Common Law Reasoning and Institutions

Common law
reasoning and
institutions
Adam Gearey
Wayne Morrison
This subject guide was prepared for the University of London International Programmes by:
u Adam Gearey, Professor of Law, Birkbeck, University of London
and
u Wayne Morrison, Professor of Law, Queen Mary, University of London
Acknowledgments
The authors would like to thank Angela Boots and Vicky Thanapal for the preparation of
Chapter 3, and Clare Williams, LLM.
This is one of a series of subject guides published by the University. We regret that owing
to pressure of work the authors are unable to enter into any correspondence relating to,
or arising from, the guide. If you have any comments on this subject guide, favourable or
unfavourable, please use the form at the back of this guide.
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Published by: University of London
University of London 2013

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Common law reasoning and institutions page i
Contents
1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1 An outline of the CLRI course . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.2 Part I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Online study resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.5 Core textbooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.6 Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2 The contemporary legal system in England and Wales . . . . . . . . . 11
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 Studying the common law . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2 What is the common law? . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3 Acts of Parliament (statutes or legislation) . . . . . . . . . . . . . . . . . . 14
2.4 Judicial law making and the development of the common law . . . . . . . . 15
2.5 Judicial reasoning and the doctrine of precedent . . . . . . . . . . . . . . . 15
2.6 The Human Rights Act 1998 and European Communities Act 1972 . . . . . . 15
2.7 Human rights, judges and the rule of law . . . . . . . . . . . . . . . . . . . 16
2.8 Thinking about trials and courts . . . . . . . . . . . . . . . . . . . . . . . 17
2.9 The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.10 Article 6, due process and the right to a fair trial . . . . . . . . . . . . . . . 20
2.11 Histories of the common law . . . . . . . . . . . . . . . . . . . . . . . . . 22
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3 Research. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.1 Conducting legal research . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4 Case notes and essay writing . . . . . . . . . . . . . . . . . . . . . . 37
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.1 Referencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.2 Case noting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.3 Essay writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.4 Summary for planning an essay and an opening paragraph . . . . . . . . . . 53
4.5 Bringing it all together: sample essay . . . . . . . . . . . . . . . . . . . . . 54
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
5 Reading law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.1 The interaction of the court hierarchy and the doctrine of precedent. . . . . 59
5.2 Ratio decidendi and obiter dicta . . . . . . . . . . . . . . . . . . . . . . . . 60
5.3 Reading a case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
5.4 Reading a judicial opinion . . . . . . . . . . . . . . . . . . . . . . . . . . 65
5.5 Following and distinguishing . . . . . . . . . . . . . . . . . . . . . . . . . 69
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5.6 The role of rhetoric in a case . . . . . . . . . . . . . . . . . . . . . . . . . 70
5.7 Reading statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
6 The doctrine of precedent. . . . . . . . . . . . . . . . . . . . . . . . 81
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
6.1 Precedent as a practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.2 Precedent and public reason . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.3 The structure of precedent . . . . . . . . . . . . . . . . . . . . . . . . . . 84
6.4 Continuity and change in the doctrine of precedent . . . . . . . . . . . . . 85
6.5 Tensions between the House of Lords and the Court of Appeal . . . . . . . . 86
6.6 Judicial law making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
6.7 Judicial law making and human rights . . . . . . . . . . . . . . . . . . . . 87
6.8 Human rights, the doctrine of precedent and the common law . . . . . . . 88
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
7 Statutory interpretation . . . . . . . . . . . . . . . . . . . . . . . . 97
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
7.1 Interpretation of statutes as sources of law and
their application in court processes. . . . . . . . . . . . . . . . . . . . . . 99
7.2 Problems of drafting statutes . . . . . . . . . . . . . . . . . . . . . . . . . 99
7.3 Approaches to interpretation. . . . . . . . . . . . . . . . . . . . . . . . 100
7.4 Substantive case law on statutory interpretation . . . . . . . . . . . . . . 100
7.5 The judicial practice of statutory interpretation . . . . . . . . . . . . . . 101
7.6 Why is Pepper v Hart such a significant case? . . . . . . . . . . . . . . . . 102
7.7 Purposive interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 102
7.8 The impact of membership of the European Union . . . . . . . . . . . . . 102
7.9 Interpretation and the Human Rights Act 1998 . . . . . . . . . . . . . . . 104
7.10 An example of statutory interpretation . . . . . . . . . . . . . . . . . . 108
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Am I ready to move on?. . . . . . . . . . . . . . . . . . . . . . . . . . . 113
8 The judiciary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
8.1 The judiciary: some basic facts . . . . . . . . . . . . . . . . . . . . . . . 117
8.2 The politics of the judiciary and the HRA . . . . . . . . . . . . . . . . . . 119
8.3 Torture, terrorism and justice . . . . . . . . . . . . . . . . . . . . . . . 120
8.4 Judicial independence and judicial accountability . . . . . . . . . . . . . 123
8.5 The judicial appointments process . . . . . . . . . . . . . . . . . . . . . 124
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Common law reasoning and institutions page iii
9 Introduction to civil justice . . . . . . . . . . . . . . . . . . . . . . . 131
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
9.1 The values of civil procedure . . . . . . . . . . . . . . . . . . . . . . . . 133
9.2 The independence of the court and the prohibition on bias . . . . . . . . 133
9.3 Access to justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
9.4 Open justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
9.5 Closed material proceedings . . . . . . . . . . . . . . . . . . . . . . . . 143
9.6 Alternative dispute resolution (ADR) . . . . . . . . . . . . . . . . . . . . 146
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
10 Introduction to criminal justice . . . . . . . . . . . . . . . . . . . . . 155
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
10.1 The nature of the criminal justice process . . . . . . . . . . . . . . . . . 157
10.2 Agencies of the criminal justice system . . . . . . . . . . . . . . . . . . . 157
10.3 Tensions in the criminal justice system . . . . . . . . . . . . . . . . . . . 158
10.4 Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
10.5 The murder of Stephen Lawrence and the Macpherson Report . . . . . . . 160
10.6 The legitimacy of policing . . . . . . . . . . . . . . . . . . . . . . . . . 162
10.7 Terrorism, policing and criminal justice . . . . . . . . . . . . . . . . . . 165
10.8 Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
10.9 Evidence and the trial . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
10.10 What makes criminal trials fair? . . . . . . . . . . . . . . . . . . . . . . 170
10.11 Equality of arms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
10.12 Article 6 and hearsay evidence . . . . . . . . . . . . . . . . . . . . . . . 172
10.13 The jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Feedback to activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Using feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
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Notes
Common law reasoning and institutions page 1
Course overview
This introduction to the English legal system seeks to convey what is distinctive about
the common law approach as a legal methodology as it reflects the history and politics
of England and Wales. The course is vital in initiating students into the process of legal
research.
Course aims
To achieve an overview of the central institutions and processes of the English legal
system and to introduce students to techniques of legal interpretation and legal
research.
Learning outcomes
On successful completion of the course you should be able to:
u Understand the structure and operation of the central institutions and processes
of the English legal system and to have a basic facility with techniques of legal
interpretation
u Conduct of legal research using primary and secondary resources
u Understand techniques of legal reasoning covering precedent and statutory
interpretation
u Describe the role of judges; in particular the Law Lords and the Supreme Court
u Explain the basic structures of civil and criminal justice
u Understand the role of due Process and the importance of Article 6 (European
Convention on Human Rights) in civil and criminal justice
u Explain the key concepts of legal aid.
Assessment
Formative assessment is conducted through interactive online activities. Summative
assessment is through a three hour unseen examination.
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Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1 An outline of the CLRI course. . . . . . . . . . . . . . . . . . . . . . . . 5
1.2 Part I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Online study resources. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.5 Core textbooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.6 Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
1 Introduction
Introduction
Common law reasoning and institutions (CLRI) is a foundational subject that gives
you an understanding of the basic institutions and structures of the common law. It
also introduces you to fundamental skills that are essential to your work as a student
of law. These skills relate to legal reasoning, to how you read cases and statutes and to
how you use electronic databases and archives.
CLRI covers many themes and concepts, which we will introduce to you through this
subject guide. We hope that as you read your way through the subject guide and the
set textbooks, you will begin to appreciate that there is a set of core themes, and that
rather than a mass of detail, there is a logic to the subject. The key thing is: dont
panic. Work slowly and methodically through the materials, and the shape of the
subject will slowly reveal itself.
At the end of this chapter, we will look at the syllabus for the course. For the moment,
though, we will look at how to approach the CLRI course. We will first outline the
course then turn to some specific issues. Later in the chapter we will provide a note
on the examination and describe how you can get the best use out of the relevant
textbooks. The textbooks and the subject guide work hand in hand to develop
your thinking on law. We will also give you further tips about how to use the course
materials in later chapters.
Common law reasoning and institutions 1 Introduction page 5
1.1 An outline of the CLRI course
In our description of the course below, we have divided the syllabus into two parts.
This is purely for ease of understanding and overview. It does not reflect the way that
the course is examined.
Part I consists of Chapters 35; Part II consists of Chapters 610.
1.2 Part I
Part I of the subject guide focuses on:
u identifying key features of the common law tradition and the way they have
developed within the English legal system
u the principles of legal research and identifying the sources of law
u being able to use the legal resources in the online library as well as paper-based
resources
u becoming familiar with case law, being able to critically read case reports and
understand the forms of legal reasoning involved in the development of the
common law; being able to make case notes
u understanding the legal reasoning involved in the application of statute law
u essay writing and critical thinking.
1.2.1 Legal Research Skills: Chapter 3
The relevant skills that will be tested via the CLRI examination (directly and indirectly)
are set out in Chapter 3 (the examination is described below, and in more detail in
Chapters 4 and 5). It is worth concentrating on the key skills specified in Chapter 3
rather than attempting to acquire expertise in all the areas covered in the chapter.
1.2.2 Case noting, reading statutes and essay writing: Chapters 4 and 5
Chapters 4 and 5 are part of a whole: when you have worked your way through these
chapters a couple of times, you will appreciate how research skills, case noting skills
and essay writing all interface with each other. Chapter 5 focuses on reading cases and
statutes. It builds on the case noting and the comprehension skills introduced in the
previous chapter, but also introduces us to reading statutory language and the kind of
question that you will encounter in Part C of the examination (see Section 1.5, below).
When you have read through Chapters 4 and 5 you will be moving towards a more
sophisticated understanding of how to think like a lawyer. However, in order to
advance in your understanding, you need to combine what you have learnt in the first
part of the course with the second part of the course.
1.3 Part II
Part II covers the following themes:
u the practices of precedent and statutory interpretation
u the relationship of the common law courts to the European Court of Human Rights
in Strasbourg
u the issues surrounding the judiciary; the politics of the judiciary and the selection
of suitable persons to become judges
u the criminal justice system in outline, with particular reference to the jury, policing,
prisons and sentencing
u the idea of human rights in the legal system; in particular the importance of Article
6 of the European Convention on Human Rights: the right to a fair trial
u the normative theory of the civil and criminal trial; in particular the principles of
integrity, participation and open justice.
The themes relevant to the second part of the course will be examined through a
series of essays that you will write in the examination. It is therefore important to link
together your approach to these themes with the essay writing skills that are outlined
in Chapter 4. Please also bear in mind that case noting skills are essential to building
your understanding of the topics outlined above. Each chapter contains a list of
essential cases which you need to read and make case notes on.
The title of this course is Common law reasoning and institutions. Our focus is very
much on courts, but we will also consider other institutions involved in dispute
resolution. However, we use the word institution in a wide sense: an institution can
refer to a physical place like a court, but it can also refer to ideas and doctrines that
give a set of practices (or ways of doing things) a form and an identity. Furthermore,
we are very much concerned with the values that should underlie the law, and we
need to understand common law institutions and processes (the processes of criminal
and civil justice) from the perspective of fair trial rights.
1.4 Online study resources
In addition to the subject guide and the Essential reading (see below), it is crucial that
you take advantage of the study resources that are available online for this course,
including the virtual learning environment (VLE) and the Online Library.
You can access the VLE, the Online Library and your University of London email account
via the Student Portal at:
http://my.londoninternational.ac.uk
On registration you will automatically have been granted access to the VLE, Online
Library and your fully functional University of London email account.
If you have forgotten your login details, please click on the Forgotten your password
link on the login page.
1.4.1 The VLE
The VLE, which complements this subject guide, has been designed to enhance your
learning experience, providing additional support and a sense of community. It forms
an important part of your study experience with the University of London and you
should access it regularly.
The VLE provides a range of resources for Laws courses:
u Online audio presentations recorded audio lectures which cover most of the
material for the core subjects which are intended to complement your studies.
u Latest news and updates provide information on both the programme and your
courses (e.g. information on how to book the Laws weekend courses).
u Student discussion forums An opportunity to debate and interact with other
students on your course.
u Electronic versions of your study materials to provide you with flexibility in how
and where you study.
u Computer marked assessments and exercises - multiple choice questions with
feedback which allow you to test your knowledge and understanding of the key
topics in your course.
u Past examination papers and Examiners reports are vital to developing your
examination technique as they provide advice as to how questions might be
answered.Be aware that the format of examinations might change from year to
year. The format of the CLRI examination will change for the session 2013.
u Recent developments Recent developments are published in February each year
for each course. They cover any significant changes in the law since the publication
of the subject guide which are included in the examinable material, including key
cases or updates on the coming into force of new legislation, plus updates on new
editions of recommended reading.
u VLE subject newsletters - Remember to check the VLE for the newsletters from the
University of London. You may also register to have these newsletters sent to you
directly.
u Video introductions There are also video introductions to the Intermediate
courses recorded by the Subject Convenor on the Course webpage as well as at
www.youtube.com/user/UOLIAulp
All of the above resources are available for CLRI and most will be available for our other
courses as well. Check the VLE for the most up to date materials for each course.
1.4.2 Making use of the Online Library
The Online Library contains a huge array of resources including journal articles, case
reports, legislation and newspapers. The specialist legal databases will help you read
widely and extensively.
The Online Library Laws Gateway contains resources and support materials which
are relevant to your course. You can access the Online Library by selecting the Online
Library tab within your portal, or directly at:
www.external.shl.lon.ac.uk/res/subjects/index.php?group=law
To access the majority of resources via the Online Library you will either need to use
your University of London Student Portal login details, or you will be required to
register for, and use, an Athens login:
www.external.shl.lon.ac.uk/contact/index.php
The Online Library Laws Induction Guide introduces you to the extensive resources
and support guides which are provided, and is a good starting point if you are new to
the Online Library:
www.external.shl.lon.ac.uk/interactive/law_induction/page_01.htm
The easiest way to locate relevant journal and newspaper articles in the Online Library
is to use the Summon search engine:
www.external.shl.lon.ac.uk/summon/index.php
For further advice on searching Summon, see the Summon for Law Students guide:
www.external.shl.lon.ac.uk/info_skills/law/search_summon.php
If you have any questions about the Online Library you can contact the Online Library
Enquiry Service. The Enquiry Service is staffed by a team of professional Librarians
Monday to Friday 09.00 17.00 GMT.
Contact the Online Library by:
u email: OnlineLibrary@shl.lon.ac.uk
u Complete the enquiries form: www.external.shl.lon.ac.uk/help/enquiries/index.php
u Telephone: +44 (0) 20 7862 8478
1.5 Core textbooks
It is important to familiarise yourself with the core textbooks. The subject guide is your
basic point of reference, and it is important to always start with this guide and the
relevant chapters. The subject guide will point you to the relevant sections in the core
textbooks. The course books are:
Holland, J.A. and J.S. Webb Learning legal rules. (Oxford: Oxford University Press,
2013) eighth edition [ISBN 9780199657490]. (Referred to as Holland and Webb
in this guide).
Gearey, A., W. Morrison and R. Jago The politics of the common law. (Oxford:
Routledge, 2013) second edition [ISBN 9780415662369]. (Referred to as Gearey et
al. in this guide.)
Different chapters of the subject guide will refer you to different Essential reading
from the books above.
Gearey et al. provides you with critical arguments that will help you write essays. You
are not expected to sit down and read it from cover to cover in a single sitting (unless
you really want to). The book is meant to be digested slowly and worked through as
you work through this subject guide.
Holland and Webb contains a great deal of useful information about the institutions
and structures of the legal system in England and Wales. Gearey et al. is organised
more thematically, and encourages you to think about what you have read in a critical
way.
Familiarise yourself with the basics of the subject using Holland and Webb before
you start reading Gearey et al.. To get the most out of Gearey et al., see it as a way of
developing your thinking. Read the chapters slowly and carefully, make notes on them
and ensure that you link together your reading of the book with the essential cases
detailed in the latter chapters.
It is important to have some basic idea of how Gearey et al. is laid out and the central
arguments that run through it. The first section of Chapter 1 of Gearey et al. outlines
how the argument develops. You might find it useful at this stage to read this section
and makes notes on the structure of the book.
Detailed reading references in this subject guide refer to the editions of the set
textbooks listed above. New editions of one or more of these textbooks may have
been published by the time you study this course. You can use a more recent edition
of any of the books; use the detailed chapter and section headings and the index
to identify relevant readings. Also check the VLE regularly for updated guidance on
readings.
Further reading
Please note that as long as you read the Essential reading you are then free to read
around the subject area in any text, paper or online resource. You will need to support
your learning by reading as widely as possible and by thinking about how these
principles apply in the real world. To help you read extensively, you have the VLE,
Online Library and other legal resources.
Other useful texts for this course include:
Askey, S. and I. McLeod Studying law. (London: Palgrave Macmillan, 2011) [ISBN
9780230302792]. (Referred to as Askey and McLeod in this guide.)
Slapper, G. and D. Kelly The English legal system: 20132014. (London: Routledge,
2012) fourteenth edition [ISBN 9780415639989].
Cownie, F., A. Bradney and M. Burton The English legal system in context. (Oxford:
Oxford University Press, 2010) fifth edition [ISBN 9780199567409].
Zander, M. The law-making process. (Cambridge: Cambridge University Press,
2004) sixth edition [ISBN 0521609895].
Zander, M. Cases and materials on the English legal system. (Cambridge:
Cambridge University Press, 2007) tenth edition [ISBN 9780521675406].
1.6 Assessment
Important: the information and advice given here are based on the examination
structure for the session 2013/14. Please note that as from 2013/14 the assessment
for CLRI has changed so materials on the VLE and previous subject guides will not
necessarily be geared towards the current assessment structure. Because of this
we strongly advise you to always check both the current Regulations for relevant
information about the examination, and the VLE. You should also carefully check the
rubric/instructions on the paper you actually sit and follow those instructions.
As the examination is described in more detail in Chapters 4 and 5, the following
note provides a basic overview. Please read this carefully as it is different from the
examination previously set in CLRI.
The examination is divided into three parts: A, B and C. All parts are compulsory. No
materials can be taken into the examination.
Part A requires you to make a case note. The relevant case will be released to you
in October 2013. You will be required to submit the case note through the VLE. The
questions in Part A of the examination will examine your understanding of the case
note. Part A will also contain an unseen extract from a case and questions that test
your comprehension of the case and the issues that it raises. You will not be allowed to
take the case note into the examination.
Part B requires you to answer two out of a choice of questions that are based on
material contained in the last section of Chapter 2 and Chapters 610 of the subject
guide.
Part C is based on an extract from a statute. The extract will be released to you at the
same time as the case. Part C of the examination will contain a number of questions
that test your understanding of the statutory extract, in particular, your ability to apply
the relevant law to a series of imaginary facts.
Each question in the examination carries equal marks.
The breakdown of the marks from each Part is as follows: Part A (25 per cent), Part B
(50 per cent, i.e. two essays each worth 25 per cent), Part C (25 per cent). For further
clarification, Part A contains a multi-part question that consists of 25 per cent of the
marks; Part C also contains a multi-part question that consists of 25 per cent of the
marks.
1.6.1 Preparing for the examination
The best way to prepare for Part A is to complete the activities outlined in Chapters
3 and 4 of this subject guide. Make sure you practice making case notes, and read as
many cases as possible.
The best way to prepare for Part B is to make sure you are familiar with the techniques
of essay writing outlined in Chapter 4 of this subject guide. Be aware that you need
to build up a body of notes on the examined areas. This means reading the relevant
chapters of the subject guide and the textbooks and using the online resources.
Gearey et al. is particularly relevant to this part of the course.
The best way to prepare for Part C is to practice reading statutes, and to ensure you
have worked through the exercises in Gearey et al..
Note: examples of Part A, B and C questions are given in this subject guide. An
Examiners report on the previous years examinations will be published on the VLE
before you take your examinations, make sure to read this report but bear in mind
that the examination it refers to will be different from the examination you will sit.
The other essential skill that you should practice is writing against the clock. Make sure
that you gain experience of answering unseen questions in a limited time frame.
Remember, it is important to check the VLE for:
u up-to-date information on examination and assessment arrangements for this
course
u where available, past examination papers and Examiners reports for the course
which give advice on how each question might best be answered.
Summary
This chapter has laid out a basic overview of the course, the relationship between the
subject guide and the textbooks and provided an introduction to the examination. It
is important to realise that you need to work on both the skills detailed in this subject
guide and the substantive areas of the legal system that the course considers. It is also
essential to work on your essay writing skills, and practice writing timed essays. Above
all, work your way slowly and carefully through the subject guide, the textbooks
and the online resources and allow yourself sufficient time to read and digest the
materials.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
2.1 Studying the common law . . . . . . . . . . . . . . . . . . . . . . . . .13
2.2 What is the common law? . . . . . . . . . . . . . . . . . . . . . . . . .13
2.3 Acts of Parliament (statutes or legislation) . . . . . . . . . . . . . . . . .14
2.4 Judicial law making and the development of the common law . . . . . .15
2.5 Judicial reasoning and the doctrine of precedent . . . . . . . . . . . . .15
2.6 The Human Rights Act 1998 and European Communities Act 1972 . . . . .15
2.7 Human rights, judges and the rule of law . . . . . . . . . . . . . . . . .16
2.8 Thinking about trials and courts . . . . . . . . . . . . . . . . . . . . . .17
2.9 The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
2.10 Article 6, due process and the right to a fair trial . . . . . . . . . . . . . .20
2.11 Histories of the common law . . . . . . . . . . . . . . . . . . . . . . .22
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Am I ready to move on . . . . . . . . . . . . . . . . . . . . . . . . . .25
2 The contemporary legal system in England
and Wales
Introduction
This chapter introduces the basic ideas and themes that run through the course.
We will look first at cases and statutes as sources of law; a theme that we will place
in its historical context. Our attention will then turn to an outline of judicial law
making and the doctrine of precedent. We will then examine the impact of European
Union (EU) law and European human rights law on common law. The next section
of the chapter will reflect upon the way in which the Human Rights Act 1998 (HRA)
has redefined the relationship of the courts to Parliament, and examine elements
of the doctrine of the rule of law. This section will also examine the idea of law in a
democracy. The latter sections of the chapter will overview essential themes that
relate to courts and trials and a concluding section will outline some themes that
relate to the recent history of the common law.
Essential reading
Holland and Webb, Chapter 1 Understanding the law.
Gearey et al., Chapters 1 Introduction Part I and 2 Introduction Part II.
Common law reasoning and institutions 2 The contemporary legal system in England and Wales page 13
2.1 Studying the common law
The first section of this chapter outlines the main institutions of the common law
that we will study and the contemporary situation of the common law in England and
Wales. Later, we will turn to some historical perspectives.
It is important that you:
u know how the hierarchy of courts operates and understand the dynamic nature of
the doctrine of precedent (this will be covered in Chapter 5).
u know how the judges and magistrates work (Chapter 8).
u are able to read cases and statutes (Chapters 6 and 7).
u understand the way the criminal and civil courts operate (Chapters 9 and 10).
For the moment, however, we want you to get an overview of these matters.
u The common law is often presented through its history. This makes it difficult
to begin thinking about the common law today, as one has to go back to its
beginnings. In this chapter we will outline the history of the key institutions of the
common law, but our focus is the contemporary situation of the common law.
u The contemporary common law cannot be studied in a vacuum. As we will outline
below, there are two significant events that we need to take into account:
the point at which the United Kingdom became part of the EU in 1972, and the
enactment of the HRA. This means that the common law is now inseparable from
the law of the EU and the law of international human rights, as defined by the
European Convention on Human Rights (ECHR).
u In this chapter, we will also introduce our concerns with courts and trials.
u At this stage in our studies we are not concerned with the functions, ends or social
context of the law. We will deal with all these concerns in the latter part of the
subject guide.
2.2 What is the common law?
The phrase common law is used to denote the law applied by the courts as developed
through the system of precedent. Historically, the common law can be dated to the
early 1100s and the work of the Norman Kings in developing a single body of rules with
which to govern England. Roman law had an important influence on the development
of the common law, but we cannot trace this important theme in this subject guide.
Commentaries were central to the development of the common law. There were
important studies of the common law written throughout the medieval period (for
instance, Henry de Bractons De Legibus et Consuetudinibus Angliae, 1235) but we will
take Sir William Blackstone (172380) as our main point of reference. Blackstone was
a Justice of the Court of the Kings Bench and a commentator on the common law.
He wrote one of the most influential and systematic studies of the common law.
Blackstones Commentaries on the laws of England (176569) described the common
law as unwritten law in contrast with the written law of statutes or codes. Blackstone
presented the common law as a form of oral tradition derived from general customs,
principles and rules handed down from generation to generation by the court lawyers
and judges, who participated in a common life in one of the Inns of Courts to which
all had to belong. Eventually this oral tradition was reflected in the reports of the
decisions of the important courts and the knowledge was then stored in a written
form, namely the Law or Case Reports.
You should note, however, that there was no organised system of court reporting until
the late 19th century and prior to that all reports were private initiatives (reports were
made by barristers in the courts and circulated privately for a fee).
Historically, the common law tradition has always placed the judiciary at the centre of
things. Judicial decisions are seen as constituting the written law a body of maxims,
precedents and reported decisions that constantly need to be rationalised and
developed into a coherent system.
Further reading
Holland and Webb, Chapter 1 Understanding the law, Section 1.5 Regulation:
Legal rules and social rules.
2.3 Acts of Parliament (statutes or legislation)
Essential reading
Holland and Webb, Chapter 1 Understanding the law.
Although the common law is judge made, and case law remains a source of law,
influential legal reformers active in the early 1800s were critical of what they saw as
the incoherent nature of case law. They drew on traditions of British political thinking
that focused on the importance of sovereign power rather than the law making power
of the judges. In particular, Hobbes Leviathan (1660) proved an important reference
point. Hobbes argued that there should be a single source of sovereign power in a
nation. Political events allowed this source of power to be associated with Parliament;
and the influence of radical thinkers like Jeremy Bentham (17481832) and John Austin
(17901859) further developed what became known as the positivist approach to law.
The positivists stressed the importance of a coherent, logical analysis of the law; and
Bentham pushed forward various reform projects that were designed to give the law a
single, informing philosophy. Bentham particularly disliked the old fashioned nature of
the common law; likening it to a crumbling gothic castle. Law had to become modern
and linked to the rational government of the country.
By the late 19th century, statutes, or Acts of Parliament, had become a major source of
law in England and Wales. As the state took on increasing responsibility for economic
management and social regulation, the volume of statute law continued to grow.
Whilst Bentham and Austin might not have agreed with the growth of state power,
and certainly did not anticipate the welfare state of the late 20th century, it would be
fair to say that social and economic policy required a great deal of legislation.
One must also remember the political changes that underlay the sovereignty of
Parliament. From the 1830s onwards, the franchise (i.e. those who had the right
to vote) also expanded. This was due to popular agitation, as well as the work
of reforming governments, who sensed that a broad franchise was necessary to
legitimise (i.e. make acceptable) the power of Parliament. Shortly after the First World
War, when the right to vote was granted to women, the franchise included most adults
in England, Wales, Scotland and Northern Ireland.
We can link this point about the legitimacy of Parliament with the idea that statutes
are the supreme source of law. A statute will override inconsistent case law. This
is because Parliament is a democratic body, elected by the people. It is therefore
justifiable that Parliament creates supreme law.
Perhaps the most accurate contemporary statement about the sources of authority of
the law follows H.L.A. Harts argument in The concept of law (1961). We can refer to two
sources of law in the United Kingdom (or, in Harts language two rules of recognition
that allow us to specify the sources of UK law): cases and statutes. Statutes are the
supreme source of law; a fact that recognises the sovereignty of Parliament. We could
say that this element of law reflects the legitimacy of Parliament. Judges have a law
making power to develop the rules of the common law. Note, however, that although
this power is subordinate to Parliament, it should properly be seen as a law making
power. We will return to the question of its legitimacy in the section below and in later
chapters of this subject guide. We will see that, since the HRA, the relationship of the
judges to Parliament has become a live issue.
Further reading
Askey and McLeod, Chapter 2 The sources of English law.
2.4 Judicial law making and the development of the common law
One of the main concerns that we will deal with relates to judicial law making. As Sir
Edward Coke

(15521634) put it in the preface to his Ninth report:
it is one amongst others of the great honors of the common law that cases of great
difficulty are never adjudged or resolved in tenebris or sub silentio suppressis relationibus,
but in open court: and there upon solemn and elaborate arguments, first at the bar by the
counsel learned of either party, (and if the case depend in the court of common pleas,
then by the sergeants at law only); and after at the bench by the judges, where they argue
(the presiding judge beginning first) seriatim, upon certain days openly and purposely
prefixed, delivering at large the authorities, reasons, and causes of their judgments and
resolutions in every such particular case, (habet enim nesio quid energia viva vox:) a
reverend and honorable proceeding in law, a grateful satisfaction to the parties, and a
great instruction and direction to the attentive and studious hearers.
Note how important the idea of decision in open court is for Coke. We will argue that
these elements of the common law became adapted for a democratic context many
years after Coke was writing. Our key point is that judicial law making is legitimate in a
democracy because it takes place in open court, and judges justify and give reasons for
their decisions. We will also argue that judicial law making is legitimate because it is
restrained and, for the most part, defers to Parliament.
Summary
Judges make law; the pressing issues relate to the legitimacy of judicial law making.
This takes us to a number of concerns, including the relationship between the
courts and Parliament and the impact of the HRA. We will now begin to develop our
understanding of these themes.
Further reading
Askey and McLeod, Chapter 3 The constitutional context of English law is a good
overview of the basic constitutional structure and context of the law of England
and Wales.
2.5 Judicial reasoning and the doctrine of precedent
The development of the common law is guided by the doctrine of precedent: this
means that cases that are judged to be similar are decided in the same way. In order
to understand what judges are doing we will suggest that judicial reasoning can be
understood as a structure (or institution, see above) that allows the common law to
develop coherently. It also limits judicial law making. We will investigate this issue
in depth in Chapter 6. We will argue that precedent is a practice, and a significant
element of this practice is the restraint it places on judicial discretion to make law. We
will also argue that precedent is itself structured by the idea that judges must explain
their decisions and justify them. We will call this the requirement that judges give
public reasons for their decisions.
2.6 The Human Rights Act 1998 and European Communities Act 1972
From the contemporary perspective, the most important concerns in relation to the
modern common law are perhaps the HRA and the European Communities Act 1972
(ECA). You are beginning your study of the common law in a period of unprecedented
change.
The HRA domesticated the ECHR. This means that Convention rights are part of
English law. Prior to 1998, the Convention was only binding on the United Kingdom as
an international treaty. Convention rights could not be relied upon in English courts.
The important consequence of the domestication of the Convention is that we can
now begin to speak of an indigenous law of human rights.

Coke was Chief Justice
of the Kings Bench. His
Institutes of the lawes of
England and Reports laid
the foundations for much
contemporary thinking on
the common law.
As Convention rights are now available in English courts, it is no longer necessary to
take the United Kingdom to the European Court of Human Rights (ECtHR) in Strasbourg
if ones human rights have been infringed. One of the consequences of the HRA is thus
to increase the influence of European human rights law on common law.
The ECA makes the law of the EU part of the law of the United Kingdom. This is because
the United Kingdom is part of the EU. Thus, since 1972, it is no longer possible to
think of the common law as somehow separate from the civilian law traditions of
continental Europe. The common law and European forms of civil law are now linked
together in the law of the EU.
Dont confuse the law of the EU with the law of the ECHR. They are different sources of
law, and their effect on English law is also different. In this subject guide we focus more
on the ECHR than EU law. You might want to look at your Public law notes, as they
go into much more detail on EU law. Other than this basic outline of EU law, the sole
issue we will investigate is that of the effect of European matters of interpretation on
common law methods of reading statutes.
Further reading
Holland and Webb, Chapter 1 Understanding the law, Section 1.5 The courts.
2.7 Human rights, judges and the rule of law
The HRA incorporates the ECHR into UK law. Under s.2 of the HRA, when deciding on
questions under the Convention, courts must take into account the case law of the
ECtHR. They are therefore not explicitly bound by those decisions, but are under a
duty to consider them. These provisions mean that when any court is considering a
case which raises human rights issues, it must look at the case law from the ECtHR and
interpret the requirements of the ECHR in the light of that case law. We look at these
issues in detail in Chapter 6.
Under s.3 of the HRA, the courts are obliged to interpret legislation in so far as it is
possible in a way which is compatible with the ECHR. This requirement means that the
rules of interpretation by which the courts have been guided up until now must take
second place to the requirement that statutory provisions should be compatible with
the ECHR. We examine these issues in detail in Chapter 7.
Later we will be concerned with the developing relationship between the ECtHR in
Strasbourg and the domestic courts. We will see that this relationship raises important
questions about the common law, human rights and the balance of power in the
constitution. Building these points means that we have to think a little more about the
HRA, the judges and the doctrine of the rule of law.
Up until the HRA, it would probably have been inaccurate to refer to human rights at
common law in the United Kingdom. Indeed, British common lawyers preferred the
language of civil liberties to that of human rights. Since 1998, however, a catalogue of
human rights exists at common law. Certain judges have seized upon the possibilities
that this offers. It is outside the scope of this chapter (and this course) to describe
all the effects of the HRA. Suffice to say that there are very few areas of public law
that the HRA has not touched. Perhaps one of the most interesting areas of law
is the development of privacy rights at common law an area of protection that
was traditionally rather weak. The Act is also having an interesting effect on the
relationship between Parliament and the judges.
The HRA was meant to redress the balance between the courts and Parliament. The
Act allows judges to protect human rights against executive power. The difficult
question is: has judicial power now begun to trespass on the power of Parliament (in
order to become the ultimate controlling factor in the constitution)? The judges have
argued that they should be less deferential to Parliament, and more willing to use
their enhanced powers to protect human rights. This is because Parliament itself has
become too powerful and has, on occasions, not governed within the law.
These points can be illustrated by reference to some recent cases. In R (on the
application of ProLife Alliance) v BBC (2003) Laws LJ argued that the courts had a
constitutional duty to protect and enhance the democratic process. In R (Jackson and
others) v A-G (2005) Lord Bingham pointed out that the constitutional balance has
been thrown out, and the Commons, dominated by the executive, [has become] the
ultimately unconstrained power in the state [50]. The courts appear to be asserting
their constitutional competence against the executive. Other cases show similar
evidence of judicial activism. Director of Public Prosecutions of Jamaica v Mollison (2003)
shows that the independence of the judiciary is a constitutional fundamental and
cannot be trespassed upon by other branches of government. In Anufrijeva (2003)
the House of Lords held that the executive could not make unilateral determinations
of peoples rights which bypassed the scrutiny of the courts. This right of access to
justice could also be considered a fundamental constitutional principle. In A and
others v Secretary of State for the Home Department (the Belmarsh case) (2004) the
House of Lords stated that indefinite detention of foreign terrorism suspects was in
breach of the ECHR.
Tensions between the courts and Parliament over their respective roles have recently
become more pronounced. Although divided on the issue, certain members of the
present Coalition Government want to either repeal or limit the HRA. Conservative
backbench Members of Parliament (MPs) are particularly angry over rulings of the
Strasbourg court and the Attorney General, Dominic Grieve (appointed 2010), has
stated that the ECtHR has become too intrusive.
These themes clearly connect with those considered in Public law. Our themes are a
little more limited. We will be interested in the impact of human rights on the politics
of the judiciary and on the common law. We will also make references to human
rights particularly fair trial rights in our analysis of civil and criminal justice.
Further reading
Askey and McLeod, Chapters 3 The constitutional context of English law and 5
The protection of human rights and fundamental freedoms.
Holland and Webb, Chapter 10 Bringing rights home: legal method and the
Convention rights.
Gearey et al., Chapter 2, Introduction Part II.
2.8 Thinking about trials and courts
Fair trial rights can be organised around three key principles:
u those that relate to the integrity of procedure
u those that inform the participation of the parties in the trial
u those that inform the principle of open justice.
These principles will be explained as we go along, but they are founded on common
sense, and should not confuse you.
We now want to explain what we mean by a normative theory of the trial.
Examination questions (in CLRI and other first year subjects) will ask you to discuss or
critically assess the law. In order to discuss or critically assess you need a standard of
judgement from which to offer your assessment. So, as far as common law institutions
are concerned, you need to know what they should do, in order to offer an assessment
as to whether or not they do achieve these ends.
Imagine that a trial has taken place before His Honour, Justice Bent. The judge tells the
court:
Ladies and Gentlemen, my decision is as follows: I took an instant dislike to the
plaintiff, and so have decided in favour of the defendant. Furthermore, as the defendant
runs a company in which I have a significant share holding, I would be much poorer if
he lost.
Ones reaction to this decision would be: The judge is clearly biased. This is not a just
decision.
When we said above that we are putting forward a normative account of the trial and
that this is based on common sense we had in mind (albeit at a more sophisticated
level) problems like that of the biased judge. If we think that a biased decision is not
a just decision, then we must (perhaps without knowing it) have a sense of the norms
(rules and principles) that should underlie the trial. Thus, the prohibition on bias is an
important part of a normative theory. If you object to Justice Bent you therefore must
have an implicit normative theory of the trial.
The point of your studies is to help you bring out and develop ideas that you already
have. This involves structured thinking: thus a normative theory of the trial goes
beyond common sense insights, because it is trying to provide a more coherent and
rigorous way of thinking about legal institutions.
If we want a normative account of common law trials then we can build our account
on the international right to a fair trial (Article 6 of the ECHR). This is an important
reference point because it provides a statement of the values that should inform a fair
trial.
Our starting point for critical thinking is: if courts and trials should be fair, are
common law courts and trials fair? This means a) knowing how trials and courts work
(i.e. questions of information, facts and detail) and b) thinking critically about this
information from the perspective of a question of value (i.e. what should be the case).
In Justice Bents decision, above, the first question would relate to the court that
Justice Bent was sitting in; his powers as a judge, etc. The second question is: has
Justice Bent made a fair decision? This is the process of critical thinking on which you
will be tested in the examination. So, from the very beginning, it is important to start
reflecting upon this process.
If you still dont understand these ideas, try reading Holland and Webb, Chapter 1
Understanding the law. Although we will not use functional thinking to organise our
account of the law, it is coherent with the ideas that Holland and Webb put forward.
You could also re-read Chapter 1 of Askey and McLeod.
2.9 The courts
Essential reading
Holland and Webb, Chapter 1 Understanding the law, Section 1.3 What is law?.
2.9.1 The basics of procedure
It is useful to think about some basic points in relation to how procedure works.
A court can be seen as an arena, wherein a contest is waged between parties in which
one emerges the winner. In the adversarial system practiced in common law courts,
the parties dictate, within the constraints of traditional forms and packages (such as
writs, forms of action and pleadings), the form, content and pace of proceedings. The
pre-trial proceedings are arranged such that by the time of the trial, each side should
have gained as much information as possible both to support their own case and to
exploit any weaknesses in the oppositions arguments. The agent of the court (i.e. the
judge) should stand back and wait for the case to proceed to trial. During the trial, the
judge in civil cases, and the judge and jury in criminal cases, should allow themselves
to be guided, at least initially, as to the relevance of questions of fact and law by the
parties advocates. The judge should take a procedural back seat and intervene only
to ensure that fair play is operating or where the public interest is at stake.
The proceedings are dominated by the advocates for the parties with the prosecution
trying to build a strong case against the defendant and the defence endeavouring to
demolish the prosecutions case. Throughout this procedure, witnesses are examined
and cross-examined, using a variety of tactics available to the skilled advocate. Some
advocates use subtle means to cause witnesses to react in a certain way, others use
bullying tactics to obtain the same result from nervous participants. The success of a
case, therefore, often rests upon the ability of an advocate to manipulate proceedings
and not just the weight of evidence.
However, consider Lord Neubergers judgment in Al-Rawi v Security Service [2011] UKSC
34. Lord Neuberger is talking about the civil trial (i.e. not the criminal trial, but we will
generalise his points below):
14 Under the common law a trial is conducted on the basis that each party and his lawyer
sees and hears all the evidence and all the argument seen and heard by the court. This
principle is an aspect of the cardinal requirement that the trial process must be fair,
and must be seen to be fair; it is inherent in one of the two fundamental rules of natural
justice, the right to be heard (or audi alterem partem, the other rule being the rule against
bias or nemo iudex in causa sua).
[...]
16 Another fundamental principle of our law is that a party to litigation should know the
reasons why he won or lost, so that a judges decision will be liable to be set aside if it
contains no, or even insufficient, reasons. As Lord Phillips of Worth Matravers MR explained
in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409, para 16, justice
will not be done if it is not apparent to the parties why one has won and the other has
lost...
17 A further fundamental common law principle is that trials should be conducted in
public, and that judgments should be given in public. The importance of the requirement
for open justice was emphasised by the House of Lords inScott v Scott [1913] AC 417...
18 Connected to these fundamental principles are two other rules developed by the
common law. First, a civil claim should be conducted on the basis that a party is entitled
to know, normally through a statement of case, the essentials of its opponents case in
advance, so that the trial can be fairly conducted and, in particular, the parties can properly
prepare their respective evidence and arguments for trial. Secondly, a party in civil litigation
should be informed of the relevant documents in the control of his opponent, through the
medium of what is now called disclosure; this helps ensure that neither party is unfairly
taken by surprise, and that the court reaches the right result, as neither party is able to rely
on a selection of documents which presents the court with a misleading picture.
The civil trial process is given structure by certain values: the two fundamental rules
of natural justice, the right to be heard (or audi alterem partem, the other rule being
the rule against bias or nemo iudex in causa sua). We have already encountered the
rule against bias (nemo iudex in causa sua). We can now add to it the right to be heard
(audi alterem partem). These are technically called the rules of natural justice. Natural
is rather unusual in this context. As we cannot deal with the history of natural law, or
the way in which the common law has used this concept, we can only comment that
a) these rules are not really natural they are a product of the culture of the common
law, and b) they are also the products of common sense. Think about this. If a judge
is biased against one of the parties to the case, we would say thats not a fair trial.
Likewise if one party dominates the proceedings we would also conclude thats not
a fair trial. Thus, nemo iudex in causa sua and audi alterem partem are common sense
ideas about a fair trial or hearing.
Recall what we said above about the normative theory of the trial. We now have two
other basic points we could make. As far as the common law trial is concerned, it is
important to bear in mind that its two key principles are nemo iudex in causa sua and
audi alterem partem. Later, we will see that these principles can, in turn, be linked to
three other principles that determine the nature of the fair trial: the integrity of law/
procedure, participation and open justice.
The last two principles (participation and open justice) are also sketched out by Lord
Neuberger above. He states that a judge must give reasons. Justice, it might be said, is
about visibility: one needs to know why one has won or lost a case. A judgment, then,
cannot be given in secret. Surely secret judgment is the way in which unaccountable
power (not law) operates. Civil justice, then, must be delivered in open court. Hence
the principle of open justice. In the last paragraph Lord Neuberger describes another
fundamental point. A trial proceeds through the participation of the parties, it requires
a statement of case and disclosure of documents. We could relate this back to the
open justice principle and the duty to give reasons: law is about argument and reason.
The trial is ultimately founded on these values.
Lord Neuberger is not talking about the criminal trial, and we have to acknowledge
that there are differences between criminal and civil trials. However, we could make
the same basic points about the criminal trial as the civil trial: it must be structured by
fundamental principles.
We will go into much more detail on these themes in later chapters. To appreciate
how the argument develops, we must now turn to the human right to a fair trial and
the idea of due process.
2.10 Article 6, due process and the right to a fair trial
Read this extract from the ECHR, Article 6, right to a fair trial:
1. In the determination of his civil rights and obligations, or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the trial in the
interest of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the
nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
e. to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.
Article 6 is essential to our understanding of the fair trial. Note how it privileges
criminal, rather than civil law. This is because in a criminal trial, the state prosecutes.
It brings its resources to bear on an individual defendant. It is therefore more likely
that the defendant needs protection from the power of the state. As civil cases are
between two parties (although the state can be involved) it is perhaps less likely that
state power will distort the trial process. However, this does bring into focus questions
of equality of resources and access to justice that we will consider in Chapter 9. For the
moment, however, we need to deal with some preliminary issues.
In the section above, we dealt with the common law understanding of the trial. We
now want to think about the trial from the perspective of Article 6. There is a similarity
between the due process (fair trial) rights developed in international human rights
law, and the understanding of the trial that has developed at common law. Remember
that the point of our discussion at the moment is to get a general overview of these
arguments. They will be developed in much more detail later on.
Re-read Article 6. Note how the Article stresses the importance of an independent
and impartial tribunal. The guarantee to an independent and impartial tribunal is
central to Article 6, as it lays down the foundations for the rule of law. We call this
the integrity principle. The key point is that if the judge or the court is biased, or
otherwise lacks independence, then the decision or ruling of that judge or court is
compromised. Once the integrity of a legal procedure is breached, the very idea of the
rule of law is called into question.
We could say that if a court is not independent, then the case has not been tried
properly. In other words, there has been a breach of due process that provides
grounds for an appeal. In Incal v Turkey [1998] ECHR 48, the court articulated the
broader principle at stake in issues of independence and bias: What is at stake is the
confidence which the courts in a democratic society must inspire in the public and
above allin the accused (para.65). Article 6, in this sense, protects the integrity of the
courts in a democratic society.
We can thus appreciate the overlap between the principle of nemo iudex in causa sua
(a common law principle) and the human rights principle that prohibits bias. These
two principles, taken together, stress the importance of the integrity of law and trial
processes.
Note the following: Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law. This is a fundamental guarantee for a
fair criminal trial. At common law, there is a presumption of innocence in the criminal
trial. In other words, the defendant is innocent until proven guilty by the prosecution.
We can therefore appreciate that there is a coherence between common law
principles and human rights principles on this point.
The ECtHR has developed doctrines around these rights, called equality of arms and
access to justice. Equality of arms and the principle of access to justice are general
doctrines and apply, in different ways, to civil and criminal proceedings. If one party
has considerably more resources than another in a trial, then it may be the case that
the proceedings are compromised and a fair trial has not taken place. We will connect
this point to one about access to legal representation and the qualified right to legal
aid.
Finally, it is interesting that the first paragraph of Article 6 stresses the importance
of public hearing. Note that this requirement can be limited. This relates back to the
common law principle of judgment in open court. We will think about the limits on
the open justice principle in Chapter 9.
We are limited in the extent to which we can consider rules of evidence on this course.
We will touch on the issue of cross-examination, particularly in relation to hearsay
evidence, as there is a major case on this point that takes us back to the relationship
between the common law and the Convention.
We will also examine alternative dispute resolution (ADR) and the role that it plays in
civil justice. Given our concerns with procedural fairness, we will also consider how
Article 6 impacts on ADR.
We will use the term due process to refer to fair trial rights; we also link both these
terms to the rule of law. In our opinion, the rule of law is a broad doctrine that relates
to the courts as much as the constitution.
Further reading
Gearey et al., Chapters 1 Introduction Part I and 2 Introduction Part II.
You will have to read both these chapters at least a couple of times to get the sense
of the argument. You might also prefer to read the section of the subject guide below
before starting to read and re-read Chapters 1 and 2 of Gearey et al., as the section
introduces key themes from these chapters.
Holland and Webb, Chapter 1 Understanding the law, Section 1.6 The
importance of procedural law describes the basic idea of procedural law (as in
the processes of the civil and criminal courts).
2.11 Histories of the common law
Essential reading
Gearey et al., Chapters 2 Introduction Part II, 3 As a system...the common law
is a thing merely imaginary and 4 Recording laws experience: features of the
case.
The Essential reading relates the history of the common law to the development of
ideas of due process and fair trial rights. This short history of due process attempts
to place Article 6 and arguments about human rights in their historical context. One
has to be careful relating due process to Magna carta; it is probably not the case that
modern ideas of due process can be found in this ancient document. The roots of
the modern ideas of due process are found in the revolutions of the late 1700s and
the transformation of the medieval world. The last phase of our history shows how
due process develops in a context characterised by capitalist economy and rational
bureaucracy. The chapter concludes by showing the relationship between due
process, the idea of dignity and human rights. Dignity relates to the idea of moral
personhood, and to the need for the courts to have moral authority in order to judge
citizens.
Chapter 2 of Gearey et al. also goes into much more detail on a normative theory of the
trial and contains some brief comments on colonialism. You can pick up on this theme,
and a broader cultural analysis of the common law, in Chapters 3 and 4 of Gearey et al.
The common law is meant to somehow embody the genius of a people. What does
this mean? These myths of common law are bound up with the history of the British
Empire. Most historians would agree that the colonial period was not one in which
enlightened administrators spread civilisation to benighted peoples. The Empire
was based on violence, conquest and the extraction of resources from the colonial
periphery to enable the development of the metropolitan power. The British Empire
was sophisticated and, at least towards the late part of the 1800s, developed doctrines
of indirect rule that made use of customary and indigenous law rather than overt
violence.
The dismantling of the Empire after the Second World War adds a further level of
complexity to the legacies of the common law; but the point of these chapters is to
encourage critical thinking about the British Empire and the post-colonial period.
The English legal system was exported around the world during the colonial period.
The legal systems of the USA, Australia, New Zealand, Singapore, Malaysia and most
of the Commonwealth countries, for example, are all based on English common law
although they may mix in local customary law, religion-based law or other influences.
Each country has its own unique characteristics. Hong Kong, for example, is a special
administrative region of the Peoples Republic of China (PRC) and its legal system is
guaranteed by the basic law to be a common law system for 50 years after the hand
over to the PRC. The PRC itself is a mixed civil law system with a socialist political
organisation, yet it is adding common law features as it seeks to develop a more
robust rule of law.
What makes these different jurisdictions part of the common law legal family is not
exactly similar rules or propositions, but, rather, a working jurisprudence. As Justice
Story declared in Van Ness v Pacard (1829) 2 Pet 137, in respect of the USA:
The common law of England is not taken in all respects to be that of America. Our
ancestors brought with them its general principles, and claimed it as their birthright: but
they brought with them and adopted only that portion which was applicable to their
situation.
In the view of Chief Justice Shaw of Massachusetts, in Norway Plains Co v Boston & Maine
Railroad (1845) 1 Gray 263, the flexibility of the common law ensured its adaptation in
different countries.
It is one of the great merits and advantages of the common law, that instead of a series
of detailed practical rules, established by positive provisions, and adapted to the precise
circumstances of particular cases, which would become obsolete and fail, when the
practice and course of business, to which they apply, should cease or change, the common
law consists of a few broad and comprehensive principles, founded on reason, natural
justice, and enlightened public policy.
It is not necessary to agree with his precise listing of the basis of the common law in
order to agree with the image of flexibility.
Today we can talk of two great secular legal families. The legal systems of continental
European countries, which were also exported around the world, gave rise to the
civil law systems. The most influential of these has been that of France, because, by
introducing the Code civil in 1804, Napoleon Bonaparte gave to France the first modern
European legal system, which was copied elsewhere. In practice, each jurisdiction may
mix their secular legal tradition with local customary or religious traditions.
2.11.1 The civil law tradition
In contrast with the common law, the continent of Europe has been directly or
indirectly influenced by Roman law (civil law), with its emphasis upon a code. Civil
law proceeds from an exhaustive code of propositions in accordance with which all
subsequent experience must be judged. In this picture, the civil lawyers of Europe are
said to favour accessibility over certainty. They stress that the law should be available
to all and easy to understand. Precedent is not dispensed with but its hold is looser
than in the English legal system.
Civil law systems tend to use a career judiciary who staff inexpensive tribunals which
can informally resolve disputes. A broad purposive approach is encouraged towards
the interpretation of enacted words and phrases, and consistency is considered less
important than doing justice to the individual parties. It is not uncommon for codes
to be deliberately vague and general in their choice of language, the better to allow
individual cases to be decided upon their merits.
Further reading
Holland and Webb, Chapter 1 Understanding the law, Section 1.3.1. Regulation:
legal rules and social rules.
Summary
Ensure that:
u you cover the basic information on the common law and its institutions in Holland
and Webb before turning to the critical analysis in Gearey et al.
u you are familiar with the idea of the common law, the role of the judge and the role
of Parliament
u you are comfortable with the idea of precedent as a practice and the concept of
public reason
u you understand the normative theory of the trial and the relevance of Article 6
u you can appreciate the links between the normative theory of the trial and the rule
of law
u you understand the historical themes about the development of due process and
the idea of the post colonial common law. This is examinable material.
As far as the examination is concerned, these issues are important, but will primarily
be examined in relation to the civil and criminal trial. So, rather than asking a free-
standing question about the normative theory of the trial, the question will relate to
particular features of the criminal and civil justice systems (or to the history of due
process, see below). We will study these in Chapters 9 and 10.
The one area covered by this chapter that will be examined as a free standing question
is the material considered in Chapter 2 of Gearey et al. that relates the historical
development of due process to the right to a fair trial and the rule of law. What follows,
then, are sample questions that relate to Chapter 2 of Gearey et al.
Sample examination questions
Question 1 Although due process can be traced back to Magna carta, it would be
more relevant to see it in the context of human rights. Discuss.
Question 2 What is the relationship between due process and the rule of law?
Advice on answering the questions
Question 1 If you have read the brief history of due process presented in Chapter 2
of Gearey et al., then this question should be fairly straightforward. Although there
are a number of possible approaches to this question, this summary will take a fairly
specific one that reflects the arguments put forward in Gearey et al. Thus, the starting
point is to agree with the statement in the question. Due process is mentioned in
Magna carta, but in the context of feudal law. Moreover, the interpretations of Magna
carta that stress the defence of ideas like equality before the law are based on much
later writings that reflect the constitutional struggles taking place in the 17th century
in Britain. Thus, modern understandings of due process can indeed be linked much
more closely to human rights, as articulated in the Universal Declaration and the
ECHR. In these documents, due process, or the right to a fair trial, is linked to concepts
like dignity and equality before the law. The latter is part of a broader prohibition on
discrimination, and thus represents the way in which modern human rights attempts
to define a new political and social order after the end of colonialism. Thus the human
right to the fair trial, stressing as it does the inherent dignity of the human being, is a
peculiarly modern value, at best distantly related to Magna carta.
Question 2 This is another fairly straightforward question that should not cause
any problems if you have read Chapter 2 of Gearey et al. closely. There is a very clear
relationship between these two terms. Due process can be understood as the right
to a fair trial. The rule of law in a democratic sense is related to the accountability
and transparency of legal and political institutions. Thus, the link between due
process and the rule of law can be seen at the level of the trial through notions like
open justice and the duty to give reasons. At the level of the constitution, the rule
of law also relates to the idea of the accountability of ministers to the courts, and
the transparency of governmental processes in general. The strong link between the
two terms can be seen in the requirement that the courts are independent and not
dominated by executive power; another theme that runs through both the traditions
of the common law and the international law of human rights, as evidenced by Article
6. There is one final important point. The human right to due process stresses the
dignity of the individual and the principle of equality before the law. The doctrine of
the rule of law can also be related to these values.
Further reading
Sir Thomas Bingham The rule of law. Available at www.cpl.law.cam.ac.uk/past_
activities/the_rule_of_law_text_transcript.php
Sir Thomas Bingham The rule of law. (London: Penguin, 2011) [ISBN
9780141034539].
Baroness Hale Dignity available at www.supremecourt.gov.uk/docs/
speech_100507.pdf
Duff, A., L. Farmer, S. Marshall and V. Tadros The trial on trial. (Oxford: Hart
Publishing, 2006) [ISBN 9781841135427].
Am I ready to move on?
u What, in outline, is the role and importance of European Union (EU) law, the Human
Rights Act (HRA) and European Human Rights law in relation to the common law?
u Define due process and the idea of a fair trial.
u What is the link between Article 6 and the argument that a normative account of a
fair trial is necessary for critical thinking?
u Explain briefly what is meant by judicial law making.
u What is the relationship between judicial law making and the doctrine of
precedent?
u Outline the relationship between Human Rights, the role of the judge and the HRA.
u Outline the history of the common law as a movement from the colonial to the
post-colonial period.
u How is the common law tradition different from the civilian tradition?
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
3.1 Conducting legal research . . . . . . . . . . . . . . . . . . . . . . . . .29
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Am I ready to move on? . . . . . . . . . . . . . . . . . . . . . . . . . .35
3 Research
Introduction
This chapter focuses on three main areas: locating cases, locating statutes and locating
journal articles. The chapter contains a number of exercises and online exercises, and
it is essential that you work through these.
Essential reading
Holland and Webb, Chapter 2 Finding the law.
Common law reasoning and institutions 3 Research page 29
3.1 Conducting legal research
The research that you will undertake on the CLRI course can be divided into a number
of discrete exercises. As well as obtaining a good overview of how to use electronic
databases to find cases, statutes and journal articles, the course is focused on the
following (described in detail below):
a. The ability to find, comprehend and comment upon a case; to write a case note
and to reflect upon the case in the examination.
b. The ability to locate journal articles of relevance to the examined areas of the
course and to use them to build a body of notes on the relevant examinable areas.
c. The ability to use Halsburys Laws to research areas of law relevant to the exercises
given later in the subject guide.
d. The ability to locate cases and statutes of relevance to the examined areas of the
course and to use them to build a body of notes on the relevant examinable areas.
e. To be familiar with locating statutes in various databases and ascertaining whether
or not the statute is in force.
f. To be familiar with various advanced research skills as outlined below. These
advanced skills are not explicitly examined, but will be useful to you later in the
course.
Key skills, which will be directly examined, are (a) above. The other skills, (b)(f), will
not be directly examined but will inform the examinable techniques of note taking
and critical thinking.
3.1.1 A note on sources
In law, the terms primary and secondary sources are used. Primary sources are
sources of law itself, while secondary sources are texts and commentaries about
the law. For example, modern municipal law in the case of the United Kingdom is
conventionally seen as having three primary sources:
u case law
u national statute law
u transnational law (the law of the European Union (EU) and other international
conventions and treaties).
Secondary sources of law include textbooks, treatises, legal academic articles, Law
Commission reports, etc.
In the context of researching, the sources you will be looking for may be both sources
of law and other sorts of sources. Questions of sources also involve assessing how
reliable or authoritative the sources are. For example, Wikipedia is extremely useful
but it is written by self-recruiting volunteers, individuals who decide to add an
article, and these are in turn commented on and changed by other writers. If you use
Wikipedia, you should note where statements are disputed and under discussion.
3.1.2 Conducting searches
Searching the Online Library
Essential reading
Student handbook, section entitled The Online Library
First, make sure that you have joined the Online Library.
Find out more about the Online Library in the Online Library Law Induction Guide:
www.external.shl.lon.ac.uk/interactive/law_induction/page_01.htm
Databases for searching for cases and statutes are LexisLibrary, Westlaw, Justis
Databases for searching for legal academic articles are LexisLibrary, Westlaw, JSTOR
(mainly British), HeinOnline (mainly but not exclusively US), Cambridge Journals
online, Academic Search Complete.
You need to be familiar with the different ways in which the databases work.
Quick start guides provide introductions to searching the databases:
http://external.shl.lon.ac.uk/pdf/Searching for a case
Go to the Online Library and read the instructions on locating a case report:
www.external.shl.lon.ac.uk/info_skills/law/faqs/which_database_cases.php
Searching for case reports by topic:
http://www.external.shl.lon.ac.uk/info_skills/law/faqs/case_topic.php
Both Westlaw and LexisLibrary list cases considered and subsequent cases. JustCite is
particularly useful:
www.justcite.com
especially the precedent map
www.justcite.com/Help/PrecedentMap
which visually depicts the relationships between cases.
Activity 3.1
Go to the Online Library and complete the Legal Research skills exercise on how to
locate a case:
www.external.shl.lon.ac.uk/info_skills/law/faqs/cited_report.php
Then complete the Online Library Law Quiz tasks on searching Westlaw for a case:
www.external.shl.lon.ac.uk/interactive/law_quiz/page_01.htm
Searching Lexis Library for a case:
No feedback provided.
Activity 3.2
a. Find the following cases. Give full citations for them and state briefly the steps
you went through to find each case.
u A Lord Denning case involving a dog attack in 1977.
u A case involving a dog attack in 1989.
u A case where a dog called Tyson was alleged to have attacked a police officer.
b. What offence(s) was the accused charged with in Shaw v DPP [1961] 2 All ER 446?
Describe the steps you take to find the information.
c. Give the citation from the English Reports for the reprint law report of Foss v
Harbottle (1843) 2 Hare 461.
d. Foss v Harbottle considers an aspect of company law. What was the name of the
company at the centre of this case?
See the VLE for feedback.
Using Halsburys Laws of England
Later in the subject guide you will be asked to get a general overview of certain areas
of law using Halsburys Laws. It is therefore important that you familiarise yourself with
this resource.
For information about using Halsburys to overview law on any given topic (and follow
up references to cases, statutes, etc.), complete the exercise at:
The up-to-date LexisLibrary guide is the interactive version at:
http://external.shl.lon.ac.uk/interactive/lexislibrary_quick_start/page_02.htm
Searching for legislation
Go to the Online Library and read the legal research exercise on how to find UK
Legislation at:
www.external.shl.lon.ac.uk/info_skills/law/faqs/uk_legislation.php
Activity 3.3
a. Complete the legal research exercise on searching Westlaw for legislation at:
www.external.shl.lon.ac.uk/info_skills/law/faqs/uk_legislation.php?page=1
b. Now try the law quiz task at:
c. And this law quiz task on searching LexisLibrary for legislation:
d. Try this law quiz task on searching Justcite for legislation:
e. Find the text of the Constitutional Reform Act 2005 on:
www.legislation.gov.uk
Use the Search all legislation box on the right side of the screen. What does the
Explanatory Note say about the Supreme Court?
The legislation on www.legislation.gov.uk is free to access. Another freely available
source for statutes is the British and Irish Legal Information Institute, BAILII:
www.bailii.org
You may find that you prefer this source as you can also use it to search for case law.
One limitation on these free sites is that the material only dates back to 1987/1988. You
need to use one of the subscription databases to find acts or statutory instruments
that are older than that. In fact, only one database, Justis, gives electronic access to the
full text of all acts (as originally enacted) from 1235 to date.
Go back to the Constitutional Reform Act of 2005 that you found in Activity 3.3(e). Find
Schedule 4 of the Act (schedules come at the end of an act, after the sections). Youll
see a list of legislation that the Constitutional Reform Act will amend. Most of the
amendments relate to the change in the title and role of the Lord Chancellor. Notice
that one of the acts to be amended is the Habeas Corpus Act of 1679. Unless you have
access to a printed set of Public General Acts, you will only find the full text of the as
enacted version of this Act on Justis.
u Using your Athens username and password, log on to Justis from the Online Library.
u Click on the Legislation link above the quick search box on the homepage.
Youll see a form that you can fill in with information to retrieve the Act you need. In
the box marked Title, type Habeas Corpus and in the box marked Year, type 1679.
Then click on the yellow Search button under the form.
The next page to display will be your results. The first result displayed is the whole Act,
followed by a result for each section. You can then click on the relevant section to see
how the amendment detailed in the Constitutional Reform Act will affect this Act.
Note that those sections with a red Repealed symbol next to them have been
repealed and are no longer in force.
Notice that on this

