The appealed against their conviction on the grounds that in common law, nobody owns a corpse, but clearly the judges were outraged at what these defendants had done. The judges therefore distinguished the case on the grounds that whilst there was, under the common law, no ownership of a corpse, the law did not apply to a body that had been adapted for scientific or medical purposes and was in the possession of a recognised institute of medial science.

There are problems with distinguishing in that if the judges distinguish too often the law becomes very complicated and uncertain. For example, when the H of L in Burstow decided that s20 could be committed with no physical contact, they distinguished the earlier case of Clarence 1888 where the H of L said there is no s20 if there has been no physical contact. This was distinguished on the basis that that case had not been dealing with psychiatric illness which they said is more likely to be caused without physical contact.

This has left the law uncertain in terms of physical illness caused with no physical contact. Distinguishing allows judges to find ways around following binding precedent, and while in certain cases when it is obvious that previous decision should not be followed in this particular case, if judges do it too often they come under criticism for making the law too complicated.

Also, they cannot commission research into the impact oof their decision and must rely on two contrasting evidence claims by the parties of the case. When distinguishing, judges are effectively making reasons not to follow law and creating laws of their own, this creates controversy by bringing up the old issue of whether judges should be involved in law making.