The Court of Appeal (Criminal Division) is bound by judgments made by the House of Lords and judgments made by the Court of Appeal are also binding on inferior courts. It is also bound by its own decisions but can depart from an earlier decision that is considered to be wrong and likely to create injustice. An example of the Criminal court of Appeal departing from its previous decision to create justice in individual cases was in R v Gould 1968, (that overruled the previous case of R v Wheat & Stocks 1921 ) where an honest belief that a previous marriage had failed was a suitable defence to a bigamy charge.
Finally, the courts found at the bottom of the hierarchy are the Crown Courts , Magistrates Court and the County Court, and because these are inferior courts, they must follow all decisions from the higher courts. Precedent is one way in which the courts try to interpret the law. Another method they use to interpret law is by Statutory interpretation. Parliament has given the courts two main sources of guidance to help them interpret statutes. The Interpretation Act 1978 provides certain standard definitions of common provision, such as the rule that the singular includes the plural and that 'he' also includes 'she'.
There are also interpretation sections at the bottom of a statute and is included in most modern provisions – these sections provide definitions of certain words used in a statute. Apart from this limited assistance, it has been left to the courts to decide what methods to use when interpreting and there are three ways and these are the – literal rule, the mischief rule and the golden rule. The literal rule gives the words their plain and ordinary meaning and the result must be followed even if it sounds silly.
An example is the case of London and North Eastern Railway Co v Berriman (1946) where a railway worker was knocked down and killed and his widow tried to claim damages. The courts did not allow the claim as the statute provided that this was only available to employees killed while engaging in 'relaying or repairing tracks'. The fact that Berriman was doing maintenance and oiling did not come into the meaning of 'relaying and repairing'. This shows an obvious defect to the rule as it does lead to an absurd and unjust conclusion.
The second rule, which is the golden rule, can be used if the literal rule gives an absurd result. The third rule is the mischief rule and it aims to find the gap in the law that Parliament seeks to remedy. This was seen in Smith v Hughes (1960). However there are still arguments with the literal rule, as when it does create injustice, the courts look for another solution this goes against the principles of Parliament that the judge's role is to interpret the law, not make law.
But Denning argued in the case of Magor and St Mellors v Newport Corp that: 'we do not sit here to pull the language of Parliament to pieces and make nonsense of it … we sit here to find out the intention of Parliament and we do this better by filling in the gaps and making sense of the enactment rather than making a destructive analysis'. From here, we can argue that judges do make law in most situations. For example, contract and tort law are still largely judge made, and most of these are important developments such as negligence in tort law.
Another point is that case law or statutes cannot always be applied automatically as some terminology may be vague or ambiguous and that new developments in social life have to be accommodated. It has also been found that judicial precedence does not always make a decision obvious and obligatory. This can be said where there are conflicting precedents that hold unclear implications. Therefore, when appropriate, judges have to avoid precedent simply because of social and physical attitudes changing over time and old law needs to change so they are more modernised.
Judges should also be allowed flexibility to make decisions to prevent injustice, as shown in the case of R v Shivpuri. Theorists such as Kairys, Griffith and Waldron all accept that judges do have discretion, and therefore they do to some extent make law. This point can also be made where precedents do not always relate to the case before them and so the judges have to decide for themselves. This was in the case of Airedale NHS trust v Bland 1993, where the House of Lords had to decide the fate of Tony Bland as he was left in a coma.
They had to decide whether it was lawful to stop supplying artificial food and drugs that were keeping him alive. They held that switching off the life machine was lawful as it was in the best interest of the patient. The courts also made law in the case of R v R ( 1991 ) and the decision was of paramount importance where it was held that marital rape was now an offence – this decision reflected the change in society's perception of rape. The fact that a Practice Statement was issued in 1966, allowed judges to depart from their previous decisions.
This gave the judges more discretion, power and flexibility, and this was made on the court's own authority without needing the permission from Parliament to do this. Lord Scarman (a judge) also admitted that in some cases they do make the law: ' It would need very clear language to persuade me that Parliament intended to allow the courts to act as some sort of backseat driver in trade disputes'. Overall, it can be said that judges need to make law in order to bring justice to the parties in a certain dispute, and to keep up with the changing needs of society.