website you can also
find Explanatory Notes,
which are issued with
the Act. These are often
a good starting point for
understanding the main
thrust of the legislation,
why it was needed and
what it is intended to
achieve.
Note that it summarises

nearly 40 clauses of
the Act into just two
sentences.
As weve seen using the above example, legislation can be amended over time, either
by subsequent Acts or by secondary legislation (i.e. statutory instruments). When you
are searching for legislation its important to know whether you need the text of the
Act as it was passed or as it is now, following any possible amendments.
Activity 3.4
Looking again at www.legislation.gov.uk, can you find where it tells you what form
of legislation is included on the site?
To find the text of Acts as they currently stand, you can use LexisLibrary or Westlaw.
Activity 3.5
Using your Athens username and password, log in to LexisLibrary.
At the first screen, click on the Legislation button in the navigation bar across the
top of the page.
Youll be presented with a form to fill out with information to locate the Act that
you need. In the box marked Title type Constitutional Reform Act; in the box
marked Year type 2005 and in the box marked Provision type 8. Finally, click on
the red Search button.
You will be taken through to the full text of this section of the Act. Youll see that
this section relates to a new post of Head of Criminal Justice. If you scroll to the
bottom of the screen youll find Notes. In this part of the database you will find
information relating to the commencement date of the provision (i.e. when it
comes or came into force) and information on any amendments that have been
made to the section since the Act was passed. What change has been made to s.8?
Use the text of the Act from the www.legislation.gov.uk website for comparison.
Activity 3.6
a. Answer the following and make a note of your sources:
u Is the Channel Tunnel Act 1987 currently in force?
u Does the Civil Partnership Act 2004 apply to Scotland?
u Why was the Latent Damage Act 1986 passed?
b. Find an Act which was passed sometime in the 1870s and which is concerned
with dogs. State:
u the short title of the Act
u the long title of the Act
u the date on which the Royal Assent was given
u where you found it and, briefly, the steps you took to find it.
(No more than three or four lines should be necessary.)
c. Find an Act which was passed in the 1980s and which is concerned with dogs.
State:
u where this Act does not apply
d. Find an Act which deals with the licensing of dogs. State:
u the date the Act came into force
e. Find an Act passed in the 1970s which deals with dogs used for a particular
purpose. State:
Finding law articles
Go to the Online Library and undertake the legal research skills exercise on searching
for a cited journal article:
www.external.shl.lon.ac.uk/info_skills/law/find_articles.php#cite
Finding journal articles in different databases and on a specific topic
See the instructions at:
www.external.shl.lon.ac.uk/info_skills/law/faqs/which_database_articles.php
Activity 3.7
Now try these law quiz tasks on searching for journal articles:
Activity 3.8
a. Find an article on each of the following and make a record of your sources:
u The police force and accountability
u Race and sex discrimination within the legal profession
u English judges
u The use of force in international law
u The appointment of judges in the USA
u The invasion of Panama in 1988.
b. Find the following article. Which database is it on and what is the name of the
author? The doctrine of precedent and the provocation defence: a comment on
R v James (2006) 69(5) MLR 81931.
Exploratory or speculative searches
The Online Library offers advice on advanced (or Boolean) searches:
www.external.shl.lon.ac.uk/info_skills/databases/advanced_searching.php
and an excellent set of links to other websites.
3.1.3 Useful law websites
The following are especially recommended for researching the set topics. Later in the
subject guide, you will be asked to locate material in some of these archives.
UK official and departmental publications
Full text from Parliamentary sessions:
www.parliament.uk/business/publications/hansard/
Official documents
Command Papers since 2004 and House of Commons Papers from 2002/03:
www.official-documents.gov.uk/menu/browseDocuments.htm
Home Office
www.gov.uk/government/organisations/home-office
Ministry of Justice
www.gov.uk/government/organisations/ministry-of-justice
Law Commission
Reports and consultation papers largely full text archive:
http://lawcommission.justice.gov.uk/
This is an absolutely crucial site for all law students but especially if you are looking at
new legislation introduced as a result of activity by the Law Commission. The Reports
outline all the reasons for reform, weighing different considerations and also discuss in
detail the form of words that should be introduced. Reports go back to 1967 (although
not all are available online).
HUDOC
TheHUDOC databaseprovides access to the case law of the European Court of Human
Rights (ECtHR) (Grand Chamber, Chamber and Committee judgments, decisions,
communicated cases, advisory opinions and legal summaries from the Case-Law
Information Note), the European Commission of Human Rights (decisions and reports)
and the Committee of Ministers (resolutions).
Access the website at:
www.echr.coe.int/hudoc
It contains instructions on how to search for materials.
Human rights
Full text of the Convention as amended by various Protocols:
www.echr.coe.int/Documents/Convention_ENG.pdf
Human and Constitutional Rights
A gateway of links maintained by the Arthur W. Diamond Law Library at Columbia Law
School, which is very good for comparative studies and international perspective:
www.hrcr.org/
Human Rights Watch (HRW)
HRW is an independent, nongovernmental organisation which monitors human rights
issues worldwide. This website is very good for current awareness and country-by-
country coverage:
www.hrw.org/
3.1.4 Law e-journals
Web Journal of Current Legal Issues
Published bi-monthly on the internet. The focus is on current legal issues in judicial
decisions, law reform, legislation, legal research, policy related socio-legal research,
legal information, information technology and practice:
http://webjcli.ncl.ac.uk/
Directory of open access journals: law and political science
Links to over 100 freely-available online law and politics journals. Each journal must
exercise peer-review or editorial quality control to be included:
www.doaj.org/doaj?func=subject&cpid=45
The VLE
For current issues and changes, see the discussion section on the VLE.
Activity 3.9
Complete the online legal research exercises available from the CLRI page on
your Laws VLE, or directly at: https://laws.elearning.london.ac.uk/mod/page/view.
php?id=716
Note: These are compulsory; we estimate that these will take you between 68
hours.
Summary
The two main objectives of this chapter have been to ensure that you are familiar with
and competent to perform searches in electronic databases. To this end you should
have completed a number of online exercises. The key directly-examined skill relates
to the ability to find a case. The other skills outlined in this chapter are also indirectly
examined. They are essential to building up a body of notes that will allow you to
answer the questions contained in Part B of the examination. These skills are also
essential to your career as a law student and should thus be taken very seriously.
u Can you locate cases, statutes and journal articles in the Online Library of the
University of London International Programmes?
u Can you use Halsburys Laws of England to get a general overview law of any given
topic or follow up references to cases or legislation?
u Can you undertake speculative searches of various databases in the Online Library
and other useful online resources?
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
4.1 Referencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
4.2 Case noting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
4.3 Essay writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
4.4 Summary for planning an essay and an opening paragraph . . . . . . . .53
4.5 Bringing it all together: sample essay . . . . . . . . . . . . . . . . . . .54
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
4 Case notes and essay writing
Introduction
The focus of this chapter is case noting and essay writing. Do not become frustrated.
You need to work slowly and carefully through this chapter. You will not get it at first,
or perhaps even second reading. You have to persevere. Do the exercises a couple of
times each.
Further reading
Holland and Webb, Chapter 4, especially Sections 4.1.1 Conveying information,
4.1.2 Constructing an argument, 4.3 How to present your answer, 4.4 Planning
your answers and 4.6.2 Common errors.
Askey and Mcleod, Chapters 9 Written English and 10 Answering essay
questions.
Common law reasoning and institutions 4 Case notes and essay writing page 39
4.1 Referencing
In an examination essay it is acceptable not to reference at all, but make sure you
are aware on the Universitys rules on plagiarism. If you are repeating information
verbatim (copying passages out of a book, case, article or other source) you should
reference it. Given time constraints, something brief is acceptable. For instance, as
Holland and Webb argue: referencing is an important skill It is not necessary to
have a bibliography at the end of an examination essay.
4.2 Case noting
Remember that you cannot take your case note into the examination, so you will have
to learn it. Note also that Part A has an unseen component. The more cases you read
during the year, the more you will prepare for this unseen element of Part A.
The competent construction of a case note is an essential skill for law students and
lawyers.
Case noting concerns one of the two primary texts of law: cases (the other is, of course,
statute). Cases are vital in the common law system, as it is through cases that statutes
are given their specific meaning and, where statutes do not cover an area of law, cases
give the primary definitions.
Legal discourse is about authority. This means that decisions are based on previously-
authorised definitions and interpretations, as given in case law. Legal arguments proceed
through citing such case law authorities. Not all cases have equal weight: the court level
at which a case is decided is crucial. Thus you must be aware, in making case notes, of the
level of the court that made the decision in question. Equally, you must make yourself
aware of any subsequent over-rulings, appeals or decisions at a higher level.
The hierarchy of the courts and the doctrine of precedent will be dealt with later in the
subject guide. For the moment, you merely need to know that
u judges must follow cases decided in superior courts
u with only very limited exceptions, judges in the Court of Appeal must follow other
previous decisions in the Court of Appeal
u in exceptional cases, judges in the Supreme Court may decline to follow their own
previous decisions.
The core of the good case note lies in the competent reading of the judgments
(Appeal Court) or opinions (Supreme Court/House of Lords).
4.2.1 Identification of the case
You must note the official citation of the case, so that you or anyone else can find it
again. You will usually be making a record from a written source so note it. Some
reports are weekly and tend to emphasise speed rather than correctness. Other
reports are monthly or quarterly, etc. Sometimes these reports are checked by the
judges concerned, sometimes they are not. Citations are used throughout your subject
guides. They are the details at the end of references to cases such as these:
Airedale NHS Trust v Bland [1993] 1 All ER 821
Woollin [1999] 1 Cr App R 8.
Your case note should include:
u The names of
u the parties
u the judges (so that the decision can be placed in relation to the seniority and
authority of the judge)
u (optionally) the solicitors/barristers acting for the parties.
u The date (so that the decision can be placed in the stream of development of an
area of law).
u The court (so that the decision can be immediately located in the hierarchy of the
courts).
4.2.2 Content of the case
You must then note
u The material facts of the case.
u The procedural history of the case in which courts has the case been heard in
before, if any?
u The ratio
of the case, putting it into your own words to ensure you understand it.
u Every judgment or opinion in the case (NB: in some instances there may be only
one judgment).
u This note must include:
u the decision reached by each individual judge
u the reason for the decision reached by the individual judge
u whether the individual judgment/opinion falls into one of the following
categories: majority, minority, leading or dissenting judgment/opinion.
u An overall summary of the majority decision (there are invariably several judges in
appeal cases and these tend to be the cases determining important aspects of the
law). This summary should:
u draw out similarities between judgments
u state how many of the judges reached their decision for the same reasons
u indicate where there were differences between the majority judgments.
u An overall summary of dissenting judgments and whether you think the argument
put forward by any dissenting judge is important. Often in English courts the
dissenting judgments of leading judges in the Court of Appeal become the
rationale for a change in the law by the House of Lords.
u An overall view of whether the case is a strong case in terms of the doctrine of
precedent:
u Only when the majority of judges agree on both the outcome and the reason for
outcome can it be said that the precedent created is strong.
u This does not affect the decision between the parties in the actual case. If the
plaintiff won, she still wins. However, agreement on outcome and reason for
outcome affects the potential usefulness of the case, according to the doctrine
of precedent. A weak precedent is one where there is no general agreement as
to the reason for the outcome. This is an important issue and one illustration of
why it is not enough to know just the outcome of the case.
Finally, the case note is meant to be usable, and as you may collect many of them
during your studies, it must be brief! Some of the cases in the law reports that you
will be noting may be two or three pages long, but some could be 50 or 80 pages or
longer. A summary case note should ideally be only a page or two in length. You need
to make tactical decisions about what to include and what to exclude. This is one of
the techniques that you will develop the more cases you read and the more case notes
you write.
In English law you

