Under the theory of separation of power, Parliament makes UK law while the role of judges is to apply the law to the cases. However, in reality, do judges make/develop the law? Like Lord Radcliffe said in 1968 "there was never a more sterile controversy than upon the question whether a judge makes law. Of course, he does. How can he help it? " Judges in the UK do develop the law through both the operation of the doctrine of judicial precedent and statutory interpretation. In precedent, judges were thought to not make new law.
However, it is now recognised that they do use precedent to create new law or extent old principles in various areas. In criminal law, judges have played a major role in developing the law on intention (Vickers 1957 – intention for murder includes intention to cause GBH, later was confirmed in Cunningham 1982; or Moloney 1985, Nedrick 1986 and Woolin 1998 and the law on foresight of consequences in relation with intention). Judicial decisions have also effectively created new crime as in Shaw v. DPP (1962) – offence of conspiracy to corrupt public morals, or R v. R (1991) – rape within marriage is a crime.
Also, in contract and tort law, nearly all the main rules come from cases decided by judges. Many of them were made in the last century or so but still affect today law e. g. Felthouse v. Bindley (1863) – silence cannot be deemed as consent (acceptance of an offer) or the neighbourhood principles produced in Donoughue v. Stevenson (1932). So how can judge create law through the doctrine of precedent? The basic doctrine means every court in the UK is bound to follow any decision made by a superior court and in general, appellate courts are bound by their own decisions.
Although this appears that the courts are not allowed to develop law, there are ways in which the judicial precedent can be avoided, in turn, allowing judges to create law. Nevertheless, whether or not they would avoid the binding precedent depend on whether they want to follow a legal principle or to concern policy issues. Taking the law of tort to illustrate, Chadwick v. British Railways (1967) was based on policy issue, considering the well-being of society and to reward the bravery rather than discouraging it.
In contrast, Bolaynds case followed the legal principle set up in Alcock (1992) without considering the Law Commission Report on changes of secondary victims. Theoretically, judges should not get involved in policy issues but leave it to the consecutive who then seek approval from the legislature. Despite this concept, there are four main ways for them to avoid binding. Since 1966, the Practice Statement has allowed the House of Lords (HoL) to change the law if they believe that earlier case was wrongly decided to avoid injustice.
They have done almost 30 occasions including the first use in a criminal case (Shivipuri (1986) – overruled Anderton v. Ryan) and also contract law (Miliangos (1976) overruled Havana Railways (1960)). From Young case (1944), Court of Appeal (CoA) can overrule its own previous decisions and most other courts are also not bound by their own previous decisions. Since the precedent refers to the legal principle based on material facts (ratio decidende), all judges can use distinguishing.
This means if the judge finds a material fact that is sufficiently different to draw a distinction from the previous cases, he is not bound by those cases. It has been used in the law on duress (Shephred 1987 was distinguished from Sharp 1987) or in intention to create legal relations in contract law (Merrit v. Merrit 1971 and Balfour v. Balfour). Distinguishing is often used in tort cases. Read v. J Lyons & Co. (1977) was distinguished from Rylands v. Fletcher (1868) in that nothing escaped from the land and Evans v. Triplex Safety Glass Co Ltd (1938) from Donoughue v.
Stevenson (1932) as there was other potential causes of the failure of the product. In statutory interpretation, judges are asked to decide the precise meaning of words in an Act of Parliament. Some follow the literal rule which states that the words should be given their plain, ordinary, grammatical meaning as in Oxford Dictionaries. The Mischief Rule (1584) gives judges more discretion than Literal rule. The judges should look to see what the law was before the Act was passed in order to find the gaps the Act was intended to cover. This rule was used in Smith v.
Hughes (1960) to decide that prostitutes who were calling from a house were soliciting in public. Recently, judges use the purposive approach to see what the gap was in the old law and decide that they believe Parliament meant to achieve. Lord Denning used it in Magor and St Mellons case (1950). However, in the appeal case in the HoL. Lord Simons criticised this approach and pointed out that "if a gap is disclosed, the remedy lies in an amending Act". This highlights the conflicts between whether the judges should make law or apply it only.
The fact that there are different rules means it is difficult to predict which will be taken in a case. On the other hand, occasionally, judges may intentionally use the literal approach to point out an error in the law for Parliament to amend (Whiteley v. Chappel 1868 – on the phase "any person entitled to vote". If different rules are used, the outcome would be different – not letting the offender off but also not influencing the Parliament to amend the law. Also, in Royal College of Nursing v. DHSS (1981) the purposive approach was used, concerning the intention of Abortion Act 1967 i.
e. women should have abortion (if needed) in a safe environment rather than backstreet one. What would happen if the literal rule was used? The use of the rules also depends on the favour of judges which may lead to inconsistency in judicial e. g. Lord Parker in Smith v. Hughes and Fisher v. Bell. It is criticised that judges use the rules to bring the outcome he prefers. The rules have allowed judges for flexibility to decide the cases but they are often criticised as giving too much freedom to change the law to suit policy consideration e. g. R v. O' Grady (1987).
Although judicial creativity allows judges to respond immediately to the problems before them (R v. Children 2000) which might take years for Parliament to make new law, or helps to develop the law to catch up with technology development (intellectual properties law) or protects the individual (R v. R 1991), since judges are not democratically elected by public, their roles should just be to apply the law (Bellinger v. Bellinger 2001). Another problem with judges involving in making law is that the decisions are given in a short time period and they do not involve in the lengthy debates/consultation by the Parliament.
Thus, they may not make rules appropriate to all situations (Morgan v. Launchbury 1972). More importantly, judicial creativity appears to be lack of consistency. Judges can overrule or reverse the previous decisions (Pepper v. Hart (1993) reversed Davis v Johnson (1974) on the use of hansard. ) Whether judges should make law or not, they inevitably do. However, generally their decisions help to develop the law correctly and they do respect the sovereignty of Parliament and are content to leave the policy matters to the elected legislature.