Judicial Creativity – Law

Analyse the extent to which judges are able to develop the law through the operation of the doctrine of judicial precedent and in the interpretation of statutes. Discuss whether judges should be able to develop the law (30 marks+5marks for AO3) A French philosopher, Montesquieu, introduced the separation of powers theory in the 18th century. He aimed to prevent dictatorship by simply separating law-making power between the three branches, the executive, legislature and judiciary. Parliament are supposed to be the power that creates the law that the government have proposed which leaves the judges to apply it to cases.

However, in reality do judges have a scope to be creative and develop our law far more than just applying it? The doctrine of precedent is based upon the stare decisis principle; this means that judges must stand by what has already been decided. They must abide by the precedents from the courts above them; this suggests little creativity as the majority of courts are bound to follow precedents previously made. The only creativity they have is dependant on new case law, which is extremely hard to come across.

Original precedents give judges maximum creativity, due to their being no pre-existing cases or statutes so judges can create brand new law. Airedale NHS trust v Bland is a prime example of where a completely new point of law was created, the precedent created was that doctors do not have a duty of act if it is in the patient’s best interests not to do so and therefore they cannot be convicted on murder. The judge in this case had maximum creativity; he was able to create a new point of law from scratch. Much of our law today is judge made, such as murder and the non-fatal offences; this illustrates the maximum creativity judges can have.

Overall using original precedents gives Judges a lot of creativity, they do not have to follow precedents or statutes and they can produce whole areas of law; such as the tort of negligence created by Lord Atkins. It is positive that judges should create laws as they have first-hand knowledge of our modern society and how the law needs to apply fairly to all real life cases. It is also a quick solution as the law can be created by the end of a trial rather than having to go through parliament, this means that the law can quickly update with our society.

There is not always maximum creativity however, in order to create an original precedent there must be a case that does not previously have a point of law and it must have original circumstances. In modern society, these cases are very limited and this drastically reduces the creativity that judges have through original precedents. Some judges subscribe to a theory known as the ‘declaratory theory’ this states that judges merely declare the law and do not actually create it. Lord Esher is a judge who believes in this theory; he stated, “There is no such thing as judge-made law for the judges do not make law”.

The belief in this theory originates from the separation of powers; judges should only apply law so that they do not become too powerful. In addition, parliament have parliamentary supremacy, due to being voted in they represent the public and therefore should have the most power. Some judges however are more willing to accept that they do make law, Lord Reid said that the idea that judges do not make law is a “fairy tale”, Lord Browne Wilkinson supported Lord Reid and stated, “Judges make law (and change it). Common law is totally judge made and judges changing the law is the only way to keep law relevant in a changing world”.

The extent of judge’s creativity is disagreed upon, Lord Devlin says that judges can make law but should only do so to reflect the public consensus. This is known as activist law making, marital rape was made illegal in R v R because the view on women had changed in society. Women’s rights group had made such laws an offence to society. Activist law making gives judges a greater extent to creativity but it is still minimal as judges are limited on what they can make law about. Another type of law making is dynamic law; this is when judges are prepared to make law on controversial issues.

An example of where judges were prepared to rule on a sensitive policy issue was Airedale NHS trust v Bland, This was a decision that had many moral issues and due to the sensitivity of this point of law, many believed it should have been a parliamentary decision. However, to pass a law through parliament it would have taken at least 2 years and therefore judicial law making was a quick and easy way to change the law. Judicial law also tends to be more accurately applicable as Judges base their law on cases whereas Parliament uses theoretical ideas.

Dynamic law making allows judges a lot of creativity as they can create new policies quickly and efficiently on the public policy issues in our society. However, it is not a judge’s job to make decisions on issues of policy as stated by Ronald Dworkin. Parliament is an elected body and therefore represents the public’s best interests. Parliament’s laws would be more thorough and accurate, especially as they have a much more extensive law making process. These reasons are why many judges avoid these controversial issues.

An example being Clegg, the judge stated that the nature of creating a partial defence for military and police personnel was a change for parliament. Lord Devlin is also a believer in avoiding controversial public policy issues, however this idea is naive and unrealistic as judges cannot just ignore cases. Overruling offers creativity to higher courts who can replace decisions of courts below them; some can even overrule themselves such as the Supreme Court. This gives great creativity to the higher courts such as court of appeal but no creativity for the magistrates court.

A previous principle can only be overruled if it is to fix a wrong decision or if the decision is outdated. The Supreme Court can overrule its own past precedents by using the practice statement; they can do this “when it appears right to do so”, this statement is clearly subjective and therefore it is up to the judges when they use it. Therefore, the extent to which they can be creativity is down to them. The first use of the practice statement in criminal law was in the case of Shivpuri, they brought in the new principle that belief is now enough to be found guilty and this overruled the case of Anderton v Ryan.