must know the reason
for deciding the case
(the ratio decidendi).
4.2.3 Identifying arguments
Reading cases also introduces you to the different practical methods the judiciary
use to create arguments, so you need to know something about how to identify
arguments. It is not necessarily appropriate, for example, to just summarise the
judgment or opinion in the order that you read it in the text. The judge may speak in a
circular way, and make comments useful for the litigants, but not necessarily relevant
to a lawyer summarising the case.
In many of your subjects your textbook writers, or even the compilers of your
casebooks, will give you a summary of the case in the text. You can also buy materials
and books that claim to give you pages of small case notes. All these have their place,
but cannot substitute for knowing how to competently produce your own case notes.
4.2.4 A sample case note
Look up R v Duncan and others [1944] KB 713 and read the case. Please make sure you
also read Section 5.2 on pp.6061 as this section explains important points about the
nature of a ratio. What follows is a suggested case note.
R v Duncan and others [1944] KB 713
Court of Criminal Appeal
10 June 1944
Viscount Caldecote CJ, Oliver and Birkett JJ
Procedural history: Duncan and others were convicted by Central Criminal Court on 31
March 1944. Duncan and others appealed to the Court of Appeal.
The material facts of the case: Duncan was a spiritualist medium who for a fee gave
sances in which she claimed the dead appeared and communicated through her to
those present. She was accused of pretending to conjure spirits fraudulently under s.4 of
the Witchcraft Act 1735.
Ratio of the case: Conjuration in s.4 of the Witchcraft Act 1735 cannot be narrowly
interpreted as referring to calling up evil spirits. The section should be interpreted as
making illegal the pretence of summoning spirits. Duncan, a spiritualist medium thus
committed an offence when she pretended to call up the spirits of deceased persons and
appear[ed] to communicate with them in a sance. The judge had used his discretion
correctly in refusing to allow Duncan to give a demonstration of her powers to the jury.
Summary of Caldecote CJs reasoning: Caldecote CJ dealt with two main points in his
judgment. He stated that the trial judge was correct not to allow the appellant to produce
evidence in court that she could materialise spirits. His argument seems to be one that
focuses on the practicalities involved: if, for sake of argument, a spirit had been produced,
would jurors be allowed to touch it or somehow verify that it was a spirit? What would it
mean to verify a spirit? Furthermore, would jurors have to experience the manifestation
in the same circumstances as a sance (i.e. in dim light)? The fundamental problem was
thus determining how such a manifestation could be conducted in court, and, indeed, if
it could, what it would be evidence of. It would also appear that the jurors themselves did
not want to experience a manifestation in court.
The second point that Caldecote CJ dealt with relates to the meaning of s.4 of the Act. This
relates to the first point explained above. Duncan was charged with conspiring with others
in pretence of conjuring spirits (i.e. she was accused of pretending to manifest spirits).
Presumably, if she had manifested a spirit to the satisfaction of the court, then this would
have shown that it was not a pretence. Caldecote CJs approach to the interpretation of
the Act begins by putting it in its historical context. He stresses that a very early statute,
33 Henry 8, c. 8, does not make reference to evil spirits. It would appear that evil spirits
was introduced by 5 Eliz. c. 16 when referring to 33 Henry; and the word was repeated
in 1 Jac. I, c. 12. Section 4 of the Witchcraft Act 1735 does not make reference to evil and
wicked spirits, but refers to conjuration. Caldecote CJs argument is thus fairly clear: he
rejects the submission of counsel for the appellants that the Act refers only to evil spirits.
Caldecote CJ also shows that the Witchcraft Act was enacted at a time when belief in
spirits was being questioned, so a distinction between conjuring evil spirits and conjuring
spirits would not be a sensible way of interpreting the Act. He also stresses that the
offence is one of pretence of fraud; of deceiving people. It would seem then, that Duncan
had been rightly convicted.
4.2.5 How you will be assessed on case noting
Part A of the examination addresses case finding and reading skills. You will be asked
during the year to locate a case and to write a case note on it. The sample Part A
question below is based on the idea that you have been asked to locate R v Duncan at
the beginning of the academic year.
You should find and download the case, read it carefully and prepare your case
note. The examination will ask you certain questions about your understanding of
the case that reflects the information contained in the case note, and your broader
understanding of the arguments in the case.
Note: the Sample examination question below is the unseen element of Part A. You
are not being asked to make a case note on R v Butterwasser. As you will see, the point
of this part of the question is to test your comprehension of the law. R v Butterwasser
is a case to which you are coming blind and the relevant part of the judgment is
reproduced in the question itself. The only way that you can prepare and practice for
this kind of question is to read cases and to make case notes on them; so that, when
you are confronted with this kind of question in the examination, you are comfortable
with reading, summarising and commenting on case law.
Sample examination question
Question 1
a. Summarise the ratio of R v Duncan. (5 marks)
b. Summarise Caldecote CJs reasoning. (10 marks)
c. Do you agree with the judges reasoning? (5 marks)
d. Read the passage below from R v Butterwasser and answer the question below
it. (5 marks)
Lord Goddard CJ
We have to consider whether what was done in this case was in accordance with law...
It is elementary law that ever since it became the practice, as it has been for the last one
hundred and fifty or two hundred years, of allowing a prisoner to call evidence of good
character, or where he has put questions to witnesses for the Crown and obtained or
attempted to obtain admissions from them that he is a man of good character, in other
words, where the prisoner himself puts his character in issue, evidence in rebuttal can
be given by the prosecution to show that he is in fact a man of bad character. Evidence
of character nowadays is very loosely given and received, and it would be as well if all
courts paid attention to a well-known case in the Court of Crown Cases Reserved, Reg. v.
Rowton, in which a court of twelve judges laid down the principles which should govern
the giving of evidence of character and of evidence in rebuttal of bad character. It was
pointed out that the evidence must be evidence of general reputation and not dependent
upon particular acts or actions. But however that may be, there is no case to be found
in the books - and it is certainly contrary to what all the present members of the court
have understood during the whole of the time they have been in the profession - that
where the prisoner does not put his own character in issue, but has merely attacked the
witnesses for the prosecution, evidence can be called for the prosecution to prove that
the prisoner is a man of bad character.
If a defendant (a prisoner) attacks the character of a prosecution witness, can the
prosecution introduce evidence of the defendants bad character to the court?
Sample responses
a. Duncan is an authority on s.4 of the Witchcraft Act. It also holds that the trial judge
had not erred in using his discretion to prevent the appellants from materialising a
spirit in court.
b. Caldecote CJs argument seems focused on the practicalities involved in the case.
If Duncan had been allowed to materialise a spirit, what would it have proved?
Given that the sance took place in near darkness, would these conditions have to
be reproduced in the court. How would the jurors be able to determine whether
or not Duncan had actually manifested a spirit? The judge was correct to use his
discretion and not allow such evidence to be produced in court. Caledcote CJ also
dealt with the meaning of s.4 of the Act. He returned to a very early statute, 33
Henry 8, c. 8 that does not make reference to evil spirits. It would appear that evil
spirits was introduced by 5, Eliz. c. 16 when speaking of 33 Henry; and the word was
repeated in Jac. I, c. 12. Section 4 of the Witchcraft Act does not make reference to
evil and wicked spirits, but refers to conjuration. The Chief Justices argument is
thus fairly clear: he rejects the submission of counsel for the appellants that the Act
refers only to evil spirits.
c. Caldecote CJs reasoning is convincing. As far as the practicalities of producing
a spirit in court are concerned, the difficulties such a course of action would
bring with it suggest that refusing to allow Duncan to materialise a spirit was the
only sensible solution to the problem. Caldecote CJ also produces a convincing
argument that s.4 of the Witchcraft Act has to be interpreted as relating to the
fraudulent conjuring of spirits. Duncans argument that the Act only refers to
evil spirits is somewhat peculiar. Caldecote CJ shows that the Witchcraft Act was
enacted at a time when belief in spirits was being questioned, so a distinction
between conjuring evil spirits and conjuring spirits would not be a sensible way of
interpreting the Act. He also stresses that the offence is one of pretence of fraud;
of deceiving people. It would seem then, that Duncan has been rightly convicted.
d. According to Lord Goddard, when a defendant either gives evidence to the court
that he is of good character, or where he has tried to elicit evidence of his good
character from witnesses for the prosecution, the prosecution can give evidence
that shows that the defendant is a man of bad character. The key authority, R
v Rowton, determines that the evidence must be general in nature. However,
where a defendant does not give evidence of character, but attacks the character
of the witness for the prosecution, the prosecution cannot give evidence of the
defendants bad character.
The sample questions reflect the fact that Duncan is a rather short case; you should
expect to read a longer case, with both majority and dissenting judgments (see the
material on case noting above). Part A questions will also ask you to think about the
way in which the judges argument works.
This is primarily an exercise in comprehension. The Examiners are not looking for
sophisticated analysis or a wider knowledge of the law. The point of Part A is to test
your ability to read and comprehend. The only way to prepare for this part of the
examination is to read and make case notes on as many cases as possible. As you will
become aware as you read this subject guide, you are required to make case notes on
the central cases. Thus, in so doing, you are effectively practicing the skills assessed
in Part A. It is also worth stressing that Part A questions are not on the doctrine of
precedent. Part A questions are focused on a reading of a particular case. For example,
if there are majority and dissenting judgments, you might be asked to summarise
them, and explain why you prefer one to the other.
4.3 Essay writing
Essay writing is a technique. Rather than reflect on essay writing in general, the best
way to approach this concern is to consider a specific essay. What follows is an attempt
to show the processes involved in writing well about a particular question.
Essay writing can be split into a five stage process:
a. focus on the question
b. identify the key terms and the key resources
c. use your research
d. from information gathering to writing
e. plan and structure your answer.
Stages (b) and (c) have been made more straightforward for you by providing
abstracts of the relevant articles, statutes and cases.
Remember that if you are writing in examination circumstances you are relying on the
work you have done during the term and committed to memory to cover stage (c) and
part of stage (d) above.
Please bear in mind that it takes time and practice to master these techniques.
You need to work slowly and carefully; but, once you have mastered them, you will
increase in your confidence as an independent thinker. You will also find that you can
write on an unseen question more quickly. It is essential to realise, though, that this
skill can only be acquired through time and practice. Do not become frustrated; keep
practising.
4.3.1 Focus on the question
Consider the following question:
The Human Rights Act 1998 has completely redefined the role of the Law Lords.
Appellate judges have become political. They are now effectively legislators.
Discuss.
The first stage in writing an essay is to ensure that you understand what the question
is asking you.
You must remember that you are trying to frame a response to the question; an
argument or a thesis. In other words, you are not simply trying to find out as much
about the question as you can. You are certainly not writing out your notes, in the
hope that the more material you can put down on paper, the more marks you will get.
An essay is an argument; discuss is an invitation to make an argument. An argument
must have a clear central thesis that it goes on to defend. In other words, you are
attempting to create a structured response to the question asked that uses evidence
drawn from a variety of sources to defend your central thesis. What you find out about
the subject-matter of the question must ultimately relate to the argument that you
are trying to make.
Crudely, we could say that on reading the question, and in understanding its basic
terms, you come up with a working thesis. Your working thesis is your basic response:
do you broadly agree or disagree with the point that the question is raising?
As your working thesis will be subject to revision as you go through the research
process, you must be prepared to modify and adapt it; perhaps even to change it
completely. At the earliest stages in the research process (i.e. when you first read and
think about the question) your working thesis is based on what you know about the
English legal system, and the topic in question.
You need to be aware that you are being asked to make a judgement. Some
judgements are better than others, and some judgements are simply wrong. The
ability to judge an area depends at least in part on your knowledge of the area.
How could we frame our working thesis in relation to the question that we have been
asked above? You must begin by reading the question. Note the precise terms that the
question uses. The question above is very specific. It uses the expression completely
redefined. In other words, it is asserting that the HRA has completely changed the
role of the judge. It is asking you to think about the claim that the HRA has made the
Law Lords political. In answering this part of the question, you need a thesis on this
particular point. Do you agree or do you disagree with this statement? The issue of the
political role of the judge is linked to a claim that judges have now become legislators.
Again, you must ask yourself: do you agree or disagree with this statement? In what
senses do judges legislate? Your thesis must cover both these main points.
In order to make the process of thinking about this question clearer, we will proceed
on the following basis. Our thesis will be that the HRA has not made the judges
political and that since the HRA judges have not assumed the role of legislator. This
thesis is based on an understanding of the texts and resources that will be discussed
below. It would, of course, be possible to come up with a different response to this
essay. However, in order to model the process of thinking and writing, the thesis
outlined above will be the one that guides us.
There are clearly many factors at play; these are complex issues. One of the skills that
you will acquire over time is the ability to weigh and judge different factors. The ability
to weigh and judge depends on the extent of your reading, the time you have spent
thinking about the issues and your understanding of the subject area. It is a skill that
comes with time.
4.3.2 Identify the key terms and the key resources
Let us return to our working thesis. There are a couple of matters outstanding. There
are at least two key concepts in the question:
u what does political mean?
u what is at stake in claiming that the Law Lords are now legislators?
At this point we have to make a distinction between understanding the terms and the
definitions that are necessary for our argument. It is necessary to make a distinction
between what one has to understand but not necessarily define in the essay, and the
terms that should be defined to build the argument that the essay is presenting.
The terms in this question that must be understood, but not necessarily defined are:
The HRA, The Law Lords.
The important point to note is that the Law Lords sit in the Supreme Court and are
responsible for the development of the law; we are not concerned then with judges
in the trial courts. The essay concerns the development of law at the highest level. A
definition of the Law Lords is not central to the development of the essay. We clearly
need to know who they are, and to understand that we are dealing with senior
members of the judiciary; however, given the word limit and the need for focus, a
definition is not necessary.
The terms in this question that must be defined: the politics of the judicial; what does
it mean to claim that judges are or are not legislators?
Given the terms of the question, and the implicit link between politics and legislation,
this seems to be the focus of the answer. You will see below in the sample essay that
it does not begin with a definition; it begins with a statement of its argument. The
definition of political, and other terms, comes later in the argument.
The question suggests that political might mean partial or no longer neutral. As we
will see, it would be hard to argue, however, that judges now simply decide cases on
political grounds, as opposed to legal grounds. Therefore, the argument must mean
political in a slightly different sense. How can we be precise?
Defining political will be one of the key tasks when we look at the extracts below. We
also need to work out what it means to claim that judges are now legislators.
4.3.3 Use your research
What follows are a series of exercises that guide you through the research process. You
will see that we have provided a variety of materials and a set of questions on them
(answers are provided, but please dont look at them until you have attempted the
exercises).
Please write your own responses to the questions. You will thus build up a body
of notes which you can then use to develop your argument. Remember, there is a
distinction between gathering information, processing it (thinking about it in the light
of the question that you have been asked and making notes) and the actual activity of
writing itself. You cannot blur these different stages. Each requires specific skills.
For the moment, then, we are going to gather information and think about it, in a way
that is guided by the extracts and questions below.
The extracts are ordered in a particular way. They start with a general overview
provided by Gearey et al. A good place to start preparing an essay is with a resource
that offers something of a historical and contextual overview of the field you are
researching. This will orientate you to some general themes, and might also provide
basic materials for your thinking on the question.
The extracts then focus on some more specific issues. As mentioned above, our
response to the question requires us to examine some very precise matters. The
questions on the extracts are relevant in two senses. Some of the questions draw your
attention to general concerns that will allow you to understand the broader context
of the area. Others might be more directly relevant to the essay itself. In answering
the questions, you will thus build up a body of information: some of it will be directly
relevant to the essay. Other matters on which you have made notes might not be.
This is simply part of the process of research. You must be prepared to filter the
information that you have gathered, and separate information that is directly relevant
from that which allows you to gain a general understanding.
The extracts have been edited to make the task slightly easier. As far as this exercise is
concerned, the questions on the extracts will help you to stay focused. However, you
will still need to re-read your notes when you come to start writing the essay, as some
of the questions raise issues of general concern which might not be directly relevant
to the essay.
There are seven extracts and instructions for reading below. They are:
Extract A: Gearey et al., Chapters 10 The politics of the judiciary revisited: rights,
democracy, law and 11 Judges and democracy.
Extract B: An extract from the White Paper: Rights brought home. (White papers
are documents produced by the Government setting out details of future policy
on a particular subject. A White Paper will often be the basis for a Bill to be put
before Parliament. The White Paper allows the Government an opportunity
to gather feedback before it formally presents the policies as a Bill. See www.
parliament.uk/site-information/glossary/white-paper/)
Extract C: An extract from the HRA.
Extract D: An extract from Sir John Laws essay Is the High Court the guardian of
fundamental constitutional rights? (This is an example of extra-judicial writing
by a judge.)
Extract E: An extract from a case: Jackson v A-G [2005] UKHL 56. (This is a primary
source; the other primary source would be statute.)
Extract F: An extract from Danny Nicols essay Law and politics after the Human
Rights Act. (This is an academic commentary on the HRA from the journal Public
Law.)
Extract G. An article from the Guardian newspaper by Patrick Wintour.
Follow the instructions below in order to build up a body of notes that will be relevant
to the essay question. Answers are not provided to these questions, but they are
discussed below in terms of the analysis of the essay.
Extract A
Read Gearey et al., Chapters 10 The politics of the judiciary revisited: rights,
Questions on Chapter 10
a. What does Chapter 10 tell us about Griffiths idea of the politics of the judiciary
and its relevance for thinking about the judiciary today?
b. What is the relevance of the extra-judicial writings of Stephen Sedley, Lord Steyn
and Sir John Laws for understanding the politics of the judiciary?
c. The chapter discusses the relevance of a number of post-1998 cases for an
understanding of the politics of the judiciary. What are these cases, and what do
they tell us about judicial politics?
d. What is the significance of the Belmarsh case for thinking about the politics of
the judiciary?
e. What is the relevance of the idea of democratic dialogue for thinking about the
politics of the judiciary?
Questions on Chapter 11
a. What does the second part of the chapter, The judge and the limits of the law,
tell us about judicial law making? How does this theme relate to the idea of
democratic dialogue explained in Chapter 10?
b. What does the judicial law making tell us about the contemporary politics of the
judiciary?
Extract B
An extract from the White Paper: Rights brought home.
Although the courts will not, under the proposals in the Bill, be able to set aside Acts of
the United Kingdom Parliament, the Bill requires them to interpret legislation as far as
possible in accordance with the Convention. If this is not possible, the higher courts will be
able to issue a formal declaration to the effect that the legislative provisions in question
are incompatible with the Convention rights. It will then be up to the Government and
Parliament to put matters right. The Bill makes a fast-track procedure available for the
purpose of amending the law so as to bring it into conformity with the Convention.
[...]
1.18 We therefore believe that the time has come to enable people to enforce their
Convention rights against the State in the British courts, rather than having to incur the
delays and expense which are involved in taking a case to the European Human Rights
Commission and Court in Strasbourg and which may altogether deter some people from
pursuing their rights. Enabling courts in the United Kingdom to rule on the application
of the Convention will also help to influence the development of case law on the
Convention by the European Court of Human Rights on the basis of familiarity with our
laws and customs and of sensitivity to practices and procedures in the United Kingdom.
Our courts decisions will provide the European Court with a useful source of information
and reasoning for its own decisions. United Kingdom judges have a very high reputation
internationally, but the fact that they do not deal in the same concepts as the European
Court of Human Rights limits the extent to which their judgments can be drawn upon
and followed. Enabling the Convention rights to be judged by British courts will also lead
to closer scrutiny of the human rights implications of new legislation and new policies. If
legislation is enacted which is incompatible with the Convention, a ruling by the domestic
courts to that effect will be much more direct and immediate than a ruling from the
European Court of Human Rights. The Government of the day, and Parliament, will want to
minimise the risk of that happening.
1.19 Our aim is a straightforward one. It is to make more directly accessible the rights
which the British people already enjoy under the Convention. In other words, to bring
those rights home.
[...]
2.13 The Government has reached the conclusion that courts should not have the power
to set aside primary legislation, past or future, on the grounds of incompatibility with the
Convention. This conclusion arises from the importance which the Government attaches
to Parliamentary sovereignty. In this context, Parliamentary sovereignty means that
Parliament is competent to make any law on any matter of its choosing and no court may
question the validity of any Act that it passes. In enacting legislation, Parliament is making
decisions about important matters of public policy. The authority to make those decisions
derives from a democratic mandate. Members of Parliament in the House of Commons
possess such a mandate because they are elected, accountable and representative. To
make provision in the Bill for the courts to set aside Acts of Parliament would confer on
the judiciary a general power over the decisions of Parliament which under our present
constitutional arrangements they do not possess, and would be likely on occasions to
draw the judiciary into serious conflict with Parliament. There is no evidence to suggest
that they desire this power, nor that the public wish them to have it. Certainly, this
Government has no mandate for any such change.
According to the White Paper, what is the point of domesticating human rights?
Extract C
An extract from the HRA.
2 Interpretation of Convention rights.
(1) A court or tribunal determining a question which has arisen in connection with a
Convention right must take into account any
(a) judgment, decision, declaration or advisory opinion of the European Court of Human
Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the
Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention,
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to
the proceedings in which that question has arisen.
[...]
3 Interpretation of legislation.
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be
read and given effect in a way which is compatible with the Convention rights.
(2) This section
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any
incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any
incompatible subordinate legislation if (disregarding any possibility of revocation)
primary legislation prevents removal of the incompatibility.
4 Declaration of incompatibility.
[...]
(4) If the court is satisfied
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned
prevents removal of the incompatibility,
it may make a declaration of that incompatibility
[...]
(6) A declaration under this section (a declaration of incompatibility)
(a) does not affect the validity, continuing operation or enforcement of the provision in
respect of which it is given
[...]
6 Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
[...]
10 Power to take remedial action.
(1) This section applies if
(a) a provision of legislation has been declared under section 4 to be incompatible with
a Convention right...
[...]
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding
under this section, he may by order make such amendments to the legislation as he
considers necessary to remove the incompatibility.
How do these sections of the HRA correspond with the objectives laid out in the
White Paper?
Extract D
An extract from Sir John Laws essay Is the High Court the guardian of fundamental
constitutional rights?
In other jurisdictions the title of this paper would be regarded as nothing more than an
invitation to answer a question too obvious to be worth asking. In the United States, the
civil law countries, and in Commonwealth jurisdictions possessing written constitutions the
supreme courts are a bulwark of fundamental rights which, where the courts writ runs and
where its authority is respected, are not allowed to be subverted. In our own jurisdiction,
it is a commonplace to hear calls for a Bill of Rights or a written constitution. No doubt as
a judge I should not enter into the politics of such a question; nor, for my purposes, is it
necessary to do so; what I am interested in is another question altogether. It is whether,
without recourse to legislative constitutional change, the common law is today able to
accord a priority to fundamental rights comparable to their entrenchment in written sets of
norms, and to do so by means of the development of principles by the methodology which
has always characterised the common law: that is by incremental decision-making in which
apparently new principles belong to a continuum whose starting-point is uncontentious
and well-established. I have to acknowledge that this is a large subject; and some of the
positions I will take would require more exhaustive treatment to do them justice than I can
accommodate within the space of a single article, if its length is to be tolerable.
I do not propose to attempt an exhaustive definition or classification of what should be
regarded as fundamental constitutional rights. But it will be a defining characteristic for
my purposes, albeit a negative one, of such a right that its source is not statutory; this
follows from the fact that my subject is, and is only, the prospective development of the
common law. Where Parliament confers a right, the courts duty, elementarily, will be to
enforce it; and, usually at least, this will involve no special difficulty.
[...]
My thesis at the end may be summarised thus:...decision-makers whose decisions affect
fundamental rights must inevitably justify what they do by giving good reasons; and the
judges should not construe statutes which are said to confer power to interfere with
such rights any more favourably than they would view a clause said to oust their own
jurisdiction. Indeed such a clause is but an example of a denial of one fundamental right.
I think this is, in the end, a modest way forward, involving no sea-change in the law;
but the growth of the common law has always been an incoming tide, not a storm of
hurricane force; and it is better so. The tide leaves no wake of destruction when it ebbs. I
propose no assertion of undue power by the judges over the elected Executive; and the
only real complaint against all this would be in the mouth of someone who asserts that
governmental authority, because it is there by popular vote, should possess the power to
override fundamental rights without compelling good reason.
a. What, according to Sir John Laws, is the source of fundamental rights?
b. What is the relationship between Sir John Laws notion of fundamental rights,
and his understanding of the role of the judge?
Extract E
An extract from Lord Steyns judgment in the case of Jackson v A-G [2005] UKHL 56.
71.The power of a government with a large majority in the House of Commons is
redoubtable. That has been the pattern for almost 25 years. In 1979, 1983 and 1987
Conservative governments were elected respectively with majorities of 43, 144 and 100.
In 1997, 2001 and 2005 New Labour was elected with majorities of respectively 177, 165
and 67. As Lord Hailsham explained in The Dilemma of Democracy (Collins, London, 1978),
126 the dominance of a government elected with a large majority over Parliament has
progressively become greater. This process has continued and strengthened inexorably
since Lord Hailsham warned of its dangers in 1978...
102. But the implications are much wider. If the Attorney General is right the 1949 Act
could also be used to introduce oppressive and wholly undemocratic legislation. For
example, it could theoretically be used to abolish judicial review of flagrant abuse of
power by a government or even the role of the ordinary courts in standing between
the executive and citizens. This is where we may have to come back to the point about
the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled
constitution as the Attorney General implausibly asserts. In the European context the
second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained
in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the European
Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998,
created a new legal order. One must not assimilate the ECHR with multilateral treaties
of the traditional type. Instead it is a legal order in which the United Kingdom assumes
obligations to protect fundamental rights, not in relation to other states, but towards all
individuals within its jurisdiction. The classic account given by Dicey of the doctrine of
the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of
place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still
the general principle of our constitution. It is a construct of the common law. The judges
created this principle. If that is so, it is not unthinkable that circumstances could arise
where the courts may have to qualify a principle established on a different hypothesis
of constitutionalism. In exceptional circumstances involving an attempt to abolish
judicial review or the ordinary role of the courts, the Appellate Committee of the House
of Lords or a new Supreme Court may have to consider whether this is a constitutional
fundamental which even a sovereign Parliament acting at the behest of a complaisant
House of Commons cannot abolish. It is not necessary to explore the ramifications of this
question in this opinion. No such issues arise on the present appeal.
What is Lord Steyns view of the relationship between the sovereignty of Parliament
and the common law?
Extract F
An extract from Danny Nicols essay Law and politics after the Human Rights Act.
Even before the advent of the Human Rights Act 1998, a vision of the judicial role had come
to the fore in the United Kingdom which presented law as forming the cordon within which
politics is allowed to take place. According to this narrative politics is an activity where the
passions hold sway, so it must be tamed and conducted within the straitjacket of law. The
courts, as custodians of civic virtue, will ensure that fundamental rights are off-limits to our
elected representatives, thereby delineating the boundaries of a rights-based democracy.
In so doing, they are not taking governmental decisions but rather controlling the legality
of those decisions by enforcing a higher-order law. Law is thus a distinctive concept, serving
as bulwark between governors and governed, excluding arbitrary rule. In Jackson v HM Att.-
Gen. P.L. 723 two, possibly three, Law Lords proffered some support to this imagining of the
judicial role. This article sets out to challenge it. Arguing that the depiction of law as setting
the framework for governance fails to provide a compelling portrayal of the interaction
between judges and politicians, it will contend that this relationship is one in which the
division of competences, rather than being definitively determined by the law, ebbs and
flows with the respective assertiveness of judicial and elected officials. More broadly, the
representation of law-as-cordon underestimates the blurring of the two roles. Against this
backdrop, the article advances an alternative normative prescription for constructing the
interaction between courts and politicians which, it will be argued, strikes a more attractive
balance between democracy and fundamental rights.
Nicol offers two views of the politics of the judiciary; what are they, and which one
does he prefer?
Extract G
Read the article from the Guardian newspaper by Patrick Wintour (2011) at www.
guardian.co.uk/law/2011/feb/16/bill-of-rights-review-imminent-david-cameron
What is the Coalition Governments approach to the HRA?
4.3.4 From information gathering to writing
Writing begins with thinking about both the structure of the essay and the
information that you have gathered. In writing an essay you organise your notes into
a different form: not so much a loose set of responses to texts and documents as a
clearly-organised response to a specific question.
Your introduction should state your key thesis (i.e. what you think about the precise
question that you have been asked).
Reflecting on your answers to the questions above, you might now have a much
clearer sense of the history and context of judicial politics. A great deal of the
information from the Gearey et al. chapter is not going to be relevant because the
essay is focused on the period after 1998, and Chapter 10 of Gearey et al. is much
broader in scope. You might sense, however, that the arguments from Lord Scarman,
Sir John Laws, Danny Nicol, Owen Fiss and Lord Steyn are directly in focus. Youngs
notions of dialogue, summarised in Chapter 10 of Gearey et al., can usefully build on
some of the ideas that come out of Nicols essay. The arguments made by Lady Justice
Hale and Lord Justice Hope, discussed in the last section of Chapter 10 of Gearey et al.,
are also relevant; they provide a clear sense of judicial politics, and an understanding
of the debates around the HRA.
We now need to frame our main thesis. Note that the question appears to break into
two parts, and we need to respond to both of them:
Discuss
In the light of the Gearey et al. chapter it would be hard to argue that the judiciary
were never political. The chapter suggests that following Griffiths thesis judges
have always been political. What has happened since the HRA is perhaps a reframing
of judicial politics around issues of human rights. Jackson is evidence of this, as are the
other cases that the Gearey et al. chapter discusses. We have also looked in detail at an
extract from Jackson. Note carefully Lord Steyns argument. He does not suggest that
the courts have the power to overrule Parliament or strike down Acts of Parliament.
This would clearly be going beyond what Parliament intended, as we have seen from
the White Paper. So, we could perhaps conclude that the HRA has not produced a
political judiciary; it has, however, changed the nature of judicial politics around
human rights issues. The idea of the dialogue between the judiciary and Parliament
elaborates this idea. Does this mean that the judiciary has assumed more power than
Parliament intended? Although it is hard to say exactly what Parliament intended, the
HRA clearly enhanced the power of judges. Jackson is perhaps also evidence that the
Law Lords are careful not to go beyond the limited terms of the Act, but note that Lord
Steyn does (at least to some extent) leave this issue open and Lord Hope is well aware
of the dangers of Parliamentary sovereignty.
The Belmarsh case is also important for our analysis at this stage. Note the ratio of
the case. The Law Lords are careful to respect the power of the Home Secretary, but
equally careful to assert that torture evidence cannot be used in court. The judges
are effectively defending the integrity of the courts and the rule of law against the
executive. This theme could also be thought of in terms of the dialogue between the
courts and Parliament; the courts by prohibiting torture evidence are ensuring that
the policing of terrorism is done in accordance with rule of law values.
We also need to deal with the politics point. We can use some of Nicols and Youngs
ideas. Remember that Nicol argued that, under the HRA, judges
are not taking governmental decisions but rather controlling the legality of those
decisions by enforcing a higher-order law. Law is thus a distinctive concept, serving as
bulwark between governors and governed, excluding arbitrary rule.
In this view, similar in some respects to that of Sir John Laws, the politics of the
judiciary serves to ensure government according to the law. However, remember also
that Nicol slightly amended this view. He argued that law is not so much a framework
for governance as a shifting relationship between different competences which
ebbs and flow[s] with the respective assertiveness of judicial and elected officials.
Nicols notion of judicial politics thus suggests that there is a certain vagueness over
where power lies. Rather than suggesting, though, that the judges have exceeded
the powers given to them under the HRA, Nicols argument suggests that the HRA is
redrawing the boundaries that exist within the current constitutional framework.
Young attempts to define the boundary by distinguishing between contestable and
non-contestable rights. Judicial legislation on the latter is acceptable (note Tomkins
arguments move in a similar direction, although he denies the relevance of the
idea of dialogue). Fiss theory of judicial deference is also relevant to our analysis. It
provides further detail on Young and Nicols notions of dialogue. Fiss suggests that
although judges legislate, their power of legislation is correctly limited: in part by the
constitutional position of the judges; but also because the judges themselves practice
deference. Thus, any dialogue between judges and Parliament is a dialogue between a
junior and senior partner. What defines judicial law making is precisely the fact that
it is limited.
These ideas can be organised into the following opening paragraph:
Although it would be difficult to determine quite what Parliament intended the judges
to do with the HRA, it would be wrong to argue that the Act has itself produced a political
judiciary; it would also be wrong to argue that the judges have assumed more power than
Parliament intended.
This paragraph tells the reader exactly what the writer thinks. It is a direct response to
the question that has been asked.
A second paragraph then extends our argument a little further:
The HRA appears to be producing a realignment in the Constitution of the United
Kingdom. The Human Rights Act of 1998 was meant to redress the balance between the
courts and Parliament. The Act allows judges to protect human rights against executive
power. The difficult question is: has judicial power now begun to trespass on the power of
Parliament to such an extent that the actions of the judges are beyond what Parliament
intended? The judges have indeed argued that they should be less deferential to
Parliament, and more willing to use their enhanced powers to protect human rights. It
might be that this goes beyond what the sponsors of the Act thought would happen; but,
then again, the White Paper Rights brought home was aware that Parliament had become
too powerful and had, on occasions, not governed within the law. However, even if one
acknowledges judicial law making, it would be wrong to see this as extending beyond a
rather limited remit. The dialogue between Parliament and the courts is most definitely
one where the judges acknowledge the supremacy of the former.
A good essay will tell the reader what to expect in terms of the argument to follow.
This will, obviously, reflect the structure of the argument. One must therefore be
working from a plan. The next section of this subject guide will outline the plan/
structure of the argument. To give some sense of what we are doing, though, here is
the third paragraph of the essay.
This essay will begin with a discussion of the idea of the politics of the judiciary. It will then
examine some of the most important cases in which issues of judicial politics have been
raised. A penultimate section will address arguments that the judges have exceeded their
powers, and argue that such arguments are contentious and do not enjoy universal support.
The essay will conclude by suggesting that the HRA has initiated a dialogue between the
courts and Parliament that on the whole benefits the development of British democracy.
Note that the paragraph outlines the structure of the argument, and concludes with
a point that hopefully returns to (and generalises on) the key theme of the question.
It does not deal with all the points that we want to talk about but outlines the main
terms of the argument. The last sentence suggests that rather than throwing out
the balance between the courts and Parliament the HRA is a positive measure that
enhances the rule of law.
4.4 Summary for planning an essay and an opening paragraph
Begin by asking yourself: Do I agree or disagree with the statement that the question
makes? Then ask yourself why. Answering the why will take you to the material
relevant to the question. This will allow you to build your argument.
In relation to questions that ask you to critically discuss, or even in what sense or to
what extent, you must be able to state your basic position and then defend it. This is,
therefore, simply a different way of asking you to discuss a question.
4.4.1 Plan and structure your answer
You cannot begin to plan your answer until you have both completed the information
gathering part of the exercise, and constructed your main thesis. The plan of the
essay builds the main thesis, and also points towards the organisation of your actual
essay. Your essay must be a coherent development of an argument that has a clear
introduction and conclusion. Every sentence that you write must build your argument
and respond directly to the question that you have been asked. The structure of your
argument follows the logical development of your key thesis. A rough plan of the
structure could be:
a. Consider the definition of politics; use material from Sir John Laws and Nicol.
Note: When you define politics, remember that the definition is useful within the
terms of the essay. Our definition of politics must not become too distracted with
general issues. Drawing on our sources, we want to say that:
Ever since JAG Griffith drew attention to the politics of the judiciary, most commentators
have accepted that political opinions do inform judicial decision making. This does
not mean that judges are politically partisan to the extent that they favour one side to
another; rather, that political values feed into and influence the way that judges decide
cases. It would be fair to argue that since the HRA, certain Law Lords have seen their
tasks in terms of the protection of human rights. This is political to the extent that it
means that the judges have to follow the terms of the HRA. As Nicol suggests, it might
be most accurate to see judges now engaged in dialogue with Parliament. Although this
dialogue suggests something of a realignment of the relationship between the courts
and Parliament, it does not suggest that the judges now see their role as enforcing human
rights against Parliament.
b. Use the material from Gearey et al. on key cases post-HRA; also make reference to
Lord Steyn in Jackson; make use of Fiss account of judicial reasoning.
Gearey et al. provides an overview of the important cases decided under the HRA. As
well as Jackson, this line of cases includes R (on the application of ProLife Alliance) v BBC,
Director of Public Prosecutions of Jamaica v Mollison, Anufrijeva and the Belmarsh case. In
discussing this material it is important to remember why you are discussing it. Given
the terms of the question (and the word limit) a summary of the facts and law in the
cases is not relevant. You are discussing the cases in terms of the information they
provide about judicial politics. You must therefore consider general themes within the
context of the question. We want to use this sample of cases to show that the judges
have entered into a dialogue with Parliament under the terms of the HRA. These cases
clearly do not show the judges striking down Acts of Parliament. It would thus be
impossible to argue that they show that the judges have gone beyond the terms of the
HRA.
It would also be possible to perhaps focus on a single case, in order to illustrate a
general theme. Lord Steyns argument in Jackson might lend itself to such a discussion.
c. Engage with general debate; review arguments that judges have exceeded their
powers; use Lord Scarmans arguments. Argue that the judges have not exceeded
their powers.
Extract G above gives us some sense of the arguments that the HRA has shifted the
balance towards the judges in a way that impacts negatively on British democracy. It
also gives us a sense that these arguments are contentious and do not enjoy universal
support. When we discuss these points we have to remember what we are trying
to argue. We are not offering points for and against the proposition, rather we are
attempting to persuade the reader that it is correct to disagree with the points raised
by the question. In other words, our argument has to take sides. We need to argue
that the points raised by David Cameron and Dominic Grieve are wrong: judicial
decisions on prisoners rights do not suggest that the judges have gone too far or
have exceeded their powers under the Act. In granting prisoners rights, the courts
are putting into effect a ruling of the ECtHR: they are using their powers under the
HRA. Lord McNallys comments reflect the fact that these arguments are somewhat
contentious; they also appear to back up Nicols point: the dialogue between the
courts and Parliament has shifting boundaries.
We could link this with Lord Scarmans arguments. He gave us some sense of
the constitutional context and the deep seated problems with the constitution
where there are insufficient checks on Parliament. We could borrow from Lord
Scarmans position to suggest that the HRA provides an important realignment of
the constitution precisely in those areas where appeals to popular sentiments could
be used to limit civil liberties. This would support our argument that the judges are
elaborating the basic idea of the HRA: they are bringing rights home.
d. Conclude essay; remind the reader of key thesis.
Note how (a)(d) above give us the sense of discretely organised points that build on
each other and show the reader why you have asserted the opening statement of your
essay.
Above we said that a good essay has an introduction that begins by stating the main
thesis. The introduction must do more than this. It must also outline the argument
that the reader can expect. The essay itself is a coherent development of the argument
that must keep the key thesis constantly in mind. A good essay also has a conclusion
that reminds the reader of the key thesis that has been put forward, and returns to the
terms of the question.
4.5 Bringing it all together: sample essay
Discuss.
This essay will argue that whilst the HRA has given the Law Lords power to develop
human rights law, it has not completely redefined their roles. However, it would be fair to
suggest that the HRA has to some extent redefined the relationship between the judges
and Parliament. It is worth stressing that judges remain subordinate to Parliament. Their
power to develop the common law does not mean that they have become legislators. The
argument will develop as follows. After defining the political role of the judiciary, the essay
will examine a number of key cases.
Ever since JAG Griffith drew attention to the politics of the judiciary, most commentators
have accepted that political opinions do inform judicial decision making. This does
not mean that judges are politically partisan to the extent that they favour one side
over another; rather, that political values feed into and influence the way that judges
decide cases. Judges are also political to the extent that they uphold the rule of law. If
this means that they have to ensure that Government must act within the law, we could
say that they are acting politically. It would be fair to argue that since the HRA, certain
Law Lords have seen their tasks in terms of the protection of human rights. As Nicol and
others have suggested, it might be most accurate to see judges now engaged in dialogue
with Parliament. Although this dialogue suggests something of a realignment of the
relationship between the courts and Parliament, it does not suggest that the judges now
see their role as enforcing human rights against Parliament.
So, even if one acknowledges the political function of judicial law making, it would be
wrong to see power as extending beyond a rather limited remit. The dialogue between
Parliament and the courts is most definitely one where the judges acknowledge the
supremacy of the former. Scholars like Young and Fiss have sketched out the correct
province of judicial legislation. It involves deference to Parliament, and a remit that
extends, in Youngs terms, only to non-contestable rights that are the proper province
of the courts. A contestable right is a watershed issue and best left to the legislature to
resolve.
The judges claim that in protecting human rights and ensuring rule of law, they are largely
within the sphere of constitutional competence given to them by Parliament: dealing
with non-contestable right. They are putting into effect what Parliament asked them to
do when it passed the HRA. This can be illustrated by reference to a number of the key
cases. In R (on the application of ProLife Alliance) v BBC Laws LJ argued that the courts have
a constitutional duty to protect and enhance the democratic process. In R (Jackson and
others) v A-G Lord Bingham pointed out that the constitutional balance has been thrown
out, and the Commons, dominated by the executive, [has become] the ultimately
unconstrained power in the state. The courts appear to be asserting their constitutional
competence against the executive. Other cases show similar evidence of judicial activism.
Director of Public Prosecutions of Jamaica v Mollison shows that the independence of the
judiciary is a constitutional fundamental and cannot be trespassed upon by other
branches of government. In Anufrijeva the House of Lords held that the executive could
not make unilateral determinations of peoples rights which bypassed the scrutiny of
the courts. This right of access to justice could also be considered a fundamental
constitutional principle. In the Belmarsh case the House of Lords stated that indefinite
detention of foreign terrorism suspects was in breach of the ECHR. In so doing, the House
of Lords was giving effect to s.6 of the HRA.
Judicial activity under the HRA has also to be seen in the context of the traditional role of
the common law judge. Most judges and commentators would agree that judges have
a law making power to the extent that they can give rulings that develop the common
law. The law making power of the judge is subordinate to Parliament, and the courts
have been careful to only change the common law in those areas where they feel that it
is appropriate. To some extent, then, judges are legislators, but the Law Lords have been
careful not to usurp Parliaments supreme law making power. The sections of the HRA that
allow the judges to ensure that the law is consistent with the rights contained in the ECHR
may have enhanced the law making powers of Law Lords, but it would be difficult to see
this as threatening the sovereignty of Parliament.
Some have argued otherwise. Most recently, coalition ministers have suggested that the
judges have interfered with Parliaments democratic mandate and extended human rights
in such a way as to compromise the will of the people. These arguments raise profound
issues about where the balance should lie between human rights and a sovereign
Parliament representing the will of the people. It would be hard to say, though, that the
judges have clearly acted in breach of the doctrines of the constitution.
This essay has argued that whilst the HRA may have redefined the powers of judges, it
has not completely changed their role. Although there has been no real challenge to
Parliamentary sovereignty, which would indeed go beyond what the framers of the Act
intended, the judges are more willing to assert the importance of human rights, and
ensure that British law is consistent with the ECHR. Rather than throwing out the balance
of the constitution, this suggests that the judges are assuming their correct political role:
upholding the rule of law.
Summary
You should now be familiar with the following;
a. how to make a case note
b. how you will be examined in Part A of the examination
c. essay writing technique.
As far as (a) and (b) are concerned, you need to be aware that practice is essential. You
will see, as you read on in the subject guide, that you are asked to make a number of
case notes. The more you do, the better you will get. This practice will also encourage
you to actually read the important cases.
Reading cases and writing case notes are essential preparation for Part A of the
examination. Remember that there is nothing to actually learn for this part of the
examination. You need to be comfortable with reading cases, and with following legal
language. There is no secret to this: it involves practice. Read a case slowly, then read it
again. It will take you a number of readings to get the sense of it. But, do not become
frustrated. Persevere. Over time you will get better.
You must also practice your essay writing technique. This takes time to acquire.
There are exercises throughout this subject guide that should help you. Essay writing
technique is essential to Part B of the examination. The more essays you write, the
better you will become. Remember that the key skills to acquire are critical thinking
and organising your answer. It follows that you must not learn verbatim model
answers and reproduce them in the examination. This failure of technique is very easy
to spot, and you will be marked accordingly.
If you are tempted to use a model answer, dont. You are wasting your time. Work on
acquiring the techniques that will make you an independent and confident thinker.
u What are the key features of a case note?
u Describe a five-stage process for writing an essay.
u What is the importance of following a good structure in your essays?
u What is the importance of demonstrating critical thinking in your essays?
u Have you started practising the process of writing essays?
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
5.1 The interaction of the court hierarchy and the doctrine of precedent . . .59
5.2 Ratio decidendi and obiter dicta . . . . . . . . . . . . . . . . . . . . . . .60
5.3 Reading a case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
5.4 Reading a judicial opinion . . . . . . . . . . . . . . . . . . . . . . . . .65
5.5 Following and distinguishing. . . . . . . . . . . . . . . . . . . . . . . .69
5.6 The role of rhetoric in a case . . . . . . . . . . . . . . . . . . . . . . . .70
5.7 Reading statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80
5 Reading law
Introduction
There is no substitute for a lifetime
Ezra Pound
This chapter focuses on reading cases and statutes. It builds on the case noting and
comprehension skills introduced in the previous chapter, but also introduces us to
reading statutory language and the kinds of questions that you will encounter in Part C
of the examination.
There is a great deal of background information with which one has to become
familiar before one can read and understand a case. This chapter begins by outlining
this information, which relates to the doctrine of precedent and the hierarchy of the
courts, the layout of a case report and the way judges reason.
This chapter also gives us direct experience of reading legal sources, at the level of the
texts of the cases themselves. The general point is that law is composed of practices;
the best way to understand the law is to engage with legal interpretation. We will
develop this theme in the next chapter. Once we have felt what the issues are, we
can try to understand them in a more general and abstract way. Hence it is important
that you work your way through this chapter before proceeding further in the subject
guide.
One last point in introduction: the only way to understand legal judgments is to
read them. The more you read, the more you will appreciate the points that we are
making in this chapter. This is why the epigram above, from the American poet Ezra
Pound, focuses on the need to read, and to keep on reading. If judicial reasoning is a
practice, then one can only understand it by doing it: by attempting to internalise
its conventions: difficult at the beginning (because you have no experience); the more
experience you acquire, the more sense it will make (or, the more you will internalise
its conventions).
In some sections of the present chapter there are no readings from textbooks. This is
because the chapter sections require you to read a case. We have tried to make this
easier for you by splitting up the judgment and inserting a commentary on the main
points. As we have repeatedly stressed: you have to read cases. There are no books that
can help you with this task. The key thing is to read slowly and carefully. Remember,
this is developing essential skills that will be tested in Part A of the examination.
We want to look in detail at a case report, but before we can do this we need to
deal with some important issues of doctrine and terms of art. So, first of all, we will
examine the fundamental idea of the court hierarchy. We will then define two central
terms: ratio decidendi and obiter dicta (ratio and obiter for short). We will then look at
a case report, and show in detail how the court hierarchy and obiter and ratio apply to
the document we are reading.
Essential reading
Holland and Webb, Chapter 3 Reading the law.
Further reading
Askey and McLeod, Chapters 4 The jurisdictions of the principal courts, 8
Reading law reports and statutes, 9 Written English and 11 Answering
problem questions.
Holland and Webb, Chapters 6 The doctrine of judicial precedent and 7 How
precedent operates: ratio decidendi and obiter dictum.
Most of the material in Chapters 3, 6 and 7 of Holland and Webb will help you develop
practical skills. These skills require that, for instance, you know your way around
a case report and that you can distinguish between obiter and ratio. You will not
encounter a question in the examination that asks you to define the ratio of a case.
This does not mean that this information is not important, or that you should not take
it seriously.
Common law reasoning and institutions 5 Reading law page 59
5.1 The interaction of the court hierarchy and the doctrine of precedent
Note: you need to learn this material, but be aware, the examination will not ask you
to reproduce your notes on the hierarchy of the courts as such.
Essential reading
Holland and Webb, Chapter 1 Understanding the law, Section 1.5 The Courts.
It is the general rule that decisions made in higher courts are binding upon courts
below them, and to a certain extent on courts at the same level. The way in which the
court hierarchy structures the working of judicial precedent is described below.
Magistrates Courts and County Courts

These courts are bound by decisions of the High Court, the Court of Appeal (CA) and
the House of Lords Supreme Court. Magistrates and County Courts are not bound by
their own decisions, neither do they bind any other court, although they are expected
to exercise consistent decision-making.
The Crown Court
This court is bound by decisions of the Court of Appeal and the House of Lords/
Supreme Court. Its decisions at least those reported as of interest are generally
regarded as persuasive and worthy of being used in argument, particularly those made
by High Court judges sitting in the Crown Court.
The High Court
The decisions of this court are binding upon all inferior courts, but not upon other
High Court judges, although in practice they rarely go against each others decisions.
High Court decisions are not binding upon the Divisional Court (Civil or Criminal),
where two or more High Court judges sit together. All Court of Appeal and House of
Lords/Supreme Court decisions are binding upon the High Court.
The Divisional Courts of the High Court
The decisions of the Divisional Courts of the High Court are binding upon High Court
judges sitting alone and also the inferior courts, except the Employment Appeal
Tribunal. The Divisional Courts are bound by the Court of Appeal and the House of
Lords Supreme Court and also by its own decisions.
The Court of Appeal (Civil Division)
Generally, its decisions are binding upon the Divisional Courts of the High Court,
individual High Court judges and the inferior courts, including the Employment Appeal
Tribunal. It must follow decisions of the House of Lords/Supreme Court. In Young
v Bristol Aeroplane Co Ltd [1944] KB 718, it was held that the CA is bound by its own
decisions unless:
u it is a CA decision given per incuriam (i.e. with the omission of a very important
component which subsequently flaws the decision)
u it involves an earlier conflicting decision by the CA, when the CA may then choose
which case to follow
u the earlier CA decision has been expressly or impliedly overruled by the Supreme
Court.
The Court of Appeal (Criminal Division)
This appellate court is bound by House of Lords/Supreme Court decisions and is
generally bound by its own decisions, but not so rigidly as in the Civil Division, since
the liberty of the appellant is often at stake.

You may find it useful to
draw a diagram showing
how the authority of
precedent flows between
different courts in different
circumstances.
The House of Lords
Between 1966 and 2009 (when it was replaced by the Supreme Court), the House of
Lords no longer needed to be bound by its own decisions. The 1966 Practice Statement
stressed that this rule was to be used cautiously, especially in property, taxation and
criminal matters. Great weight is attached to statements made in the House of Lords
even when they are said obiter. Any House of Lords decision can be overridden by an
Act of Parliament.
Precedents in other courts may be persuasive depending upon the status of the court,
the reputation of the judge and the country in which it was established.
The Supreme Court
The Supreme Court:
u is the final court of appeal for all UK civil cases, and criminal cases from England,
Wales and Northern Ireland
u hears appeals on arguable points of law of general public importance
u concentrates on cases of the greatest public and constitutional importance
u maintains and develops the role of the highest court in the United Kingdom as a
leader in the common law world.
The Supreme Court hears appeals from the following courts in England and Wales:
u The CA (Civil Division)
u The CA (Criminal Division)
u (in some limited cases) the High Court.
(From www.supremecourt.gov.uk/about/role-of-the-supreme-court.html)
5.1.1 The 1966 Practice Statement and the Supreme Court
(For notes on the 1966 Practice Statement, see Chapter 6 of this subject guide.)
Does the 1966 Practice Statement apply to the Supreme Court? In Austin v Mayor and
Burgesses of the London Borough of Southwark [2010] UKSC 28, Lord Hope argued (at
para.25) that:
The Supreme Court has not thought it necessary to re-issue the Practice Statement as a
fresh statement of practice in the Courts own name. This is because it has as much effect
in this Court as it did before the Appellate Committee in the House of Lords. It was part
of the established jurisprudence relating to the conduct of appeals in the House of Lords
which was transferred to this Court by section 40 of the Constitutional Reform Act 2005.
So, it is probably the case that the Supreme Court can depart from its previous decisions
and previous decisions of the House of Lords when it considers that it would be right for it
to do so.
The doctrine of binding precedent ensures consistency; but, more broadly,
consistency in decision making is a concern of justice. It is just that the courts follow
precedent so that the law develops coherently. This is fundamental to the idea of law:
if law is to be universal, to apply to all people, it must do so in a way that is principled.
There cannot be arbitrary or unprincipled decisions as this would not be just.
5.2 Ratio decidendi and obiter dicta
Essential reading
Holland and Webb, Chapter 7 How precedent operates: ratio decidendi and
obiter dictum, Section 7.3 Trying to define ratio decidendi.
Courts decide cases not on their merits but according to judicially developed
propositions of law (rules and principles). Traditionally, it is said that the decision in
every case must rest on some principle. This principle will usually be stated in the case
and form part of the ratio decidendi. Ratio decidendi is Latin for a concept which appears
quite simple in common-sense terms. The ratio is the reason for the decision. It is,
however, quite difficult to define ratio decidendi more accurately. Leaving these
problems to one side for the moment, we will proceed on the basis that the ratio is the
reason for the decision in a case. Other statements of law which are not part of the
determining principle of the case are called obiter dicta literally things said aside
.
Once the proposition of law has been established, it will normally be followed in later
cases because:
u courts normally follow their own prior decisions
u courts must follow decisions of courts above them in the hierarchy
u courts attach persuasive value to decisions of major common law courts outside
their jurisdiction, although these do not technically bind them.
This, then, is the doctrine of precedent. Its Latin name is stare decisis, meaning to
stand by what has been decided.
5.2.1 What is a ratio?
This is a difficult question to answer.
If you look on p.40, you will see that we use the definition the reason for deciding
the case. This can be expanded a little. Zander (2004, p.269) suggests a proposition
of law which decides the case, in the light or in the context of the material facts.
Holland and Webb have a similar definition: the material facts of the case, plus the
decision made in relation to those facts (2010, p.186); Askey and McLeod write: the
material facts which influenced the formulation of the legal rule on which the decision
is based (2008, p.96). We can appreciate the common elements in these definitions;
formulating the ratio of a case involves a consideration of (1) the material facts and (2)
the courts decision. This view can be traced back to a definition of the ratio offered
by Goodhart (Yale Law Journal 40 1930, p.161). It would be fair to state, however, that
although Goodharts definition is thus important and influential, there is still debate
on the precise meaning and definition of the term ratio (see Holland and Webb,
pp.18667). Nevertheless, we will use this idea of material facts and legal rule as the
way of formulating a ratio.
In most modern case reports the decision of the court can be found in the headnote,
it will usually say Held and the law reporters summary of the courts decision on
the point(s) of law will follow. This can be a good starting point for thinking about
formulating the ratio; sometimes it will be very helpful in that it might also include
some of the material facts.
One issue that you need to bear in mind is that the ratio of a case might be re-
interpreted by a later case. Building on a theory of the ratio offered by Julius Stone,
McLeod has made a useful distinction between the descriptive and prescriptive ratio.
The descriptive ratio is the way in which the judge(s) who decided the case framed the
ratio. The prescriptive ratio is a re-interpretation of the descriptive ratio in a later case.
It is based on a reading of the relevant law and facts in the ratio by the judges in the
later case, as they try to determine precisely what elements of the ratio are binding on
them. This is why the ratios of cases can change as they are interpreted by later judges.
The re-interpretation of the case can involved re-stating the facts of the case in a more
general way, and, indeed, may involve restating the relevant law at a more general
level. Holland and Webb give a good way of thinking about this process on p.187 and
work their account of the re-interpretation of a ratio through with reference to a
fictional case, Park v Moloney. Askey and McLeods discussion of Burgess v McCraken is
also worth reading (pp.9698). Gearey et al., Chapter 4, provides further consideration
of these themes.
It is necessary to stress something important. It follows from the nature of the
case noting exercise in the examination that we cannot, as far as the case note is
concerned, be anxious about how the ratio of the case in question might change.

