#14628 - Sources Of Law - GDL English Legal System

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• Case law

• Acts of Parliament

• Statutory interpretation

• Delegated legislation

• EU law

• Custom

• Equity

• Treaties

Case Law

Definitions:

• Common law = collection of case law (decisional law)

• Civil law = principles codified in a written system

Historical development:

• Pre-1066: regional laws lacking consistency

• 1066: William the Conqueror set up a strong central government

  • Representatives of the King sent to countryside: itinerant justices

  • Stare decisis = let the decision stand

    • Decisions -> rules

• 1250: common law system established

Supreme Court:

• Labour introduced Supreme Court in 2009 replacing HL

  • Constitutional Reform Act 2005

• Making the separation from executive & legislative totally clear

  • Totally separate from Parliament (Art 6 HRA pressure)

  • Moved into new building

• Supreme Court has jurisdiction over whole of UK, including over devolution issues

• 12 Justices of the Supreme Court (Law Lords)

• Lord Chancellor no longer had a right to sit in Supreme Court

• Judges do not become lords automatically – new appointments ‘Sir’ & ‘Dame’

• 5, 7 or 9 hear the cases depending on its importance

Judicial precedent:

• Jury decisions don't make case law

• stare decisis: principle of deciding cases on decided cases of similar facts

• ratio decidendi: 'reason for deciding' given by judge that forms binding precedent: this is the only part of the decision that forms a binding precedent. Application of legal principles.

• obiter dicta: other parts of the summary judgement said along the way (can offer clarity and offer advice to future judges). Persuasive rather than binding.

• Courts are bound by those above (and some courts bound by themselves)

• When given a case, the judges have the following options:

  • Follow

  • Distinguish

  • Overrule (original decision remains, but not followed)

  • Reverse (original decision of lower court changed)

• There is a duty to be careful with precedent – in R v Erskine CA advocated the specific use of cases where application is cited, not illustration of application

Hierarchy of the courts:

• EU CoJ

  • European Communities Act 1972 - CoJ decisions binding on all English courts

• Supreme Court

  • From 1966 House of Lords not bound by own decisions; Supreme Court not bound

    • R v Caldwell overruled by R v Gemmell & Richardson

• Privy Council

  • Judicial Committee Act 1833

  • Final appeal court for many Commonwealth countries

  • Sits in Supreme Court building

  • PC decisions do not bind English courts but have persuasive authority because of seniority of judges

    • However: R v James and Karimi (2006) – defence of provocation case where HL R v Smith (Morgan James) used subjective test & PC A-G for Jersey v Holley used objective test - PC decision given precedent over HL, but explained by special sitting of 9 judges (and arguably was used to manipulate the outcome of the case)

• Court of Appeal

  • Can follow PC decisions rather than domestic court rulings if they believe SC would make the same decision

  • Split into Civil and Criminal Divisions which do not bind each other

  • CA Civ:

    • Bound by its own previous decisions unless

      • Per incuriam: previous decision made in ignorance of a relevant law/material & argument

      • Two conflicting decisions

      • HL/SC decision that conflicts

      • Proposition of law was presumed to exist without being properly tested in earlier decision

  • CA Crim:

    • More flexible - can overrule itself to avoid causing injustice

• High Court

  • Ordinary High Court

    • Bound by CA & HL/SC

    • Can overrule itself

    • Produces precedents for lower courts (though at a lower level that CA/HL/SC)

  • Queen's Bench Division (criminal appeals and judicial review)

    • Bound by CA & HL/SC

    • Can overrule itself

  • Chancery Division (civil appeals)

    • Bound by CA & HL/Sc

    • Bound by itself

  • Family Division (civil appeals)

    • Bound by CA & HL/SC

    • Bound by itself

• Crown Court

  • Serious criminal cases & appeals

  • Does not form binding precedent

  • HC judge sitting in CC: persuasive precedent (non-binding)

  • Circuit/district judge sitting: no precedent formed

  • Does not bind itself (as it does not produce precedent)

• Magistrates' and county courts

  • Magistrates = criminal

  • County court = civil

  • The ‘inferior courts’

  • Bound by SC/HL/CA/HC

  • Do not bind themselves (as they do not produce precedent)

• European Court of Human Rights

  • Sits in Strasbourg hearing cases of breach in ECtHR

  • S.2 HRA 1998, English court 'must take account of' ECtHR (not totally binding but often followed)

    • Morris v UK 2002: HL refused to follow ECtHR on basis that ECtHR did not fully understand UK domestic process

