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As it has been stated hundreds of years ago by William Blackstone, judges never actually create a law. They must objectively interpret and state the law which stems from Acts of Parliament. By following the rules of precedent, judges basically uncover and declare a law: "the judge being sworn to determine, not according to his private sentiments... not according to his own private judgement, but according to the known laws and customs of the land: not delegated to pronounce a new law, but to maintain and expound the old one."
Theoretically, judges should base their decisions solely on the logical deductions of precedent, with no politically influenced subjectivity.
The term used to describe these decisions is "case law", however the term "common law" is also correct. The judges come to these decisions after concluding which party they chose to find guilty, based on legal argument and evidence presented to them and how the law applies to those facts.
However, when a judge decides a case, he/she must follow any decision that has been made by a higher court in a case with similar facts. The rules concerning which courts are bound by which are known as the rules of precedent. Judicial precedence is a source of law created by judges and it is also an important part of case law. It is one of the oldest sources of law, and there are at least 400,000 reported cases.
Judicial precedence is basically when a previous decision made by the courts is used as a model or precedent for all future decisions for cases that have similar circumstances. These decisions are to be followed by other judges depending on their position in the court hierarchy and the facts of the case. This is also known as the doctrine of stare decisis which means that judges are to stand by what has been decided, so this means that a decision made in one case is binding on all following cases of similar facts in the lower courts.
When deciding cases judges can create legal rules, and these are made in a particular way. These legal rules are found in the judgement that is delivered to the court. The judgement(s) give a decision on the case and this decision is binding on the parties, this is known as res judicata. The judgement also contains the ratio decidendi which is the legal reasoning for a judge's decision. For example, the ratio decidendi of the Donogue v Stevenson case ( 1932 ) case was that a manufacturer owes a duty of care to the ultimate consumer when putting up their product.
However, judges will not only state the ratio decidendi in their final judgement, they may also speculate what the outcome of the case would have been if the facts were slightly different. These comments are called obiter dicta (comments made 'by the way'). A binding precedent made by a court is a precedent that must be followed by other inferior courts. A persuasive precedent is one that is not binding on any courts but the judges might want to follow it, it is their choice whether or not they want to follow the precedent.
Generally, inferior courts must abide by precedents made by superior higher courts. Some courts are also bound by their own previous decisions as well as decisions made by higher courts.
There are hundreds of cases and different precedents being produced each day so the law keeps changing, judgements need to be recorded accurately to avoid confusion and it has to be possible for judges to be able to establish the ratio decidendi from cases. If this is not possible the precedent is said to be made per incuriam, and is no longer used.
There also needs to be a clear hierarchy of courts where superior and inferior courts are established. The UK system of judicial precedent provides this as there is a very clear and distinguished court hierarchy established by the Judicature Acts 1873 - 75. Also, judgements are recorded accurately and reliably as barristers report judgements made by the superior courts and are published in newspapers ( e.g. The Times ), journals and volumes of collected reports ( e.g. The All England Law Reports ).
The House of Lords is the highest in the court hierarchy therefore because it is the most superior court, its decisions and the precedents made by the House of Lords will bind all lower courts which are all inferior to the House of Lords. Cases of significant importance however , will sometimes be referred to the European Court of Justice. Decisions made by the House of Lords are binding on all English courts but the Lords are not bound by their own decisions.
In the past, before 1966, the House of Lords were bound by their own decisions, this was done to ensure certainty in the law. This meant that the only way a previous precedent made by the Lords could be changed was through an Act of Parliament. However this changed in 1966 when the Lord Chancellor issued what is called a Practise Statement.
The Practise Statement is a set of directions from a senior legal figure telling the courts about policies and procedures that they must follow. It now states that the House of Lords would no longer be bound by its previous decisions. It also gives it more power to depart from its own decisions when required in certain circumstances. It can only do this if the previous decision is out of date and/or the previous decision was wrong or created uncertainty.
An example of the House of Lords departing from a previous decision, due to the fact that it was out of date, is in the case of British Railways Boards v Herrington ( 1972 ). In this case an electrified railway line ran through property that was open to the public. It was fenced off but the fences were in a state of disrepair and it was known that people took advantage of this and used it as a shortcut across the tracks and that children also used to play on the line, however nothing was done about it.
As a result of this, a six year old child was severely injured as he was electrocuted when he stepped on the tracks. He gained access to the tracks through the broken fence. The House of Lords held that the occupiers owed the trespassers a duty of care to observe 'common humanity' under the tort of negligence, they had a duty of care in keeping railway fences repaired.
The Lords did not follow a previous decision made in the case of Robert Addie & Sons (Collieries) Ltd. v Dumbreck ( 1929 ) which was quite similar. It was about a four year old trespasser who was crushed in the wheel of a haulage system that was operated by the colliery. In this case the decision was that the occupiers owed no general duty of care to the trespassers. They would only owe a duty of care if the occupier purposefully caused harm to the trespasser and this was not the case.
In summary, both cases were about the liability of occupiers of land for injuries suffered by child trespassers. The Addie case showed the popular view at that time that this sort of liability was limited. In the British Railways Board case, public perceptions had changed over time and the negligence laws had also developed. This meant that liability could be extended.
Another example of the Lords departing from a previous decision which was wrong or created uncertainty was in the case of R v Shivpuri ( 1987 ) where it stated that an earlier interpretation of the Criminal Attempts Act 1981 in the case of Anderton v Ryan was wrong.
The next court down in hierarchy is the Court of Appeal. The Court of Appeal Civil Division is bound by the previous judgements of the House of Lords. It is also bound by its own previous decisions and decisions made by the Court of Appeal are binding on the High courts and County courts.
Lord Denning ( Master of the Rolls ) opposed this and argued his view that the court should not be bound by its own previous decisions or the previous decisions made in the House of Lords. He felt that if they found a previous decision to be wrong, they should have the freedom to depart from it. He displayed this in the case of Cassell & Co v Broome (1972) where he said that a previous Lords decision was made per incuriam and so as a result, the courts were reprimanded by the Lords.
Another example of this was in the case of Davis v Johnson (1979), where the court tried to overrule its own previous decision; as a result the Lords condemned the court. In the case of Young v Bristol Aeroplane Co (1944) it was recognised that the Civil Court of Appeal was required to follow its own previous decisions and it also established three different circumstances which would prevent the Court from having to follow its previous decision. These three exceptions are :
* If a previous decision made by the Court of Appeal (civil) conflicts with a later Lords decision, it is obviously the Lords decision that is used as the precedent.
* If two previous decisions are conflicting, the court is free to choose between them.
* If a judge feels that a previous decision was out of lack of care or per incuriam, the court may depart from a previous decision.
The Court of Appeal (Criminal Division) is bound by judgements made by the House of Lords and judgements 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 966, 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.