Latin obiter dictum (singular);
obiter dicta (plural).
This is because we are not looking at a line of cases. The questions on the case note
will therefore ask you to think about the ratio as given (even though, as suggested
above, this is only one limited interpretation of the ratio). This is not to downplay the
importance of having a good grasp of the issues around the identification of the ratio.
Indeed, the case noting exercise is intended to be the first step of initiating you into
the complexities and subtleties of legal reasoning; themes that will run throughout
your degree.
As we pointed out above, the ratio is a difficult concept and there is no agreed formal
statement about how a ratio should be defined or how it should be discerned in a
judgment. As we will see a ratio is a matter of interpretation. This does not mean that
we cannot state with a large degree of certainty what the ratio of any given case is;
it does mean that a ratio is a matter of argument and agreement. As the American
scholar and literary critic Stanley Fish once commented: law is interpretation all the
way down.
5.3 Reading a case
Essential reading
Holland and Webb, Chapter 3 Reading the law, Section 3.2 Reading cases.
We will now break down the different parts of a case report and give guidance on how
to understand them. The first part of the case gives the title, the court in which the
case was heard, the date of the ruling, and references to the volumes of case reports
in which the case is reported. Note here that the case has been published in two
different series of reports: UKHL and AC (NB: It is worth looking up this case in
both the UKHL reports and the AC reports so that you can see exactly what it looks
like).
A and others v Secretary of State for the Home Department (No 2)
House of Lords
8 December 2005
[2005] UKHL 71
[2006] 2 AC 221
Next are the names of the Law Lords who heard the case and wrote the relevant
judgments:
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of
Craighead, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-
Heywood
And then the dates on which the case was heard:
2005 Oct 17, 18, 19, 20; Dec 8
You then come across a summary of the law and the issues raised by the case. The
summary gives key words that can be used to search for the case and the issues that it
raises.
Human rights Right to fair trial Suspected international terrorists Secretary of State
issuing certificates to detain under temporary emergency statutory provisions Detention on
basis of reasonable belief and suspicion Alleged reliance on evidence of third parties subject
to torture in foreign state Whether evidence admissible Anti-terrorism,Crime and Security
Act 2001 (c 24) ss. 21, 23, 25Special Immigration Appeals Commission (Procedure) Rules 2003
(SI 2003/1034), r 44(3) Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment 1990 (Cm 1775), art 15
This summary is followed by a statement of the facts of the case and the relevant law:
Following large scale attacks in the United States on 11 September 2001 the United
Kingdom Government concluded that there was a public emergency threatening the
life of the nation within the meaning of the Convention for the Protection of Human
Rights and Fundamental Freedoms. Legislation was passed designating the United
Kingdoms proposed derogation from the right to liberty under the Convention, which
was scheduled to theHuman Rights Act 1998, and temporary emergency powers subject
to renewal were enacted inPart 4 of the Anti-terrorism, Crime and Security Act 2001
providing, bysection 21 and 23, for the detention of suspected international terrorists if
the Secretary of State believed their presence in the United Kingdom was a risk to national
security and he suspected that they were terrorists who could not be deported because
of fears for their safety or other practical considerations. The applicants, the subject of
certification by the Secretary of State, appealed undersection 25of the 2001 Act to the
Special Immigration Appeals Commission against their detention. The commission, which
byrule 44(3) of the Special Immigration Appeals Commission (Procedure) Rules 2003 was
entitled to receive evidence that would not be admissible in a court of law, reviewed the
evidence in respect of each applicant and in a number of open and closed judgments
dismissed their appeals. In one case it was alleged that the Secretary of State had relied on
evidence of a third party obtained through his torture in a foreign state. The commission
held that, if there was such material which had been obtained without the complicity of
British authorities, they might examine it and determine the proper weight to be attached
to it and that there would be no prohibition on its admission within the meaning of
article 15 of the United Nations Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (1990). They concluded, however, that there was no
such material. The Court of Appeal, by a majority, upheld the commissions decision and
dismissed the applicants appeals.
Note that this description of facts and relevant law also tells you the history of the
case. We know from the above that the applicants appealed to the Special Immigration
Appeals Commission (SIAC); and then appealed from the SIAC to the CA. The CA upheld
the decision of the SIAC, and the applicants appealed to the House of Lords. If you read
to the end of the paragraph beginning held (below) you will find that the House of
Lords allowed the appeal (i.e. the House of Lords disagreed with the CA, or reversed
the decision of the CA ) and returned the case to the SIAC for reconsideration.
The next part of the judgment is the ratio decidendi, or the rule of law for which this
case will stand as authority. For the moment, note that the ratio is what the court
held or determined. This ratio has two strands, or elements; in other words, the
House of Lords ruled on two points of law. A ratio can have any number of strands. The
more strands, the more complex the case. Only the first part of the ratio is reproduced
and considered below.
As mentioned above, for the most part, a Law Lord or Judge might not say here is
the ratio of the case. A ratio is a matter of interpretation. What we are in fact reading
below is an interpretation of the ratio of the case provided by the person who
reported it. In most cases these are entirely reliable; but, as you will find out later in
the year, one useful approach when faced with an inconvenient precedent is to take
issue with the interpretation of the ratio of the case.
Also note that the whole judgment is not reproduced here; just the first page.
Held, allowing the appeals and remitting each case to the commission for reconsideration,
(1) that evidence of a suspect or witness which had been obtained by torture had long
been regarded as inherently unreliable, unfair, offensive to ordinary standards of humanity
and decency and incompatible with the principles on which courts should administer
justice, and that, in consequence, such evidence might not lawfully be admitted against
a party to proceedings in a United Kingdom court, irrespective of where, by whom or on
whose authority the torture had been inflicted; that the Secretary of State did not act
unlawfully in relying on such tainted material when certifying, arresting and detaining
a person under the 2001 Act whom he suspected of international terrorism; but that
the commission was established to exercise judicial supervision of his exercise of those
powers and was required to assess whether at the time of the hearing before it there
were reasonable grounds for his suspicion; that, although it might admit a wide range of
material which was inadmissible in judicial proceedings, express statutory words would
be required to override the exclusionary rule barring evidence procured by torture; that
the wording ofrule 44(3)could not be interpreted as authorising the displacement of that
rule and that, accordingly, the commission could not admit such evidence...
Decision of theCourt of Appeal [2004] EWCA Civ 1123; [2005] 1 WLR 414 reversed.
As you will no doubt appreciate, a case report presents a great deal of complex
information. The best thing to do with a case is to read it slowly, and to make notes as
you go along.
Let us try to extract the essential information from this case. The case is concerned
with the complex relationship of various pieces of legislation. The key point was that
the United Kingdom derogated from the ECHR, and more specifically from the right to
liberty. This was negotiated when the HRA was passed, and the derogation forms part
of one of the schedules of the Act. Once the derogation had taken place, temporary
emergency powers, which had to be renewed by Parliament, were legislated under
Part 4 of the Anti-terrorism, Crime and Security Act 2001. Part 4 provided that, under
ss.21 and 23those suspected of international terrorism could be detained if the
Secretary of State believed their presence in the United Kingdom was a risk to national
security. The Secretary of State also had to suspect that the detained individuals
were terrorists who could not be deported because of fears for their safety or other
practical considerations. In this case, the applicants (i.e. those making the appeal)
had been certified by the Secretary of State under the Anti-terrorism, Crime and
Security Act 2001. They appealed, under s.25 of the Act, to SIAC against their detention.
We then get to what is perhaps the key point.
Under Rule 44(3) of the Special Immigration Appeals Commission (Procedure) Rules
2003 (i.e. not the Anti-terrorism, Crime and Security Act 2001), the Commission can
make use of evidence that could not be used in a court of law. Making use of this
evidence, in judgments that were both open (in open court) and closed (held in
secret, so not in open court), the applicants case was dismissed. There is then a very
specific and important point. It was alleged that the Secretary of State made use of
evidence from a third party that was obtained through [the] torture [of an applicant]
abroad. Note that the allegation is not that the torture took place in the United
Kingdom. The Commission ruled that if the torture evidence had not been obtained
by British authorities, then it could be considered and, if necessary, the proper weight
attached to it. This practice was not outlawed by Article 15 of the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1990). The Commission also held that, in fact, there was no material
obtained by torture relevant in the present case. The applicants appealed against this
point to the CA which dismissed the applicants case. There was then a second appeal
to the House of Lords.
A summary of the relevant law
The House of Lords held that torture evidence could not be used in a UK court. This
was because it was inherently unreliable (i.e. no use as evidence), unfair (in breach
of principles of a fair trial), offensive to ordinary standards of humanity and decency
(in breach of widely held moral standards) and incompatible with the principles
on which courts should administer justice (this amplifies the idea that torture is in
breach of fair trial principles where evidence should be lawfully obtained and reliable).
The House of Lords also held that torture evidence could not be used even if it had
been obtained abroad. However, the Secretary of State had not acted against the
law in using tainted evidence (tainted by torture) when certifying, arresting and
detaining a person under the 2001 Act whom he suspected of international terrorism.
However, the SIAC could not use such evidence. This was because it had to exercise
judicial supervision of the Secretary of States powers. It had the power to admit a
wide range of material which was inadmissible in judicial proceedings but this would
not include torture evidence. There is then a very interesting point that goes back to
the sovereignty of Parliament. Parliament, as we know, can legislate contrary to human
rights; and contrary even to the prohibition on torture and torture evidence, but
express statutory words would be required to override the exclusionary rule barring
evidence procured by torture. The relevant Act of Parliament would have to state
clearly that torture evidence was admissible. As the wording ofrule 44(3)could not
be interpreted as authorising the displacement of the prohibition of torture evidence,
the commission could not admit such evidence.
5.4 Reading a judicial opinion
5.4.1 Structure of a judicial opinion
A judicial opinion is a structured argument that provides reasons for the conclusion
that the court has reached. If you go back to the head notes, you will see the names
of the judges who wrote opinions in A v Secretary of State for the Home Department
(abbreviated to A). We can distinguish between different types of opinions (see below)
but for the moment we want to deal with the general idea. An opinion provides a
rationale for the development of the law in a certain way.
We have stressed that law is a matter of interpretation, but this does not mean that
anything goes. Rather like improvisation in jazz, where the soloist is (at least to some
extent) bound by the conventions of the music, a judge is bound by the conventions of
legal argument and the structure of the law. Given the interpretative nature of law, the
structure of argument is even more central. Whatever conclusion a judge reaches has
to be justified: you will never read a judgment that states something along the lines of:
This is what I have decided. Thats it. Thank you and goodnight.
An opinion may show a judge grappling with the different ways in which the law
could be developed and giving his reasoned argument as to why one particular line of
development is to be preferred to another. This can raise important questions about
the nature and integrity of the law. We will look at these issues later in this chapter.
Although there is no set form for a judicial opinion, it will usually cover the following
concerns. It may begin with a description of facts. An opinion may also consider:
u the procedural history of the case
u the presentation of questions to be answered
u rules of law and/or appropriate principles of law (given that these are
interpretations of ratios of earlier cases or of statutes there may be room for
disagreement)
u the application of law to the facts
u and the disposition or practical direction to give effect to the courts decision.
It is important to know that different Law Lords and Justices of the Supreme Court
have different written styles. The more cases you read, the more you will appreciate
these differences. We will touch on these themes below.
Note: Judgments of the higher courts are usually delivered by a number of judges.
Thus we may find that while the judges agree on the decision (i.e. the result, such as
whether the claimant can get a remedy) they may provide differing reasons for their
agreement. Sometimes when multiple judges are in agreement on a decision they
choose one judge to deliver the majority judgment, while the others give a single
sentence of agreement.
5.4.2 Majority/concurring and dissenting opinions
Most of the opinions you read as a law student are majority opinions...A majority opinion
is an opinion joined by the majority of judges on that court. Although most decisions
are unanimous, some cases are not. Some judges may disagree and will write a separate
opinion offering a different approach. Those opinions are called concurring opinions or
dissenting opinions, and they appear after the majority opinion. A concurring opinion
(sometimes just called a concurrence) explains a vote in favor of the winning side
but based on a different legal rationale. A dissenting opinion (sometimes just called a
dissent) explains a vote in favor of the losing side.
(O.S. Kerr How to read a legal opinion (2007) 11(1) Green Bag 5165, at 54.)
Dissenting opinions disagree with the majority, although one also finds partially
dissenting opinions, which disagree with one of the elements of the majority opinion.
Remember that dissenting opinions, or a partial dissent, are not part of the ratio of
the case. They are therefore not binding, but may be cited in later cases as persuasive
arguments for an understanding of the law different from that of the ratio of the case.
5.4.3 Lord Binghams opinion in A v Secretary of State for the Home
Department [2005] UKHL 71
Note: what follows is a summary. You should read Lord Binghams opinion, but it is
rather long and detailed. If you start with the summary below, you should get a good
idea of how his argument works. It is then necessary to read the opinion in detail.
In A, Lord Bingham provided a brief history of the common laws approach to torture.
The point of his argument is to show that running through common law are certain
values. We might want to think of these values in terms of due process or fair trial
rights (as outlined in Chapter 2 of this subject guide); but this would be to make use
of a very particular set of contemporary ideas. Lets review one of the main arguments
of A:
[T]he common law forbids the admission of evidence obtained by the infliction of
torture, and does so whether the product is a confession by a suspect or a defendant and
irrespective of where, by whom or on whose authority the torture was inflicted.
This is, of course, a claim about the common law. One of the key ideas underpinning
this claim is a theme that runs throughout this subject guide: the integrity of law.
Torture evidence is an abuse of process. It makes a trial unfair (to say nothing of the
morally abhorrent nature of the act itself). So, what does Lord Bingham make of this
claim?
11. It is, I think, clear that from its very earliest days the common law of England set its
face firmly against the use of torture. Its rejection of this practice was indeed hailed as a
distinguishing feature of the common law...This condemnation is more aptly categorised
as a constitutional principle than as a rule of evidence.
Notice how Lord Bingham builds his argument:
This rejection was contrasted with the practice prevalent in the states of continental
Europe who, seeking to discharge the strict standards of proof required by the Roman-
canon models they had adopted, came routinely to rely on confessions procured by the
infliction of torture: see A L Lowell, The Judicial Use of Torture (1897) 11 Harvard L Rev 220-
233, 290-300; J Langbein, Torture and the Law of Proof: Europe and England in the Ancien
Regime (1977); D. Hope, Torture [2004] 53 ICLQ 807 at pp 810-811. In rejecting the use of
torture, whether applied to potential defendants or potential witnesses, the common law
was moved by the cruelty of the practice as applied to those not convicted of crime, by
the inherent unreliability of confessions or evidence so procured and by the belief that it
degraded all those who lent themselves to the practice.
The references in the text are to articles written by academics. They concern some
very specific points about the history of torture. It is easy to appreciate how they
link with the central point that Lord Bingham is making; note how the last sentence
restates the main theme of his argument.
The major point in A concerns involuntary confessions, or, confessions obtained by
torture:
The appellants relied...on the familiar principle that evidence may not be given by a
prosecutor in English criminal proceedings of a confession made by a defendant, if it is
challenged, unless the prosecution proves beyond reasonable doubt that the confession
had not been obtained by oppression of the person who made it or in consequence of
anything said or done which was likely, in the circumstances existing at the time, to render
unreliable any confession which might be made by him in consequence thereof. This rule
is now found in section 76 of the Police and Criminal Evidence Act 1984, but enacts a rule
established at common law and expressed in such decisions as Ibrahim v The King [1914] AC
599, 609-610, R v Harz and Power [1967] AC 760, 817, and Lam Chi-ming v The Queen [1991] 2
AC 212, 220.
(para.14)
Note how Lord Bingham qualifies this argument:
Plainly this rule provides an inexact analogy with evidence obtained by torture. It applies
only to confessions by defendants, and it provides for exclusion on grounds very much
wider than torture, or even inhuman or degrading treatment. But it is in my opinion
of significance that the common law has...insisted on an exclusionary rule...[15] In R
v Warickshall (1783) 1 Leach 263, 168 ER 234, this rule was justified on the ground that
involuntary statements are inherently unreliable.
(para.15)
Lord Bingham then returns to the rationale for the rule:
In Lam Chi-ming v The Queen [1991] 2 AC 212, 220, in a judgment delivered by Lord Griffith,
the Privy Council summarised the rationale of the exclusionary rule:
Their Lordships are of the view that the more recent English cases established that the
rejection of an improperly obtained confession is not dependent only upon possible
unreliability but also upon the principle that a man cannot be compelled to incriminate
himself and upon the importance that attaches in a civilised society to proper behaviour
by the police towards those in their custody.
(para.17)
The centrality of this rule is stressed again later in the judgment:
Lord Griffith described the inadmissibility of a confession not proved to be voluntary as
perhaps the most fundamental rule of the English criminal law. The rationale explained by
Lord Griffith was recently endorsed by the House in R v Mushtaq [2005] UKHL 25, [2005] 1
WLR 1513, paras 1, 7, 27, 45-46, 71.
(para.17)
The second main argument relates to abuse of process:
The appellants submit, in reliance on common law principles, that the obtaining of
evidence by the infliction of torture is so grave a breach of international law, human
rights and the rule of law that any court degrades itself and the administration of justice
by admitting it. If, therefore, it appears that a confession or evidence may have been
procured by torture, the court must exercise its discretion to reject such evidence as an
abuse of its process.
(para.18)
Note how all the arguments above cite and use cases. We will consider an important
set of terms that relate to the way in which judges and lawyers use cases later in this
chapter. The important thing to note for the moment is that Lord Bingham cites a
case or cases for each point he is considering. Suffice to say that legal arguments are
arguments about the meaning of cases (and statutes). This is why it is so important to
be able to locate, read, understand and use cases as a lawyer.
Lord Binghams partial dissent
This takes us to the second part of the ratio:
(2) That, since a detainee had only limited access to material advanced against him in
proceedings before the commission, a conventional approach to the burden of proof
was inappropriate in determining whether a statement should be excluded as procured
by torture; that a detainee could not be expected to do more than raise a plausible
reason that material might have been so obtained and, where he did so, it was for the
commission to initiate relevant inquiries; that (Lord Bingham of Cornhill, Lord Nicholls
of Birkenhead and Lord Hoffmann dissenting) the commission should adopt the test of
admissibility laid down in article 15 of the Torture Convention and consider whether it
was established by such inquiry as it was practicable to carry out and on a balance of
probabilities that the information relied on by the Secretary of State was obtained by
torture; that if satisfied that it was so established the commission should decline to admit
the material, but that, if they were doubtful, they should admit it, bearing their doubt in
mind in evaluating it.
So, we know Lord Bingham dissented from part of the ratio. We reconstruct the most
salient features of his argument below:
54 The appellants contend that it is for a party seeking to adduce evidence to establish
its admissibility if this is challenged. The Secretary of State submits that it is for a party
seeking to challenge the admissibility of evidence to make good the factual grounds
on which he bases his challenge. He supports this approach in the present context by
pointing to the reference in article 15 of the Torture Convention to a statement which
is established to have been made as a result of torture. There is accordingly said to be a
burden on the appellant in the SIAC proceedings to prove the truth of his assertion.
55 I do not for my part think that a conventional approach to the burden of proof is
appropriate in a proceeding where the appellant may not know the name or identity of
the author of an adverse statement relied on against him, may not see the statement or
know what the statement says, may not be able to discuss the adverse evidence with the
special advocate appointed (without responsibility) to represent his interests, and may
have no means of knowing what witness he should call to rebut assertions of which he
is unaware. It would, on the other hand, rendersection 25appeals all but unmanageable
if a generalised and unsubstantiated allegation of torture were in all cases to impose
a duty on the Secretary of State to prove the absence of torture. It is necessary, in this
very unusual forensic setting, to devise a procedure which affords some protection to
an appellant without imposing on either party a burden which he cannot ordinarily
discharge.
[...]
57 Since a majority of my noble and learned friends do not agree with the view I have
expressed on this point, and since it is of practical importance, I should explain why I do
not share their opinion.
[...]
59 My noble and learned friend, Lord Hope, proposes, in para 121 of his opinion, the
following test: is it established, by means of such diligent inquiries into the sources that
it is practicable to carry out and on a balance of probabilities, that the information relied
on by the Secretary of State was obtained under torture? This is a test which, in the
real world, can never be satisfied. The foreign torturer does not boast of his trade. The
security services, as the Secretary of State has made clear, do not wish to imperil their
relations with regimes where torture is practised. The special advocates have no means
or resources to investigate. The detainee is in the dark. It is inconsistent with the most
rudimentary notions of fairness to blindfold a man and then impose a standard which only
the sighted could hope to meet. The result will be that, despite the universal abhorrence
expressed for torture and its fruits, evidence procured by torture will be laid before SIAC
because its source will not have been established.
60 The authorities relied on by my noble and learned friends, Lord Hope of Craighead and
Lord Rodger of Earlsferry, to support their conclusion are of questionable value at most.
In El Motassadeq, a decision of the Higher Regional Court of Hamburg of 14 June 2005, the
United States Department of Justice supplied the German court, for purposes of a terrorist
trial proceeding in Germany with reference to the events of 11 September 2001, with
summaries of statements made by three Arab men. There was material suggesting that
the statements had been obtained by torture, and the German court sought information
on the whereabouts of the witnesses and the circumstances of their examination.
The whereabouts of two of the witnesses had been kept secret for several years, but it
was believed the American authorities had access to them. The American authorities
supplied no information, and said they were not in a position to give any indications as
to the circumstances of the examination of these persons. Two American witnesses who
attended to give evidence took the sameposition. One might have supposed that the
summaries would, without more, have been excluded. But the German court, although
noting that it was the United States, whose agents were accused of torture, which was
denying information to the court, proceeded to examine the summaries and found
it possible to infer from internal evidence that torture had not been used. This is not
a precedent which I would wish to follow. But at least the defendant knew what the
evidence was.
[...]
62 I regret that the House should lend its authority to a test which will undermine the
practical efficacy of the Torture Convention and deny detainees the standard of fairness
to which they are entitled under article 5(4) or 6(1) of the European Convention . The
matter could not be more clearly put than by my noble and learned friend, Lord Nicholls
of Birkenhead, in the closing paragraph of his opinion.
5.5 Following and distinguishing
Essential reading
Holland and Webb, Chapter 7 How precedent operates: ratio decidendi and
obiter dictum, Section 7.8 How precedents develop.
Re-read the sections of Lord Binghams judgment reproduced above. He is establishing
an argument that shows that torture evidence is not admissible in court. He makes
use of cases, which, he argues, should be binding on the present case. This is called
following. For a compelling argument to be made for a case to be followed, it is
necessary to stress the factual and legal similarities between the present case and
the earlier case[s].
Remember, though, that law is about argument. Advocates and judges may choose to
emphasise certain facts that make the current case look very similar to the previous
one. As you read more cases, and become more competent in making legal argument,
you will become aware that following a case involves certain techniques.
If you want to argue that a case should be followed, then you might also want to
argue that any inconvenient dissimilarities are irrelevant. One way of doing this is to
argue that the ratio should be restated at a different level of generality. For example,
imagine that you are trying to argue that a case in which the police trick a defendant
into providing evidence is covered by a rule in an earlier case about torture. In the
torture case, evidence was not admissible in court, therefore in the case where the
police used a trick, evidence should not be admissible. However, at first regard, there
is no similarity between a trick to fool someone into giving incriminating evidence
and the violence of torture. So, you need to think about how you could equate torture
and trickery. You could argue that the principle behind the torture case is a broad one,
that the court should not allow any form of evidence not given fairly and voluntarily.
Therefore, the torture case is a good authority for the fact that the court should not
accept evidence tricked out of a defendant. Of course, the other side would want to
show the court that this argument is wrong. We will return to this point below.
This takes us to distinguishing. Note how Lord Bingham distinguishes El Motassadeq
from the case of torture evidence he is considering. Distinguishing thus means
emphasising every possible difference between the two cases. To return to our
example above, the earlier torture case can be distinguished from the trick case by
arguing that there is a real material difference between torture and tricks. As long
as torture evidence obtained by violence is prohibited, torture cases can provide no
authority for a different kind of event where evidence is obtained by a subterfuge
that does not subject the defendant to violence. Therefore, the trick case needs to
be distinguished from the torture case, and the law on torture is not relevant to
the development of principles that relate to subterfuges that trick evidence out of
defendants.
Like any technique, legal argument can be deployed to various ends. The point is
to use it towards the ends that suit the conclusion you want. To determine which
approach to torture and tricks is correct, we would have to descend to a level of detail
that we cannot accommodate within this chapter. However, when we look at Lord
Hoffmanns argument below, we will see these techniques in action.
As you read more cases, and become more familiar with legal arguments, you will
encounter other techniques. For instance, it might be possible to argue that either
the principles or policy decisions in the earlier case do not apply to the present
case. Of course, this may involve argument over which principles are appropriate.
The advocate or judge seeking to follow the case will necessarily have their own
position on the nature of the appropriate principles. You may also be able to argue,
in admittedly limited circumstances, that the earlier case was bad law and needs to
be overruled. This argument may be helped if the earlier decision has been either
explicitly or impliedly overruled by statute or by a higher court.
Activity 5.1
Write a brief note explaining the distinction between following and distinguishing
a precedent case.
5.6 The role of rhetoric in a case
In the preceding section we talked about the structure of a judgment. We stressed
that creating judgments is not a neutral or mechanical process it is always a result
of argument and interpretation. Additionally, judgments always contain rhetoric,
for they are addressed to an audience. Part of their role is to assure the parties that
justice has been done, but they are also addressed to another audience: it is possible
to argue that opinions address the law itself they are how (and where) its values
are performed. In other words, the rhetoric of an opinion tells us about laws truths.
Think about this in the light of the opinion you will read below (who is Lord Hoffmann
ultimately addressing?).
LORD HOFFMANN
81 My Lords, on 23 August 1628 George Villiers, Duke of Buckingham and Lord High Admiral
of England, was stabbed to death by John Felton, a naval officer, in a house in Portsmouth.
The 35-year-old Duke had been the favourite of King James I and was the intimate friend of
the new King Charles I, who asked the judges whether Felton could be put to the rack to
discover his accomplices. All the judges met in Serjeants Inn. Many years later Blackstone
recorded their historic decision: The judges, being consulted, declared unanimously,
to their own honour and the honour of the English law, that no such proceeding was
allowable by the laws of England.
Note how Lord Hoffmanns judgment begins in a different way from Lord Bingham. We
might say that this beginning amounts to a rhetorical presentation of his argument: it
is a striking story that allows him to make his main point in a compelling way. He will
clearly develop the legal argument in detail, but one gets a clear sense of both the
direction of the argument and the authors passion.
82 That word honour, the deep note which Blackstone strikes twice in one sentence, is
what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It
corrupts and degrades the state which uses it and the legal system which accepts it. When
judicial torture was routine allover Europe, its rejection by the common law was a source
of national pride and the admiration of enlightened foreign writers such as Voltaire and
Beccaria. In our own century, many people in the United States, heirs to that common law
tradition, have felt their country dishonoured by its use of torture outside the jurisdiction
and its practice of extra-legal rendition of suspects to countries where they would be
tortured: see Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White
House (2005) 105 Columbia Law Review 16811750.
83 Just as the writ of habeas corpus is not only a special (and nowadays infrequent)
remedy for challenging unlawful detention but also carries a symbolic significance as
a touchstone of English liberty which influences the rest of our law, so the rejection
of torture by the common law has a special iconic importance as the touchstone of a
humane and civilised legal system. Not only that: the abolition of torture, which was
used by the state in Elizabethan and Jacobean times to obtain evidence admitted in
trials before the court of Star Chamber, was achieved as part of the great constitutional
struggle and civil war which made the government subject to the law. Its rejection has a
constitutional resonance for the English people which cannot be overestimated.
We could say that this is a historical and ideological development of the main theme.
Although strictly obiter, it is powerful writing characterised by its range of reference.
It is clearly consistent with Lord Binghams more detailed analysis of the case law
that we examined above but Lord Hoffmann is perhaps, at least at this point, more
concerned with the general historical and cultural context of the rule against torture
and torture evidence.
84 During the last century the idea of torture as a state instrument of special horror
came to be accepted all over the world, as is witnessed by the international law materials
collected by my noble and learned friend, Lord Bingham of Cornhill. Among the many
unlawful practices of state officials, torture and genocide are regarded with particular
revulsion: crimes against international law which every state is obliged to punish wherever
they may have been committed.
85 It is against that background that one must examine the Secretary of States submission
that statements obtained abroad by torture are admissible in appeals to the Special
Immigration Appeals Commission (SIAC) under section 25 of the Anti-terrorism, Crime
and Security Act 2001. First, he says that there is no authority to the contrary. He accepts
that the common law has long held that confessions obtained by torture are inadmissible
against an accused person. Indeed, the common law went a good deal further and by
the end of the eighteenth century was refusing to admit confessions which had been
obtained by threats or promises of any kind. But nothing was said about statements
obtained from third parties. The general rule is that any relevant evidence is admissible.
As Lord Goddard said in Kuruma v The Queen [1955] AC 197, 203, the court is not concerned
with how the evidence was obtained. He referred to a remark of Crompton J in R v Leathem
(1861) 8 Cox CC 498, 501, overruling an objection to production of a letter which had been
discovered in consequence of an inadmissible statement made by the accused: It matters
not how you get it; if you steal it even, it would be admissible.
86 It is true that there are no cases in which statements from third parties have been held
inadmissible on the ground that they had been obtained by torture. But the reason is
not because such statements have been admitted in an ordinary English court. That has
never happened. It is because ever since the late 17th century, any statements made by
persons not testifying before the court have been excluded, whatever the circumstances
in which they were made. There was no need to consider whether they had been obtained
by torture. They were simply rejected as hearsay. One must therefore try to imagine
what the judges would have said if there had been no hearsay rule. Is it credible that,
while rejecting a confession obtained by torture from the accused, they would have
admitted a confession incriminating the accused which had been obtained by torturing
an accomplice? Such a proceeding was precisely what had been held to be unlawful in the
case of Felton. It is absurd to suppose that the judges would have said that the torture was
illegal but that a statement so obtained would nevertheless be admissible.
These three paragraphs begin by reconstructing the international law context of the
case, and then turning to the Secretary of States argument that statements obtained
abroad by torture are admissible. Note that this is an argument about precedent. The
Secretary of State is arguing that there is no authority for prohibiting the use in court
of torture evidence obtained abroad: [t]he general rule is that any relevant evidence
is admissible, a point that seems to be supported by Kuruma and Leathem. Lord
Hoffmann deals with this argument by asserting that the cases do not stand for the
proposition that the Secretary of State is contending. The evidence would have been
excluded as hearsay, and the point about torture was never considered. Kuruma and
Leathem cannot, therefore, support the Secretary of States argument. Lord Hoffmann
then develops his argument about the law in more detail:
87 As is shown by cases like Kuruma, not all evidence unlawfully obtained is inadmissible.
Still less is evidence inadmissible only because it was discovered in consequence of
statements which would not themselves be admissible, as in Leathem and the leading
case of R v Warickshall (1783) 1 Leach 263, in which evidence that stolen goods were found
under the bed of the accused was admitted notwithstanding that the discovery was
made in consequence of her inadmissible confession. But the illegalities with which the
courts were concerned inKuruma and Leathem were fairly technical. Lord Goddard was
not considering torture. In any case, since Kurumathe law has moved on. English law has
developed a principle, illustrated by cases like R v Horseferry Road Magistrates Court, Ex
p Bennett [1994] 1 AC 42, that the courts will not shut their eyes to the way the accused
was brought before the court or the evidence of his guilt was obtained. Those methods
may be such that it would compromise the integrity of the judicial process, dishonour
the administration of justice, if the proceedings were to be entertained or the evidence
admitted. In such a case the proceedings may be stayed or the evidence rejected on the
ground that there would otherwise be an abuse of the processes of the court.
The development of Lord Hoffmanns argument further demonstrates how Kuruma
and Leathem are not relevant: But the illegalities with which the courts were
concerned in Kuruma and Leathem were fairly technical. Lord Goddard was not
considering torture. He also points out that since ex p Bennett, the courts are aware
that the integrity of the court would be compromised if certain forms of evidence
were admissible in court. The next paragraph uses a striking metaphor as a rhetorical
device to sum up the terms of the argument so far:
88 As for the rule that we do not necessarily exclude the fruit of the poisoned tree, but
admit relevant evidence discovered in consequence of inadmissible confessions, this is
the way we strike a necessary balance between preserving the integrity of the judicial
process and the public interest in convicting the guilty. And even when the evidence has
been obtained by torture the accomplices statement has led to the bomb being found
under the bed of the accused that evidence may be so compelling and so independent
that it does not carry enough of the smell of the torture chamber to require its exclusion.
But that is not the question in this case. We are concerned with the admissibility of the
raw product of interrogation under torture.
Paragraph 88 is a very interesting argument (this point is developed in para.93, below).
Note also how it focuses on precisely what is at issue in the case: would the court ever
admit torture evidence? Lord Hoffmann states that this is not the question in this
case. So, what is the question?
89 The curious feature of this case is that although the Secretary of State advances these
arguments based on the limited scope of the confession rule and the general principle
that all relevant evidence is admissible, he does not contend for what would be the logical
consequence if he was right, namely, that evidence obtained from third parties by torture
in the United Kingdom would also be admissible. He accepts that it would not. But he
submits that the exclusionary rule is confined to cases in which the torture has been used
by or with the connivance of agents of the United Kingdom. So the issue is a narrow one:
not whether an exclusionary rule exists, but whether it should extend to torture inflicted
by foreigners without the assistance or connivance of anyone for whom the United
Kingdom is responsible.
The Secretary of States argument acknowledges that torture evidence obtained in
the United Kingdom would not be admissible, but cleverly narrows this principle to
suggest that the exclusionary rule is confined to cases in which the torture has been
used by or with the connivance of agents of the United Kingdom. How can we resolve
this point? We need to descend to a level of detail, and consider the case and the rival
interpretations.
[....] 91 The answer to that question depends upon the purpose of the rule excluding
evidence obtained by torture, which, as we have seen, the Secretary of State largely
admits to exist. Is it to discipline the executive agents of the state by demonstrating that
no advantage will come from torturing witnesses, or is it to preserve the integrity of the
judicial process and the honour of English law? If it is the former, then of course we cannot
aspire to discipline the agents of foreign governments. Their torturers would probably
accept with indifference the possibility that the work of their hands might be rejected
by an English court. If it is the latter, then the rule must exclude statements obtained by
torture anywhere, since the stain attaching to such evidence will defile an English court
whatever the nationality of the torturer. I have no doubt that the purpose of the rule is
not to discipline the executive, although this may be an incidental consequence. It is to
uphold the integrity of the administration of justice.
Note the rhetorical effect of the phrase the work of their hands in this paragraph.
Lord Hoffmann is distinguishing between two rationales for the prohibition of torture
evidence: one ground relates to disciplining the executive agents (torturers) of
foreign states, the other relates to the integrity of the law. It is in this context that
the phrase appears. It is an unusual phrase which begs the question: is torture
work? At one level it is: torture could be considered work if seen as just another
activity (imagine: Youre home early, dear; did you have a good day at work torturing
people?). The implicit argument is that this is absolutely wrong: torture is not just
another activity, and the court cannot proceed on the basis that it is by admitting
torture evidence. If you are in any doubt about Lord Hoffmanns argument, read the
last two sentences of para.91.
92 The Secretary of States second argument is that while there may be a general rule
which excludes all evidence obtained by torture in an ordinary criminal trial, proceedings
before SIAC are different. The function of SIAC undersection 25of the 2001 Act is not to
convict anyone of an offence but to decide whether there are reasonable grounds for
belief or suspicion that a persons presence in the United Kingdom is a risk to national
security or that he is a terrorist:subsection (2)(a). There is no restriction upon the
information which the Secretary of State may consider in forming such a belief or
suspicion. In the exercise of his functions, he may rely upon statements from any source
and in some cases it may be foolish of him not to do so. If the security services receive
apparently credible information from a foreign government that bombs are being made
at an address in south London, it would be irresponsible of the Secretary of State not to
instigate a search of the premises because he has a strong suspicion that the statement
has been obtained by torture. So, it is said, the exclusionary rule would produce a
mismatch between the evidence upon which the Secretary of State could rely and the
evidence upon which SIAC could rely in the exercise of its supervisory jurisdiction over
the Secretary of State under the Act. Furthermore,rule 44(3) of the Special Immigration
Appeals Commission (Procedure) Rules 2003specifically provides that the commission
may receive evidence that would not be admissible in a court of law. The purpose of
that rule, it is argued, is to allow SIAC to consider any evidence which could have been
considered by the Secretary of State.
The sense of this argument is fairly clear: the work of SIAC is different from normal
courts, therefore different rules of evidence apply. Note the interesting rhetorical
detail: If the security services receive apparently credible information from a foreign
government that bombs are being made at an address in south London, it would
be irresponsible of the Secretary of State not to instigate a search of the premises...
This little detail, an address in South London, gives an immediacy to the argument.
The effect is, arguably, to give some credence to the Secretary of States argument.
However, this needs to be considered in the context of para.93:
93 In my opinion the mismatch to which counsel for the Secretary of State refers is
almost inevitable in any case of judicial supervision of executive action. It is not the
function of the courts to place limits upon the information available to the Secretary
of State, particularly when he is concerned with national security. Provided that he acts
lawfully, he mayread whatever he likes. In his dealings with foreign governments, the
type of information that he is willing to receive and the questions that he asks or refrains
from asking are his own affair. As I have said, there may be cases in which he is required
to act urgently and cannot afford to be too nice in judging the methods by which the
information has been obtained, although I suspect that such cases are less common in
practice than in seminars on moral philosophy.
What a fantastic argument! The first sentence is a fine piece of rhetoric: the task of the
courts is not to limit the information which the Secretary of State can use: he may
read whatever he likes. But this is the real world, not a seminar on moral philosophy,
and the question alluded to in para.88 suddenly reappears: the point is that as far
as an abstract philosophical argument is concerned there are probably arguments
about how torturing an individual to prevent the death of hundreds of people is
justifiable. This is not the point here, though. Not only is this point not in issue in
the case, the primary concern is the use of torture evidence in SIAC. The general,
philosophical point cannot be used as a way of somehow justifying the use of torture
evidence.
94 But the 2001 Act makes the exercise by the Secretary of State of his extraordinary
powers subject to judicial supervision. The function of SIAC under section 25is not to
decide whether the Secretary of State at some particular time, perhaps at a moment of
emergency, acted reasonably in forming some suspicion or belief. It is to form its own
opinion, after calm judicial process, as to whether it considers that there are reasonable
grounds for such suspicion or belief. It is exercising a judicial, not an executive function.
Indeed, the fact that the exercise of the draconian powers conferred by the Act was
subject to review by the judiciary was obviously an important reason why Parliament was
willing to confer such powers on the Secretary of State.
This paragraph successfully builds the underlying theme of the two previous
paragraphs: this case is not about the extraordinary; the terrible, urgent moment
when one has to consider whether torture may be justified to prevent innocent
deaths. It is about the everyday the point at which torture becomes just another
form of evidence; the work of hands just another interrogation (perhaps a little
extreme). In other words, Lord Hoffmann is resisting the banalisation of torture.
SIAC must form its own opinion, after calm judicial process. SIAC has an oversight
function; it is, in this sense, where the fate of a man or a woman (in terms of his or her
extradition) might be decided.
95 In my opinion Parliament, in setting up a court to review the question of whether
reasonable grounds exist for suspicion or belief, was expecting the court to behave like
a court. In the absence of clear express provision to the contrary, that would include
the application of the standards of justice which have traditionally characterised the
proceedings of English courts. It excludes the use of evidence obtained by torture,
whatever might be its source.
Paragraph 95 is a clear statement of the thesis about the integrity of law that
underlies the entire argument. The next paragraph builds this point, and also makes
an interesting reference to the idea of statutory interpretation. This also serves as a
rhetorical device; admitting torture evidence would be so contrary to the integrity of
law as to require very clear legislation.
96Rule 44(3)is in my opinion far too general in its terms to justify a departure from such
a fundamental principle. It plainly disapplies technical rules of evidence like the hearsay
rule. But I cannot for a moment imagine that anyone in Parliament who considered the
statutory power to make rules of procedure for SIAC could have thought that it was
authorising a rule which allowed the use of evidence obtained by torture or that the
Secretary of State who made the regulations thought he was doing so. Such a provision,
touching upon the honour of our courts and our country, would have to be expressly
provided in primary legislation so that it could be debated in Parliament.
Note the final sentence of this paragraph. The integrity of the court is linked to the
honour of the country. This is a variation on the historical thesis developed in the first
paragraphs of this judgment; here linked to the point about how the statute should be
interpreted.
97 In my opinion therefore, there is a general rule that evidence obtained by torture is
inadmissible in judicial proceedings. That leaves the question of what counts as evidence
obtained by torture. What is torture and who has the burden of proving that it has been
used? In Ireland v United Kingdom (1978) 2 EHRR 25 the European court delicately refrained
from characterising various interrogation techniques used by the British authorities in
Northern Ireland as torture but nevertheless held them to be inhuman treatment. The
distinction did not matter because in either case there was a breach of article 3 of the
Convention. For my part, I would be content for the common law to accept the definition
of torture which Parliament adopted insection 134 of the Criminal Justice Act 1988,
namely, the infliction of severe pain or suffering on someone by a public official in the
performance or purported performance of his official duties. That would in my opinion
include the kind of treatment characterised as inhuman by the European Court of Human
Rights in Ireland v United Kingdombut would not include all treatment which that court
has held to contravene article 3.
An interesting recreation of context: to cite Ireland v UK on the meaning of torture
shows that there is a kind of continuity between the present case and earlier cases in
which the British government engaged in torture. The suggestion is, once again, that
such practices cannot be tolerated.
98 That leaves the question of the burden of proof, on which I am in agreement with my
noble and learned friend, Lord Bingham of Cornhill. In proceedings in which the appellant
to SIAC may have no knowledge of the evidence against him, it would be absurd to require
him to prove that it had been obtained by torture. Article 15 of the Torture Convention,
which speaks of the use of torture being established, could never have contemplated a
procedure in which the person against whom the statement was being used had no idea
of what it was or who had made it. It must be for SIAC, if there are reasonable grounds for
suspecting that to have been the case (for example, because of evidence of the general
practices of the authorities in the country concerned) to make its own inquiries and not to
admit the evidence unless it is satisfied that such suspicions have been rebutted. One of
the difficulties about the Secretary of States carefully worded statement that it would not
be his policy to rely upon evidence where there is a knowledge or belief that torture has
taken place is that it leaves open the question of how much inquiry the Secretary of State
is willing to make. It appears to be the practice of the security services, in their dealings
with those countries in which torture is most likely to have been used, to refrain, as a
matter of diplomatic tact or a preference for not learning the truth, from inquiring into
whether this was the case. It may be that in such a case the Secretary of State can say that
he has no knowledge or belief that torture has taken place. But a court of law would not
regard this as sufficient to rebut real suspicion and in my opinion SIAC should not do so.
99 In view of the great importance of this case for the reputation of English law, I have
thought it right to express my opinion in my own words. But I have had the advantage of
reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill, and
there is nothing in it with which I would wish to disagree.
This is the dissenting point; both Lord Bingham and Lord Hoffmann dissented on the
issue of the burden of proof. It would be absurd for a person alleging that evidence
obtained by torture bore the burden of proof of showing that evidence had indeed
been so obtained. This would be a misinterpretation of Article 15 of the Torture
Convention. The court (SIAC) must satisfy itself that evidence had not been obtained
by torture. Notice how Lord Hoffmann is critical of the practices that have grown
up around not inquiring whether or not evidence had been obtained by torture.
This leaves the opinion on a masterfully critical note. Without explicitly saying it,
Lord Hoffmann has effectively contrasted the integrity of the legal process with the
profoundly compromised nature of the political or diplomatic process that, for
whatever reason, is not too concerned about how evidence may have been obtained.
The final paragraph asserts both the importance of the case and that of using his own
words to defend the reputation of English law.
Who is Lord Hoffmann ultimately addressing? The opinion ultimately addresses
the law itself: its structure, values and integrity (about which, there can always be
argument). Regarding torture, there can only perhaps be one possible conclusion: for
the law to be the law, it cannot tolerate torture, or torture evidence.
5.7 Reading statutes
Essential reading
Holland and Webb, Chapter 3 Reading the law, Section 3.1 Reading legislation
and Chapter 8 Making sense of statutes.
5.7.1 Reading statutory language
Below is a section of an Act of Parliament. The key to understanding it is to read it
slowly, section by section.
Criminal Justice Act 1988
134 Torture.
(1) A public official or person acting in an official capacity, whatever his nationality,
commits the offence of torture if in the United Kingdom or elsewhere he intentionally
inflicts severe pain or suffering on another in the performance or purported performance
of his official duties.
(2) A person not falling within subsection (1) above commits the offence of torture,
whatever his nationality, if
(a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering
on another at the instigation or with the consent or acquiescence
(i) of a public official; or
(ii) of a person acting in an official capacity; and
(b) the official or other person is performing or purporting to perform his official duties
when he instigates the commission of the offence or consents to or acquiesces in it.
(3) It is immaterial whether the pain or suffering is physical or mental and whether it is
caused by an act or an omission.
[...]
(6) A person who commits the offence of torture shall be liable on conviction on
indictment to imprisonment for life
Note that subs.(1) gives us the core of the offence, an official is guilty of torture if they
intentionally inflict[s] severe pain or suffering on another in the performance or
purported performance of his official duties. Note that the offence relates to officials, or
those acting in an official capacity in the United Kingdom or elsewhere. Subsection (2)
relates to those who do not fall under subs.(1). A person who does not fall under subs.
(1) commits the offence of torture (whatever their nationality) if they intentionally
inflict[s] severe pain or suffering on another with the consent or acquiescence of
a public official; or of a person acting in an official capacity. Note that these are
cumulative conditions; and the official is either acting in, or purporting to act in, an
official capacity when they instigate[s] the commission of the offence or consent[s] to
or acquiesce[s] in it. Subsection (3) contains a clarification: It is immaterial whether
the pain or suffering is physical or mental and whether it is caused by an act or an
omission. Subsection (6) then states the penalty: imprisonment for life.
There are problems with this definition of torture. As the UN has noted:
[it] seems to eliminate the possibility that non-state actors could inflict torture, which is
manifestly untrue. The Rome statute of the International Criminal Court of 1998, currently
under review at a major conference in Kampala, Uganda, dropped this limitation, defining
torture in Article 7, paragraph 2, as the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person in the custody or under the control of the
accused; except that torture shall not include pain or suffering arising only from, inherent
in or incidental to, lawful sanctions.
(Human Rights Working Group at www.unesco.org/archives/hrgnews/hrgnewsitems_
current.php?id_details=310520105)
We can conclude from this brief exercise that one might need to be critical of
statutory rules.
Activity 5.2
Consider this extract from the Police and Criminal Evidence Act 1984 and answer the
question below.
76 Confessions
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession
made by an accused person, it is represented to the court that the confession was or may
have been obtained--
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances
existing at the time, to render unreliable any confession which might be made by him
in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so
far as the prosecution proves to the court beyond reasonable doubt that the confession
(notwithstanding that it may be true) was not obtained as aforesaid.
You are a barrister specialising in criminal prosecutions. B, a lawyer working on a
case which involves evidence allegedly obtained by torture, has sought your advice
on the following point. B is prosecuting Z, who is accused of offences relating to
terrorism. Z claims that he was tortured to provide a confession that related to his
involvement in certain acts where explosives were obtained. Will this confession be
excluded from the court? Advise B.
Feedback: see end of guide.
Sample examination question
This is the kind of question that you can expect in Part C of the examination. As you
will see below it involves comprehension of the law, and the application of the law
to the facts. You will not know what the relevant Act (or part of an Act) is, so the best
way to practice this kind of question is working your way through the examples in
this subject guide, and ensuring that you read as many statutes as possible. Of course,
later chapters will direct you towards a particular Act, so whilst you are compiling your
notes for Part B questions, you will also be gaining experiences of reading statutes that
will help you with Part C questions.
Question 1 Read the following sections of The Search Warrants Act 2010 (a fictitious
Act) and advise on the situations that follow.
(1) In order to obtain a search warrant, a constable has to show to a Justice of the Peace
that there are reasonable grounds for believing that an offence has been committed.
(2) A constable must also show that there is material on premises to be searched which is
likely to be of substantial value to the investigation of the offence, and that:
(a) it is not practicable to communicate with any person entitled to grant entry to the
premises; and
(b) entry to the premises will not be granted unless a warrant is produced; and
(c) the purpose of a search may be frustrated or seriously prejudiced unless a
constable arriving at the premises can secure immediate entry to them.
(3) Search under a warrant must be at a reasonable hour unless it appears to the constable
executing it that the purpose of a search may be frustrated on an entry at a reasonable
hour.
(4) When any person is present at the premises to be searched, the constable shall identify
himself to that person unless there are reasonable grounds to suspect that notification
of the fact of the search would lead to the destruction or concealment of the evidence
named in the warrant.
(5) Search under a warrant may only be a search to the extent required for the purpose for
which the warrant was issued.
(6) Items subject to legal privilege cannot be the subject of a search warrant.
(7)(1) Items subject to legal privilege are defined as communications between a
professional legal adviser and his client or any person representing his client made in
connection with the giving of legal advice to the client.
(7)(2) Items held with the intention of furthering a criminal purpose are not items subject
to legal privilege.
(8) A constable legally on premises can seize any property provided that there are
reasonable grounds for believing that the evidence relates to an offence, and it is
necessary to seize it to prevent it being lost or destroyed.
Advise on these situations:
a. Constable Arnold wants to obtain authorisation to search and seize property
in Brians premises. There are strong suspicions that Brian has been involved
in handling stolen goods. Brian has access to a warehouse and a private home
address. The Police have evidence that the property is being stored at the
warehouse. Advise Arnold of the argument he needs to make to the Justice of
the Peace.
b. Constable Clive has obtained a warrant to search the premises of Edith for stolen
computers. The warrant specifies that the search must be made in the morning,
but Clive suspects that this will alert the occupier of the premises and so he
enters the premises late at night. When Edith challenges Clive, he states get out
of my way and pushes past her. He then proceeds to tear up Ediths floorboards
as he believes that he will also find drugs that have been concealed. Advise Edith
as to the legality of the search.
c. Constable Frank has a search warrant for the property controlled by Graham. Frank
serves the warrant at the correct time, and identifies himself to Graham. Frank
is searching for a stolen vehicle. He goes through desk drawers in the premises
and confiscates a folder of correspondence that includes letters from Grahams
solicitor, as well as letters to Grahams coaccused, Helen. When searching another
desk drawer, Frank finds a bag of white powder, which he confiscates believing it
to be drugs. Advise Graham of the legality of Franks search.
Question 2 Read the following extract from the Police and Criminal Evidence Act
1984 and answer the questions below.
28 Information to be given on arrest
(1) Subject to subsection (5) below, where a person is arrested, otherwise than by being
informed that he is under arrest, the arrest is not lawful unless the person arrested is
informed that he is under arrest as soon as is practicable after his arrest.
(2) Where a person is arrested by a constable, subsection (1) above applies regardless of
whether the fact of the arrest is obvious.
(3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is
informed of the ground for the arrest at the time of, or as soon as is practicable after, the
arrest.
(4) Where a person is arrested by a constable, subsection (3) above applies regardless of
whether the ground for the arrest is obvious.
(5) Nothing in this section is to be taken to require a person to be informed
he is under arrest; or
the ground for the arrest,
if it was not reasonably practicable for him to be so informed by reason of his having
escaped from arrest before the information could be given.
You are a defence lawyer working for a firm that specialises in civil liberties cases.
You have received the following memo from Ms Niamh, the partner in charge of
the firm. She seeks your advice on the relevance of s.28 of the Police and Criminal
Evidence Act 1984 to the following unrelated issues:
a. Mr Allen was recently arrested by Constable Brown. Constable Brown put Mr
Allen in an arm lock, handcuffed him and then put him in a Police Car. Mr Allen
asked the Constable what he had done wrong. Constable Brown said: you know
what you have done. I hope you go down for a long time. Mr Allen feels that this
was not a valid arrest. Advise Mr Allen.
b. Mr Allen has just recalled that he was told that he had been arrested in the
police car about twenty minutes after he had been placed in the vehicle by
Constable Brown. Does this make any difference to Mr Allens case that his arrest
was invalid?
c. Mr Zed was arrested outside a high street store. He has just been convicted
of theft. However, when the arrest took place, the arresting officer, Constable
Green told Mr Zed that he had been arrested for firearms offences. Advise Mr
Zed. Was this a valid arrest?
d. Ms Jones was arrested for theft, and has just been convicted by the court. When
she was arrested by Constable Smith, she was told: Youre nicked for thievin. Is
this a valid arrest?
e. Ms Douglas was arrested for being drunk and disorderly. Constable Edwards is
facing a disciplinary hearing over the arrest. He has been told that he made an
invalid arrest, because he did not tell Ms Douglas that she was under arrest at
the time he made the arrest. Constable Edwards has stated that Ms Douglas was
so inebriated that she tried to run off. Advise Constable Edwards.
Question 1
a. Under subs.(1) Arnold needs to show to the Justice of the Peace that he has
reasonable grounds for believing that an offence has been committed. As the
question states that there are strong suspicions that Brian has been involved
in handling stolen goods we can presume that this ground has been satisfied.
The next issue is that the search warrant must be for the warehouse rather
than the private address. Under subs.(2), Arnold must also show that there
is material on premises to be searched which is likely to be of substantial
value to the investigation of the offence, and that it has not been practicable
to communicate with Brian and that entry to Brians premises will not be
granted unless a warrant is produced. Finally, Arnold must also show that
the purpose of a search may be frustrated or seriously prejudiced unless a
constable arriving at the premises can secure immediate entry to them. It is
worth reminding Arnold that the search must be at a reasonable hour (subs.
(3)); and that he should bear in mind subs.(4). Furthermore, items subject to
legal privilege cannot be subject to a search. Any further discussion extends
into the next two parts of the question, and is thus probably not worthwhile.
b. The focus of this part of the question is on subs.(3). Clive can enter the
premises later than the time specified on the warrant to the extent that the
purpose of a search may be frustrated on an entry at a reasonable hour. A
good answer would stress that the language of the relevant section is rather
vague. Clive does not have to have a reasonable belief/suspicion, it merely has
to appear to Clive that the search would be frustrated by the time specified
on the warrant. This part of the question also raises a subs.(4) issue. Clive does
not identify himself, and it does not appear that there are are reasonable
grounds to suspect that notification of the fact of the search would lead to
the destruction or concealment of the evidence named in the warrant. A
good answer will contain some analysis of this point. There also appears to
be a breach of subs.(5). This specifies that search under a warrant may only
be a search to the extent required for the purpose for which the warrant was
issued. Clive appears to believe that he will find drugs. However, Clive may
be acting under subs.(8): so far as he is legally on the premises, he can seize
any property provided that there are reasonable grounds for believing that
the evidence relates to an offence, and it is necessary to seize it to prevent it
being lost or destroyed. A good answer would have to show that this section
applies to the facts of the case.
c. This part of the question is focused on issues relating to items subject to
legal privilege. There are clearly no issues about the service of the warrant, or
Franks identification of himself to Graham. There is a possible breach of subs.
(5), but it depends whether or not Frank is searching for documents relating
to the vehicle. As far as the white powder is concerned, it may raise a subs.(8)
point, and a good answer would ask questions about whether or not Frank
was legally on the premises. As far as the seizure of the correspondence is
concerned, the starting point of analysis is subs.(6). To the extent that the
correspondence is subject to legal privilege it clearly cannot be subject to
a search warrant. The real issue relates to the definition of items subject to
legal privilege at subs.(7)(1); a good answer will speculate as to whether or
not the correspondence might fall under subs.(7)(2).
Question 2 No feedback.
Summary
The two essential skills that this chapter has concentrated upon are:
u reading cases
u reading statutes.
There is a great deal of background information with which you need to be familiar
in order to read cases and statutes well. The best thing to do is to make sure you get
plenty of practice, as these skills are fundamental to the course and to your degree as
a whole.
If you feel like you are drowning in details, dont panic. Remember that the basic thing
you are doing in reading cases and statutes is comprehending written English; albeit
written English in a peculiar institutional setting: the law. Work with the cases and
statutes themselves, and appreciating the detail will follow.
This chapter has also focused upon the compulsory Part C examination question that
asks you to apply a statute to a set of facts. You dont have to learn any particular
statute to be able to do this; however, you do have to practice Part C style questions.
Take heart: this is a comprehension exercise. If you read as many statutes as you can
this part of the examination should contain no unpleasant surprises and you should
be able to get good marks.
u Outline the hierarchy of courts in England and Wales.
u What do the terms ratio decidendi and obiter dicta mean?
u Describe the layout and structure of a case report, identifying key features of the
headnote and the judicial opinion(s).
u Why it is crucial to be able to read cases not only for this course, but also for your
legal studies in general?
u How do judges follow or distinguish previous cases and why this is important?
u Why is rhetoric important in a judgment?
u Why is it crucial to be able to read statutes not only for this course, but also for
your legal studies in general?
u Have you started practising apply a statutory provision to a set of facts so that you
are well prepared for examinations for this course?