    • R v Horncastle 2009: HL refused to follow ECtHR’s decision in Al-Khawaja and Tahery v UK 2009 where it was decided convictions could not rest solely/to a decisive extent on hearsay evidence (evidence given by a witness not available for cross-examination)

  • Where there is a conflict between ECtHR and a binding national court, the lower court with the case in hand should be bound by the higher national court but give permission to appeal

  • Can follow ECtHR over HL/SC if decision was made without knowledge (i.e. before) HRA 1998

    • e.g. D v East Berkshire Community NHS Trust 2003

Civil procedure:

County court -> High Court -> Court of Appeal (Civ.) -> Supreme Court -> EU CoJ (where there is competence)

Criminal procedure:

Magistrates court -> Crown Court -> High Court (QB) -> Court of Appeal (Crim.) -> Supreme Court

How do judges make decisions?

• Act of Settlement 1700 transferred powers of dismissal from Crown to Parliament – foundation of independent judiciary

• William Blackstone 'declaration theory of law': judges don't make law but declare the laws that already exist

  • This is a view that is criticisable in that it relies on an objective standard of interpretation & would not explain why so many cases make their way up the appeal process

  • Blackstone’s theory also does not account for the ways in which courts can circumvent precedent:

    • Distinguishing on facts/point of law

    • Arguing narrow ratio decidendi & the clashing points obiter

    • No clear ratio – jarring judgements from judges coming to the same conclusions

    • Outdated/implicitly overruled precedent

    • Precedents out of date with modern thinking

    • Decision made per incuriam

• Prof Ronald Dworkin: ‘seamless web of principles’

  • Legal principles are sufficient for all decision-making processes, unlike rules

  • ‘Interpretive approach’

    • Look to previous cases & deduce principles

    • Look to facts of case

    • Consult own sense of justice

    • Consult community sense of justice

    • If there is conflict at this stage, questions whether it is fair to impose own sense of justice over that of the community

  • Heavily criticised as unrealistic

    • The interpretive approach seems out of kilter with pragmatic approach (finding the right match of facts of the present case with precedent)

• David Kairys: precedent as legitimation for judicial decision

  • Subjectivity of the mind & confirmation bias

  • Critical legal theorists -> propagation of existing power dynamics through falsely labelled objective legal reasoning

• J. A. G. Griffiths: Politics of the Judiciary

  • The deception of the ‘public interest’ mode of legal reasoning is that the narrow social background of the judiciary paints a subjective picture of what really is in the public interest – they will favour maintenance of existing power structures as they are, themselves, a member of the elite

• Jeremy Waldron: support for politicised judiciary

  • Subjectivity is indisputable, and so judges should be more transparent about their own biases affecting their decision-making processes, which will in turn allow the public to scrutinise those biases & also will encourage the judges themselves to scrutinise their own biases

    • Arthur JS Hall & Co v Simmon 2000, per Lord Hoffmann, support for this way of thinking

Do judges make law?

Yes:

• Common law system -> many points of law come from case law

  • Contract and tort largely judge-made law (e.g. development of negligence as a tort)

• Interpretation of statute

  • Statutory vagueness

  • New social developments

• Statutory gaps

  • Law Lords forced to make a decision despite lack of statutory certainty (on life support turn offs) in Airedale NHS Trust v Bland 1993 – this is clearly an example of law making

  • Judges can't rely on slow, cumbersome parliament

• Control of case law

  • 1966 Practice Direction –declaring HL would not bind itself – was done by the courts with no permission from Parliament

No:

• Cautious use of power

  • Lord Devlin in C (A Minor) v DPP 1995: judges should avoid dynamic law-making in cases of:

    • Indefinite/debatable solution

    • Where Parliament has chosen not to legislate

    • Contentious social policy

    • When there is a legal doctrine in place already

    • Judges should not change the law unless they can achieve finality & certainty

  • Though this is not always the case – R v Dica 2004 overruled R v Clarence 2004 imposing liability for the knowing transmission of HIV despite the fact the Home Office had declined to legislate in the area, knowing to do so would have had wide-reaching implications

• Francis Bennion: overstretching the boundaries of judicial power

  • Appetite for changing the law themselves, instead of waiting for Parliament

  • The lack of clarity case law often provides because it has retrospective effect

  • Taking powers to which they are not constitutionally entitled

When should judges make law?

• Adapting to social change

  • Lord Denning The Need for New Equity – Parliament’s...