The practice statement rarely comes into use as they do consistency and certainty is seen as the main priority and this is why the practice statement was introduced in 1966 but was not used in criminal law until 1986 in the case of Shivpuri. They refused to overrule Re Dowling in Jones in order to maintain certainty even though four out of the seven judges stated that the previous decision was wrong. As established, the practice statement theoretically gives the Supreme Court maximum creativity; they can create any new precedents, overrule any precedents from lower courts and even overrule their own.

However judges are begrudged to use the statement as certainty is seen as the most important element and therefore the extent to which judges have creativity with overruling depends on the Judges. Distinguishing can be used in all courts, which creates more creativity as even the lowers court can ignore a decision from the Supreme Court. It is used when the court rules that the material facts of a latter case are sufficiently different from the earlier case that it can draw a distinction between the two.

This will create another precedent. In R v Roberts the udge distinguished between the acts of the defendant where the severity of the threat was proportionate to the action and R v Williams were the actions of the defendant broke the chain due to her actions being disproportionate. Distinguishing gives great freedom for judges to be creative, they can create new precedents and avoid others but most importantly all courts can use it. The only restriction is that there must be a material difference for the courts to notice in order to make a new precedent, however some judges will rely on illogical difference to give themselves more freedom.

Distinguishing is more preferable than overruling because it preserves certainty because it does not remove the previous precedents. However, despite all of the ways in which judges can develop and even make new law they will always been restricted in their freedom to be creative by time. the development of precedent depends on cases, if a case does not make it to court or isn’t on a relevant point of law then that point of law will not be able to be changed.

Statutory interpretation is another way in which judges can develop our law; judges have to interpret parliamentary legislation so that they can apply the law to the real life cases, which reach court. This links directly to the separation of powers theory, judges have to apply the law that has been created by parliament. Prima facie, this gives the judges no creativity as they can only apply law however, there are different rules that judges can use when applying the law, which rule they use dictates how much creativity they have.

The purposive approach is the rule that gives judges the most creativity, Judges can ignore the words of the statue and look for the purpose instead, Lord Denning has supported this approach and said, “We sit here to find out the intention of parliament and carry that out and we do it better by filling in gaps”. Judges can use the legislation in the way that they believe is right and prevent injustices by ignoring the actual words in the act; this reduces absurd verdicts. Clinton demonstrates the purposive approach and allowed creativity.

Judges ignored the Coroners and Justice Act, which stated sexual infidelity, should be excluded as a trigger for the defence of loss of control. Lord Judge said the exclusion was ‘artificial and unrealistic’ and it could not have been parliament’s aim to cause such injustices. The purposive approach has become more popular due to The Human Rights Act 1998, which states that all statutes must comply with the Human Rights Act. Under section 4 it gives Judges, the power to make a declaration of incompatibility when a statute does not comply this tells parliament their act is wrong and needs changing.

This happened with the Sexual Offences Act, which did not allow offenders the right to appeal to be removed from the sex offenders register, the judges said that this contradicts Ds right to a family life. Creativity is demonstrated here as judges are effectively telling Parliament to amend their statutes, however this creativity is restricted as parliament can ignore the suggestions. The purposive approach allows judges to extend statutory principles, allowing them to develop with society and cover unforeseen scenarios such as in the non-fatal offences.

GBH was extended through the case of Dica to make biological harm satisfy really serious harm and in Smith where the law was developed to make the cutting off hair satisfy ABH. These developments are positive, they help the law reflect the changes in society and develop the law quickly and efficiently by introducing new principles In contrast to this, the literal rule gives the least amount of creativity. It requires judges to follow the plain, ordinary dictionary meanings of the words in the statutes.

This means that the judges cannot interpret the legislation at all and therefore much absurdity is caused. A key example of this is LNER v Berriman, the judge ruled that oiling points on a track did not amount to “relaying or repairing” and instead it was maintaining and therefore Mr Berriman was not entitled a look out and Mrs Berriman lost her claim against the employers. This is an absurd ruling because Berriman was clearly taking the same risks in his work on the railway and surely, the purpose of the statute was to avoid any fatal accidents at work.

There is no creativity for judges by using this rule and yet they persist in using it. Lord Esher said “If the words of an act are clear, you must follow them even though they lead to a manifest absurdity”, judges see that by following the plain, ordinary and dictionary meaning of the words of statutes they are abiding by parliamentary supremacy and the separation of powers theory. They believe that Law making should be down to Parliament as they have the most power and that this rule enforces this. Judges have a large scope of creativity when it comes to developing the law.

Parliament are elected and has a much more excessive law making process and therefore should create most of our law to, theoretically, prevent mistakes from rash decisions. In reality, much of our law is judge made and the development of principles is what makes our law reflective to our society, parliament’s laws are theoretical and common laws are based on real life circumstances. These real life circumstances cannot all be foreseen by parliament and therefore common law is needed otherwise injustices would be caused and then the law would not be successful at its main aim of justice.