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
6.1 Precedent as a practice . . . . . . . . . . . . . . . . . . . . . . . . . .83
6.2 Precedent and public reason . . . . . . . . . . . . . . . . . . . . . . .83
6.3 The structure of precedent . . . . . . . . . . . . . . . . . . . . . . . .84
6.4 Continuity and change in the doctrine of precedent . . . . . . . . . . . .85
6.5 Tensions between the House of Lords and the Court of Appeal . . . . . . .86
6.6 Judicial law making . . . . . . . . . . . . . . . . . . . . . . . . . . . .87
6.7 Judicial law making and human rights . . . . . . . . . . . . . . . . . . .87
6.8 Human rights, the doctrine of precedent and the common law . . . . . .88
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94
Part II
6 The doctrine of precedent
Introduction
How can we understand the doctrine of precedent? Perhaps the best place to start is
with the judicial understanding of the doctrine:
Our common law system consists in applying to new combinations of circumstances
those rules of law which we derive from legal principles and judicial precedents; and for
the sake of obtaining uniformity, consistency and certainty, we must apply those rules
where they are not plainly unreasonable and inconvenient, to all cases which arise and we
are not at liberty to reject them, and to abandon all analogy to thembecause we think
that the rules are not as convenient and reasonable as we ourselves could have devised.
(Mirehouse v Rennell (1833) 1 Cl and F 546.)
To summarise at least one of the points from this paragraph, the doctrine requires
that like cases should be treated alike in the interests of uniformity, consistency and
certainty. This seems a good place to start, and a fairly common sense point. If an
instant case is sufficiently like a previous case then the previous case is binding on the
instant case.
What do we mean by binding?
To help us with this question, we are going to turn to the standard academic commentary
on precedent. As Cross and Harris point out (Precedent in English law (1991)) what
distinguishes precedent in English law is its strongly coercive nature. In other words,
there are other ways in which the present decision in a case can be guided by previous
decisions; one could, for instance, choose to see previous decisions as merely illustrative
of possible solutions; one might choose to follow a previous case, or one might not.
However, we will focus on the central features of the common law doctrine of precedent.
Cross and Harris comment that the doctrine of precedent has:
...three constant features. These are the respect paid to a single decision of a superior
court, the fact that a decision of such a court is a persuasive precedent even as far as
the courts above that from which it emanates are concerned, and the fact that a single
decision is always a binding precedent as regards courts below that from which it
emanated.
(p.5)
Essential reading
Gearey et al., Chapters 6 Institutionalising judicial decision making: public
reason and the doctrine of precedent, 7 What we talk about when we talk
about common law: the practice of precedent and 8 The mirror and the
dialogue: the common law, Strasbourg and human rights
Make case notes on:
Miliangos v George Frank [1976] AC 443; Davis v Johnson [1974] AC 264; Practice
Statement (HL: Judicial Precedent) [1966] 3 All ER 77 (the 1966 Practice
Statement); R v Shivpuri [1986] 2 WLR 988; Anderton v Ryan [1985] AC 560; R
v Howe [1987] 2 WLR 568; DPP for Northern Ireland v Lynch [1975] 2 WLR 641;
Schorsch Meier v Hennin [1975] QB 416; R v Clegg [1995] 1 AC 482; Leeds City Council
v Price/Kay v London Borough of Lambeth [2006] UKHL 10; R v Horncastle [2010]
2 WLR 47; Manchester City Council v Pinnock (Secretary of State for Communities
and Local Government and another intervening) [2010] 3 WLR 1441; EM (Lebanon)
v Secretary of State for the Home Department [2008] UKHL 6; Re G (Adoption:
Unmarried Couple) [2008] 3 WLR 76; R (on the application of Limbuela) v Secretary
of State for the Home Department [2005] 3 WLR 1014.
Note: remember that the importance of the cases above relates to what they
tell us about the doctrine of precedent. Make sure your case note focuses on this
fundamental issue. In other words, focus on the actual substantive law discussed in
these cases to the extent it is relevant to the concern with the doctrine of precedent.
Some of the exercises below will guide your readings of these cases and assist you in
making the relevant case notes.
Common law reasoning and institutions 6 The doctrine of precedent page 83
This is the first chapter that contains substantive examinable material for the essays
that are contained in Part B of the examination. It is important that you read Chapters
6, 7 and 8 of Gearey et al., and make the case notes that are suggested above.
Further reading
Holland and Webb, Chapters 6 The doctrine of judicial precedent, 7 How
precedent operates: ratio decidendi and obiter dictum and 12 Exploiting legal
reasoning.
Askey and McLeod, Chapters 4 The jurisdictions of the principal courts and 7
Legal method, section entitled Syllogistic reasoning.
NB. Askey and McLeod on syllogistic reasoning should be read alongside Holland and
Webb, Chapter 12. Although it is very useful, this subject guide does not go into these
issues in great detail, and this material is not examinable.
6.1 Precedent as a practice
Precedent is a sophisticated mechanism, and one can underestimate its complexities.
Our outline above, and the approaches to cases and statutes that we examined in the
last chapter, give us a sense that reading law is a set of techniques. We appreciated the
way in which legal texts work; how they can be applied and argued about. How do we
fit the rather simple description in the introduction to this chapter with this sense of
the dynamic nature of legal interpretation?
We want to try to understand something quite particular: how does legal
interpretation feel? Our way into this concern begins with a very obvious point. We
are now six chapters into this subject guide. There is a lot to take into account when
one tries to understand the law; and yet there are lawyers and judges, who just do it;
whose life is based around their mastery and deployment of certain skills within the
institutions of the law (courts etc.).
The obvious point is that they have trained themselves to be good at the skills of
legal interpretation. This takes us to a second obvious point: there are ways of doing
things that can be learnt. Legal argument has to be understood as a set of techniques
that make sense within a certain institutional setting. In other words, our task in
understanding the doctrine of precedent is to see it as a practice: a way of doing things
(legal argument) within the institutional setting of the legal system.
These themes are dealt with in greater detail in Chapter 7 of Gearey et al. However, it is
worth delaying reading this chapter for a moment; at least until you read Chapter 6 of
Gearey et al.
6.2 Precedent and public reason
Essential reading
Gearey et al., Chapter 6 Institutionalising judicial decision making: public reason
and the doctrine of precedent.
Chapter 6 of Gearey et al. argues that precedent has to be understood as a way in
which case law is justified and legitimised within a democracy. To understand the
claim that precedent is a form of public reason, one has to appreciate the following
points:
1. Judges give reasons for their decisions. This presupposes that their decisions need
to be justified. Chapter 6 of Gearey et al. argues that there are three distinct (and
overlapping) audiences for a judges decision: lawyers and parties to litigation,
academics and law students and the public in general. Each audience has a distinct
approach to a decision. A lawyer/litigant will have practical concerns with the
judges reasoning. The other audiences, in different ways, have general critical
concerns with how law functions in a democracy. Thinking about judicial reasoning
through the idea of public reason thus suggests that a judicial decision must be
justified to the public (the various audiences outlined above) in a rational way. This
is also a matter of general concern in a democracy, and goes at least some way to
legitimising the law making powers of judges.
2. Gearey et al. also suggest that judges address the law itself. A decision in a
particular case has to fit into the law in general. It has to represent a coherent
development of legal doctrines, rules and principles. Judicial law making involves
a large measure of judicial discretion. In part what guides and limits this discretion
is the requirement that the decision is justified to the public. In deciding a case
judges have to be aware that their reasons for a decision will be criticised if they do
not provide a coherent justification for the conclusions that they have reached.
3. So, if the requirement of coherent legal development is an important stabilising
factor in judicial law making, then the doctrine of precedent provides an important
institutional set of restraints. This takes us to an argument about an institutional
form of justice. The doctrine of precedent requires like cases to be decided in the
same way, and a fairly rigid hierarchy of courts. This institutional structure provides
a patterned form of justice, and makes judicial law making reasonably predictable.
Points 2 and 3 above are really just different ways of thinking about public reason. Law
is itself a form of public reason. Our comments above on precedent as public reason
are merely another way of trying to describe the dynamic reality of law as a set of
practices that are inseparable from the institutions, audiences and expectations that
define them.
In summary, we are trying to get at the sophisticated sense that law is a way of doing
things a set of techniques that can be learnt. Law is also institutional (remember the
title of this course: common law reasoning and institutions). In other words, law is
what the courts do, what lawyers do; the institutional restraints on judicial law making
that judges have internalised.
The following sections elaborate this sense of precedent as a practice: an institutional
way of reasoning or arguing.
6.3 The structure of precedent
To get a proper understanding of the doctrine of precedent we need to appreciate
that the English legal system is adversarial in nature: there is often considerable
argument as to the status, holding and meaning of the text of the precedent cases.
A substantial proportion of case law is made by appellate courts, with a considerable
proportion of this being made by the House of Lords/Supreme Court. As a result, much
judge made law is made after arguments concerning the application of a principle,
or set of related principles, have been considered at least two or three times as the
litigants move up through the hierarchy of courts.
In general the quality of decision-making should benefit from issues being considered
on a number of occasions. There are several reasons for this:
u When the matter is heard at first instance the trial judge will usually have spent less
time resolving legal issues, and will be less experienced in doing so. Much of the
work of trial judges concerns issues of fact, procedure and judicial administration.
So their opportunity for legal deliberation is reduced.
u Judges in appellate courts have the advantage of having before them the judgment
of the court at the first instance, and so can see one attempt to argue and resolve
the issues. With any written work, it is a considerable advantage to see any earlier
attempt to deal with a matter, because one can improve on it by developing its
strengths and overcoming its weaknesses. Of course, where the court in question
is the House of Lords Supreme Court, the judges have had the advantage of the
judgment at first instance and the judgment of the Court of Appeal (CA).
u Counsel arguing the case also benefit from prior proceedings. Like the judges, they
have the benefit of the judgment or judgments of any court which has previously
considered the matter. If it is the same counsel involved, which is frequently the
case, then they have more opportunity to research and develop their argument.
In particular, they can develop their argument in the light of their opponents
submissions and in the light of points and objections raised about their case by the
judge or judges in the lower court(s).
u Appellate judges are very competent lawyers, and they become more so by
working as appellate judges, since much of their time is devoted solely to hearing
and resolving legal issues.
u Where a court is composed of a number of judges, as appellate courts invariably
are, then judges have the opportunity to develop the points by discussion among
themselves.
6.4 Continuity and change in the doctrine of precedent
Essential reading
Gearey et al., Chapter 7 What we talk about when we talk about common law:
the practice of precedent.
The argument in Chapter 7 of Gearey et al. is that precedent is, and has to be, a
fairly stable system. To explain this concern, we can return to a point that we have
made already in this subject guide. For judge made law to be legitimate, it has to be
rationally structured and, for the most part, coherently developed. The doctrine of
precedent has to provide the basic means for this end to be achieved. There has to be
a clear sense of how law is made. The structure of precedent must also, however, allow
the system itself to change in those limited occasions when change is necessary. We
will study the key cases below.
Our study of the doctrine of precedent, then, is largely an examination of how the
doctrine has justified necessary changes, and resisted attempts to reform it from
within in an arguably radical manner. As we will see below, and as is made clear in
Chapter 7 of Gearey et al., Lord Dennings campaign to redefine the powers of the CA
has not had any lasting effects and has to be seen as limited in its impact. It might tell
us something disturbing about the urgency of justice, and how this urgency impacts
upon a justice system, but the overarching theme is the stability of the doctrine, which
has persisted despite certain perturbations that we will also draw attention to in our
analysis below.
Chapter 7 of Gearey et al. begins with an analysis of London Tramways v London City
Council [1898] AC 375. This is not a recent case, but it does tell us something about
the values in tension in the modern doctrine of precedent. Note carefully what the
Gearey et al. chapter argues about this case. Now read Practice Statement (HL: Judicial
Precendent) [1966] 3 All ER 77 (the 1966 Practice Statement). The Practice Statement
brings these themes into focus:
Their Lordships regard the use of precedent as an indispensable foundation upon which
to decide what is the law and its application to individual cases. It provides at least some
certainty upon which individuals can rely in the conduct of their affairs, as well as a basis
for the development of legal rulesTheir Lordships nevertheless recognize that too rigid
adherence to precedent may lead to injustice in a particular case and also unduly restrict
the proper development of the law.
Activity 6.1
Summarise the analysis of the 1966 Practice Statement in Chapter 7 of Gearey et al.
Activity 6.2
Look up Miliangos v George Frank and make notes on the case. Remember, we
are interested in this case because it tells us something about the doctrine of
precedent. Do not become too distracted by the details of the legal argument.
What are the key points?
Feedback: check your case note against the description and analysis of the case in
Chapter 7 of Gearey et al.
Activity 6.3
Look up and make case notes on R v Shivpuri [1986] 2 WLR 988, Anderton v Ryan
[1985] AC 560, R v Howe [1987] 2 WLR 568 and DPP for Northern Ireland v Lynch [1975]
2 WLR 641. As with Activity 6.2, make sure you extract the relevant points from the
cases. We are not studying criminal law; we are reading these cases because they
tell us something about the doctrine of precedent.
Feedback: check your understanding of the cases against the analysis in Chapter 7 of
Gearey et al.
6.5 Tensions between the House of Lords and the Court of Appeal
There are now two themes we want to develop. We have argued that the doctrine
of precedent is composed of certain fairly stable dispositions or structures, and that
these are necessary to the principled development of the law by judges. We will see
below that these structures were subjected to a degree of strain in a line of cases that
began with Schorsch Meier and reached something of a conclusion with Davis v Johnson.
Activity 6.4
Read and make notes on Schorsch Meier [1975] QB 416, 425. In particular, study Lord
Dennings argument closely. How does the principle cessante ratione legis cessat ipsa
lex apply to the relationships between the CA and the House of Lords?
Feedback: check your understanding of this case against the analysis in Chapter 7 of
Gearey et al.
Activity 6.5
Look again at Miliangos. In particular read Lord Simons opinion. What conclusions
does Lord Simon come to?
Feedback: check your understanding of these issues by reading the relevant section
of Chapter 7 of Gearey et al.
In order to develop our analysis, it is necessary to read Young v Bristol Aeroplane Co
[1944] KB 718 at 725 to see when the Court of Appeal is bound by its own previous
decisions. The key part of Lord Greenes argument is reproduced here:
On a careful examination of the whole matter we have come to the clear conclusion that
this court is bound to follow previous decisions of its own as well as those of courts of
co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only)
are those already mentioned which for convenience we here summarize: (1.) The court
is entitled and bound to decide which of two conflicting decisions of its own it will
follow. (2.) The court is bound to refuse to follow a decision of its own which, though not
expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3.)
The court is not bound to follow a decision of its own if it is satisfied that the decision was
given per incuriam.
Now read Davis v Johnson [1974] AC 264 and make a case note. Pay particular attention
to Lord Dennings argument. In particular, what is the significance of the 1966 Practice
Statement?
To conclude this section, read the House of Lords judgment in Davis v Johnson and
the analysis in Chapter 7 of Gearey et al. What does Davis v Johnson tell us about the
doctrine of precedent?
6.6 Judicial law making
Our starting point for a consideration of this theme is Lord Scarmans speech in
McLoughlin Appellant v OBrian (1983). Lord Scarman argues that judges do create law:
Here lies the true role of the two law-making institutions in our constitution. By
concentrating on principle the judges can keep the common law alive, flexible and
consistent, and can keep the legal system clear of policy problems which neither they, nor
the forensic process which it is their duty to operate, are equipped to resolve. If principle
leads to results which are thought to be socially unacceptable, Parliament can legislate to
draw a line or map out a new path.
([70])
The law making power of the judge is subordinate to that of Parliament. Judges try to
limit their law making.
Activity 6.6
Make a case note on R v Clegg [1995] 1 AC 482. What does this case tell us about the
limits on judicial law making?
Feedback: check your understanding by reading the commentary on the case in
6.7 Judicial law making and human rights
Essential reading
Gearey et al., Chapter 2 Introduction Part II.
The Human Rights Act (HRA), in particular ss.2, 3 and 4.
Go back to the essay you were asked to prepare in Chapter 4 of this subject guide. This
covers themes relevant to our thinking in this section.
The HRA has opened up a new set of issues around judicial law making. Before we
continue, it is worth reminding ourselves of the basic structure of the Act.
The scope of ss.2, 3 and 4 of the HRA and the judicial perception of the HRA can be
ascertained in the following statements:
[T]he HRA reflects a careful balance between Parliament, the Executive and Judiciary.
It is not entrenched and denies the courts the capacity to strike down legislation for
incompatibility. As Connor Gearty puts it, declarations of incompatibility are courteous
requests for a conversation, not pronouncements of truth from on high. In this way
the Act specifically preserves Parliamentary sovereignty. If Parliament or the Executive
disagree with a decision it remains open to them to change the law.
In this statement Lord Dyson points out the Act does not compromise Parliamentary
sovereignty; it has created what some commentators have called a dialogue between
the courts and Parliament on human rights.
This view is supported by Lady Hale:
Secondly, the Human Rights Act does not require us to follow the Strasbourg
jurisprudence, but it does require us to take it into account (section 2(1)). The courts
have given this a purposive interpretation. As the purpose of the Human Rights Act was
avowedly to bring rights home and avoid the need for people to take their cases to
Strasbourg, we should take into account their jurisprudence with a view to finding out
whether or not the claimant would win in Strasbourg.
But, keep in mind what Lord Dyson goes on to say:
Nonetheless, I would accept that there is some force in the point that the incorporation
of the Convention has called on todays judges to determine issues which judges in earlier
eras would have been horrified to be asked to decide. They would have refused to do
so on the grounds that such issues belonged to the political dimension and were not
justiciable. But this enlargement of the role of the judge is no more than the development
of a trend that was in progress before 1998 with the growth of judicial review. One only has
to recall Lord Irvine of Lairgs memorable injunction to the judges: get your tanks off my
lawn. That warning, uttered with all the weight of one of Cardinal Wolsey successors, was
made well before the incorporation of the Convention.
(What is wrong with human rights? Paragraph 12)
Other senior members of the judiciary have been somewhat more combative:
A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny
because it is protected by the principle of sovereignty. But it shares with the devolved
legislatures, which are not sovereign, the advantages that flow from the depth and width
of the experience of its elected members and the mandate that has been given to them
by the electorate. This suggests that the judges should intervene, if at all, only in the most
exceptional circumstances. But the rule of law requires that the judges must retain the
power to insist that legislation of an extreme kind which attacks the rule of law itself is not
law which the courts will recognise.
(Lord Hope, The role of the Supreme Court in protecting the rights of the individual in a
jurisdiction with no written constitution, para.9)
This is a very interesting articulation of the rule of law; and it is an idea to which we
return in Chapter 8 on the judiciary.
We need to get a sense of how this dialogue has developed. Note, in particular, how
the judges seized upon the HRA to develop a law of privacy. How is this justified?
The reasons are twofold. First, equity and the common law are today in a position to
respond to an increasingly invasive social environment by affirming that everybody has
a right to some private space. Secondly, and in any event, the Human Rights Act 1998
requires the courts of this country to give appropriate effect to the right to respect for
private and family life set out in Article 8 of the European Convention on Human Rights
and Fundamental Freedoms.
(Venables and Thompson v Newsgroup Newspapers [2001] HRLR 19 at H8)
This is entirely consistent with Parliamentary sovereignty; the HRA requires the courts
of this country to give appropriate effect to the right to respect for private and family
life as stated in the ECHR.
We want to link our concern with the HRA to the theme we introduced above: how
is the HRA changing the doctrine of precedent? Has it lead to perturbations in the
doctrine, or is the doctrine fundamentally unchanged?
6.8 Human rights, the doctrine of precedent and the common law
Essential reading
Gearey et al., Chapters 7 What we talk about when we talk about common law:
the practice of precedent and 8 The mirror and the dialogue: the common law,
Strasbourg and human rights.
Cases
Leeds City Council v Price/Kay v London Borough of Lambeth [2006] UKHL 10;
Manchester City Council v Pinnock (Secretary of State for Communities and Local
Government and another intervening) [2010] 3 WLR 1441; Connor v UK [2004] 40
EHRR 9; R v Horncastle [2009] UKSC 14; EM (Lebanon) v Secretary of State for the
Home Department [2008] 3 WLR 931; R (Limbuela) v Secretary of State for the Home
Department [2005] UKHL 66; Ambrose v Harris [2011] UKSC 43.
The major authority on this issue is Leeds City Council v Price/Kay v London Borough of
Lambeth. The following statement of the key issue is taken from this case. We need to
know:
whether a court which would ordinarily be bound to follow the decisions of another court
higher in the domestic curial hierarchy is, or should be, no longer bound to follow that
decision if it appears to be inconsistent with a later ruling of the court in Strasbourg.
(para.40)
This matter was addressed in Connor v UK [2004] 40 EHRR 9:
If the national courts have to apply Convention jurisprudence, then they must do so in the
prevalent terms of a national legal system: thus, as far as the UK is concerned: the ordinary
rules of precedent should apply.
In this sense, then, it would appear that the fundamental structure of the doctrine
of precedent remains. However, matters do not end there. We need to switch our
focus to a distinct but related concern. We have argued so far that the doctrine of
precedent is primarily structural, and allows the law to be developed consistently.
Recent important cases suggest the development of a new theme; a theme that
actually intensifies the old concern with judicial law making. The issue is: what is the
relationship between the common law and the European law of human rights?
Our starting point is the mirror principle stated by Lord Bingham in Ullah:
It is of course open to member states to provide for rights more generous than those
guaranteed by the Convention, but such provision should not be the product of
interpretation of the Convention by national courts, since the meaning of the Convention
should be uniform throughout the states party to it. The duty of national courts is to keep
pace with the Strasbourg jurisprudence as it evolves over time: no more but certainly no
less.
Lord Binghams approach has been approved by other senior members of the judiciary.
Lady Hale cites with approval Sir Stephen Sedleys argument that the logic of the
mirror principle is entirely intelligible as it avoids judicial legislation and prevents
member states from getting out of step with one another. One can also point to
authorities where the courts have taken this approach, for instance, in Ambrose v
Harris (Procurator Fiscal, Oban) (Scotland) [2011] UKSC 43, it was argued that: It is not for
this court to expand the scope of the Convention rights further than the jurisprudence
of the Strasbourg court justifies (para.20).
This is a complex debate, and it is worth reading Chapter 8 of Gearey et al. closely. The
relevant cases fall into distinctive groups. We are not going to read all these cases in
detail. But you should make notes on the following cases and issues.
The first group of cases includes R (on the application of Marper) v Chief Constable of
South Yorkshire [2002] EWHC 478 and R (on the application of Gillan) v Commissioner of
Police of the Metropolis [2006] UKHL 12. The relevant European Court of Human Rights
(ECtHR) cases are: S v UK (App nos 30562/04 and 30566/04) and Gillan and Quinton v UK
(App no 4158/05). Also RB (Algeria) v Secretary of State for the Home Department [2009] 2
WLR 512 and Abu Qatada v UK (App no 8139/09).
These cases are examples of instances in which Strasbourg has overruled decisions of
the House of Lords. We will look at Abu Qatada v UK in Chapter 9 of this subject guide,
so we will not go into this case in detail here. Read the analysis of this group of cases in
There is a second group of cases where the Supreme Court has followed Strasbourg,
even though there are strong doubts expressed about the principles of law concerned.
The main authority is Secretary of State for the Home Department v F [2009] UKHL 28. The
relevant Strasbourg ruling is A v UK(App no 3455/05).
Lord Phillips stresses that in A v UK the ECtHR effectively clarified its position. Prior
to this case, Strasbourg acknowledged that national security concerns meant that
disclosure of evidence did not have to take place, provided that there were procedural
safeguards operating. In A the ECtHR held that the party must, however, be allowed
to know the case against them, especially when being subjected to a control order.
The court does allow, however, that it may be acceptable not to disclose the source
of evidence in certain circumstances. Nevertheless, the controlee needs to know the
nature of the case against them:
65 Before A v United Kingdom, Strasbourg had made it plain that the exigencies of national
security could justify non-disclosure of relevant material to a party to legal proceedings,
provided that counterbalancing procedures ensured that the party was accorded a
substantial measure of procedural justice: Chahal v United Kingdom 23 EHRR 413, para
131. Examples were cited by the Grand Chamber in A v United Kingdom 49 EHRR 625, paras
205208, covering the withholding of material evidence and the concealing of the identity
of witnesses. The Grand Chamber has now made clear that non-disclosure cannot go so far
as to deny a party knowledge of the essence of the case against him, at least where he is at
risk of consequences as severe as those normally imposed under a control order.
66 In A v United Kingdom the Strasbourg court has none the less recognised that, where
the interests of national security are concerned in the context of combating terrorism,
it may be acceptable not to disclose the source of evidence that founds the grounds of
suspecting that a person has been involved in terrorism-related activities...
Lord Hoffmann argues that although the House of Lords is not bound, it should
follow Strasbourg, as otherwise the United Kingdom is in breach of its international
obligations under the Convention.
70 My Lords, I have had the advantage of reading in draft the speech of my noble and
learned friend, Lord Phillips of Worth Matravers, and I agree that the judgment of the
European Court of Human Rights (ECtHR) in A v United Kingdom (2009) 49 EHRR 625
requires these appeals to be allowed. I do so with very considerable regret, because I
think that the decision of the ECtHR was wrong and that it may well destroy the system
of control orders which is a significant part of this countrys defences againstterrorism.
Nevertheless, I think that your Lordships have no choice but to submit. It is true that
section 2(1)(a) of the Human Rights Act 1998 requires us only to take into account
decisions of the ECtHR. As a matter of our domestic law, we could take the decision in
A v United Kingdom into account but nevertheless prefer our own view. But the United
Kingdom is bound by the Convention, as a matter of international law, to accept the
decisions of the ECtHR on its interpretation. To reject such a decision would almost
certainly put this country in breach of the international obligation which it accepted
when it acceded to the Convention. I can see no advantage in your Lordships doing so.
There are occasions when the Supreme Court has refused to follow Strasbourg
(Horncastle) or otherwise clarified their relationship with the ECtHR (Pinnock). We will
read Horncastle in depth in the next section of this Chapter and again in Chapter 10. For
the moment, it is worth reading the head note, and making a note on the point in the
ratio on the relationship between the Supreme Court and the ECtHR.
6.8.1 R v Horncastle
This case brings together a number of appeals that raise similar points of law. In the
first appeal, the evidence against the defendants was given by a victim who died
before the trial took place. The judge admitted the witness statement under s.116(1)
(2)(a) of the Criminal Justice Act 2003. It was not the only piece of evidence against
the defendants, but it was decisive to their conviction. The second appeal concerned
evidence relating to the offence of kidnapping. The witness absconded before the trial
took place because of fears for her safety. The judge used the same section of the 2003
Act to admit the evidence. Other evidence was given at the trial which also led to the
defendants conviction.
The defendants appeal was based on the so-called sole or decisive rule. The rule
reflects the ECtHRs approach to Article 6(1)(3)(d). Application of the rule to the facts
in these two cases suggests that the defendants did not have a fair trial, as they were
not able to cross-examine the witnesses giving evidence against them. Moreover,
their convictions were solely or to a decisive extent on the evidence given by absent
witnesses. The CA did not agree. They asserted that the approach to hearsay evidence
under 2003 Act produced a fair trial. The CA refused to either reinterpret the 2003 Act
to make it consistent with the Convention or to exclude the evidence under s.78 of the
Police and Criminal Evidence Act 1984.
The Supreme Court held that this was one of those rare occasions when it would
depart from the ruling of the ECtHR. This was because Strasbourg had fallen into
serious error and failed to appreciate significant features of the common law and
the relevant domestic legislation. The 2003 Act contained rules and principles that
regulated the admission of hearsay evidence, and that although the Act departed from
Convention jurisprudence and the sole or decisive rule this did not amount to a breach
of Article 6. This was because the 2003 Act balanced the rights of the defendant and
the interest of victims in securing a conviction. Furthermore, the jurisprudence of the
ECtHR on the sole or decisive rule was itself unclear.
So, what does this case tell us about the relationship between Strasbourg and the
Supreme Court? In summary it would appear that the Supreme Court will only depart
from the rulings of the ECtHR in very narrow circumstances. Chapter 8 of Gearey et
al. elaborates this point, and you should make sure that you are familiar with these
arguments.
6.8.2 Manchester City Council v Pinnock (Secretary of State for Communities
and Local Government and another intervening)
Here is an extract from the judgment in this case:
Lord Neuberger
46 We have referred in a little detail to the European court jurisprudence. This is because
it is important for the court to emphasise what is now the unambiguous and consistent
approach of the European court, when we have to consider whether it is appropriate for
this court to depart from the three decisions of the House of Lords.
47 As we have already explained, the House of Lords decisions have to be seen against the
backdrop of the evolving Strasbourg jurisprudence. So, for instance, the first of the House
of Lords decisions, Harrow London Borough Council v Qazi [2004] 1 AC 983, came before any
of the European court judgments. Kay v Lambeth London Borough Council [2006] 2 AC 465
was decided after Connors v United Kingdom 40 EHRR 189. But, viewed without the benefit
of subsequent European court jurisprudence, the reasoning in Connors v United Kingdom
could have been interpreted as applying only to gipsies. Indeed one point made on the
applicants behalf was that gipsies occupying sites owned by local authorities were not
given any rights of security of tenure, unlike occupiers of flats or houses owned by local
authorities, who were secure tenants. Although McCann v United Kingdom 47 EHRR 913 had
been decided by the time of Doherty v Birmingham City Council [2009] AC 367, it would
have been inappropriate for a five-judge court, at least in the particular circumstances, to
depart substantially from the decision of the seven-judge court in Kay v Lambeth London
Borough Council [2006] 2 AC 465. Importantly, the judgments in Cosic v Croatia given 15
January 2009, Zehentner v Austria given 16 July 2009, Paulic v Croatia given 22 October 2009
and Kay v United Kingdom The Times, 18 October 2010 were all given after the last of the
three House of Lords decisions.
48 This court is not bound to follow every decision of the European court. Not only would
it be impractical to do so: it would sometimes be inappropriate, as it would destroy the
ability of the court to engage in the constructive dialogue with the European court which
is of value to the development of Convention law: see eg R v Horncastle [2010] 2 WLR 47.
Of course, we should usually follow a clear and constant line of decisions by the European
court: R (Ullah) v Special Adjudicator [2004] 2 AC 323. But we are not actually bound to do so
or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed
out in Doherty v Birmingham City Council [2009] AC 367, para 126,section 2of the 1998 Act
requires our courts to take into account European court decisions, not necessarily to
follow them. Where, however, there is a clear and constant line of decisions whose effect is
not inconsistent with some fundamental substantive or procedural aspect of our law, and
whose reasoning does not appear to overlook or misunderstand some argument or point
of principle, we consider that it would be wrong for this court not to follow that line.
49 In the present case there is no question of the jurisprudence of the European court
failing to take into account some principle or cutting across our domestic substantive
or procedural law in some fundamental way. That is clear from the minority opinions
inHarrow London Borough Council v Qazi [2004] 1 AC 983andKay v Lambeth London Borough
Council [2006] 2 AC 465, and also from the fact that our domestic law was already moving
in the direction of the European jurisprudence in Doherty v Birmingham City Council [2009]
AC 367. Even before the decision in Kay v United Kingdom The Times, 18 October 2010, we
would, in any event, have been of the opinion that this court should now accept and apply
the minority view of the House of Lords in those cases. In the light of Kay v United Kingdom
that is clearly the right conclusion. Therefore, if our law is to be compatible with article 8,
where a court is asked to make an order for possession of a persons home at the suit of a
local authority, the court must have the power to assess the proportionality of making the
order, and, in making that assessment, to resolve any relevant dispute of fact.
This case builds upon the point that we are analysing. The judgment begins by giving
a summary of the relevant case law. This is discussed in the last section of Chapter 7 of
Gearey et al. (The Human Rights Act and perturbations in judicial practice) and you
should refer to this analysis if you do not understand Lord Neubergers point. Note that
he stresses that he is concerned with what is now the unambiguous and consistent
approach of the European court which has to be considered carefully if the Supreme
Court is to depart from previous rulings of the House of Lords. Lord Neuberger then
stresses that the court should follow clear case law developed by the ECtHR, but that
it would sometimes be inappropriate to do so as it would destroy the ability of the
court to engage in the constructive dialogue with the European court. Horncastle is an
example of this constructive dialogue. This takes us back to the wording of s.2 of the
HRA. The Supreme Court is not bound to follow the Grand Chamber but to take [them]
into account. Pinnock can be distinguished from Horncastle as the ECtHR has not failed
to take into account significant provisions of domestic law. Indeed, the House of Lords
was itself moving in the direction of the principles articulated by Strasbourg, albeit
that this movement is indicated by the minority opinions in a line of House of Lords
cases. Thus, to be consistent with Article 8, the domestic court must take into account
the proportionality of an order for possession of someones home.
Activity 6.7
What does Pinnock tell us about the relationship between the Supreme Court and
the ECtHR?
6.8.3 Ambrose v Harris
This case is an example of the Supreme Court preferring not to develop human rights
principles because so doing would go beyond the position of the ECtHR. The second
part of the ratio held that:
it was not for the court to expand the scope of rights under the Convention further
than the jurisprudence of the European Court of Human Rights justified; that, since the
European court had not said with a sufficient degree of clarity that a person who had
become a suspect but was not yet in custody had, as a rule, to have access to a lawyer
while he was being questioned, the fact that such a suspect had made incriminating
statements without having had access to a lawyer did not of itself mean that his article
6 rights would beirretrievably prejudiced if such answers were to be admitted in
evidence; that, however, the fact that he had not had access to legal advice was one of the
circumstances which should be taken into account by the judge in assessing the overall
fairness of the proceedings...
The key point relates to the failure of clarity in the jurisprudence of the ECtHR. Lord
Kerr, dissenting, gives three strong reasons why the Supreme Court should have
extended the rights offered by the Convention in this case.
Finally, we will consider the indications that the national court would be willing to
push human rights jurisprudence in a certain direction: EM (Lebanon) v Secretary of
State for the Home Department [2008] UKHL 64, Re G (Adoption: Unmarried Couple)
[2008] 3 WLR 76 and R (on the application of Limbuela) v Secretary of State for the Home
Department (2005) 3 WLR 1014.
Activity 6.8
Read and make notes on the facts and ratio of EM (Lebanon). Summarise the main
points made by the ratio.
6.8.4 R (Limbuela) v Secretary of State for the Home Department
The three claimants were asylum seekers who claimed to be destitute but had been
refused support unders.95 of the Immigration and Asylum Act 1999 on the ground
that they had not claimed asylum as soon as reasonably practicable after their arrival
in the United Kingdom withins.55(1) of the Nationality, Immigration and Asylum Act
2002and support was not necessary to prevent a breach of their Convention rights
under s.55(5). Each claimant, who had thereafter either been sleeping in the open or
was faced with the imminent prospect of having to do so, and, owing to the statutory
prohibition on asylum seekers taking employment, had no means of obtaining
money to buy food other than by reliance on charity, applied for judicial review of
the Secretary of States decision to refuse support on the ground that his suffering
was so severe that a breach of his right not to be subjected to inhuman or degrading
treatment under Article 3 of the ECHR and fundamental freedoms as scheduled
to theHRAwas imminent. The judge in each case granted the application. On the
Secretary of States appeals the CA held that a distinction was to be drawn under
Article 3 between unlawful state-authorised violence, which was prohibited, and
suffering other than violence arising from executive decisions made in the exercise of
lawful policy objectives, which were lawful unless the consequences for individuals
reached a high degree of severity; but, by a majority, that on the particular facts of the
individual cases the judges had been entitled to conclude that the condition of the
claimants was verging on the degree of severity necessary to engage Article 3 so as to
entitle them to support under s.55(5).
Note that there are three appeals being heard together in this case. The relevant law
includes claims under s.95 of the Immigration and Asylum Act 1999 and s.55(1) of the
Nationality, Immigration and Asylum Act 2002. Note both the nature of the applicants
arguments, in particular their argument in relation to Article 3, and the facts of their
cases. Note the procedural history of the case. The House of Lords is hearing the
Secretary of States appeal from the ruling of the CA.
Activity 6.9
Summarise the ratio of the case. How did the court approach the Strasbourg
jurisprudence?
Activity 6.10
Read the discussion of these cases in Chapter 8 of Gearey et al.
a. Do you agree that the articulation of the law by the ECtHR is preferable to that of
the domestic court in all these cases?
b. Do you prefer Lord Phillips approach to that of Lord Hoffmann in AF?
c. Are Horncastle and Pinnock consistent decisions?
d. Are the decisions in EM and Limbuela justifiable in Convention jurisprudence?
Summary
This chapter has focused on five main concerns:
u precedent as public reason
u precedent as a practice
u hierarchy and flexibility in the doctrine of precedent
u judicial law making
u the relationship between the domestic courts and the ECtHR in Strasbourg.
These are examinable areas in Part B of the examination.
Question 1 The contemporary practice of precedent is largely unproblematic;
indeed, since the Practice Statement of 1966 the parameters of the doctrine of
precedent have been largely settled. Discuss.
Question 2 The mirror principle is not a useful way of thinking about the
relationship between the domestic courts and the European Court of Human
Rights. Discuss.
Question 1 A good answer would probably agree with the statement in the question.
The real issue is perhaps Lord Dennings campaign to enhance the powers of the CA.
So, a good answer would focus on Schorsch Meier, Miliangos v George Frank, Young v
Bristol Aeroplane and Davis v Johnson. Regarding Davis v Johnson, a good answer would
give an in depth consideration of Lord Dennings reasoning, and his arguments in
relation to Bristol Aeroplane and the claim that every court of justice possesses an
inherent power to correct an error into which it had fallen. There would be some
consideration of the House of Lords in Davis and the final refutation of Lord Dennings
campaign to enlarge the powers of the CA. An outstanding answer might also cover
the impact on the doctrine of precedent caused by the HRA and examine Leeds City
Council v Price/Kay v London Borough of Lambeth. Lord Binghams judgment stressed the
importance of the 1966 Practice Statement and that the ordinary rules of precedent
still applied in a human rights context.
Question 2 The best way to think about this question would be to make a judgement
on the accuracy or inaccuracy of the statement about the mirror principle. The
statement is probably inaccurate. Despite criticism of the mirror principle, it does
provide a useful way of thinking about the relationship between the domestic courts
and the ECtHR. The starting point would be a discussion of s.2 of the HRA and the
notion that the domestic courts must take Convention jurisprudence into account.
Lord Binghams argument in Ullah is then a necessary reference point; as is some
discussion of the idea that domestic courts should follow Strasbourg, but are not
strictly bound to do so. A well organised answer would also look at key authorities like
Horncastle and Pinnock, as well as considering some of the more critical approaches,
such as Lord Hoffman in AF and Lord Kerr in Ambrose and Harris. The conclusion of the
essay would return to the key point: although the domestic courts are not strictly
bound to follow the ECtHR, they will do so unless a Strasbourg ruling ignores or
misunderstands some fundamental feature of the common law.
Quick quiz
Question 1 The 1966 Practice Statement includes the following paragraph:
Their Lordships regard the use of precedent as an indispensable foundation upon which
to decide what is the law and its application to individual cases. It provides at least some
degree of certainty upon which individuals can rely in the conduct of their affairs, as well
as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead
to injustice in a particular case and also unduly restrict the proper development of the
law. They propose therefore, to modify their present practice and, while treating formal
decisions of this house as normally binding, to depart from a previous decision when it
appears to be right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis
on which contracts, settlement of property, and fiscal arrangements have been entered
into and also the especial need for certainty as to the criminal law.
Which one of the following responses is the most accurate summary of the
statement?
a. The Law Lords think that the House of Lords should never depart from its
previous rulings.
b. The House of Lords should depart from its previous rulings whenever it feels
that it may be right to do so, all things considered.
c. Whilst decisions of the House are binding, the House of Lords will depart from a
previous decision when it is right to do so.
d. Whilst decisions of the House are binding, the House of Lords will depart from a
previous decision when it is right to do so. In deciding whether or not to depart
from a previous decision, the House of Lords will consider a number of factors
that relate to both civil rights and obligations and the criminal law.
Question 2 In the Court of Appeal in Davis v Johnson, Lord Denning held that:
I would prefer that the full Court of Appeal should take for itself guide lines similar to
those taken by the House of Lords in 1966 to depart from a previous decision of its own
where that decision was clearly wrong but otherwise I should regard this as an additional
exception to those stated in Young v. British Aeroplane Co. Ltd.
Which one of the statements below most accurately summarises this statement?
a. The Court of Appeal should have the same power as the House of Lords to depart
from its previous rulings.
b. The Court of Appeal should have the same power as the House of Lords to depart
from its previous rulings when they are clearly wrong.
c. The Court of Appeal should have the same power as the House of Lords to make
law.
d. Lord Denning expresses a preference: he would prefer that the House of Lords
should be able to use the 1966 Practice Statement to depart from its own
previous decisions when they are clearly wrong, but would also accept the view
that the exceptions in Bristol Aeroplane should be expanded.
Question 3 In Pinnock, Lord Neuberger argued:
This court is not bound to follow every decision of the European court. Not only would
it be impractical to do so: it would sometimes be inappropriate, as it would destroy the
ability of the court to engage in the constructive dialogue with the European court which
is of value to the development of Convention law: see e.g.R v Horncastle [2010] 2 WLR 47.
Of course, we should usually follow a clear and constant line of decisions by the European
court: R (Ullah) v Special Adjudicator [2004] 2 AC 323. But we are not actually bound to do so
or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed
out in Doherty v Birmingham City Council [2009] AC 367, para 126,section 2of the 1998 Act
requires our courts to take into account European court decisions, not necessarily to
follow them. Where, however, there is a clear and constant line of decisions whose effect is
not inconsistent with some fundamental substantive or procedural aspect of our law, and
whose reasoning does not appear to overlook or misunderstand some argument or point
of principle, we consider that it would be wrong for this court not to follow that line.
Which one of the following statements most accurately sums up his argument?
a. The Supreme Court is bound to follow decisions of the European Court of Human
Rights and can never depart from them.
b. The Supreme Court should always follow decisions of the European Court of
Justice.
c. The Supreme Court should follow a clear and consistent line of decision by the
European Court of Human Rights.
d. The Supreme Court should follow a clear and consistent line of decision by
the European Court of Human Rights so long as they do not either ignore or
misunderstand some fundamental common law principles.
Question 4 In EM, the House of Lords held:
Held, allowing the appeal, that article 8 of the Convention would not be engaged in
relation to the removal of an alien from a contracting state unless the treatment which
she would receive in the destination state would amount to a flagrant breach of article 8
such as would completely deny or nullify the very essence of the right to respect for her
private and family life; that there was no pre-determined model of family or family life to
which the article had to be applied, but it required respect to be shown for the right to
such family life as was or might be enjoyed by the particular applicant bearing in mind
the participation of other members who shared in it; that since the claimant and her child
had constituted a family for the entirety of the childs life, without any contact with the
father or his family, and since any contact betweenthe claimant and her child after return
would be limited to occasional supervised visits, the effect of return would be to destroy
the family life of the claimant and her child as it was now lived, particularly when the
effects on the child were taken into account; and that, accordingly, in those exceptional
circumstances article 8 of the Convention precluded the claimants removal.
Which one of the following statements most accurately sums up the ratio?
a. Article 8 would only be engaged when there was a flagrant breach of Article
8. A flagrant breach would have to amount to the denial or nullification of the
essence of the right to private and family life.
b. Article 8 would not be engaged when there was a flagrant breach of Article 8.
A flagrant breach would have to amount to the denial or nullification of the
essence of the right to private and family life.
c. Article 8 did not apply in this case; the applicant could be deported.
d. Article 8 would only be engage when there was a flagrant breach of Article 8.
A flagrant breach would have to amount to the denial or nullification of the
essence of the right to private and family life. Furthermore, it was important to
take into account the facts of the case, and to appreciate that the family could
take different forms.
Further reading
Etherton, T. Liberty, the archetype and diversity: a philosophy of judging (2010)
Public Law 727.
See the VLE for answers to Quick quiz questions.
u Have you identified the key points of the leading cases listed at the beginning of
this chapter, having compiled your own case notes on them?
u Explain the idea that precedent is a practice.
u What is the relationship between the idea of precedent and the idea of public
reason?
u What are the arguments about continuity and change in the doctrine of
precedent?
u What tensions developed between the House of Lords and the Court of Appeal?
u What is the relationship between judicial law making and human rights?
u What is the relationship between the ECtHR, human rights law and the British
courts?
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
their application in court processes . . . . . . . . . . . . . . . . . . . .99
7.2 Problems of drafting statutes . . . . . . . . . . . . . . . . . . . . . . .99
7.3 Approaches to interpretation . . . . . . . . . . . . . . . . . . . . . . 100
7.4 Substantive case law on statutory interpretation . . . . . . . . . . . . 100
7.5 The judicial practice of statutory interpretation . . . . . . . . . . . . . 101
7.6 Why is Pepper v Hart such a significant case? . . . . . . . . . . . . . . . 102
7.7 Purposive interpretation . . . . . . . . . . . . . . . . . . . . . . . . 102
7.8 The impact of membership of the European Union. . . . . . . . . . . . 102
7.9 Interpretation and the Human Rights Act 1998. . . . . . . . . . . . . . 104
7.10 An example of statutory interpretation . . . . . . . . . . . . . . . . . 108
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Am I ready to move on? . . . . . . . . . . . . . . . . . . . . . . . . . 113
7 Statutory interpretation
Introduction
Across broad areas, the details of English law are derived from the interpretation of
statutes, and statutes (both domestic and international) have increased in importance
as a source of English law. Statutes arise through domestic political processes and may
have a transnational element. The largest transnational influence upon the English
legal system has resulted from the United Kingdom joining the European Community/
European Union (EU). Under the relevant provisions of the European Communities Act
1972 (ECA), statutes have effect subject to existing enforceable community rights.
Another source of transnational law is the incorporation of international treaties and
conventions. In 2000 the Human Rights Act (HRA) came into force, adding yet more
complexity to the approach taken to the interpretation of statutes.
Statutes appear to be an easy-to-understand source of law; they are enacted law (i.e.
laws adopted by a legislature or another elected body, to provide general rules of
conduct). Enacted law governs all persons subject to the power of the government
in all future situations in which the rule or statement of law contained in the statute
applies. Enacted law includes written constitutions, statutes, treaties, executive orders
and administrative regulations. How do we understand the role of these sources of law
and how they are interpreted so as to be given legal effect?
This chapter emphasises that four issues need to be understood as an introduction to
statutory interpretation:
u the nature of language, which necessitates interpretative frameworks for
understanding
u the context of the legal process that provides the particular background for legal
interpretation
u the history of the common law that provides the context for the changing role of
statutes and use of those approaches
u the idea that statutory interpretation can be understood as a judicial practice.
Essential reading
Gearey et al., Chapter 9, section entitled The judicial practice of statutory
interpretation.
Make case notes on:
Pepper v Hart [1992] UKHL 3; R (on the application of Quintavalle) v Secretary of State
for Health [2003] 2 AC 687; Royal College of Nursing v DHSS [1981] AC 800; R v Human
Fertilization and Embryology Authority, ex parte Blood [1999] Fam 151; Duke v GEC
Reliance [1988] 2 WLR 359; Pickstone v Freemans plc [1988] 3 WLR 265; Litster v Forth
Dry Dock & Engineering Co Ltd [1989] 2 WLR 634; Garland v British Rail Engineering
Ltd [1982] 2 WLR 918; Carole Louise Webb v EMO Air Cargo (UK) Limited No 2 [1995] 1
WLR 1454; Grant v South Western Trains (Case C-249/96); R v A [2001] UKHL 25; Re S
[2002] UKHL 10; R (on the application of Anderson) v Secretary of State for the Home
Department [2002] UKHL 46; Ghaidan v Godin-Mendoza [2004] UKHL.
Note: remember that the importance of the cases above relates to what they tell us
about statutory interpretation. Make sure your case note focuses on this fundamental
issue. In other words, concentrate on the actual substantive law discussed in these
cases to the extent it is relevant to the concern with the statutory interpretation.
Further reading
Holland and Webb, Chapter 8 Making sense of statutes gives you a good sense
of the basics.
Askey and McLeod, Chapter 7 Legal method, section entitled Legislation and
legislative interpretation will also provide a good general overview.
Common law reasoning and institutions 7 Statutory interpretation page 99
their application in court processes
A key aspect of the rule of law is that statutes be written in such a way that the
public can understand them. Statutes would fail as an effective source of law if every
statement in them had to be put before the courts so that the meaning could be
established. So there is good reason to start by giving the words of the statute the
meaning they bear in their common sense or everyday usage. There are, however,
numerous difficulties in taking a common sense or literal approach to the meaning
of words in legal texts. Some standard problems include the following:
u a word used in isolation may have a different meaning from the same word used in
a sentence or a paragraph
u if the ordinary meaning is to be found by reference to a dictionary, then what
dictionary is to be used, and should it be a standard one, or one based on historical
principles?
Moreover, dictionaries often give alternative meanings to words

u even general words can have several meanings
u even when the meaning of a word seems plain, judges may still disagree as to its
interpretation because each may have different views regarding what the plain
meaning is
u when a case comes to court disagreement is plainly possible or else the case
would not have come to court.
The same basic problem confronts judges when interpreting Acts of Parliament. This
problem is intensified by the adversarial context in which arguments are made about
the meaning of words in statutes. One partys ascription of meaning to the words of a
statute is always open to dispute by the other.
A great many of the cases heard in the Court of Appeal and the Supreme Court/
House of Lords involve the meaning of words contained within statutes or delegated
legislation. A major problem entailed in formulating legislation is that the lawyers who
draft Parliamentary Bills work under great pressure of time. And to avoid creating too
much opposition, they use language which must be flat in style but which is often
verbose.
7.2 Problems of drafting statutes
A lot of legislation attempts to restate common law rules and principles. Sometimes
this causes a whole new development of case law concerning the meaning of key
words. In rationalising the offence of burglary under the Theft Act 1968, for example, a
person was said to be guilty of burglary when they entered a building as a trespasser
in order to commit theft or certain other offences. But what is a building? The word
building was subsequently interpreted by the courts at various times as being a
houseboat, a caravan and even a large commercial refrigerator, in addition to houses,
warehouses, factories and shops.
Of course Parliamentary draftsmen cannot foresee future eventualities. Statutory
interpretation is a particular form of interpretation; it is a shared practice of the
legal profession. Not only is interpretation inescapable, but interpretation of statutes
occurs in a context mediated by notions of the constitutional separation of powers,
ideas of the role of the judiciary, and the special features of the legislative process.
We should also remember that a piece of legislation has a history and a future.
Enacting the statute represents the culmination of Parliaments legislative process; but
it is also the starting point for many years of existence.
Statutes are often very complex, as they are an attempt to impose a structure of rules
and directions that provide regulation to social events. But since social, economic and
business relations are complex and if they are to be regulated in part by law, then the

A dictionary based on
historical principles
(such as the two-volume
Shorter Oxford English
dictionary) will explain
the origins and evolving
meaning of words. This
may influence the way we
interpret their present-
day meaning. Thus the
everyday word nice
originally meant precise,
exact or fine. The word
is still occasionally used
in this sense, as in a nice
distinction.
laws expressing that regulation will be drafted in sophisticated language. It sometimes
seems that statutes are designed to be incomprehensible to lay people. This is usually
a side-effect of the fact they are drafted by experts (often with a set of intended
meanings that may not be so clear in application) and undergo a series of readings
through the Parliamentary process. In addition, printing or drafting errors can make a
statutory provision incomprehensible. F.A.R. Bennion (Statute law, 1990) has identified
a number of factors that may cause doubt in interpreting a statutory provision:
u Ellipsis: the drafter refrains from using certain words that he regards as implied
automatically, although others may not realise this.
u Broad terms with wide meaning are often used, and it is left up to the user to
decide what situations fall with provision (e.g. the word vehicle clearly covers
motor cars, buses, motorcycles. But does it include a donkey cart, an invalid
carriage or a childs tricycle?).
u The meaning of a statutory expression may change over time (e.g. does family
include common law spouse; does father refer to the biological or the social
father?).
u Deliberate uncertainty. Drafters may deliberately use ambiguous words (e.g. where
provision is politically contentious).
u Unforeseeable developments. Drafters cannot anticipate all new developments or
devices that may create legislative loopholes.
u Inadequate use of words especially ambiguity, where words are capable of two or
more meanings.
u Printing errors and drafting errors provision may be narrower or wider than
intended.
7.3 Approaches to interpretation
Perhaps the greatest tensions in interpreting statutes come down to the simple fact
that words on their own often do not make sense, unless the policy behind the statute
is understood. But many judges have believed that if the courts were to be too focused
on interpreting the words of statutes in the light of the (supposed) policy governing
the statute, then the judges would be carrying out an essentially political function.
In the name of judicial independence and keeping faith to the law alone, many judges
have preferred a strictly literal approach and have denied the need to consider policy
matters. You will need however, to consider recent developments, specifically the
growing influence of the more purposeful approach used in European courts and the
impact of Pepper (Inspector of Taxes) v Hart [1993] AC 591.
7.4 Substantive case law on statutory interpretation
The opening discussion of the nature of interpretation in the sections above are useful
in order for you to understand the general issues raised in this area of law. However, it
is necessary to stress that we are now looking to the substantive case law on statutory
interpretation that will form the basis of any question you might be asked in Part B of
the examination.
The basic concern is: can we make sense of the various approaches taken in practice
to statutory interpretation in the context of the legal system of England and Wales?
Simply put, is there such a large measure of discretion in the interpretation of statute
that it is pointless to talk of rules guiding the interpretative choices that judges make?
Can we make sense of the situation though some process of rational reconstruction of
what happens in practice?
This issue divides the commentators. You may note that in a major work on statutory
interpretation, Bennions Statutory interpretation (1997), the author writes in his
introduction:
The natural and reasonable desire that statutes should be easily understood is doomed
to disappointment. Thwarted, it shifts to an equally natural and reasonable desire for
efficient tools of interpretation. If statutes must be obscure, let us at least have simple
devices to elucidate them. A golden rule would be best, to unlock all mysteries.
Alas there is no golden rule. Nor is there a mischief rule, or a literal rule, or any other cure-
all rule of thumb. Instead there are a thousand and one interpretative criteria. Fortunately,
not all of these present themselves in any one case; but those that do yield factors that the
interpreter must figuratively weigh and balance.
The author then constructs a code with a critical commentary, in which various
detailed interpretative criteria are enumerated, illustrated and criticised. The text
then becomes a source for illustrations of the various detailed arguments that might
be advanced before a court. Bennions approach is useful, but it (as it were) steps back
from the practice of interpretation and attempts to classify it, rather than understand
it as a dynamic interpretative activity.
7.5 The judicial practice of statutory interpretation
Essential reading
Gearey et al., Chapter 9 The judicial practice of statutory interpretation, section
entitled Statutory interpretation and institutional legitimacy.
Gearey et al. argues that statutory interpretation can be best understood as a judicial
practice; and judicial practice can be seen as informed by pragmatism and an
engagement with the language of Act in question in its legal context. The idea that
statutory interpretation is a process or a practice departs from the old-fashioned way
of thinking in terms of rules of statutory interpretation. This way of thinking can be
traced back to Willis 1938 article Statutory interpretation in a nutshell

(16 Can Bar
Rev 1). Willis phrased the process of interpretation in terms of the literal, golden and
mischief rules.
Willis article dominated introductory accounts of statutory interpretation, but has
been subject to extensive revisions. For instance, Sir Rupert Cross has suggested that
the English approach involves a progressive analysis rather than a choice among
alternative rules. In his analysis, the judge first considers the ordinary meaning of
words in the general context of statute, then moves on to consider other possibilities
where ordinary meaning leads to absurd results. This is known as the unified
contextual approach and is supported by dicta in House of Lords decisions.
However, even thinking in terms of a unified contextual approach does not seem to
describe the subtlety and complexity of the way in which judges read statutes. To get
round the difficulties of generalising in a reductive way about judicial approaches
to statute, it is perhaps preferable, as suggested above, to think of statutory
interpretation as a process or a practice.
The judicial practice of statutory interpretation incorporates the constitutional
position with an understanding of how certain rules of interpretation can be
rationally connected. The judicial practice of statutory interpretation has three basic
constraints or norms involved in interpretation:
u there are no limits upon the power of Parliament to make law
u the judge ought to give effect to the intention of Parliament
u interpretation should start with the presumption that one should apply the
ordinary, literal, meaning of the words Parliament has used.
In a nutshell: a brief and

succinct summary.
7.6 Why is Pepper v Hart such a significant case?
Essential reading
entitled Pepper v. Hart.
In this decision, the House of Lords decided to depart from the long-established
practice that prohibited reference to Hansard (the record of debates in Parliament).
This practice, which we referred to as the exclusionary rule, had long been viewed
by commentators from other jurisdictions as a strange restriction and an affront to
common sense. The House of Lords laid down that references were only to be made
concerning legislation
which is ambiguous or obscure or the literal meaning of which leads to absurdity. Even in
such cases referencesshould only be permitted where such material clearly discloses
the mischief aimed at or the legislative intention lying behind the ambiguous or obscure
words. In the case of statements made in Parliament, as at present advised I cannot
foresee that any statement other than the statement of the minister or other promoter of
the Bill is likely to meet these criteria.
(Per Lord Browne-Wilkinson)
The then Lord Chancellor, Lord MacKay, had dissented, claiming that the change would
drastically increase legal costs since solicitors would need to engage in research to
check if relevant statements had indeed been recorded in Hansard. It appears that
substantial use of Hansard has been made since Pepper v Hart and has gone beyond
the terms of the restrictive criteria laid down by Lord Browne-Wilkinson. In the fifth
edition of Smith, Bailey & Gunn on the modern English legal system, the authors state
(2007, p.453):
The first nine years of the operation of Pepper v Hart has largely borne out the fears
expressed by Lord Mackay of Clashfern. Issues concerning the cost of litigation have been
raised with the legal profession. The possibility of reference being made to Parliamentary
material has been raised in over 360 cases to date. In each of these, research will have
been done at the clients expense; in very few indeed does a crock of gold appear to
have made a difference to the outcome. What cannot be estimated is the extent to which
awareness of that material has influenced the supposed independent approach of the
judges to questions of interpretation.
Note, however, the interpretation of Pepper v Hart in R (on the application of Spath
Holme Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2
AC 349. Pepper v Hart does not mean that the courts now approach all statutes in a
purposive way.
7.7 Purposive interpretation
Essential reading
Gearey et al., Chapter 9 The judicial practice of statutory interpretation, sections
entitled Purposive interpretation. Pay particular attention to the arguments
in the three central cases: R (on the application of Quintavalle) v Secretary of
State for Health [2003] 2 AC 687; Royal College of Nursing v DHSS [1981] AC 800; R v
Human Fertilization and Embryology Authority, ex p Blood [1999] Fam 151.
7.8 The impact of membership of the European Union
Essential reading
entitled European interpretation.
Holland and Webb, Chapter 11 European legal method, Section 11.4 The
effect of EU law on drafting and interpretation of UK legislation has a good
overview of the effect of EU law on the interpretation of UK legislation. Sections
11.1 The sources of European law to 11.3.2 The use of precedent in European
legal method will give you some important background information on the
institutions of the EU and the drafting of EU legislation.
The accession of the United Kingdom to the EU (formerly the European Community),
which was achieved in UK law by the ECA, has radically altered the standing of
Parliamentary Sovereignty (since by that Act it appears that Parliament has bound its
successors as long as the United Kingdom remains part of the EU). All UK legislation
must be interpreted to avoid conflict with EU law. If there is irreducible conflict, EU law
must prevail.
Cases raising interpretive issues with EU law are the subject of a reference to
the European Court of Justice (ECJ). As the ECJ follows a purposive method of
interpretation, we now have a superior court interpreting British law that does not
follow the conventional literal approach. The interpretive approach of the European
Court has had a profound influence on the legal system of England and Wales.
The first judge to face up to this was Lord Denning. In HP Bulmer Ltd v J Bollinger SA
[1974] 3 WLR 202 he argued that the literal approach was inadequate when dealing
with the Treaty of Rome, since that statute was so broadly worded. Accordingly, the
Treaty of Rome was meant to be clarified by secondary legislation (e.g. Directives,
Regulations and Decisions) and also by the judges filling in the gaps in the law. As this
secondary legislation derived from the Treaty of Rome, it too should be interpreted in
the light of the purpose of the Treaty and the literal approach was inadequate. English
judges ought therefore to adopt interpretative strategies more common in the other
civil law countries of Europe, namely looking at the purpose and principles of such
legislation.
In Buchanan & Co Ltd v Babco Forwarding and Shipping UK Ltd [1977] QB 208, Lord
Denning specifically pointed out that the European Court of Justice used a schematic
or teleological system of interpretation, looking at the design or purpose of the
legislation and quite readily filling in any gaps.
Activity 7.1
Read the following extract slowly and carefully a number of times if necessary.
Make sure that you can follow the arguments before you attempt an answer to the
question.
The first and fundamental point is that the Treaty of Rome 1957 [hereafter the Treaty]
concerns only those matters which have a European element, that is to say, matters which
affect people or property in the nine countries of the common market besides ourselves.
The Treaty does not touch any of the matters which concern solely England and the
people in it. These are still governed by English law. They are not affected by the Treaty. But
when we come to matters with a European element, the Treaty is like an incoming tide. It
flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed
that the Treaty is henceforward to be part of our law. It is equal in force to any statute. The
governing provision is section 2 (1) of the European Communities Act 1972. It says:
All such rights, powers, liabilities, obligations and restrictions from time to time
created or arising by or under the Treaties, and all such remedies and procedures
from time to time provided for by or under the Treaties, as in accordance with the
Treaties are without further enactment to be given legal effect or used in the United
Kingdom shall be recognised and available in law, and be enforced, allowed and
followed accordingly; and the expression enforceable community right and similar
expressions shall be read as referring to one to which this subsection applies.
The statute is expressed in forthright terms which are absolute and all-embracing. Any
rights or obligations created by the Treaty are to be given legal effect in England without
more ado. Any remedies or procedures provided by the Treaty are to be made available
here without being open to question. In future, in transactions which cross the frontiers,
we must no longer speak or think of English law as something on its own. We must speak
and think of community law, of community rights and obligations, and we must give
effect to them. This means a great effort for the lawyers. We have to learn a new system.
The Treaty, with the regulations and directives, covers many volumes. The case law is
contained in hundreds of reported cases both in the European Court of Justice and in the
national courts of the nine. Many must be studied before the right result can be reached.
We must get down to it.
(Lord Denning, HP Bulmer Ltd v J Bollinger SA [1974] Ch 401)
According to Lord Denning what are the effects of the Treaty of Rome 1957 and the
ECA?
Activity 7.2
There are a number of important precedents that deal with the impact of European
methods of interpretation. The following exercise will help familiarise you with
these important cases.
a. Read Gearey et al., Chapter 9 The judicial practice of statutory interpretation,
section entitled First steps: Garland v. British Rail Engineering Ltd. What were the
issues around the interpretation of s.6(4) of the Sexual Discrimination Act 1975
and how did the House of Lords resolve them?
b. Read Gearey et al., Chapter 9 The judicial practice of statutory interpretation, section
entitled The forking path: Duke v. GEC Reliance. What issues were dealt with in this
case? How did the Court use a principle from Marshall v Southampton and South West
Hampshire Health Authority [1986] 2 All ER 584 to argue that they were compelled to
interpret the 1975 Sexual Discrimination Act? Was Duke wrongly decided?
c. Read Gearey et al., Chapter 9 The judicial practice of statutory interpretation,
section entitled The path regained: Pickstone v. Freemans. Why is Pickstone v
Freemans plc [1988] 3 WLR 265 a significant case?
d. Read Gearey et al., Chapter 9 The judicial practice of statutory interpretation,
section entitled On the road: Litster v. Forth Dry Dock & Engineering Co. Ltd. Why
is Litster v Forth Dry Dock & Engineering Co Ltd [1989] 2 WLR 634 a significant case?
e. Read Gearey et al., Chapter 9 The judicial practice of statutory interpretation,
section entitled, Off the map? Webb v. EMO Air Cargo and Grant v. South Western
Trains. Why are Carole Louise Webb v EMO Air Cargo (UK) Ltd (No 2) [1995] 1 WLR
1454 and Grant v. South Western Trains (Case C-249/96), The Times, 23 February
1998 significant cases?
7.9 Interpretation and the Human Rights Act 1998
Essential reading
entitled The politics of interpretation under the Human Rights Act.
Holland and Webb, Chapter 10 Bringing rights home: legal method and
the Convention rights, Section 10.5 The consequences for legal method (1):
statutory interpretation.
In the Tom Sargent Memorial Lecture of 1997, the then Lord Chancellor, Lord Irvine said:
The Human Rights Billwill be a constitutional change of major significance, protecting
the individual against erosion of liberties, either deliberate or gradual. It will promote a
culture where positive rights and liberties become the focus and concern of legislators
administrators and judges alike.
Some commentators predicted:
a major shift in power from Parliament to judges. They will, in effect, be able to rewrite
sections of Acts by reading into them words that are not there and by massaging away any
potential conflicts with the Constitution.
(Emerson, quoted in The Times, 26 November 1998).
This does not seem to have happened. In fact parliamentary sovereignty has been
preserved since if incompatibility arises the courts may not disapply legislation.
The Court has the power to issue a declaration of incompatibility which effectively
invites (rather than compels) Parliament to change the law.
The key provision is s.3(1) of the HRA, which provides that:
So far as it is possible to do so, primary legislation and subordinate legislation must be
read and given effect in a way which is compatible with Convention rights.
You will come across the expressions reading down or in or out. These are two
different techniques developed by judges. If a provision is read down it is interpreted
in such a way as to make it compatible with a Convention right. If a judge chooses
to read in words or interpretations can be read into the relevant law to ensure its
coherence with Convention jurisprudence. There is also a third term: reading out.
This involves the removal of words or a court otherwise not enforcing law that is not
Convention compliant.
7.9.1 R v A: differing judicial approaches to interpretation under the
Human Rights Act
In R v A [2001] UKHL 25,

the House of Lords considered whether s.41 of the Youth Justice
and Criminal Evidence Act 1999 amounted to a breach of the defendants right to a
fair trial.

How could the House of Lords interpret this section? Would they have to
issue a certicate of incompatibility? Or would the court assert that the Act had to
be followed? Lord Steyn argued that the starting point for the interpretation of the
Act was the mischief that Parliament had decided to address. However, at the same
time, the House of Lords had to decide whether the Act made an excessive inroad
into the right to a fair trial.

How, then, was the court to assess where this particular
provision fell? Reference was made to an important piece of extrajudicial writing by
Lord Lester. This suggested a two-tier approach to the assessment of legislation in the
light of the HRA. The rst question that the court had to ask was whether or not the
provision in question interfered

with a Convention right. Answering this question
does not require an essential reference to parliamentary intent, because it will hardly
ever be the case that Parliament deliberately intended to breach a Convention right.
It is at the second level of the test where the government attempts to justify the
particular provision, that parliamentary intention becomes more relevant. This raises
the question of whether or not the provision falls into one of the exception clauses
under the HRA. The court must then move to consider the issue of proportionality.
What sense does proportionality make in the present context? We need to start from
the assertion that Article 6 lays down a fundamental set of guarantees to enable a fair
trial to take place. The only way in which this right can be restricted is by reference
to Article 6 itself. Lord Steyn summarised this as determining a balance between the
interests of the accused, the victim and society. Applying this set of considerations
to the test of proportionality requires reference to Lord Clydes guidelines in the key
authority de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and
Housing.

These guidelines allow a court to decide whether a restriction on a right is
acceptable, or arbitrary or excessive. The guidelines ask the court to determine, rst
of all, whether the objective of the legislation is sufciently important; then the court
must decide if the actual limitations in the legislation achieve this end. Applied to the
issues of R v A, the court must thus be sure that the restrictions of the accuseds right
to give evidence of consent to the court in the Act are proportionate to the goal of
limiting fair trial rights: preventing irrelevant evidence and perpetuating stereotypes
of womens sexual behaviour.
This is essentially an act of interpretation. Section 41 may be subject to certain
exceptions, but it is effectively a blanket ban.

Note how Lord Steyn then makes
explicit reference to techniques of interpretation:
Ordinary methods of purposive and contextual interpretation may yield ways of
minimizing the prima facie exorbitant breadth of the section. Secondly, the interpretative
obligation in section 3(1) of the 1998 Act may come into play. It provides that So far as it
is possible to do so, primary legislationmust be read and given effect in a way which is
compatible with the Convention rights. It is a key feature of the 1998 Act.
It is important to remember here that this is simply a reference to purposive and
contextual methods; it is not any explicit evocation of the mischief rule or the
golden rule. Note also how it is offered as one way in which judicial discretion can
limit the range of s.41, and thus grant some power to a judge to determine whether
or not evidence can be admitted. This requires an understanding of the statute in its
common law context. Alongside this is a literal reading of the section; or, rather, what
is termed the interpretative obligation that is required of the judges by the HRA. We
do not have the space to go into the detailed interpretation of the relevant case law.
We can, however, consider the conclusion to which Lord Steyn comes:
In my view ordinary methods of purposive construction of section 41(3)(c) cannot cure
the problem of the excessive breadth of the section 41, read as a whole, so far as it relates
to previous sexual experience between a complainant and the accused. Whilst the statute
pursued desirable goals, the methods adopted amounted to legislative overkill.
We can see how this relates back to the previous paragraph. The purposive
interpretation cannot cure the breadth of the section. The judge must therefore
make use of the interpretative obligation. Section 3 applies even where there is
no ambiguity in the Act; it does not just mean, therefore, that the court must take
the Convention into account in interpreting ambiguous statutory language. The
duty placed on the court by s.3 requires the court to strive to make the statute
coherent with the Convention. This takes us beyond normal methods of statutory
interpretation. Normally a court can depart from the language of the statute to avoid
absurd consequences, but s.3 is a far more radicalgeneral principle: interpretation
must make Act and Convention compatible. Following Pepper v Hart,

this could
amount to an interpretation against the executive.
In accordance with the will of Parliament as reected in s.3, it will sometimes be
necessary to adopt an interpretation which linguistically may appear strained. The
techniques to be used will not only involve the reading down of express language in
a statute but also the implication of provisions. A declaration of incompatibility is a
measure of last resort. It must be avoided unless it is plainly impossible to do so.
It may be that Parliament expresses a clear limitation on Convention rights.

However,
R v A is not one of those cases. In Lord Steyns opinion, this requires an interpretation
of the statute informed by common sense, and by a supposition that Parliament itself
would not have intended that the Act would prevent an accused making a full defence,
so long as it made use of truly probative material. Words can thus be read into the
statute: an implied provision that evidence which is probative and is necessary to a
fair trial cannot be excluded. It is up to the trial judge to determine when evidence is
probative, and when it is merely irrelevant or insulting to the victim of rape. Following
this line of argument, it is not necessary to issue a declaration of incompatibility.
Lord Hope did not agree with Lord Steyn, asserting that s.41 was proportionate to
the end it sought to achieve, particularly because the overenthusiastic use of judicial
discretion had resulted in a loss of public condence in the fairness of rape trials.
Moreover, he argued that the section of the Act itself preserved the defendants right
to ask questions. This case, then, does not present itself as an opportunity to consider
whether or not issues of general unfairness are raised. Only in this instance would
there be grounds to hold an incompatibility with Article 6.

Furthermore, on this
argument, the case does not raise the need to apply s.3 of the HRA; it is not necessary
to modify, alter or supplement the words used by Parliament.

Lord Hope would not,
then, see this case as calling for the radical approach:
[S]ection 3 does not entitle the court to legislate; its task is still one of interpretation.
Compatibility is to be achieved only so far as this is possible. Plainly this will not be
possible if the legislation contains provisions which expressly contradict the meaning
which the enactment would have to be given to make it compatible. It seems to me that
the same result must follow if they do so by necessary implication, as this too is a means
of identifying the plain intention of Parliament.
This interpretation of the acceptable use of s.3 also begins with the idea that it is based
on the intention of Parliament. However, in a partial agreement with Lord Steyn, Lord
Hope concludes that if the trial judge found it necessary to use s.3, he should do so by
following the test articulated by Lord Steyn.
Lord Clyde was also perhaps not as forthright as Lord Steyn. He admitted that it might
be possible to resolve the case without straining the language of the provision. Failing
this approach, though, s.3 of the HRA could be applied; and the issue of compatibility
with the Convention did not arise.

Lord Hutton agreed with Lord Steyn.
What conclusions can we draw about approaches to statutory interpretation in
the light of R v A?
The disagreements among the law lords as to the precise way in which the HRA is to
be applied leads to the possibility of two approaches. The relevant section of the 1999
Act could be interpreted by reference to s.3 and along the lines suggested by Lord
Steyn, and broadly consented to by Lords Clyde and Hutton, or in the way suggested
by Lord Hope. In Lord Steyns understanding, the proportionality test suggests
legislative overkill, and this requires words to be read into the Act so as to make it
consistent with Article 6. Lord Hope did not feel the case raised a s.3 point, and it was
not necessary to apply the proportionality test. Note that this is not a disagreement
over the proportionality test as such, rather, it is a dispute over whether it applies on
the facts.
7.9.2 How did judicial practice change after R v A?
The HRA may allow judges to consider the proportionality of legislation, but what
are the boundaries of the test? This perennial concern lies behind the concerns of
the subsequent case law. In Re S [2002] UKHL 10

the House of Lords considered the
compatibility of care orders with Articles 6(1) and 8 of the ECHR. The CA had used s.3
of the ECHR and interpreted the Children Act 1989 in order to make it Convention
compliant. The House of Lords held that this use of s.3 overstepped the power given to
judges by the HRA. Lord Nicholls pointed out that:
In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act
reserves the amendment of primary legislation to Parliament. By this means the Act seeks
to preserve parliamentary sovereignty. The Act maintains the constitutional boundary.
Interpretation of statutes is a matter for the courts; the enactment of statutes, and the
amendment of statutes, are matters for Parliament.
This restates a fundamental constitutional principle. It is clear that the HRA is meant to
preserve the distinction between interpretation and enactment of statutes. To some
extent this rather simplified distinction does not engage with the difficulty of drawing
the line between the interpretation and the creation of the law. However, Lord
Nicholls did acknowledge the inherent difficulties in the next part of his argument. He
pointed out that the more liberal modes of interpretation make it harder to locate
the boundary between the robust and the impermissibly creative. He proposes a
rule of thumb test:
For present purposes it is sufficient to say that a meaning which departs substantially
from a fundamental feature of an Act of Parliament is likely to have crossed the boundary
between interpretation and amendment.
This test returns us to themes of judicial law making. Particularly creative acts of
interpretation depart from fundamental principles of an Act, and also bring matters to
court that are ill-suited to the forensic process. The reinterpretation of the Childrens
Act by the CA did just this. In a sensitive area, where Parliament had entrusted powers
to local authorities, the courts should not intervene so as to interfere with this
statutory regime.
Further reading
entitled Ploughing a new furrow: R (on the application of Anderson) v Secretary of
State for the Home Department.
Activity 7.3
Anderson is fundamentally ambiguous: it is hard to argue it defines a distinct
approach to statutory interpretation in the wake of R v A. Do you agree?
Activity 7.4
Read Gearey et al., Chapter 9 The judicial practice of statutory interpretation,
section entitled Mending fences? Ghaidan v. Godin-Mendoza.
What does Ghaidan v Godin-Mendoza [2004] UKHL 30 suggest about the limits of the
judicial practice of statutory interpretation under the HRA?
Activity 7.5
Read Gearey et al. Chapter 9 The judicial practice of statutory interpretation,
section entitled Defining the parameters of the new practice.
Do you agree with the argument that statutory interpretation has to be seen in the
context of a democratic dialogue between the courts and Parliament?
Summary
The traditional approach to precedent and statutory interpretation has been modified
by the HRA. The Act requires the courts to ensure that statutes and case law are
compliant with the provisions of the ECHR. This new obligation has changed the
approach of the courts in some important recent cases.
7.10 An example of statutory interpretation
7.10.1 R (on the Application of Black) v Secretary of State for Justice [2009]
UKHL 1
In looking at R (on the Application of Black) we are concerned with the contemporary
practice of statutory interpretation. In this case Lord Brown interprets s.35(1) of the
Criminal Justice Act 1991. How does he do it? In order to see these techniques in action,
we must actually look at what Lord Brown does. He begins with the text of the 1991 Act:
After a long-term prisoner [a prisoner serving a determinate term of four years or more]
has served one-half of his sentence, the Secretary of State may, if recommended to do so
by the Board, release him on licence.
He then observes the legislative context. Legislation has reduced the space for the
Secretary of States discretion. These Acts include: the Parole Board (Transfer of
Functions) Order 1998 (SI 1998/3218), Chapter 6 of the Criminal Justice Act 2003 and
the Criminal Justice and Immigration Act 2008. Given that this case concerns Article
5 of the ECHR, Lord Brown then makes reference to the Strasbourg case law, and
the principles that they lay down in relation to detention periods of prisoners. This
brings into account Article 6, and the relevant case law, because sentencing, as a
determination of a criminal penalty, requires an independent and impartial tribunal
established by law. The key case (Stafford v UK (2002) 35 EHRR 1121) stresses that the
factors to be taken into account are [the] dangerousness and risk associated with the
objectives of the original sentence. The English case law is then taken into account,
although Lord Brown notes that none of themis to be regarded as decisive of the
issue now before the House (para.71). This is because they widen the scope of Article 5
(5(4) precisely). Lord Brown comes to the conclusion that as far as the jurisprudence of
the Convention is concerned, there is nothing wrong in allowing the executive, subject
to the control of the courts, to take decisions relating to prisoners parole:
There is suggested to be a risk of arbitrariness in the operation of the parole system if the
Secretary of State can overrule the Parole Board on the question of risk. But the Secretary
of States decision is, of course, judicially reviewable and, if found arbitrary or irrational,
it will be struck down. There was, indeed, an irrationality challenge in this very case but
it failed before the judge and permission to appeal was refused in respect of it. There
is nothing intrinsically objectionable (certainly in Convention terms) in allowing the
executive, subject to judicial review, to take the parole decision, notwithstanding that it
involves rejecting another bodys recommendation[I]t is indefensibly anomalous. But it
is not contrary to article 5(4).
(para.81)
The problem that Lord Brown identifies is one of arbitrariness if the integrity of the
Parole Board is compromised by the powers of the Secretary of State to question and
overrule its decisions. However, this is subject to judicial review (i.e. the court can
examine the Secretary of States directions to the board). This suggests that there is a
system of checks and balances, and that it is not prohibited by the Convention.
What are the techniques that allow Lord Brown to come to this conclusion? He is
concerned with a statute, and with two arguments about its interpretation made by
the appellants and the respondents. In order to determine the correct interpretation
of the Act, he examines it in its statutory and case law context. The latter includes both
English and Strasbourg jurisprudence. The general administrative law context is also
important. Lord Browns reasoning involves a close reading of all the relevant cases;
this is, of course, merely one of the speeches given in the House of Lords, but the other
Lords concurred in his judgment.
The main point here is that to understand judicial interpretation we have to study it in
detail and avoid misleading generalisations. If one has to generalise, one could argue
that statutory interpretation is a practice that always has to be studied in a specific
context.
Activity 7.6
Read the extract from the HRA below in detail. Make sure that you understand what
the different parts of the statute mean (note that it has been edited so that the
exercise makes sense). Then read the facts in the question below the extract. Follow
the precise instructions that ask for your advice on a particular issue:
4 Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines whether a
provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it
may make a declaration of that incompatibility.
[...]
5 [...]
(6) A declaration under this section (a declaration of incompatibility)
(a) does not affect the validity, continuing operation or enforcement of the provision in
respect of which it is given
[...]
10 Power to take remedial action
(1) This section applies if
(a) a provision of legislation has been declared under section 4 to be incompatible with
a Convention right and, if an appeal lies
(i) all persons who may appeal have stated in writing that they do not intend to do
so;
(ii) the time for bringing an appeal has expired and no appeal has been brought
within that time; or
(iii) an appeal brought within that time has been determined or abandoned; or
(b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard
to a finding of the European Court of Human Rights made after the coming into force
of this section in proceedings against the United Kingdom, a provision of legislation is
incompatible with an obligation of the United Kingdom arising from the Convention.
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding
under this section, he may by order make such amendments to the legislation as he
considers necessary to remove the incompatibility.
You are a solicitor working for the government legal services. The government is
considering producing a Bill that would allow the relevant executive agency to
prevent asylum seekers who have been refused permission to stay in the country
from having access to legal advice. The sponsoring Minister is concerned that such
provisions might fall foul of Article 6 of the HRA.
Advise her of the powers that a judge has to issue a certificate of incompatibility,
and the effects that a certificate would have on the legislation if one was issued.
Summary
This chapter has dealt with the following examinable areas:
u The judicial practice of statutory interpretation.
u The impact of Pepper v Hart.
u The impact of Purposive interpretation outside of the context of EU law.
u The impact of EU law on the interpretation of statute.
u The impact of the HRA on statutory interpretation.
You can expect a question in Part B of the examination that examines either a topic
from this list, or brings together a number of topics.
Quick quiz
Question 1 In Pepper v Hart, the House of Lords held that:
(1) subject to any question of Parliamentary privilege, the rule excluding reference to
Parliamentary material as an aid to statutory construction should be relaxed so as to
permit such reference where (a) legislation was ambiguous or obscure or led to absurdity,
(b) the material relied upon consisted of one or more statements by a Minister or other
promoter of the Bill together if necessary with such other Parliamentary material as was
necessary to understand such statements and their effect and (c) the statements relied
upon were clear.
Which one of the following statements is the most accurate summary of this ratio?
a. Parliamentary material could never be used as an aid to statutory construction.
b. The House of Lords could use Parliamentary material when they felt it was
necessary.
c. The House of Lords could use Parliamentary material if a compelling argument
was made for it by either counsel for the plaintiffs or counsel for the defendants.
d. Parliamentary material could be used for statutory construction if the
legislation was not clear, the Parliamentary material was a clear statement
made by a Minister or other promoter of the bill.
Question 2 In Macarthys v Smith [1981] QB 180, Lord Denning argued:
It is important now to declare and it must be made plain that the provisions of Article 119
of the Treaty of Rome take priority over anything in our English statute on equal pay which is
inconsistent with Article 119. That priority is given by our own law. It is given by the European
Communities Act 1972 itself. Community law is now part of our law: and, whenever there is
any inconsistency, Community law has priority. It is not supplanting English law. It is part of
our law which overrides any other part which is inconsistent with it.
Which of the following statements most accurately sums up his argument?
a. Community law takes precedence over common law, because of the European
Communities Act 1972.
b. Common law takes precedence over Community law.
c. Community law takes precedence over common law, because of the European
Communities Act 1972. It would, however, be more accurate to say that
Community law has become part of English law.
d. The courts have made Community law supreme.
Question 3 In Re S, the Court argued that:
[A] meaning which departs substantially from a fundamental feature of an Act
of Parliament is likely to have crossed the boundary between interpretation and
amendment. This is especially so where the departure has practical repercussions which
the court is not equipped to evaluate.
Which of the following statements is the most accurate summary of this argument?
a. There should be no limits on the law making power of a court.
b. When interpreting a statute, a court should be guided by the fundamental
features of the Act.
c. When interpreting a statute, a court should be guided by the fundamental
features of the Act; it should also bear in mind the consequences of its decision.
If an interpretation has consequences which the court cannot assess, then it
should refrain from crossing the line from interpretation to amendment.
d. If an interpretation has consequences which the court cannot assess, then it
should refrain from crossing the line from interpretation to amendment.
Question 4 Klug (2003, see Further reading, below) has argued that ss.3 and 4 of
the HRA are:
a carefully thought-out constitutional arrangement that sought to inject principles
of parliamentary accountability and transparency into judicial proceedings without
removing whole policy areas to judicial determination. In other words it sought to create
a new dynamic between the two branches of the State.
Which of the following statements is the most accurate summary of her argument?
a. Sections 3 and 4 of the HRA set out to make the courts sovereign.
b. Sections 3 and 4 of the HRA sought to create a new balance between the courts
and Parliament. The sections intended to make judicial proceedings transparent
and accountable, without leaving too much power in the hands of the judges.
c. Sections 3 and 4 represent a constitutional revolution.
d. The HRA set out to make judges law makers.
Question 1 The Human Rights Act has completely redefined the judicial approach
to statutory interpretation. Discuss.
Question 2 Judicial interpretation of statute can be thought of as a judicial
practice. Discuss.
Question 1 The main issue raised by this question is the expression completely
redefined; a good answer would clarify what these words mean. It would probably
be fair to say that the HRA has not completely redefined judicial approaches to
statutory interpretation, but it has made for significant differences. A well organised
essay would then build on this argument. The first point of reference would be the
relevant sections of the Act itself, in particular the interpretative provisions and the
provisions that relate to declarations of incompatibility. A good answer would then
analyse the major authorities, from R v A, Re S and R (on the application of Anderson) v
Secretary of State for the Home Department. The main point would be to show that the
Law Lords are still refining their approach to interpretation under the HRA; and there
is a debate over the correct way of using the Act. In other words, a good answer would
analyse the differences of opinion (summarised above) over the relationship of the
main authorities, and, in particular, whether or not Anderson represents something
of a watershed in judicial approaches to statutory interpretation. It would also be
necessary to consider the guidelines laid down by Ghaidan v Godin-Mendoza. This case
is a central authority in determining the parameters of interpretative practice under
the HRA. So, in summary, it would be fair to argue that the HRA has caused major
changes in approaches to statutory interpretation, indeed, changes that are still being
worked out in detail. However, it might be going too far to argue that the HRA has
completely redefined practices in this area.
Question 2 This is a fairly open question, but one would have to make ones
position clear at the beginning. The argument in the following paragraph will be
one of agreement: judicial interpretation of statute can be thought of as a judicial
practice. The essay should begin with a definition of practice: the fundamental
idea is that practice is a way of interpreting rules within the institutional context
of the law. Therefore, the starting point of the practice is the constitutional notion
that judges interpret the law that Parliament has made. Although this remains an
accurate description of the practice, we would have to note that the practice has been
changing over time. Thus the impact of European methods of interpretation through
European Union law has led to the courts developing new practices which give effect
to the objective of the various treaties or relevant provisions of EU law. Cases like
Garland, Duke, Pickstone and Litster draw out attention to various aspects of this new
practice. Pepper v Hart, and the relevance of Hansard is also worth mentioning in this
context. One could also mention the rise of purposive methods of interpretation in
the common law outside of an EU law context. The other important source for changes
in judicial practice is the HRA. It would then be necessary to outline in a couple of
paragraphs how the Act works. In particular, one would have to stress that the Act has
made for new techniques of interpretation. Cases like R v A, Anderson and Ghaidan v
Godin-Mendoza are evidence that the judges are working out the precise parameters of
the new practice of statutory interpretation in a human rights context.
Further reading
Kavanagh, A. Statutory interpretation and human rights after Anderson: A more
contextual approach (2004) Public Law 53745.
Klug, F. Judicial deference under the Human Rights Act (2003) European Human
Rights Law Review 12533.
Nicol, D. Statutory interpretation and human rights after Anderson (2004)
Public Law 27482.
u What are the basic problems involved in drafting and interpreting statutes?
u What is the courts approach to the interpretation of statutes?
u What is the importance of thinking of statutory interpretation as a judicial process
or practice?
u What is meant by purposive interpretation?
u What impact have European methods of statutory interpretation had on UK
courts?
u What impact has the HRA had on methods of statutory interpretation?
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
8.1 The judiciary: some basic facts . . . . . . . . . . . . . . . . . . . . . . 117
8.2 The politics of the judiciary and the HRA . . . . . . . . . . . . . . . . . 119
8.3 Torture, terrorism and justice . . . . . . . . . . . . . . . . . . . . . . 120
8.4 Judicial independence and judicial accountability . . . . . . . . . . . . 123
8.5 The judicial appointments process . . . . . . . . . . . . . . . . . . . 124
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
8 The judiciary
Introduction
Make case notes for:
R (Jackson and others) v A-G [2005] UKHL 56; R (Anufrijeva) v Secretary of State for
the Home Department [2003] UKHL 36; Director of Public Prosecutions of Jamaica
v Mollison [2003] 2 AC 411; Hirst v UK (No 2) [2005] ECHR 681; A v Secretary of State
(No 2) [2005] UKHL 71; R (on the application of ProLife Alliance) v BBC [2003] UKHL
23; Othman (Abu Qatada) v UK (2012) 55 EHRR 1.
Note: remember that the importance of the cases above relates to what they tell us
about various aspects of the judiciary, as discussed in this chapter. Make sure your case
note focuses on this fundamental issue.
The role and function of the judiciary in England and Wales has changed considerably
in recent years. Most importantly, the role of the Supreme Court (SC) and the Court
of Appeal (CA) in interpreting and applying human rights law and scrutinising official
decision making has drawn it into more politically sensitive areas. One of the main
themes of this chapter is the impact of the Human Rights Act 1998 (HRA) on what J.A.G.
Griffith called the politics of the judiciary. One impact of these changes is that the
judicial appointments process has attracted more public attention. In particular, the
continuing lack of diversity in the composition of the judiciary has come into focus.
The lack of accountability in the selection process has become a more pressing issue
in the light of the expanding role of the judges. In 2004 these concerns led to the
introduction of fundamental changes to the judicial appointments process.
In March 2012, the 25th Report on the House of Lords Constitution Committee on
Judicial Appointments reported as follows:
The principle of judicial independence, without which the rule of law is impossible, is
recognised as an essential feature of constitutional democracies around the world...
It is important not only that the judiciary act independently, but that they are seen to
do so. This principle also extends to the appointments process. Lord Justice Toulson,
Vice-Chairman of the JAC, noted that prior to the enactment of the CRA there was
widespread public concern that judges were being appointed through cronyism and
secret soundings...The establishment of the JAC was intended to put an end to such
concerns...As well as upholding independence and being open and transparent, the
judicial appointments process must be effective...Another principle relevant to judicial
appointments is diversity...
(paras 1419 available at: www.publications.parliament.uk/pa/ld201012/ldselect/
ldconst/272/27205.htm)
This provides a brief overview of the key concerns of this chapter. It is necessary that
you understand the basic structure and composition of the judiciary, but the critical
issues are outlined by the paragraph above. Thus, we need to focus on the relationship
between judges, particularly the senior Law Lords, and the rule of law; a concern which
raises issues about the nature of democracy. This relates to concerns with judicial
independence, but also the accountability and transparency of the system for judicial
appointments. Note that the issue of diversity is also fundamental. We will examine
the extent to which the judiciary are diverse, and relate this to the question of the
multicultural nature of the United Kingdom.
Essential reading
Gearey et al., Chapters 10 The politics of the judiciary revisited: rights,
Common law reasoning and institutions 8 The judiciary page 117
8.1 The judiciary: some basic facts
Activity 8.1
Go to: www.judiciary.gov.uk/about-the-judiciary/introduction-to-justice-system
and make notes on SC judges.
Then go to www.judiciary.gov.uk/about-the-judiciary/introduction-to-justice-
system/court-structure and make notes on the court system and the different
personnel of each court and tribunal.
8.1.1 Judges functions
Dispute settlement
Most judges spend the majority of their time on work relating to dispute settlement in
the civil and criminal courts. In the civil courts, this involves determining procedure,
deciding which facts are proved, applying settled law to those facts, reaching a
decision, writing a judgment setting out the reasons for that decision and deciding
on costs. In criminal cases, fact-finding is carried out by lay magistrates and juries.
Professional judges sit in the Crown Court with a jury and decide questions of law and
procedure, costs and sentencing. Since most defendants either plead guilty or are
found guilty, sentencing is a major function of a criminal judge. The sentencing system
in England and Wales, in contrast to that of other jurisdictions such as many US states,
offers a wider measure of judicial discretion.
Case management
Since 1999, when major reforms were introduced to the civil justice system following
the Woolf report, judges have spent much more of their time actively managing cases
before and during trial. Previously, judges usually came to court knowing very little
about a case and were expected to fulfil a limited referee role, leaving much of the
management of the case to the lawyers. Now, they must read the papers before the
trial and participate in decisions about matters such as which expert witnesses are to
be called.
Training
Changes such as the growth of case management, the introduction of the HRA and
the expansion in the range of sentencing options available to judges have increased
the need for the judiciary to receive appropriate training. Traditionally, judges did not
consider that training was necessary and indeed, regarded it as a potential threat to
their independence. The establishment in 1979 of the Judicial Studies Board, which
provides training to judges, was only considered acceptable because it was run by
judges for judges and the training provided was largely voluntary. Since then, however,
the range and amount of training has increased and judges now generally welcome
all the training they can get, although this still amounts to only a few days a year on
average.
Extra-judicial activities
In addition to the diverse range of judicial work which judges carry out, many also
fulfil a number of different responsibilities not directly related to their case load. Many
senior judges will be involved in decisions about staffing resources and deciding which
cases will be heard by which judges and when. Almost all judges will be involved in
the consultation process for the appointment to judicial office. Some will spend time
dealing with the media, advising on the use of information technology in the courts,
consulting with court users groups, receiving and giving judicial training, delivering
lectures and public speeches, writing journal articles and giving evidence to, or
heading, government inquiries.
Judicial review
Senior judges also play an important role in placing a check on official action. Over
the last 40 years, judges have developed the law of judicial review which gives them
the power to quash decisions that are illegal, because they go beyond the decision-
makers powers, or have been arrived at through an unfair or irregular procedure.
8.1.2 Do judges make law?
Essential reading
Gearey et al., Chapter 11 Judges and democracy, section entitled The judge and
the limits of the law.
The argument presented in Gearey et al. is that judges do make law. Gearey et al. argue
that the critical question relates not so much to the issue of judicial law making as
the legitimate boundaries of their practice. This issue is examined both in terms of
reasoning in cases the theory of public reason and in terms of legal reasoning and
statutory interpretation. Gearey et al. are concerned with the way in which judicial law
making has been affected by the HRA; a concern which can be linked to our analysis of
the politics of the judiciary in this chapter.
Consider the following argument:
In modern society, where the state is all-pervasive, [the] values [that] determine the
quality of our social existence [...] truly belong to the public and as a consequence,
the range of voices that give meaning to these values is as broad as the public itself. The
legislative and executive branches of government, as well as private institutions, have a
voice; so should the courts. Judges have no monopoly on the task of giving meaning to the
public values of the Constitution, but neither is there reason for them to be silent. They
too can make a contribution to the public debate and inquiry. Adjudication is the social
process by which judges give meaning to our public values.
(Fiss, pp.12)
The American jurist Owen Fiss is arguing that judges have an essential role in the
articulation of the values by which we live together in a political community. However,
the values that are argued over belong to the public. The current arguments are
over the rule of law and human rights. To clarify: Fiss argues that in a republic all
people contribute to the ongoing debate about the terms of common life (the public
thing). Judges do so through adjudication. This is very similar to the argument about
public reason in Gearey et al., and hence underlies the account of the judiciary in this
chapter.
In Chapter 11, Gearey et al. confront the question of the legitimacy of judicial law
making. The book relies on the work of Fiss to argue that judicial law making takes
place within very limited terms. Fiss is presenting a theory of judicial deference. This
is linked to the idea that judges take part in a democratic dialogue over the terms
of our social life, or, perhaps more prosaically, the meaning of the rules that define
political community. This is thought through in human rights terms, and linked to the
argument that human rights adjudication is political; or, rather, that it is very difficult
to trace a consistent line between legal and political decision making in this area.
Chapter 11 of Gearey et al. then makes use of some comparative material to make a
broader argument. The historical experience of judges in Nazi Germany and, more
recently, in Chile, suggests that there are indeed dangers in arguing that law and
judicial decision making has nothing to do with politics. The argument is that it
is perhaps better to acknowledge that judicial law making is political, and, in the
contemporary context of British law, to be clear about the terms in which judges
engage in a democratic dialogue over human rights. It might be worth considering
cases like EM and Lambuela in the light of this claim: it would be hard to argue that
either of these decisions are somehow illegitimate. Rather, both seem to be motivated
by humanitarian arguments that broaden and strengthen the rule of law.
So, interstitial law making and the development of the common law is an entirely
proper judicial activity. Developing a principled jurisprudence of human rights is also
entirely in keeping with what Parliament has instructed the judges to do in passing
the HRA. It may also be the case that a robust development of human rights law will
restrain executive power and realign the British constitution. To stress: human rights
limitations on executive action are coherent with notions of democracy and the
rule of law. This point also takes us to other concerns explored later in this chapter:
if the judges make law, and if this is in fact a vital part of a healthy and functioning
democracy, to what extent is the process of judicial appointment transparent and
accountable?
8.2 The politics of the judiciary and the HRA
Essential reading
Gearey et al., Chapter 10 The politics of the judiciary revisited: rights,
democracy, law, section entitled The politics of the judiciary.
Gearey et al. argue that the judicial role, and in particular that of judges of the SC, has
to be understood in the context of the HRA. Gearey et al. elaborate Griffiths thesis
that judges are inherently political. Griffith does not mean that judges are political in
the sense that they decide cases in favour of a political party. Rather, they are in the
position where they are forced to make political decisions; and that, at least in the
areas that Griffith studied, judicial decisions tended to support the establishment and
refrain from criticisms of government.
Chapter 10 of Gearey et al. argues that the history of judicial politics supports Griffiths
thesis. However, matters are slightly more complex. Judges have indeed been critical
of government and have made important decisions that are critical of policy even to
the extent that, as Stephen Sedley argues, judges have begun to address the problems
in British politics that are rooted in an overly powerful Parliament. The HRA has fed
into this subtle realignment of the constitution. Chapter 10 then returns to the claim
that there is now something of a dialogue between judges and Parliament, and that
judges have been less willing to be deferential to Parliament. This does not mean, of
course, that judges can use human rights to strike down Acts of Parliament.
R (Jackson and others) v A-G [2005] UKHL 56 is a key case for understanding the judges
perception of their role. Lord Bingham pointed out that the constitutional balance
has been thrown out, and the Commons, dominated by the executive, [has become]
the ultimately unconstrained power in the state (Jackson, para.41). However, his
speech is also noteworthy for stressing an important constitutional convention. It
is inappropriate for the House in its judicial capacity (para.41) to elaborate political
criticisms of the executive. The point made, though, corresponds with the arguments
made by Lord Steyn (para.102). The comment that the HRA created a new legal order
and the pure and absolute doctrine of Parliamentary sovereignty is out of place,
must be considered radical statements, even though they are obiter (we will examine
Lord Steyns speech below).
Central to the new politics of the judiciary is the development of a body of human
rights law. This uses the inspiration and resources of the HRA and the European
Court of Human Rights (ECtHR) to adopt European rights jurisprudence to a common
law context. This should not be seen as the courts attempting to usurp the will of
Parliament. The main thrust of the different judicial dicta and writings suggest that the
intention of the judges is to use the powers that Parliament has given them to remake
the checks and balances of the constitution.
Parliamentary sovereignty remains the cornerstone of the constitution. However,
Conor Gearty (www.conorgearty.co.uk/pdfs/SUPREME_COURTOctober2009.pdf) has
taken a more radical approach and has argued that parliamentary sovereignty is
itself a legal artifice (p.2). Parliament is supreme because the judges recognise it as
such: what the judges have made, they can unmake, or at least vary. The House of
Lords suggested in Jackson that there may be basic values...which not even an Act of
Parliament could lawfully contradict. These basic values are: respect for human rights
say as well as a right of access to the courts and perhaps also a commitment to the rule
of law (p.2 of Gearty). These arguments go some way beyond present constitutional
doctrines and envisage a constitutional revolution where judges effectively assert a
common law constitution founded on human rights. This would clearly be a significant
shift in the balance of power away from Parliament and to unelected judges. This is
problematic, and a fundamental realignment of the constitution is perhaps unlikely at
the time of writing.
However, it is worth remembering that an empowered judiciary protecting human
rights against the executive is not necessarily undemocratic. It would beg important
questions about how judges are appointed; questions that, as we will see, are
presently becoming more pressing within the contemporary terms of British politics.
Whether or not we want to subscribe to the argument that a dialogue between the
courts and Parliament is evidence of a shift in the balance of the constitution, it is clear
that the HRA has had a significant impact on the way in which judges conceive of their
role.
The HRA has led to developing tensions between the judges and Parliament. Whilst
there were often tensions between the judges and the New Labour government
(particularly over the response to terrorism), the change of government in 2010 has,
arguably, opened up a new chapter. In opposition, the Conservative Party had been
critical of the HRA. In May 2007 David Cameron stated that the civil liberties of the
suspect were being put first by the courts (see www.guardian.co.uk/politics/2006/
jun/26/conservatives.constitution). David Cameron argued that the HRA has brought
about a culture of rights without responsibilities. Conservative ministers see judicial
interference in Parliaments democratic mandate as extending human rights in a way
that compromises the will of the people. However, their room for political manoeuvre
is limited by the fact that they have to co-operate with their Liberal Democrat partners
who are committed to the HRA. Lord McNally, Minister of State for the Ministry of
Justice (at the time of writing) and a senior Liberal Democrat, has stated that he would
rather resign from the government than see the country withdraw from the European
Convention on Human Rights (ECHR).
A particular problem has arisen over prisoners rights. In Hirst v UK (No 2) [2005] ECHR
681, the ECtHR ruled that the blanket prohibition on prisoners voting was in breach
of the Convention. The basis of the Courts argument was that it was indeed up to
Parliament to decide whether any restriction on the right to vote should be tailored
to particular offences, or offences of a particular gravity. However:
there is no evidence that the legislature in the United Kingdom has ever sought to assess
the proportionality of the ban as it affects convicted prisoners. It cannot accept...that
an absolute bar on voting by any serving prisoner in any circumstances falls within an
acceptable margin of appreciation
(para.41).
Thus, it might be the case that the ECtHR is again standing up for the rule of law. The
rule of law requires that the power of the executive be defined by rules and come out
of a rational rule making process. It would appear that the blanket ban does not come
out of any such considerations.
Further reading
Gearey et al., Chapter 8 The mirror and the dialogue: the common law,
Strasbourg and human rights, section entitled Coda: prisoners rights.
8.3 Torture, terrorism and justice
Essential reading
Gearey et al., Chapter 8 The mirror and the dialogue: the common law,
Strasbourg and human rights, section entitled Fighting terms? Overruling
the House of Lords; Chapter 10 The politics of the judiciary revisited: rights,
democracy, law, section entitled The judges, the executive and the response to
terrorism and The judges, Parliament and The Dialogue and Chapter 14 Open
justice, closed procedures and torture evidence, section entitled Extradition
and Article 6.
Chapter 10 of Gearey et al. (The judges, the executive and the response to terrorism)
gives us the essential context for our discussion of the key case: A v Secretary of State
for the Home Department [2005] 2 WLR 87 and A v Secretary of State (No 2) [2005] UKHL
71. We will examine one of the major points made in the ratio of the case. After the
attack on the World Trade Center in 2001, the British government asserted that there
was a public emergency threatening the life of the nation. (A v Secretary of State for
the Home Department [2005] 2 WLR 87). Declaring a public emergency allowed the
government to derogate from Article 5(1) of the ECHR, and using powers under s.23
of the Anti-terrorism, Crime and Security Act 2001, invoke powers of detention for
non-nationals if the Home Secretary suspected that they were engaged in terrorism.
The point that must be stressed is that although the House of Lords agreed with the
political decision government, they held that:
where Convention rights were in issue national courts were required to afford them
effective protection by adopting an intensive review of whether such a right had been
impugned, and the courts were not precluded by any doctrine of deference from
examining the proportionality of a measure taken to restrict such a right; that the right to
personal liberty was among the most fundamental rights protected and the restrictions
imposed by section 23 of the 2001 Act called for close scrutiny
(A v Secretary of State for the Home Department [2005] 2 WLR 87)
The House of Lords went on to hold that the governments use of s.23 was a
disproportionate response to the terrorist threat that the country faced. The
governments response discriminated against UK non-nationals and was inconsistent
with the UKs international human rights obligations.
This case shows the House of Lords asserting their constitutional right to scrutinise
Acts of Parliament. Is this justifiable? Note that the House of Lords are not striking
down or declaring void the 2001 Act. They are effectively stating that the Home
Secretary has exceeded the powers that the relevant Acts give him. The House of Lords
is careful to state that they are not questioning Parliaments political judgement. This
would be constitutionally improper. They are acting to ensure government according
to the law. Not just this: they are ensuring that Parliament does not unduly restrict the
rights and liberties of British citizens. Lord Hoffmann (although he dissented on the
point relating to the existence of a national emergency) puts the argument about the
courts role in a particularly powerful way:
The Home Secretary has adduced evidence, both open and secret, to show the existence
of a threat of serious terrorist outrages. The Attorney General did not invite us to examine
the secret evidence, but despite the widespread scepticism which has attached to
intelligence assessments since the fiasco over Iraqi weapons of mass destruction, I am
willing to accept that credible evidence of such plots exists. The events of 11 September
2001 in New York and Washington and 11 March 2003 in Madrid make it entirely likely
that the threat of similar atrocities in the United Kingdom is a real one...Of course
the Government has a duty to protect the lives and property of its citizens. But that
is a duty which it owes all the time and which it must discharge without destroying
our constitutional freedoms. There may be some nations too fragile or fissiparous to
withstand a serious act of violence. But that is not the case in the United Kingdom. When
Milton urged the government of his day not to censor the press even in time of civil war,
he said: Lords and Commons of England, consider what nation it is whereof ye are, and
whereof ye are the governors.
...The real threat to the life of the nation, in the sense of a people living in accordance
with its traditional laws and political values, comes not from terrorism but from laws such
as these. That is the true measure of what terrorism may achieve. It is for Parliament to
decide whether to give the terrorists such a victory
(A v Secretary of State for the Home Department [2005] 2 WLR 87, pp.13435).
Lord Hoffmann stresses that although the government has a duty to protect the lives
and property of its citizens, the real threat comes from restrictions on liberty, not
from terrorism itself. Lord Hoffmann is urging us to weigh up the threat posed by
terrorism and that posed by restrictive laws. He quotes the poet John Milton to give his
point cultural authority. Even though the threat posed by terrorism is significant, it is
not to be overestimated. Consider the following point:
I think that it was reasonable to say that terrorism in Northern Ireland threatened the life
of that part of the nation and the territorial integrity of the United Kingdom as a whole.
In a community riven by sectarian passions, such a campaign of violence threatened the
fabric of organised society. The question is whether the threat of terrorism from Muslim
extremists similarly threatens the life of the British nation.
It is interesting that Lord Hoffmann turns back to the IRA and terrorism in Northern
Ireland. It is as if his judgment has to be read in the shadows cast by the miscarriage
cases that we discussed above. Lord Hoffmanns real fear is not so much terrorism, as
the threat that innocent people will suffer punishment.
A v Secretary of State (No 2) [2005] UKHL 71 also concerns the 2001 Act. The case takes
us directly to another deeply troubling feature of the so called war against terror
and the use of torture evidence. Torture represents the most profound and egregious
breach of due process and the rule of law. Throughout this subject guide we have
argued in different ways that law is about rational argument. One of the key values
of due process is that the courts should be transparent and their rulings based on
sound arguments. Evidence obtained by torture is simply an expression of power and
violence and has no probative value. Lets examine the ratio of A (No 2):
Held...that evidence of a suspect or witness which had been obtained by torture had long
been regarded as inherently unreliable, unfair, offensive to ordinary standards of humanity
and decency and incompatible with the principles on which courts should administer
justice, and that, in consequence, such evidence might not lawfully be admitted against
a party to proceedings in a United Kingdom court, irrespective of where, by whom or on
whose authority the torture had been inflicted; that the Secretary of State did not act
unlawfully in relying on such tainted material when certifying, arresting and detaining
a person under the 2001 Act whom he suspected of international terrorism; but that
the commission was established to exercise judicial supervision of his exercise of those
powers and was required to assess whether at the time of the hearing before it there
were reasonable grounds for his suspicion; that, although it might admit a wide range of
material which was inadmissible in judicial proceedings, express statutory words would
be required to override the exclusionary rule barring evidence procured by torture; that
the wording of rule 44(3) could not be interpreted as authorising the displacement of that
rule and that, accordingly, the commission could not admit such evidence
(A v Secretary of State (No 2) [2005] 3 WLR 1250).
The ratio begins by asserting that torture evidence is unreliable, unfair, offensive
to ordinary standards of humanity and decency and should not be used in court.
However, although the Home Secretary could make use of such evidence in certifying,
arresting and detaining a person under the 2001 Act, a body sitting in a judicial
capacity could not. It would require express wording in an Act of Parliament to
override the principle that torture evidence is incompatible with the principles on
which courts should administer justice. Whilst the admission that the Home Secretary
can make use of tainted material is somewhat worrying, we can perhaps also see
the importance of the House of Lords assertion of the necessity of due process in
preserving the integrity of judicial proceedings.
Terrorism raises difficult problems for the police and the courts. Unlike conventional
crimes, terrorism strikes at the very idea of the rule of law. It seeks to use violence
towards a political end. The risk is that in responding to terrorist violence, a state that
claims to be founded and guided by the rule of law reveals that it too is essentially an
order of violence. A and A (No 2) show the House of Lords attempting to define that
narrow and difficult line that divides the legitimate defence of a democratic order
from disproportionate and ill-judged actions.
The problem of torture appears again in Othman (Abu Qatada) v UK (2012) 55 EHRR 1,
concerning the radical Islamic preacher Abu Qatada. The British government wanted
to deport Qatada to Jordan to face trial for terrorism-related offences. The ECtHR
held that as there was a real risk that torture evidence would be used against Qatada
his deportation would be in breach of the ECHR. The ECtHR cited Lord Bingham in its
judgment:
As Lord Bingham observed in A and others no.2, torture evidence is excluded because
it is unreliable, unfair, offensive to ordinary standards of humanity and decency and
incompatible with the principles which should animate a tribunal seeking to administer
justice. The Court agrees with these reasons... The trial process is a cornerstone of the rule
of law. Torture evidence damages irreparably that process; it substitutes force for the rule
of law and taints the reputation of any court that admits it. Torture evidence is excluded
to protect the integrity of the trial process and, ultimately, the rule of law itself...
This is clearly inconvenient to the British government; it also shows how the human
right to a fair trial is important and how in making such a ruling the courts are
standing up for the rule of law.
Go back to the notes you made in Chapter 7 of this subject guide on statutory
interpretation, as they are also useful to our present discussion. The notes you made
on the essay in Chapter 4 of this subject guide will also be relevant.
Summary
The HRA has provoked something of a realignment of the relationship between
the courts and Parliament. This begs much broader questions about the nature of
democracy, and indeed, Griffiths thesis on the politics of the judiciary. Tensions
between the judges and Parliament can also be related to recent rulings of the ECtHR.
Activity 8.2
Read the following extract from Lord Steyns speech in R (Jackson and others) v A-G
[2005] UKHL 56 and answer the question below it:
...we [thus come to the point about] the supremacy of Parliament. We do not in the United
Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts.
In the European context the second Factortame decision [1991] 1 AC 603 made that clear.
The settlement contained in the Scotland Act 1998 also point to a divided sovereignty.
Moreover, the European Convention on Human Rights as incorporated into our law
by the Human Rights Act 1998, created a new legal order. One must not assimilate the
European Convention on Human Rights with multilateral treaties of the traditional type.
Instead it is a legal order in which the United Kingdom assumes obligations to protect
fundamental rights, not in relation to other states, but towards all individuals within
its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of
Parliament, pure and absolute as it was, can now be seen to be out of place in the modern
United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle
of our constitution. It is a construct of the common law. The judges created this principle.
If that is so, it is not unthinkable that circumstances could arise where the courts may
have to qualify a principle established on a different hypothesis of constitutionalism. In
exceptional circumstances involving an attempt to abolish judicial review or the ordinary
role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court
may have to consider whether this is constitutional fundamental which even a sovereign
Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is
not necessary to explore the ramifications of this question in this opinion. No such issues
arise on the present appeal
(para 102).
Outline Lord Steyns argument. What is the significance of his argument that the
supremacy of Parliament derives from the common law?
8.4 Judicial independence and judicial accountability
The debate about the media coverage of judges decisions raises the problem of
judicial accountability. Judges are not held accountable in the same way as politicians
are through elections. Instead, they are accountable in the sense that their decisions
are taken in public, are reported and can be appealed against to a higher court.
Judges claim that this makes them one of the most highly scrutinised and publicly
accountable bodies in the state. However, because the judiciary is increasingly
required to make decisions that are politically and ethically controversial, demands
are growing for judges to engage in debate and to respond more directly to public
criticism.
Judicial independence is the principle that judges must be free from improper
pressure in their decision making in order to ensure their impartiality. It is protected
in a number of ways, the most important of which are security of tenure and salary.
The need for independence must be balanced against the requirement of judicial
accountability. This is promoted by public decision making, the appeals process and
a willingness on the part of judges to engage in appropriate public debate about the
courts and the legal system.
Activity 8.3
Go to www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/jud-acc-ind
and make further notes on the independence and accountability of judges.
8.5 The judicial appointments process
Essential reading
Gearey et al., Chapter 11 Judges and democracy, section entitled Judges,
accountability and the rule of law.
England and Wales does not have what is called a career judiciary as is found in other
European countries. Judges are appointed from among successful lawyers in practice.
One result of this practice is that most judges are older than in many other European
countries. Traditionally, all senior judges and most lower-ranking judges were formerly
barristers. This practice has begun to change. Solicitors now make up just under half
of the lower-ranking judges and are starting to be appointed to the higher ranks of the
judiciary.
Before 2004, judges of the CA and above were chosen by the Queen, on the
recommendation of the Prime Minister, acting on the advice of the Lord Chancellor.
For High Court judges and below, the Prime Minister played no role and the Queen was
advised by the Lord Chancellor directly. This system, in which judicial appointments
were effectively in the hands of the Lord Chancellor, might have worked well when
the judiciary was very small and almost all of its members were chosen from senior
members of the Bar, most of whom the Lord Chancellor knew personally (although,
such a system could clearly be criticised for promoting people on the basis of personal
links rather than ability). As the system expanded and concerns about independence,
accountability and lack of transparency began to grow, pressure to reform the system
also increased. In 2000, a limited judicial appointments commission was established
in response to these concerns. This commission held the power to advise on the
appointments process and to review individual cases, but not to play a part in the
appointments decisions themselves. In 2002, the commission produced a critical
report on the appointments process, which added to the pressure for change. The
Constitutional Reform Act established a completely new system in which judges are
appointed by an independent judicial appointments commission. Approximately 900
full- and part-time judges are appointed each year, making it a major administrative
process. There is an annual competition cycle and all judicial positions below the CA
are now advertised. A consultation process plays a central part in the appointment of
judges, and allows the advice of senior members of the legal profession to be taken
into account in assessing the suitability of an individual for the role for which he/she
has applied.
This process is described by critics as a secret sounding
system. The former Lord

Chancellor, Lord Irvine, fiercely defended the system as a highly professional and
Sounding in the sense

of taking soundings. This
expression originally meant
measuring the depth of water
to see whether it was safe for
a ship to proceed. It came to
mean testing opinion.
effective means of obtaining a wide range of different views and opinions of
candidates. Nevertheless, criticism remains strong, and lawyers from non-traditional
backgrounds in particular remain sceptical about the fairness of the system.
The Judicial Appointments Commission (JAC) is an independent non-departmental
public body which was created on 3 April 2006 as part of the reforms following the
Constitutional Reform Act 2005. It takes over a responsibility that was previously in the
hands of the Lord Chancellor and the Department for Constitutional Affairs (previously
the Lord Chancellors Department), although the Lord Chancellor retains responsibility
for appointing the selected candidates. The Lord Chancellor has also given up his other
judicial functions, including the right to sit as a judge in the House of Lords.
The Commission launched its new system on 31 October 2006 when it was used for the
first time to select up to 25 new High Court judges.
The JAC is separate from the Commission for Judicial Appointments (CJA). The CJA was
established in March 2001 to review the procedures for the appointment of judges and
Queens Counsel (QCs), and to investigate complaints into those procedures. It closed
on 31 March 2006 with the establishment of the JAC and the Judicial Appointments and
Conduct Ombudsman (JACO). A separate Judicial Appointments Board for Scotland and
Northern Ireland Judicial Appointments Commission undertake similar functions for
Scotland and Northern Ireland, respectively.
You are advised to go to the JAC website at: www.judicialappointment.gov.uk
You are further advised to download the speech made by the JAC Chairman Baroness
Prashar as the Middle Temple Guest Lecture, 6 November 2006. This is found at:
www.judicialappointments.gov.uk/news/speeches.htm
To what extent is the process for the appointment of judges accountable and
transparent?
The selection of judges by a politician, the Lord Chancellor, traditionally provided an
element of accountability in the system by maintaining the link between the judiciary
and elected representatives. This argument was very much weakened, however, by
the fact that the Lord Chancellor was not elected. In most parliamentary systems in
which judges are appointed by the executive, the selection function is carried out by
a Minister of Justice who is also an elected member of the legislature and so is directly
accountable for his or her decisions. Under the new arrangements, the process in
England and Wales will therefore be closer to most other common law systems.
Since judicial independence requires that judges are, to some extent, removed from
the pressures of direct democratic accountability, one other channel through which
the appointments process can be subject to public scrutiny is the media. So far, judicial
appointments have received relatively little media coverage, but the appointment of
the SC judges are likely to attract more interest in the future.
Openness
These various means of public accountability can only be effective if the system itself
is open to scrutiny. Until a few years ago, very little was known about the mechanics
by which the Lord Chancellors Department appointed the judges. In the 1980s, in
response to criticisms of lack of transparency, the department introduced a number
of changes designed to open up the process. For the first time, it published its policies
and procedures, job descriptions and selection criteria. In 1998, the department began
to produce an Annual Report, explaining the priorities and goals of the process and
setting out figures for applicants and appointments for all the ranks. The JAC continues
this practice. Nevertheless, there is still criticism of the lack of openness in the
consultation process.
Diversity and the judiciary
What is at stake in arguments for a more diverse judiciary? First of all, we need to
consider some figures:
Although overall levels of judicial diversity may not at first glance seem drastic 4% of
judges are from minorities and 19% are women it gets worse the higher you climb. Its
impossible to ignore the fact that there are no minority judges and only one woman on
the Supreme Court
(A. Hirsch, Guardian, 25 February 2010, available at www.guardian.co.uk/commentisfree/
henryporter/2010/feb/25/minority-judges-diverse-uk).
The low levels of diversity in the judiciary perpetuate certain networks of privilege and
make it appear that personal, cultural and educational connections, rather than ability,
determine appointment to judicial office. As the House of Lords Select Committee on
Judicial Appointments pointed out:
At one level this means that the process must be... fair and non-discriminatory: by that
we mean that it must continue to result in the appointment of high quality judges, but
without the imposition of barriers against talented legal practitioners from any section of
society. However, the issue of diversity goes further than this: we received evidence, with
which we concur, arguing that diverse courts are better equipped to carry out the role of
adjudicating than courts that are not diverse and that the public will have greater trust
and confidence in a more diverse judiciary...
Diversity is justified by the need for equal opportunities within the legal profession,
but also because it would make judges more sensitive to the problems that they
are adjudicating. There is also the important sense that there will be greater public
trust in a judiciary that is not culturally and ethnically homogenous. However, there
are problems which were aired before the House of Lords. Lord Phillips made an
interesting interjection:
Are we setting out to make sure those who are appointed as judges are best fitted to carry
out the duties of the judge, or are we trying to do other things at the same time to make
sure judges reflect society or that the appointment system is a democratic system? It will
not necessarily lead to the same result.
Lord Irving picked up on the issues relating to diversity in the judiciary. He stressed
that the 2005 Constitutional Reform Act aimed to balance diversity and merit.
Discussion then focuses on what equally qualified might mean. The term comes from
s.159 of the Equality Act 2010. Whilst agreeing in principle that the provisions are both
relevant and necessary, their Lordships cast doubt on the robustness of the definition
of equality. Lord Irving expresses his fear that this would indeed call into question the
integrity of the process. Lord Pannick further picks up on these misgivings: he states
that the concept of merit might not be sufficiently broad to allow the appointing
body to take into account the relevant questions. These considerations show that
the matter is seriously debated, but the risk is that without some form of robust
action, historical patterns of promotion to high office simply repeat themselves. The
subtle ways in which a certain elite perpetuate their own networks of preferment and
privilege remain resistant to change.
Reassessing accountability
Should judicial confirmation hearings be brought in to deal with the matters that we
have been thinking about above? A recent paper has asked whether confirmation
hearings would provide an opportunity to examine an individual candidates politics
before they were invited to take judicial office. Such a practice is an accepted part
of politics in the United States. So far, proposals for confirmation hearings have not
found acceptance in UK politics. The Commons Committee that considered the issue
did not accept that confirmation hearings would ensure confidence in the judiciary.
The Committee felt that MPs did not have the competence to make an assessment
of the legal skills of appointees; more significantly, confirmation hearings would be
inconsistent with the move to take the Supreme Court out of the potential political
arena (A. Horne The changing constitution: a case for judicial confirmation hearings?
Study of Parliament Group Paper No. 1 (London: 2010), available at
www.studyofparliament.org.uk/spg-paper-1.pdf, p.29).
However, the Committee did suggest that it was possible to engage with the judiciary
in a constructive dialogue on constitutional issues (Horne, 2010). The Ministry of
Justices Green Paper on the Governance of Britain also considered a more enhanced
role for Parliament in judicial appointments. Although the government rejected both
confirmation hearings and Parliamentary input in appointments, there was a proposal
that a meeting of the Commons Justice Committee and the Lords Constitution
Committee could hold the system to account on an annual basis (Horne, 2010, p.30).
The issue will not go away. Horne quotes Bogdanor: the more that judges are asked
to provide the answers to complex moral and political questions, which are the
subject of debate in society, the greater will be the pressure to make them politically
accountable (Horne, 2010, p.34) the critical issue is the extent to which a process of
ensuring accountability is consistent with the fundamental idea of the independence
of the judge.
Summary
The Constitutional Reform Act 2005 created a new system for the appointment of
judges and magistrates. Although it was meant to have brought to an end the use of
secret soundings, questions still remain about the openness and transparency of the
appointments system. There are also concerns about the diversity of the judiciary; and
an increased interest in judicial confirmation hearings.
The examinable areas covered in this chapter are:
The politics of the Judiciary and the impact of the HRA.
Fiss account of judicial deference and judicial law making.
The Judicial response to terrorism and torture evidence.
The Judicial appointments system and Judicial accountability.
Question 1 The selection and training of the judiciary is even more important now
that the Human Rights Act has come into force. Discuss.
Question 2 Are we setting out to make sure those who are appointed as judges are
best fitted to carry out the duties of the judge, or are we trying to do other things at
the same time to make sure judges reflect society or that the appointment system
is a democratic system? It will not necessarily lead to the same result. (Lord Phillips
on reforms of the judicial appointments system). Discuss.
Question 3 The creation of a Supreme Court has fundamentally changed the role
of the Law Lords. There is now a more confrontational position between the judges
and Parliament. This is healthy in a democracy. Discuss.
Discuss with reference to the judicial approach to torture evidence.
Question 1 This is potentially a very wide question which requires you to cover a lot
of material concisely. You therefore need to practise summarising some of the main
facts and issues set out below.
The phrase even more important is an invitation to cover some general points about
why selection and training are important at all.
Starting with training, you need to outline the current training arrangements. Then
consider the background and experience of judges, including the fact that they are
not trained for the job but come straight from practice. Also mention the need for
judges to carry out a range of jobs, many of which they may not have done before.
Distinguish between training in the substantive law and training on subjects such as
case management, judicial ethics, discrimination in the legal system and so on.
Under selection, you need to outline briefly the current system and the different
demands made of it in terms of independence, accountability, openness and diversity
of composition.
Next, you need to examine briefly the implications of the HRA, highlighting the
increasing role it gives to judges in deciding on sensitive political and ethical matters
and reinterpreting statutes.
Link this section to the two earlier sections by explaining why this new approach
requires different or more training and reforms to the judicial appointments process.
Discuss the strengths and weaknesses of the different proposals for reforms.
Question 2 This question concerns the tensions between a representative judiciary and
appointment on merit. The fundamental problem is that, despite the operation of the JAC,
the pattern of appointments does not seem to have changed, and, as far as the public is
concerned, the process appears difficult to scrutinise. Lord Phillips, speaking to the House
of Lords Constitution Committee in May 2011, maintains that the system of appointments
to the SC as presently configured allows those who are most familiar with a candidates
track record to make the necessary assessment of their abilities and suitability for high
judicial office. The reasons for an appointment are made known to the Lord Chancellor,
but not to the public at large. It might be that opening up judicial appointments also
requires reforms that make the whole process more transparent to public scrutiny.
Question 3 It would perhaps be difficult to argue that the SC has fundamentally
changed the role of the Law Lords this would perhaps only be the case if the SC had
the power to strike down Acts of Parliament. Clearly, this fundamental realignment of
the constitution was not at stake in the creation of the SC. Although concerns about
the separation of powers were to the fore, it would perhaps be best to see the SC as
a modest reworking, rather than a fundamental change in the relationship between
the Law Lords and Parliament. A good answer would perhaps extend this argument
into considerations of human rights; and consider cases like Jackson. It is arguable
that there is a kind of dialogue between the Law Lords and Parliament, and to some
extent judicial deference to Parliament is perhaps not as marked as it once was. A
good answer would also engage with the extent to which it is healthy in a democracy
that judges confront Parliament. There are clearly arguments on either side here, but a
good answer should make a clear statement for or against an empowered judiciary; a
really good answer would also link this issue back to the creation of a SC and meditate
on the relationship between institutional and broader political changes in law.
Quick quiz
Question 1 J.A.G. Griffith famously argued:
My thesis is that the judges in the UK cannot be politically neutral because they are placed
in positions where they are required to make political choices which are sometimes
presented to them, and often presented by them, as determinations of where the public
interest lies; that their interpretation of what is in the public interest and therefore
politically desirable is determined by the kind of people they are and the position they
hold in society; that this position is part of established authority and so is necessarily
conservative and illiberal.
Which one of the statements below most accurately sums up Griffiths argument?
a. Judges are political because they have to make determinations of where the
public interest lies. They interpret this in terms of their own conservative and
illiberal ideas.
b. Judges are political because they are all members of the Conservative Party.
c. Judges are political because their decisions are informed by their personal
values.
d. Judges are not political; they are neutral umpires.
Question 2 In R (on the application of ProLife Alliance) v BBC, Lord Hoffmann argued
that:
The principle that the independence of the courts is necessary for a proper decision
of disputed legal rights or claims of violation of human rights is a legal principle. It is
reflected in article 6 of the Convention. On the other hand, the principle that majority
approval is necessary for a proper decision on policy or allocation of resources is also
a legal principle. Likewise when a court decides that a decision is within the proper
competence of the legislature or executive, it is not showing deference. It is deciding the
law.
What did he mean?
a. The independence of the courts, like the sovereignty of Parliament, is a legal
principle.
b. Article 6 defines the principles of the independence of the courts.
c. Courts should show deference to Parliament.
d. Human rights inform the constitution of the United Kingdom.
Question 3 Lord Steyn in Jackson argued that:
The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure
and absolute as it was, can now be seen to be out of place in the modern United Kingdom.
Nevertheless, the supremacy of Parliament is still the general principle of our constitution.
It is a construct of the common law. The judges created this principle. If that is so, it is
not unthinkable that circumstances could arise where the courts may have to qualify
a principle established on a different hypothesis of constitutionalism. In exceptional
circumstances involving an attempt to abolish judicial review or the ordinary role of the
courts, the Appellate Committee of the House of Lords or a new Supreme Court may
have to consider whether this is a constitutional fundamental which even a sovereign
Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is
not necessary to explore the ramifications of this question in this opinion. No such issues
arise on the present appeal.
What does he mean?
a. The sovereignty of Parliament is a creation of the common law. As such the
judges could change it.
b. The courts are always bound by Parliament.
c. The sovereignty of Parliament is no longer an accurate description of how
the UK constitution operates.
d. Lord Steyn is declaring that Parliament is no longer sovereign.
Question 4 Owen Fiss asserts that:
[the] [j]udges capacity to make a special contribution to our social life derives not from
any personal traits or knowledge, but from the definition of the office in which they find
themselves and through which they exercise power. That office is structured by both
ideological and institutional factors that enable and perhaps even force the judge to be
objective - not to express his preferences or personal beliefs, or those of the citizenry, as to
what is right or just, but constantly to strive for the true meaning of the constitutional value.
Why, for Fiss, can judges make a contribution to our social life?
a. Judges have strong individual voices in which to articulate their personal
visions.
b. Judges have a law making power that operates through their discretion.
c. The office of the judge requires the judge to be objective and to work out the
true meaning of the constitution.
d. The office of the judge allows the judge to intervene in politics and assert his or
her personal vision.
Further reading
McLachlin, B. Judicial independence: a functional perspective in Andenas,
M. and D. Fairgrieve Tom Bingham and the transformation of the law: a liber
amicorum. (Oxford: Oxford University Press, 2009) [ISBN 9780199566181].
u Have you identified the key points of the leading cases listed at the beginning of this
chapter, having compiled your own case notes on them?
u What are the main functions of the judiciary?
u Explain and assess some important scholarly arguments about whether and how far
judges can be said to make law.
u What are the effects of the HRA on the politics of the judiciary, in particular on the
relationship of the judiciary to Parliament?
u How do judges treat evidence derived from torture?
u Why are judicial accountability and independence important, and why may there be
tension between them?
u What is the system for appointing judges, how has it changed in recent years and is it
satisfactory in the light of critiques about openness, diversity and accountability?
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
9.1 The values of civil procedure . . . . . . . . . . . . . . . . . . . . . . 133
9.2 The independence of the court and the prohibition on bias . . . . . . . 133
9.3 Access to justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
9.4 Open justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
9.5 Closed material proceedings . . . . . . . . . . . . . . . . . . . . . . 143
9.6 Alternative dispute resolution (ADR) . . . . . . . . . . . . . . . . . . . 146
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
9 Introduction to civil justice
Introduction
Essential reading
Gearey et al., Chapters 12 The integrity of the court: judgment and the
prohibition on bias 13 The value of participation: the rights of the defence,
equality of arms and access to justice, 14 Open justice, closed procedures and
torture evidence, and 15 Imagining civil justice
Civil Procedure rule 31.3.
Make case notes for:
Porter v Magill [2002] 2 AC 359; Steel and Morris v UK (App no 68416/01); English v
Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; Al Rawi v Security Service [2010]
EWCA Civ 482; R (Mohamed) v Secretary of State for Foreign and Commonwealth
Affairs [2010] EWCA Civ 158; Abu Qatada v UK (2012) 55 EHRR 1.
This chapter provides an introduction to civil justice. Our discussion is organised by
the argument that civil procedure is animated by key values of integrity, participation
and open justice. Keep in mind the kind of questions which you will face in the
examination (examples are provided in this chapter) to organise your reading,
research and thinking in this area of the course.
After an opening review of the principles that underlie the civil courts we will examine
the issues of bias and idea of the integrity of the courts. We will then examine the
principle of access to justice. The final sections will look at alternative dispute
resolution (ADR) and the practical realities of civil litigation.
Common law reasoning and institutions 9 Introduction to civil justice page 133
9.1 The values of civil procedure
Essential reading
Gearey et al., Chapter 15 Imagining civil justice, section entitled Introduction:
from Bleak House to the post-Woolf landscape.
What principles should inform the civil justice system itself? We are concerned with
fundamental procedural guarantees that should ensure due process (N. Andrews
English civil procedure: fundamentals of the new civil justice system (Oxford: Oxford
University Press, 2003) p.49). The fundamental principles that underlie civil procedure
are, in the most general sense, principles of natural justice that are known by their
latin tags: nemo judex in causa sua (no-one should be the judge at their own trial) and
audi alteram partem (both sides to a dispute should be heard by the court). You will
study the rules of natural justice in public law, and you do not need to know a great
deal about them to understand our discussion of civil justice. It is important, though,
that you appreciate that the first principle correlates with the rule against bias; the
second with the fundamental idea that there are two parties to a dispute, and the
court must give each an equal chance to present their case and be heard. So, nemo
judex in causa sua corresponds with the idea that a fair trial involves an independent
and unbiased tribunal. This is what we have called the integrity principle. Audi alteram
partem relates to what we have described as the participation principle. Although
neither nemo judex in causa sua or audi alteram partem mention open justice, they can
be coordinated with this third requirement of a fair trial. Indeed, you could argue that
the principle of open justice is implicit in natural justice. The requirement that justice
is done in an open court allows us to know that the court has not been biased, and
that the plaintiff and defendant have had broadly equal opportunities to present their
arguments.
9.1.1 Integrity, participation and open justice
Essential reading
Gearey et al., Chapters 2 Introduction Part II, 12 The integrity of the court:
judgment and the prohibition on bias, 13 The value of participation: the rights
of the defence, equality of arms and access to justice, 14 Open justice, closed
procedures and torture evidence.
It is worth remembering that Gearey et al. use the ideas of integrity, participation and
openness in a fairly narrowly defined way. This is for the sake of analytical precision
in terms of the argument of the book. However, these terms are somewhat related.
For instance, one could argue that access to justice relates to the integrity of the
procedure, rather than the participation principle.
The easiest approach to these issues might be to follow the analysis deployed by
Gearey et al. (and this subject guide). If one does this, then the principle of integrity
will always correspond with a set of issues and cases; the principles of participation
and open justice likewise.
However, one could take a slightly more adventurous and critical route. One might
argue, for instance, that access to justice is indeed part of the principle of integrity.
As long as one has an argument to justify this point, and one deploys the argument
consistently, there would be no penalty for disagreeing with the argument of Gearey
et al.
9.2 The independence of the court and the prohibition on bias
Essential reading
Gearey et al., Chapter 12 The integrity of the court: judgment and the
prohibition on bias, section entitled Independent and impartial tribunal and
The test for bias.
Chapter 2 of Gearey et al. argues that the civil courts have to have the moral authority
to determine the rights and liabilities of those who come before them. One of the
main principles that guarantees the authority of the court is the principle that
it should be independent. These themes connect the arguments of Chapter 2 of
Gearey et al. with those of Chapter 12 of Gearey et al. Gearey et al. shows that the
independence of the Court can be studied from the perspective of Article 6.
u Note the impact of Article 6 jurisprudence on the system of military justice in the
United Kingdom.
u One of the most important aspects of the principle of independence is the rule
against judicial bias.
u The significant cases come after the celebrated Pinochet litigation, which
concerned the old common law test based on the authority R v Gough [1993] AC
658. Porter v Magill [2002] 2 AC 359 established a new test for bias, amending the
old common law test established in R v Gough. In Porter, Lord Hope discussed
the impact of Article 6 and the European Court of Human Rights (ECtHR). He also
looked at a passage in Re Medicaments and Related Classes of Goods (No 2) [2001] 1
WLR 700 (also known as Director General of Fair Trading v Proprietary Association of
Great Britain). Lord Hope argued that:
When the Strasbourg jurisprudence is taken into account, we believe that a modest
adjustment to the test of R v Gough is called for, which makes it plain that it is, in effect, no
different from the test applied in most of the Commonwealth and in Scotland. The court
must first ascertain all the circumstances which have a bearing on the suggestion that the
judge was biased. It must then ask whether those circumstances would lead a fair-minded
and informed observer to conclude that there was a real possibility, or a real danger, the
two being the same, that the tribunal was biased.
Lord Hope went on to formulate a test that was accepted by the Court in Porter:
I respectfully suggest that your Lordships should now approve the modest adjustment of
the test in R v Gough set out in that paragraph. It expresses in clear and simple language
a test which is in harmony with the objective test which the Strasbourg Court applies
when it is considering whether the circumstances give rise to a reasonable apprehension
of bias. It removes any possible conflict with the test which is now applied in most
Commonwealth countries and in Scotland. I would however delete from it the reference
to a real danger. Those words no longer serve a useful purpose here and they are not
used in the jurisprudence of the Strasbourg Court. The question is whether a fair-minded
and informed observer having considered the facts would conclude that there was a real
possibility that the tribunal was biased.
This test was further elaborated in Jones v DAS Legal Expenses Insurance Co Ltd and others
[2003] WL 21554681. In this case, the Court of Appeal (CA) heard an appeal from an
employment tribunal that had presided over a sex discrimination case. The appeal
was based on the fact that the chairwoman of the employment tribunal was married
to a barrister whose chambers took work from DAS, the company that employed the
appellant. The appeal was dismissed.
In Jones, the CA returned to a point that had been raised in Re Medicaments. The task
of the court is to scrutinise all the circumstances which are relevant to the allegation
that the judge was biased. In Re Medicaments, the court stated that this scrutiny would
include the following questions:
The material circumstances will include any explanation given by the judge under review
as to his knowledge or appreciation of those circumstances. Where that explanation
is accepted by the applicant for review it can be treated as accurate. Where it is not
accepted, it becomes one further matter to be considered from the viewpoint of a fair-
minded observer. The court does not have to rule whether the explanation should be
accepted or rejected. Rather, it has to decide whether or not the fair-minded observer
would consider that there was a real danger of bias notwithstanding the explanation
advanced.
In Jones, the court tried to analyse further the precise meaning of this test. On the facts
of the case, it meant that the test should be applied in the following way: the court
is not concerned with precisely what the chairwoman of the tribunal knew. Since,
following Locabail [2000] 1 All ER 65, the presumption is upon disqualification, the
fair-minded observer would proceed upon a basis that Mrs Harper knew in general
how the system operated and that her husband was to some extent a beneficiary of it
even if she did not know all of the detail. This brings us to a second question: would
a fair-minded and informed observer then conclude that there was a real possibility
that the tribunal was biased?
Again, we must seek help in understanding this test from recent case law. What
qualities must the hypothetical fair-minded and informed observer possess? In Taylor
v Lawrence [2003] QB 528, the court stated that the hypothetical observer must be
familiar with the legal culture of the jurisdiction in which the case is being heard. As
indicated in Lawal v Northern Spirit Ltd [2003] UKHL 35, this means that the observer
can be seen to be critical of the culture with which they are familiar. Importantly, the
key reference points return to the common law test: that the observer should be as
concerned with the appearance of impartiality as with its actuality. In other words, the
impartiality of the decision-maker should be assessed to the highest standard.
In the present case, the fair-minded observer would see that it was necessary to strike
a balance. Although the chairwoman was a dispassionate and objective decision-
maker, this does not undermine the need for constant vigilance that judges maintain
that impartiality. How can this be understood? What is interesting in our context, is
the use of the judgment of another court that shares the common law tradition: the
Constitutional Court of South Africa, in the case of the President of the Republic of South
Africa and others v South African Rugby Football Union and others [1999] (7) BCLR (CC) 725,
753:
The reasonableness of the apprehension [for which one must read in our jurisprudence
the real risk] must be assessed in the light of the oath of office taken by the judges to
administer justice without fear or favour, and their ability to carry out that oath by reason
of their training and experience. It must be assumed that they can disabuse their minds
of any irrelevant personal beliefs or pre-dispositions... At the same time, it must never be
forgotten that an impartial judge is a fundamental prerequisite for a fair trial...
The court came down on one side of the balance: the tribunal was not biased and the
court dismissed the appeal.
NB: the prohibition on bias also applies in criminal proceedings. We have chosen to
focus on its role in civil procedure merely for analytical convenience. You might want
to connect the analysis on bias in this chapter with the discussion of racial bias in the
jury in Section 10.13.3.
Self-assessment questions
How did Porter v Magill [2002] 2 AC 359 change the test for bias?
How has the ECtHR impacted on the common law test for bias?
9.3 Access to justice
Essential reading
Gearey et al., Chapter 13 The value of participation: the rights of the defence,
equality of arms and access to justice, section entitled Access to justice.
Gearey et al. argue that participation is essential to a fair trial. We need to think about
how this principle applies to civil justice. We will use Article 6 to focus our discussion
and consider some of the key authorities on this point. Whilst Article 6 requires free
legal assistance to be given to those without the means to pay for it themselves in
criminal proceedings, it does not contain an equivalent provision for civil proceedings.
9.3.1 The significance of Golder v UK (1979) 1 EHRR 524
The ECtHR argued that the right to a court covered the right to institute proceedings
and disagreed with the UK governments submission that the right only applied to
proceedings that had already been instigated. However, the right of access to the
courts can be limited. Just like the right to education, it can be limited with respect to
available resource. The key point is that the right must not be so limited as to injure
the substance of the right.
9.3.2 Airey v Ireland (1979) 2 EHRR 305 clarified limitations on the right of
access to the courts
In Airey the ECtHR rejected the Irish governments submission that Article 6 required
the state to provide free legal aid. Building on Golder, the ECtHR asserted that the
state was under a positive duty to honour its treaty obligations and could not remain
passive. In other words, whilst there is no general duty to provide legal aid, in certain
situations (for example, when proceedings are complex) a failure to provide legal aid
may constitute a breach of Article 6.
9.3.3 The general significance of Article 6 on legal aid
A recent report Human Rights Review 2012 has drawn attention to this issue.
www.equalityhumanrights.com/uploaded_files/humanrights/hrr_article_6.pdf
The report concluded that:
Removing legal aid from areas of civil law may mean some people do not have access to a
fair hearing.
The policies aimed at mitigating the impact of legal aid cuts may not be sufficient to
ensure that everybody has access to justice.
Changes to contracts for criminal legal aid may have an impact on the quality and supply
of criminal defence lawyers.
These findings are, of course, somewhat tentative. The important point to note for the
moment, though, is that whilst we cannot argue that Article 6 provides a right to legal
aid, a breach is at least possible in one or more of the areas indicated by the report.
The Coalition Governments policies on public spending are having a dramatic impact
on legal aid. The Lord Chancellor and Secretary of State for Justice (at the time of
writing), Kenneth Clarke, has defended the Coalition Governments legal aid reforms
in the following terms. Their fundamental objective is to [reconcile] the reduced
but generous funding that fiscal reality requires, with the protection of fundamental
rights of access to justice for critical issues that no civilised society can do without.
(Guardian, 19 December 2011, at www.guardian.co.uk/commentisfree/2011/dec/19/
legal-aid-safe-my-reforms). As the House of Lords Constitution Committee reports, the
objective of the Bill is to cut the cost of legal aid:
The annual legal aid budget in England and Wales is 2.1 billion. The Governments
proposals are designed to make 350 million of savings (cutting about 16%, or nearly one-
sixth, of the budget). The Ministry of Justice has a target of reducing its overall budget by
23% (approximately 2 billion) by 2014-15.
(See www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/222/22203.htm#note4.
The Constitution Committee is citing figures drawn from the House of Commons Justice
Committee, 3rd report of 201012, HC 681, paras 1112.)
One of the consequences of the cuts in legal aid is the increase of litigants in person.
Litigants in person are people who represent themselves in court. Some may have
access to a lawyer for some help with their case either on a fee basis or pro bono;
some may not have any professional help at all. The Ministry of Justice published
figures in June 2011 that show:
Civil cases had high levels of non-representation, particularly among defendants:
85% of individual defendants in County Court cases and 52% of High Court cases were
unrepresented at some stage during their case. Most unrepresented litigants were
inactive and did not participate in their case. However, a small but significant proportion
of cases involved at least one active party who was unrepresented throughout the life of
their case: 28% in the County Court and 17% in the High Court.
The Civil Justice Council are deeply concerned about this issue, and have recently
issued a report (Civil Justice Council, Access to Justice for Litigants in Person, 2011, at
www.judiciary.gov.uk/JCO%2FDocuments%2FCJC%2FPublications%2FCJC+papers%2FCivil
+Justice+Council+-+Report+on+Access+to+Justice+for+Litigants+in+Person+(or+se
lf-represented+lit).
1. Access to justice for all is central to the Rule of Law. The proposed reduction of publicly-
funded legal aid, and the current cost of privately-paid legal services, are likely to lead to a
substantial increase in those whose access to law is unaided by lawyers. The result will be
no access to justice for some, and compromised access to justice for others.
2. In many cases members of the public, as defendants to civil proceedings, will have no
option but to attempt to represent themselves or allow judgment to be entered in default
of a response to the claimants case. In many other cases, members of the public with
good claims will be left with no option but to abandon their rights and leave problems
unresolved and potentially worsening, unless they are prepared to attempt to represent
themselves.
(6)
We want to explore some of these issues below. Our analysis begins with Steel and
Morris v UK (App no 68416/01), the longest-running piece of civil litigation in English
law. The case involved individuals who conducted their own defence. The facts of
the case are outlined in Gearey et al., Chapter 13. In summary, Steel and Morris were
defending themselves in a defamation action brought by McDonalds. Legal aid was
not available; they therefore represented themselves throughout the trial and appeal.
Approximately 40,000 was raised by donation to assist them and they received some
help from barristers and solicitors actingpro bono.
The CA was not sympathetic to Steel and Morris:
This action was complex and the legal advice available to the [applicants] was, because of
lack of funds, small in extent. We accept that the work required of the [applicants] at trial
was very considerable and had to be done in an environment which, at least initially, was
unfamiliar to them.
As a starting-point, we cannot however hold it to be an abuse of process in itself for
plaintiffs with great resources to bring a complicated case against unrepresented
defendants of slender means.Large corporations are entitled to bring court proceedings
to assert or defend their legal rights just as individuals have the right to bring actions and
defend them...
Moreover the proposition that the complexity of the case may be such that a judge ought
to stop the trial on that ground cannot be accepted...
As to the conduct of the trial, we note that the 313 hearing days were spread over
a period of two and a half years.The timetable had proper regard to the fact that
the [applicants]were unrepresented and to their other difficulties. They were given
considerable time to prepare their final submissions to which they understandably
attached considerable importance and which were of great length.For the purpose
of preparing closing submissions, the[applicants]had possession of a full transcript of
the evidence given at the trial. The fact that, for a part of the trial, the[applicants]did
not receive transcripts of evidence as soon as they were made does not render the trial
unfair. Quite apart from the absence of an obligation to provide a transcript, there is
nosubstantialevidence that the [applicants] were in the event prejudiced by delay in
receipt of daily transcripts during a part of the trial.
On the hearing of the appeal, we have been referred to many parts of the transcripts of
evidence and submissions and have looked at other parts on our own initiative. On such
references, we have invariably been impressed by the care, patience and fairness shown
by the judge. He was well aware of the difficulties faced by the [applicants] as litigants in
person and had full regard to them in his conduct of the trial. The[applicants]conducted
their case forcefully and with persistence as they have in this Court. Of course the
judge listened to submissions from the very experienced leading counsel appearing for
[McDonalds] but the judge applied his mind robustly and fairly to the issues raised. This
emerges from the transcripts and from the judgment he subsequently handed down.
The judge was not slow to criticise [McDonalds] in forthright terms when he thought
their conduct deserved it. Moreover, it appears to us that the [applicants] were shown
considerable latitude in the manner in which they presented their case and in particular
in the extent to which they were often permitted to cross-examine witnesses atgreat
length.
...[We] are quite unpersuaded that the appeal, or any part of it, should be allowed on
the basis that the action was an abuse of the process of the Court or that the trial was
conducted unfairly.
The ECtHR approached the issue somewhat differently:
50. The adversarial system in the United Kingdom is based on the idea that justice can
be achieved if the parties to a legal dispute are able to adduce their evidence and test
their opponents evidence in circumstances of reasonable equality. At the time of the
proceedings in question, McDonalds economic power outstripped that of many small
countries (they enjoyed worldwide sales amounting to approximately USD 30 billion in
1995), whereas the first applicant was a part-time bar-worker earning a maximum of GBP
65 a week and the second applicant was an unwaged single parent. The inequality of
arms could not have been greater. McDonalds were represented throughout by Queens
Counsel and junior counsel specialising in libel law, supported by a team of solicitors and
administrative staff from one of the largest firms in England. The applicants were assisted
by lawyers workingpro bono,who drafted their defence and represented them, during
the 28 pre-trial hearings and appeals which took place over 37 court days, on eight days
and in connection with five applications. During the main trial, submissions were made by
lawyers on their behalf on only three occasions. It was difficult for sympathetic lawyers to
volunteer help, because the case was too complicated for someone else just to dip into,
and moreover the offers of help usually came from inexperienced, junior solicitors and
barristers, without the time and resources to be effective.
51. The applicants bore the burden of proving the truth of a large number of allegations
covering a wide range of difficult issues. In addition to the more obvious disadvantages
of being without experienced counsel to argue points of law and to conduct the
examination and cross-examination of witnesses in court, they had lacked sufficient
funds for photocopying, purchasing the transcripts of each days proceedings, tracing and
proofing expert witnesses, paying the witnesses costs and travelling expenses and note-
taking in court. All they could hope to do was keep going: on several occasions during the
trial they had to seek adjournments because of physical exhaustion.
52. They claimed that, had they been provided with legal aid with which to trace, prepare
and pay the expenses of witnesses, they would have been able to prove the truth of one
or more of the charges found to have been unjustified, for example, the allegations on
diet and degenerative disease, food safety, hostility to trade unionism and/or that some
of McDonalds international beef supplies came from recently deforested areas. Moreover,
the applicants inexperience and lack of legal training led them to make a number of
procedural mistakes.
This provides a convincing portrayal of the difficulties faced by the defendants. The
ECtHR came to the following conclusion:
95. If...a State decides to provide such a remedy to a corporate body, it is essential, in
order to safeguard the countervailing interests in free expression and open debate, that a
measure of procedural fairness and equality of arms is provided for. The Court has already
found that the lack of legal aid rendered the defamation proceedings unfair, in breach
of Article 6(1). The inequality of arms and the difficulties under which the applicants
laboured are also significant in assessing the proportionality of the interference under
Article 10. As a result of the law as it stood in England and Wales, the applicants had the
choice either to withdraw the leaflet and apologise to McDonalds, or bear the burden of
proving, without legal aid, the truth of the allegations contained in it. Given the enormity
and complexity of that undertaking, the Court does not consider that the correct balance
was struck between the need to protect the applicants rights to freedom of expression
and the need to protect McDonalds rights and reputation. The more general interest in
promoting the free circulation of information and ideas about the activities of powerful
commercial entities, and the possible chilling effect on others are also important factors
to be considered in this context, bearing in mind the legitimate and important role that
campaign groups can play in stimulating public discussion.
As the ECtHR stresses, this case raises issue of freedom of expression, and the role of
law in protecting a robust public culture where powerful corporations can be held
to account. In Steel and Morris, we can thus appreciate that the issue of access to the
courts becomes connected to the principle of open justice and freedom of speech.
Steel and Morris is an important authority because we glimpse, through the case, the
reality of a civil justice system run to protect the interests of the rich and powerful,
rather than further a robust, critical public culture, or, indeed, the interests of ordinary
people who do not have the social or financial resources to make use of the courts:
Im talking about... single parents or deserted mothers with two children who live 60
miles away from a Court centre and would have to get up at 6 oclock in the morning
having arranged for their children to be looked after, or take them to Court out of school,
and have their case dealt with after about two changes of public transport, and these are
an awful lot of people.
(Sir Mark Potter, former President of the Family Division, 14 July 2011, Westminster Legal
Policy Forum.)
So, in conclusion, Steel and Morris determined that whilst absolute equality was
not required between the parties to the trial, both sides must be given reasonable
opportunity to present their case. As far as the law on Article 6 and legal aid is
concerned, it is probably the case that the factors taken into account in finding
a breach of the Article, would consider what was at stake for the individual, the
complexity of the law and procedure and the persons ability to represent themselves.
The problems raised by Steel and Morris take us back to our analysis of legal aid cuts
and access to justice. As the Law Society Gazette has pointed out [t]he issue of self-
representation has taken on a higher profile with a steep increase in litigants in person
[with the] legal aid cuts. (J. Hyde, 18 October 2012).
9.3.4 Tinkler v Elliott [2012] EWCA Civ 1289
This case concerned a plaintiff who argued that he had been forced to resign because
he has acted as a whistle blower. The plaintiff was a litigant in person.
Kay LJ
(32) The implications of Mr Elliott being a litigant in person were considered by Sharp
J to be significantly disadvantageous to him, in particular because he did not really
understand [a procedural rule which impacted negatively on his case]. I (33) accept that
there may be facts and circumstances in relation to a litigant in person which may go
to an assessment of promptness but, in my judgment, they will only operate close to
the margins. An opponent of a litigant in person is entitled to assume finality without
expecting excessive indulgence to be extended to the litigant in person. It seems to
me that, on any view, the fact that a litigant in person did not really understand or did
not appreciate the procedural courses open to him for months does not entitle him to
extra indulgence. Even if one factors in Mr Elliotts health problems, the evidence shows
that between April and July 2010 he was active in this litigation. The fact that, if properly
advised, he would or might have made a different application then cannot avail him now.
That would be to take sensitivity to the difficulties faced by a litigant in person too far. In
my judgment, this is where Sharp J went wrong. She regarded this to be a special case on
its facts but it could only be considered such if one goes too far in making allowances for
a litigant in person. For these reasons, I do not consider that it was open to her to find the
promptness requirement satisfied.
Compare Tinkler v Elliott with Steel and Morris. Where does the line lie between
indulging a litigant in person, and helping them prepare and present their case?
This is a difficult question to answer, given that a litigant in person will always be at a
disadvantage to a party with professional representation. Consider the following facts:
The Personal Support Unit (PSU) estimates that 3040% of its 3000 clients at the Royal
Courts of Justice annually have some form of mental health issue, 27% of its clients
nationwide report that they have a serious health problem, and 15% are registered
disabled.
For example a small but significant proportion of people seeking help from the PSU are
homeless or have no regular access to the internet or phone, or office facilities such as
photocopying or use of a computer for filling in forms.
The PSU estimates the 25% of its 7000 clients across England annually speak English as a
second language.
(Access to Justice for Litigants in Person, Civil Justice Council (2011). Available at http://
www.judiciary.gov.uk/JCO%2FDocuments%2FCJC%2FPublications%2FCJC+papers%2FCivil+Justi
ce+Council+-+Report+on+Access+to+Justice+for+Litigants+in+Person+(or+self-represen-
ted+lit)
With the contraction of legal aid, and the limiting of the kind of help or indulgence
that a court will offer to litigants in person, there appears to be a real and deeply
worrying problem with access to justice to the civil courts in the United Kingdom. This
takes us back to a theme that worried Lord Woolf:
Only too often the litigant in person is regarded as a problem for judges and for the
court system rather that the person for whom the system of justice exists. The true
problem is the court system and its procedures which are still too often inaccessible and
incomprehensible to ordinary people.
(Lord Woolf in Access to justice Interim report to the Lord Chancellor on the civil justice
system in England & Wales (1995), p.119)
9.3.5 Open justice and the duty to give reasons
Essential reading
Gearey et al., Chapter 14 Open justice, closed procedures and torture evidence,
section entitled The duty to give reasons.
The first key case is English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605.
We will examine Lord Phillips argument:
15 There is a general recognition in the common law jurisdictions that it is desirable for
judges to give reasons for their decisions, although it is not universally accepted that this
is a mandatory requirementThere is no invariable rule established by New Zealand case
law that courts must give reasons for their decisions, per Elias CJ in Lewis v Wilson & Horton
Ltd [2000] 3 NZLR 546 , 565. While a constant refrain is that reasons must be given in order
to render practicable the exercise of rights of appeal, a number of other justifications have
been advanced for the requirement to give reasons. These include the requirement that
justice must not only be done but be seen to be done. Reasons are required if decisions
are to be acceptable to the parties and to members of the public. Henry LJ in Flannerys
case[2000] 1 WLR 377observed that the requirement to give reasons concentrates the
mind of the judge and it has even been contended that the requirement to give reasons
serves a vital function in constraining the judiciarys exercise of power...[16] We would put
the matter at its simplest by saying that justice will not be done if it is not apparent to the
parties why one has won and the other has lost.
17 As to the adequacy of reasons, as has been said many times, this depends on the nature
of the case...
[18] when considering the extent to which reasons should be given it is necessary to have
regard to the practical requirements of our appellate system. A judge cannot be said to
have done his duty if it is only after permission to appeal has been given and the appeal
has run its course that the court is able to conclude that the reasons for the decision are
sufficiently apparent to enable the appeal court to uphold the judgment. An appeal is an
expensive step in the judicial process and one that makes an exacting claim on judicial
resources. For these reasons permission to appeal is now a nearly universal prerequisite to
bringing an appeal. Permission to appeal will not normally be given unless the applicant
can make out an arguable case that the judge was wrong. If the judgment does not make
it clear why the judge has reached his decision, it may well be impossible within the
summary procedure of an application for permission to appeal to form any view as to
whether the judge was right or wrong. In that event permission to appeal may be given
simply because justice requires that the decision be subjected to the full scrutiny of an
appeal.
19 It follows that, if the appellate process is to work satisfactorily, the judgment must
enable the appellate court to understand why the judge reached his decision. This does
not mean that every factor which weighed with the judge in his appraisal of the evidence
has to be identified and explained. But the issues the resolution of which were vital to
the judges conclusion should be identified and the manner in which he resolved them
explained. It is not possible to provide a template for this process. It need not involve a
lengthy judgment. It does require the judge to identify and record those matters which
were critical to his decision. If the critical issue was one of fact, it may be enough to say
that one witness was preferred to another because the one manifestly had a clearer
recollection of the material facts or the other gave answers which demonstrated that his
recollection could not be relied upon.
Why must a judge give reasons for his decision in a case? How does the duty to give
reasons relate to the principles that inform civil justice?
Lord Phillips argument is based on a number of informing ideas: the duty to give
reasons concentrates the judges mind, and thus makes for more accurate decision
making. It is also required by the appellate system of the courts. How do these ideas
relate to the principles that inform fair civil trials? The integrity principle requires the
law to be coherent, and this could be related to Lord Phillips arguments about reasons
relating to appeals. We could also relate the duty to give reasons to the participation
principle: the parties to a dispute need to know how the dispute was resolved. The
principle of open justice is also important. It relates back to Lord Phillips arguments
about the accuracy of decision making, but it also supports the integrity principle.
Judgments given in open court are open to scrutiny in a general way.
Now read the passage below from Lon L. Fuller:
This whole analysis will derive from one simple proposition, namely, that the
distinguishing characteristic of adjudication lies in the fact that it confers on the affected
party a peculiar form of participation in the decision, that of presenting proofs and
reasoned arguments for a decision in his favor...Thus, participation through reasoned
argument loses its meaning if the arbiter of the dispute is inaccessible to reason because
he is insane, has been bribed, or is hopelessly prejudiced...
(L.L. Fuller The forms and limits of adjudication (1978) 92 Harvard Law Review 353409,
p.364)
How does Fullers argument support the principles of a fair civil trial?
Fuller argues that adjudication is founded on the requirement of judge to give reasons
to the affected party (i.e. the party affected by the decision that the judge has made).
This allows the affected party to participate in the decision making process. It might,
to return to Lord Phillips arguments, allow the affected party the grounds for an
appeal. We can appreciate, therefore, that Fullers arguments provide support for
both the integrity principle and the participation principle. Finally, the very fact that
participation involves reading the reasoning and proofs that the judge has offered
the affected party, means that the open justice principle is also implicit in Fullers
argument.
9.4 Open justice
section entitled Open justice.
Scott v Scott [1913] AC 417 is a major statement of the common laws approach to the
principle of open justice. Viscount Haldanes speech is worth reading in some detail:
While the broad principle is that the Courts of this country must, as between parties,
administer justice in public, this principle is subject to apparent exceptions... But the
exceptions are themselves the outcome of a yet more fundamental principle that the
chief object of Courts of justice must be to secure that justice is done. In the two cases of
wards of Court and of lunatics the Court is really sitting primarily to guard the interests
of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative,
and the disposal of controverted questions is an incident only in the jurisdiction. It may
often be necessary, in order to attain its primary object, that the Court should exclude the
public. The broad principle which ordinarily governs it therefore yields to the paramount
duty, which is the care of the ward or the lunatic. The other case [is] that of litigation as
to a secret process, where the effect of publicity would be to destroy the subject-matter,
illustrates a class which stands on a different footing. There it may well be that justice
could not be done at all if it had to be done in public. As the paramount object must
always be to do justice, the general rule as to publicity, after all only the means to an end,
must accordinglyyield. But the burden lies on those seeking to displace its application in
the particular case to make out that the ordinary rule must as of necessity be superseded
by this paramount consideration. The question is by no means one which, consistently
with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere
discretion as to what is expedient. The latter must treat it as one of principle, and as
turning, not on convenience, but on necessity.
(pp.43738)
Viscount Haldane draws attention to the court acting in areas of wards of Court and
lunatics of the Court. In such cases, the principle that justice is administered in public
yields to a more fundamental principle to ensure that justice is done. Thus, when
the court is acting in the interest of wards or lunatics it has to take their interests as
paramount and exclude the public. Cases in which a secret process is at stake are also
ones where the publicity principle is qualified; but those alleging that litigation must
take place in secret bear the burden of proof of so convincing the court.
We now move our attention to a slightly different set of principles: those that relate
to public interest immunity. One of the key modern authorities is Conway v Rimmer.
The test is outlined in the ratio of the case which provides for a balance test to
determine whether or not documents should be disclosed. The court has to establish
if the possible injury that might result from disclosure would be so grave that no
other interest should be allowed to prevail over it. If this is the case, production of
documents should not be ordered. However, where the possible injury is substantially
less the court has to balance the risks of disclosure against the risk of to a partys
interests should the documents not be disclosed. There is another important point
that must be considered. When assessing the ministers reasons as to why documents
should not be disclosed, the court has to bear in mind that there are certain matters
that judicial experience is not competent to weigh. When a minister certifies that a
document belongs to a class which ought to be withheld the court must assess, on
the reasons given, whether the withholding of a document of that particular class
is really necessary for the functioning of the public service. If, on balance, the court
thinks that the document should probably be produced, then it should go on to
generally examine the document before rendering...production.
Read Laws LJs speech from Carnduff v Rock [2001] 1 WLR 1786. The basic facts of the
case are outlined in Gearey et al., Chapter 14. Laws LJ argues that the case must be
struck out, as there is no way in which the court can do justice between the two
parties: litigation is not in the public interest. The problem is that adjudication of the
issue would involve placing details of police operational matters in the open court.
Although it is not possible to anticipate precisely the issues that would arise, Laws LJ
decides that the way forward is that proposed by Waller LJ. The pleadings show that
issues would have to be decided by the court. Once this took place, Laws LJ thinks it
inevitable that the court would have to hold that the public interest in withholding
the evidence about it outweighed the countervailing public interest in having the
claim litigated on the available relevant evidence. This situation could only be avoided
if the police made a series of admissions. This would mean that the court did not have
to consider the public interest issues, but it would also mean that the case for the
police was compromised:
a case which can only be justly tried if one side holds up its hands cannot, in truth, be
justly tried at all. The fundamental problem is that the court is not suited to adjudicate
this kind of issue.
Activity 9.1
Read the summary of B and P v UK in Gearey et al. Chapter 14 Open justice, closed
procedures and torture evidence, section entitled Open justice and answer the
following question.
To what extent are principles drawn from Article 6 consistent with the common
laws approach to secrecy?
9.5 Closed material proceedings
Essential reading
section entitled Closed material proceedings and Article 6.
Gearey et al. outlines the general context. We are going to concentrate on the key
cases. First of all we will consider the ratio of AF v Secretary of State [2008] EWCA Civ
1148. The ratio has two parts. Firstly, the Supreme Court had to follow the ruling of
the Grand Chamber. Secondly, the person subject to a control order had to be given
enough information about the evidence against them to be able to effectively instruct
the special advocate acting on their behalf. A fair trial does not require detailed
disclosure of evidence. However, when the evidence disclosed to the controlled
person was only general assertions and the case against the controlee was based
solely or to a decisive extent on undisclosed materials, then it would be necessary.
A fair trial would not take place if the case against the controlled person was mainly
based on evidence that had not been disclosed. The relationship between the first and
the second part of the ratio then becomes clear. It was necessary to read the 2005 Act
in such a way as to make it coherent with Article 6.
Sedley LJs speech in AF v Secretary of State is a warning against construing a fair trial
too narrowly. The problem is that a judge may make a mistake if they consider the
evidence without critical scrutiny. Sedley LJ reflects on the experience of barristers
that suggests that seemingly incontrovertible evidence can suddenly crumble as a
result of cross-examination of the witness by counsel for the opposing side. Sedley
LJ points out that the common law, European human rights law and European Union
(EU) law takes this point very seriously. The key principle is that everyone affected
must have had a proper chance...to advance as much material as may help the tribunal
in reaching a judicious conclusion. He concludes that a doctrine that an otherwise
unfair hearing will become fair if the material which the party affected has had no
opportunity to answer is sufficiently convincing is pragmatically unsustainable. Not
only are there pragmatic problems with the principle, but it negates the judicial
function which is crucial to the control order system. Sedley LJ cites Lord Atkins
celebrated dissent inLiversidge v Anderson [1942] AC 206. The point is that even in
time of national emergency the fiat of the executive was an unacceptable basis for
interfering with individual liberty. The risk is if the power of the judges to scrutinise
the executive is limited. Given that control orders have a potentially devastating
effect on the life of the individual affected and his family a judge must be able to
confirm that the executives reasons for subjecting a person to an order are reasonable
and legitimate.
Further reading
section entitled The Justice and Security Green Paper and Bill.
Note: It may be that the Bill has become law by the time you read this. Keep up with
the Recent developments and Newsletters on the VLE, and with the news in general.
Activity 9.2
Summarise the arguments for and against closed material proceedings.
9.5.1 Al Rawi and others v Security Service and others (JUSTICE and others
intervening) [2010] EWCA Civ 482
Essential reading
section entitled Torture, national security and the courts
How does the presentation of the common law in Al Rawi relate to the arguments
in Gearey et al. about participation and open justice? The participation and open
justice principles come together in the common law trial. This is because the trial
is conducted on the basis that each party and his lawyer sees and hears all the
evidence and all the argument seen and heard by the court. Indeed, this returns to
the argument that we made at the beginning of this chapter. The principle that the
trial process must be fair, and must be seen to be fair is inherent in one of the two
fundamental rules of natural justice, the right to be heard (or audi alterem partem, the
other rule being the rule against bias or nemo iudex in causa sua). This is illustrated
by the Privy Council authority Kanda v Government of Malaya [1962] AC 322. The open
justice principle is linked in Al Rawi, as it is in Gearey et al., to the fundamental
principle of our law is that a party to litigation should know the reasons why he won
or lost, so that a judges decision will be liable to be set aside if it contains no, or even
insufficient, reasons. The key authority on this point is a case that we have already
examined: English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409. Open justice is
described in this case as the principle that trials should be conducted in public,
and that judgments should be given in public. The key authority on this point is R
(Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian
News and Media Ltd intervening) [2011] QB 218. We will look at this case below. These
general principles are then related to openness rules in civil litigation which should
be conducted on the basis that a party is entitled to know...the essentials of its
opponents case in advance and the parties can properly prepare their respective
evidence and arguments. This is finally related to disclosure: a party in civil litigation
should be informed of the relevant documents in the control of his opponent. We
cannot go into this principle in detail, but there is a short exercise on disclosure below.
Gearey et al. argued that the principles of participation and open justice were related
to the principle of integrity. We now want to relate this point to the issue of the courts
jurisdiction over their own proceedings.
Activity 9.3
Look up and read M.S. Dockray The inherent jurisdiction to regulate civil
proceedings (1997) 113 LQR 12032.
The inherent jurisdiction [of the courts] has been described as a valuable, virile and
viable doctrine, a residual source of powers which a superior court may draw on as
necessary. Does Dockray agree with this point? How does the inherent jurisdiction
relate to the integrity of civil procedure?
Activity 9.4
Read the summary of Tariq v Home Office in Gearey et al., Chapter 14 Open justice,
closed procedures and torture evidence, section entitled Torture, national security
and the courts and makes notes on this case.
9.5.2 R (Mohamed) v Secretary of State for Foreign and Commonwealth
Affairs [2011] QB 218
We now want to look in detail at the judgment in R (Mohamed). Read Lord Judge CJs
comments in paras 1424. This is a powerful statement of principle. Note how Lord
Judge starts with the assertion that the prohibition on torture is based on common
humanity. Respect for common humanity is reflected in international sources of
law such as the Geneva Conventions and The United Nations Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1990).
The prohibition on torture is also contained in texts central to the common law
tradition (e.g. Cokes Third part of the institutes of the laws of England(1644), which cites
Chapter 29 of Magna carta). More recently, the prohibition on torture was given an
important formulation by Lord Bingham in A and others v Secretary of State for the Home
Department (No 2). The court then cites Senator Obama (as he then was) affirming his
opposition to torture.
Binyam Mohameds case concerned the argument that agents from the United
Kingdom had connived in his torture. The US court made publically available
documents that related to Mohameds case. The Foreign Secretary relied on public
interest immunity certificates to keep certain evidence out of open court. It was
necessary, given that Mohamed was facing a possible death sentence in the USA, to
make the evidence available to strengthen Mohameds defence. The redacted or
censored passages in the relevant documents relate to these proceedings.
The court in R (Mohamed) also made some interesting comments on open justice.
The principle of open justice requires public scrutiny of the courts. This scrutiny is
provided by a free and responsible press, who report on legal affairs. The relationship
between open justice and freedom of speech ultimately relates to the rule of law itself.
It is a manifestation of democratic accountability. In other words, the reporting of the
courts by the media, enabled by freedom of expression, makes judicial rulings visible
to the wider culture.
Further reading
section entitled Extradition and Article 6.
Activity 9.5
Look at the ruling of the ECtHR in Abu Qatada v UK (App no 8139/09).
What is the relationship between torture, the rule of law and the right to fair trial?
How does the argument made by the ECtHR in Abu Qatada relate to the arguments
about fair trials in Gearey et al.?
Activity 9.6
Go to the Ministry of Justice website and look up Civil Procedure Rule 31.3.
Consider the following case: A, a solicitor, is conducting litigation against B. The
litigation relates to a breach of contract. A wants B to disclose certain documents
relating to Bs dealings with property some 20 years ago that is not directly relevant
to the concerns of the litigation. B would have to go to considerable expense to
locate and copy the documents.
Could B refuse to disclose the document?
Activity 9.7
Go to Halsburys Laws and search for Disclosure and inspection of documents, and
read para.558. Summarise the law on legal professional privilege.
9.6 Alternative dispute resolution (ADR)
Essential reading
Gearey et al., Chapter 15 Imagining civil justice, section entitled Alternative
dispute resolution.
Lord Woolfs reforms of civil justice were based on principled criteria for classifying
disputes in order to encourage the civil courts to operate more efficiently. One of the
main planks of his thinking, which ran into the institutional reforms, sought to divert
cases within courts away from court-based adjudication and into forms of court-
connected ADR. ADR is now a central part of the civil justice process, but it remains
controversial.
One of the most critical arguments about ADR was written by the American scholar,
Owen M. Fiss. It is worth looking closely at his arguments. What follows is an extract
from his celebrated essay Against settlement (1984) 93 Yale Law Journal 107390.
...the case for settlement rests on questionable premises. I do not believe that settlement
as a generic practice is preferable to judgment or should be institutionalized on a
wholesale and indiscriminate basis. It should be treated instead as a highly problematic
technique for streamlining dockets. Settlement is for me the civil analogue of plea
bargaining: Consent is often coerced; the bargain may be struck by someone without
authority; the absence of a trial and judgment renders subsequent judicial involvement
troublesome; and although dockets are trimmed, justice may not be done. Like plea
bargaining, settlement is a capitulation to the conditions of mass society and should be
neither encouraged nor praised...
...ADR implicitly asks us to assume a rough equality between the contending parties. It
treats settlement as the anticipation of the outcome of trial and assumes that the terms
of settlement are simply a product of the parties predictions of that outcome. In truth,
however, settlement is also a function of the resources available to each party to finance
the litigation, and those resources are frequently distributed unequally. Many lawsuits
do not involve a property dispute between two neighbors, or between AT&T and the
government (to update the story), but rather concern a struggle between a member of
a racial minority and a municipal police department over alleged brutality, or a claim
by a worker against a large corporation over work-related injuries. In these cases, the
distribution of financial resources, or the ability of one party to pass along its costs,
will invariably infect the bargaining process, and the settlement will be at odds with a
conception of justice that seeks to make the wealth of the parties irrelevant.
Fiss argues that ADR is inferior to adjudication by the courts because it is unprincipled;
merely a way of speeding up dispute resolution rather than resolving disputes in a
fair manner. ADR is also problematic as it assumes that parties are equal. If parties are
not equal, to the extent that one party has more resources or bargaining power than
another, ADR will always be expedient rather than fair.
Research on insurance disputes bears out at least some of Fiss arguments. Genn
(Hard bargaining: out of court settlement in personal injury actions, 1987) refuted the
assumption that settlement was cheaper, quicker and less stressful for the parties
concerned. She also showed that the trial remained the central point of reference in
thinking about ADR processes (1987, p.59).
A case is constructed through investigations, interviewing of witnesses and obtaining
experts reports. In this search for good, clean evidence, the parties are not equal. For
example, a defendant insurance company usually has a large advantage as it may have
early notification of the possible claim, and have the resources and organisation to
undertake detailed investigations. The claimants solicitors, on the other hand, usually
know of the claim only when the claimant comes in to instruct the solicitor.
In a formal sense, a personal injury case will be between two parties. For example, the
driver of a car that has knocked down and injured a person walking across the street,
and that injured person. In practice, however, in the majority of cases it becomes a
dispute between an insurance company, with its experienced claims department
and list of lawyers (it is compulsory by English law for all drivers to be insured), and
the plaintiff (with his or her solicitor). There is therefore an imbalance between the
opposing sides.
Claimants have: varied backgrounds and histories, no experience of personal injury
litigation and ill-formed expectations of the outcome of their action. Conversely,
defendants have: endless experience of personal litigation and clear expectations of
the outcome of claims.
Genn argues that the effects of these and the many associated imbalances between
the parties pervade the process of negotiation and settlement of personal injury
actions. There is a contest between a repeat-player with large resources in terms
of finance, experience and access to expertise, and a one-shotter with few of these
resources at his or her disposal. Although the availability of legal aid in the United
Kingdom went some way to aiding the one-shotter, the game is loaded in favour of the
repeat-player.
After analysing the evidence that her study produced on the conduct and processing
of the claims, Genn concluded:
If there is, indeed, a public interest in seeing that injured plaintiffs obtain fair
compensation for their injuries, then the analysis of out of court settlement processes
contained in this study suggests that there is a strong argument for attempting to reduce
some of the imbalance between the parties by improving the access of un-knowledgeable
plaintiffs [claimants] to solicitors who genuinely specialise in personal injury litigation;
for speeding-up personal injury litigation procedure, particularly for low-value claims; for
providing incentives to defendants to settle claims quickly; and for providing a means by
which out of court settlements become more visible or subject to scrutiny.
How far these problems were addressed later in the civil justice reforms is a matter of
speculation.
Let us consider other anti-settlement arguments. Luban (REF NEEDED) has developed
Fiss position using an argument with which we are familiar. He has suggested that
ADR reduces public participation and thus leads to the erosion of the public realm
and public justice. The courts, on the other hand, involve both litigants and their
lawyers in democratic deliberation that is quite different from the compromises that
characterise ADR.
However, there are weaknesses in the anti-ADR position. Against Fiss, not all disputes
are ones between parties with large disparities of resources; perhaps some cases
are suitable for ADR. It is a question of context. Luban has been accused by Menkel-
Meadow (C. Menkel-Meadow Whose dispute is it anyway: a philosophical and
democratic defense of settlement (in some cases) (1995) 83 The Georgetown Law
Journal 266396 at http://mtweb.mtsu.edu/cewillis/Merkel-Meadow%20Article.pdf)
of being a litigation romantic with an overblown idea of the democratic credentials
of the courts. Menkel-Meadow has argued for a middle way we need both
adjudication and settlement. She asserts that adjudication and ADR can affect each
other in positive, as well as negative ways. Most importantly,
Settlement can be justified on its own moral grounds...there are important values,
consistent with the fundamental values of our legal and political systems, that support
the legitimacy of settlements of some, if not most, legal disputes. These values include
consent, participation, empowerment, dignity, respect, empathy and emotional catharsis,
privacy, efficiency, quality solutions, equity, access, and yes, even justice.
(p.2670)
This is a powerful argument. It takes on one of the central claims of the anti-settlement
position:
[A]djudication, with its binary or win-loss solutions, more often produces situations in
which both parties...have to give up some legitimate claims in order to terminate the
dispute (as when issues are increasingly narrowed and monetized), while settlements
may enable the broadening or increasing of issues for trade or resolution and more party
interests can actually be achieved without having to give something up.
(p.2672)
Menkel-Meadow effectively turns the tables on Fiss and Luban. The problems in civil
process are not to do with settlement, adjudication is equally problematic:
The legal system that Luban, Fiss, and others extol, however, is largely responsible for
reducing most legal disputes, not to disputes of public values and resource allocation,
but to monetized disputes about dollars. When they are submitted to judges and juries
with such legal principles as comparative negligence, these monetized disputes are just
as likely to result in split-the-difference results in court as settlement. Noncompromise
settlements offer the promise that more than money can be at stake and that the parties
can negotiate such other items as future relationships and conduct, apologies, in-kind
trade, new contracts, etc. In my view, it is litigation, not settlement, that has led to
monetization of disputes, for money has become the proxy for all legal harms and hurts
Judges and juries award dollars when they cannot order behavior that parties will agree to
undertake on their own.
(p.2674)
Activity 9.8
Read Gearey et al., Chapter 15 Imagining civil justice. Outline Jagos arguments on
ADR.
9.6.1 Is there a tension between ADR and Article 6?
Civil justice in practice
Jagos chapter in Gearey et al., Imagining civil justice, seeks to show how civil justice
works in practice. Jago also wants to use ideas drawn from Rawls to think about
how civil justice serves to distribute benefits and burdens, or the basic liberties of
social life. In the exercise above, we thought about how Rawls ideas might allow an
understanding of ADR. In this section, we are concerned with a different but related
point: how civil justice relates to the distribution of social goods; or, access to
medical care and land. As far as access to health care is concerned, Jago examines a
line of cases extending from R v Secretary of State for Social Services, ex p Hincks [1979]
123 Sol Jo 436, through R v Central Birmingham Health Authority, ex p Walker [1987] 3
BMLR 32 (CA), to R v Cambridge Area Health Authority, ex p B (A Minor) [1995] 1 WLR 898.
Jago also considers two recent decisions, ex p A and others [2000] 1 WLR 977 and ex p
Coughlan [2001] QB 213. His point is that the civil courts are being used to hold decision
makers to account, and to make the distribution of healthcare resources more
transparent. We could borrow from Rawls analysis to suggest that the civil courts are
thus essential to social justice, or to the fair distribution of social goods.
Similar points could be made about the planning decisions made by the civil courts
that relate to the use of land by a particular minority. Jagos consideration of planning
cases that relate to gypsy caravan sites shows that decisions about land use also
interface with discrimination and human rights issues. We can thus appreciate
that the practice of civil justice as social justice provides a general framework for
understanding the broader role of the civil courts.
A brief outline of civil procedure
Note: You will not be asked to outline civil procedure in the examination. This section
is for background knowledge only.
The present shape of the civil justice system owes a great deal to Lord Woolfs
reforms. Lord Woolf claimed that the civil justice system had become excessively
adversarial, slow, complex and expensive. Costs had become disproportionate to the
issues involved in litigation, there was undue complexity of law and court procedure,
uncertainty about how much time and money would be required, and unfairness
(a financially strong party can exploit delay, cost and uncertainty to deter a weaker
opponent from pursuing a worthwhile case). The main aims of his proposals are
stated as cutting delays, reducing expenses and simplifying the process of litigation.
Lord Woolf sought to: encourage parties to explore alternatives to the resolution of a
dispute by a court, introduce a single set of rules governing proceedings in the High
Court and the County Courts and enable a shorter timetable for cases to reach court
and for the length of trials. Most controversially, however, Lord Woolf proposed more
case management by judges. This would allow greater control over proceedings.
Lord Woolfs reforms also made for greater emphasis on avoiding litigation, ADR and
mediation.
The Civil Procedure Rules (CPR) 1998 describes itself as a new procedural code with
the overriding objective of dealing with cases justly. It then goes on to define justly.
Justice includes: ensuring that the parties are on an equal footing; saving expense;
dealing with cases which are proportionate to what is at stake in the litigation; making
sure that cases are dealt with expeditiously and fairly and taking into account the
general allocation of resources in the civil justice system.
Under CPR rule 1.4 the Court is under the duty to actively manage cases. This means
that the court must encourage the parties to co-operate with each other in the
conduct of the proceedings; identify the relevant issues; encourage use of ADR;
encourage settlement of whole or part of the case; consider the cost implications
of the actions that the parties take and set the timetable for the progress of the
case. The parties to the case are also under a duty to help the court to further the
overriding objective (CPR rule 1.3).
Civil litigation formally begins when proceedings are issued. However, the CPR
encourage parties to settle the issue between them without the need to start
proceedings (that is, a court claim) through the exchange of information and
consideration of the suitability of ADR; and, if proceedings are begun, the rules support
their efficient management (Practice Direction Pre-Action Conduct, at www.justice.
gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#IDAEMA2). There
are different pre-action protocols that relate to different proceedings (i.e. there is a
protocol that relates to personal injury cases and a different one for judicial review.
The different protocols are listed as para.5.2 of the Practice Direction Pre-Action
Conduct). The court monitors compliance with the protocols, and can issue sanctions
including a stay of proceedings or an order that the party that is not complying
with the protocol pays the costs of the other party. There are some cases to which
pre-action protocols do not apply. The Practice Direction para.6.2 specifies that the
parties should act in a reasonable and proportionate manner in all dealings with one
another. It stresses that the costs incurred in complying should be proportionate to
the complexity of the matter and any money at stake and warns that the parties must
not use this Practice Direction as a tactical device to secure an unfair advantage for
one party or to generate unnecessary costs.
Proceedings begin when the court issues a claim form at the request of the claimant
(CPR rule 7.2). The claim form contains the statement of claim and must be served on
the defendant. The defendant if they want to contest all or part of the claim, must
then file a defence (rule 15.2). Both the claim form and the defence must be served
within a certain period of time. If the defendant does not serve a defence, the court
may allow the claimant to enter default judgment (rule 12.1). There are rules which
determine how a variety of documents such as witness statements, the claimants
reply to the defence and amendments to the statement of case on the claim form are
dealt with at this early stage of proceedings. Court documents must be verified by a
statement of truth (rule 22.1). There is still the possibility that a case would end at this
point with a summary judgment (rule 24.2). The court can give a summary judgment
against a claimant or defendant if the defendant has no real prospect of succeeding
in the claim, the defendant has no real prospect of successfully defending the claim
and there is no other compelling reason why the case or issue should be disposed
of at a trial. If summary judgment is not made, then the court considers interim
remedies (such as injunctions) or security orders for costs (rule 25) before moving on
to the preliminary stages of case management.
There are three management tracks (rule 26.1): the small claims track, the fast track
and the multi-track. The small claims track is for personal injuries where the value
of the claim is not more than 10,000 and the value of any claim for damages for
personal injuries is not more than 1,000 (rule 26.6). It also covers certain claims
under 1,000 by residential tenants against landlords. The fast track will normally
take cases that concern proceedings of not more than 25,000 (rule 26.6), where the
court considers that: the trial is likely to last for no longer than one day and where
there will be limited expert evidence. The multi-track is the most flexible of the three
tracks. Once a case is allocated to this track, the court can give directions for the
management of the case and determine a timetable. The court can also determine a
case management conference or a pre-trial review if this is appropriate (rule 29.2).
As we cannot overview civil procedure in its totality, there are a couple of issues on
which we want to focus. The first is disclosure of documents. The rules in relation
to disclosure of documents take us towards the rules of evidence. Very crudely, a
party discloses a document by stating that the document exists or has existed (rule
31.2). Once a document has been disclosed, the party to whom a document has been
disclosed has a right to inspect that document (rule 31.3). Under the rules of standard
disclosure (rule 31.6), a party is required to disclose all those documents on which
their case relies, including those documents that adversely affect their case. A party
can also withhold disclosure (rule 31.19), on the ground that disclosure would damage
the public interest. We must also briefly review the rules on evidence. The Court has
the power to control evidence by issuing directions that determine both the issues
on which evidence is required and the nature of the evidence required; the court can
also rule on the exclusion of evidence and limit cross-examination of witnesses (rule
32.1). The general rule is that any fact which needs to be proved by the evidence of
witnesses is to be proved at trial, by their oral evidence given in public and at any
other hearing, by their evidence in writing (rule 32.2). There are also detailed rules
that cover expert evidence. An expert is called to advise the court on matters within
their expertise (rule 35.3) and Expert evidence shall be restricted to that which is
reasonably required to resolve the proceedings (rule 35.1).
We cannot say too much about the conduct of a trial in a civil court, other than to recall
a point that we made in Chapter 2. Trials are characterised by orality of proceedings;
each party presents oral submissions and evidence will be heard from witnesses and
experts for the claimants and the defence. Witnesses give their evidence and may be
cross-examined by the other sides legal representative. The trial will conclude with
each side summing up their evidence and making arguments about the law that is
relevant to the case. Judgment will then be given and a costs order made. The normal
rule is that the winner pays the losers costs; but, as we saw above, there may have
been costs orders made against a party that affects this general rule. There is always the
possibility, though, that an offer to settle could be made at any point in proceedings
(CPR Part 36) and an offer to settle would also take costs into account.
As stressed above, it is important to have a basic idea of how civil procedure works,
but this course is not concerned with studying the actual process of the trial in detail.
Rather, we want to examine some broader issues about the underlying principles of
civil justice and civil procedure.
Summary
The following areas of this chapter are examinable:
u The principle of integrity as it relates to civil justice.
u The principle of access to justice.
u The principle of open justice, with particular reference to closed procedure
material and torture evidence.
u Torture evidence and extradition.
u Alternative dispute resolution.
u Civil justice reform in the context of its present realities, in particular, resolution of
disputes over land and medical resources.
You can expect questions on these topics in Part B of the examination.
Quick quiz
Question 1 Lord Hope, in Porter v Magill, argued that:
103 I respectfully suggest that your Lordships should now approve the modest
adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and
simple language a test which is in harmony with the objective test which the Strasbourg
court applies when it is considering whether the circumstances give rise to a reasonable
apprehension of bias. It removes any possible conflict with the test which is now applied
in most Commonwealth countries and in Scotland. I would however delete from it the
reference to a real danger. Those words no longer serve a useful purpose here and they
are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-
minded and informed observer, having considered the facts, would conclude that there
was a real possibility that the tribunal was biased.
Does this mean that:
a. The common law test for bias had been completely changed?
b. In the light of Convention jurisprudence, the UK courts would have to
overrule R v Gough?
c. R v Gough was wrongly decided?
d. A minor change was necessary to the test in R v Gough to make it consistent
with Convention jurisprudence?
Question 2 In Steel and Morris v UK, the ECtHR held that:
95 If...a State decides to provide such a remedy to a corporate body, it is essential, in
order to safeguard the countervailing interests in free expression and open debate, that a
measure of procedural fairness and equality of arms is provided for.
a. A state must always provide legal aid?
b. A state is under no duty to provide legal aid?
c. Legal aid must always be provided against corporate defendants?
d. In certain circumstances, which raise issues of freedom of speech, a state
has to provide at least some form of legal aid?
Question 3 In AF v Secretary of State [2009] UKHL 28, the House of Lords held that:
Allowing the appeals, that, applying the judgment of the Grand Chamber, while it
might be appropriate, in the interests of national security in the context of combating
terrorism, not to disclose sources of evidence on which the grounds for suspecting a
persons involvement in terrorism-related activity were based, a controlee had to be given
sufficient information about the allegations against him to enable him to give effective
instructions to his special advocate in relation to them; that so long as that requirement
was satisfied there could be a fair hearing without the need for detailed disclosure of the
sources of evidence on which the allegations were based; but that where the disclosed
material consisted of only general assertions and the case against the controlee was based
solely or to a decisive extent on undisclosed materials the requirements of a fair trial
under article 6 would not be satisfied...
Which of the following statements is the most accurate summary of the ratio?
a. A trial based on evidence that was not disclosed to the person subject to a
control order would be in breach of Article 6.
b. The person subject to a control order had to be given enough information
about the evidence against him to be able to challenge the evidence in open
court. However, when the evidence disclosed to the controlled person was
only general assertions and the case against the controlee was based solely or
to a decisive extent on undisclosed materials then it would not be necessary.
c. The person subject to a control order had to be given enough information
about the evidence against him to be able to challenge the evidence in open
court. A fair trial does not require detailed disclosure of evidence. However,
when the evidence disclosed to the controlled person was only general
assertions and the case against the controlee was based solely or to a decisive
extent on undisclosed materials then it would be necessary. A fair trial would
not take place if the case against the controlled person was mainly based on
evidence that had not been disclosed.
d. The person subject to a control order had to be given enough information
about the evidence against him to be able to effectively instruct the special
advocate acting on their behalf. A fair trial always requires detailed disclosure
of evidence.
Question 4 Menkel-Meadow (1995) argues in relation to ADR that:
[A]djudication, with its binary or win-loss solutions, more often produces situations in
which both parties... have to give up some legitimate claims in order to terminate the
dispute (as when issues are increasingly narrowed and monetized), while settlements
may enable the broadening or increasing of issues for trade or resolution and more party
interests can actually be achieved without having to give something up.
Which statement below is the most accurate summary of her argument?
a. All disputes must be solved by adjudication.
b. ADR is not based on a resolution to a dispute where the winner takes all.
c. Adjudication is superior to ADR.
d. ADR is superior to adjudication.
Question 1 In what senses can one speak of the integrity and openness of civil
proceedings?
Question 2 The Justice and Security Bill is a real threat to the values and structures
of civil process. Discuss.
Question 1 This question concerns one of the main arguments of this chapter, and so
should be reasonably straightforward. The sense that one speaks of these principles
is that they structure civil justice. In other words, they provide over-arching values.
Note that, as we have argued above, there are a number of ways of approaching a
question that asks you to think about the principles that underlie civil procedure. We
will follow the understanding that we agree with the basic position outlined in Gearey
et al. This would mean, first of all, stressing that integrity relates to the requirement
for an independent and impartial tribunal, and the prohibition on bias. To develop
this argument, one would have to analyse the impact of Article 6. The area of the test
for bias raises some important concerns. The main point would be to draw attention
to the modifications of the R v Gough test in the light of Convention jurisprudence
and show that the modification of the test does indeed ensure that the courts are
sensitive to bias. The principle of open justice relates to the duty to give reasons, and
some discussion of English v Emery Reimbold & Strick would thus be called for. The
essay would then have to review the issues that arise in relation to secrecy and closed
proceedings. Given that this is a general essay, and the writer has to achieve a general
overview, one could perhaps stress that in the area of closed material proceedings,
there is an ongoing struggle to define the limits on the principle of open justice in
controlled order proceedings and litigation involving allegations of terrorism. The
conclusion would stress that the principles of integrity and open justice are important
in providing the fundamental structure of civil procedure, even if there are arguments
over the range and definition of the principles themselves.
Question 2 The correct approach to this question is to weigh up the statement you
are being asked to discuss. One needs to make a judgement about whether or not
the bill is a real threat to the values and structure of civil process. The position taken
in this summary is that it is; but one could, if one was so minded, argue the opposite
position. The structures and values that the Bill threatens are those of adjudication in
open court; issues that take us to the role of closed procedure material and the use
of special advocates. One could make use of cases like AF that suggest the relevance
of human rights law, in particular Article 6, to such concerns: the risk is that closed
procedure materials and the use of special advocates may lead to breaches of the right
to a fair trial. One could consider cases like Al-Rawi and Tariq as part of ones analysis;
and also Mohamed in relation to torture evidence. It would be worth reviewing the
terms of the Green Paper and the Bill, and showing how the threat of terrorism does
not justify the extension of closed material proceedings.
Further reading
Lord Neuberger Open justice unbound available at www.judiciary.gov.uk/
Resources/JCO/Documents/Speeches/mr-speech-jsb-lecture-march-2011.pdf
u Why are the principles of the independence of the court and the prohibition on
bias important?
u What are the principles of access to justice?
u Why is the duty to give reasons important?
u What are closed material proceedings?
u What issues are raised by ADR?
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
10.1 The nature of the criminal justice process . . . . . . . . . . . . . . . . 157
10.2 Agencies of the criminal justice system . . . . . . . . . . . . . . . . . 157
10.3 Tensions in the criminal justice system . . . . . . . . . . . . . . . . . 158
10.4 Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
10.5 The murder of Stephen Lawrence and the Macpherson Report . . . . . . 160
10.6 The legitimacy of policing . . . . . . . . . . . . . . . . . . . . . . . . 162
10.7 Terrorism, policing and criminal justice . . . . . . . . . . . . . . . . . 165
10.8 Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
10.9 Evidence and the trial . . . . . . . . . . . . . . . . . . . . . . . . . . 168
10.10 What makes criminal trials fair? . . . . . . . . . . . . . . . . . . . . . 170
10.11 Equality of arms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
10.12 Article 6 and hearsay evidence . . . . . . . . . . . . . . . . . . . . . 172
10.13 The jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Quick Quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
10 Introduction to criminal justice
Introduction
Make case notes on:
Austin and others v UK (App nos39692/09, 40713/09and41008/09); Castorina v
Chief Constable of Surrey (1988) 138 NLJ 180; Holgate-Mohammed v Duke [1984]
1 All ER 1054; Christie v Leachinsky [1947] AC 573; Fox, Campbell and Hartley v UK
(1990) 13 EHRR 157; R v Samuel [1988] 152 JP 253 (CA); Ambrose v Harris [2011] HCJAC
116; Saunders v UK (App no 19187/91); John Murray v UK (App no 18731/91); Condron
v UK (App no 35718/97); Edwards v UK (App no 13071/87); Rowe and Davis (App no
28901/95); Fitt v UK (App no 29777/96); R v Horncastle [2009] UKSC 14; T and others
v R [2009] EWCA Crim 1035; J, S, M v R [2010] EWCA Crim 1755; R v Mirza [2004]
HRLR 11; Gregory v UK [1997] 25 EHRR 577.
This chapter provides an outline and introduction to the criminal justice process.
We will appreciate that, just as with our previous studies, there are tensions that
run throughout the criminal justice system. A brief introduction will outline the
institutions, recent history and problems of the criminal justice system, with a
particular focus on miscarriages of justice and the recurrent problem of racism and
policing. We will then turn to examine in detail an interlinked set of themes and issues.
We will look at elements of the criminal justice process: in particular, police powers
to stop and search and powers of arrest. We will then turn our attention to the trial
process itself, and look at the rights of the defence, in particular, the presumption
of innocence and the doctrine of equality of arms. We will then examine confession
evidence. One of the themes that runs through this chapter is the human rights
context of the criminal justice system, and, to pick up on a central theme of this
subject guide, our reference point will be Article 6 of the European Convention on
Human Rights (ECHR) (although we will also make a brief study of Article 5). The final
section of the chapter investigates recent reforms of the jury, and seeks to place the
jury in the context of Article 6.
Essential reading
Gearey et al., Chapter 16 Imagining criminal justice; Chapter 13 The value of
participation: the rights of the defence, equality of arms and access to justice;
Chapter 12 The integrity of the court: judgment and the prohibition on bias,
sections as specified in the text below.
Common law reasoning and institutions 10 Introduction to criminal justice page 157
10.1 The nature of the criminal justice process
Essential reading
Gearey et al., Chapter 16 Imagining criminal justice, Introduction: A fortune
with hostages?
Gearey et al., Chapter 16, makes reference to Herbert Packers The limits of the criminal
sanction (1968). Packer suggests that one can understand many of the tensions in the
criminal justice system if we think in terms of a broad conflict between vales: The
criminal sanction is at once prime guarantor and prime threatener of human freedom.
Packer is pointing out the paradox that underlies criminal justice: criminal sanctions
guarantee the freedom of citizens by ensuring that those in breach of the criminal
law are punished. However, at the same time, the right to sanction places a great
coercive power in the hands of the state. Packer also refers to the tensions between
due process and crime control to elaborate this problem. Due process values serve to
protect the defendant and ensure that the innocent are not wrongly convicted. Crime
control values ensure that the police and the prosecution have ample resources and
opportunities in the trial process to convict the guilty. The crime control/due process
model restates the paradox of criminal justice at the level of policing and the trial.
Packers insight the paradox of criminal justice has been approached in a slightly
different way by Lord Bingham in McIntosh v Lord Advocate [2001] 3 WLR 107. Lord
Bingham directed the Court to a passage from Sachs J in the Constitutional Court of
South Africa case of The State v Coetzee:
There is a paradox at the heart of all criminal procedure, in that the more serious the
crime and the greater the public interest in securing convictions of the guilty, the more
important do constitutional protections of the accused become. The starting point of
any balancing inquiry where constitutional rights are concerned must be that the public
interest in ensuring that innocent people are not convicted and subjected to ignominy
and heavy sentences, massively outweighs the public interest in ensuring that a particular
criminal is brought to book... Hence the presumption of innocence, which serves not
only to protect a particular individual on trial, but to maintain public confidence in the
enduring integrity and security of the legal system.
(State v Coetzee [1997] 2 LRC 593 at 677)
For Lord Bingham the contradiction appears to be that the rules of criminal procedure
both seek to convict the guilty and provide safeguards that make it very difficult to do
so. When faced with conflicting values, the courts can only try to reach a compromise.
But should there be a predominant value? Arguably, it is that the innocent should
not be convicted. Our following analysis suggests that this might be somewhat high
minded. We will present a picture of the criminal justice system as riven by tensions
between due process and crime control and other political, institutional and social
problems.
For greater depth, you should consider studying the optional Criminology course in
the LLB programme. We can, however, assert one general point: criminal law provides
a medium through which to express conceptions of right and wrong, to regulate
behaviour in pro-social ways and to clearly state what is considered so anti-social
or harmful that it is punished with the rigours of state-sponsored punishment. The
criminal law (often called penal law in other countries following the Roman law
tradition) provides sanctions against those who break the rules. It is clearly the site of
state backed power.
10.2 Agencies of the criminal justice system
Jago, in Gearey et al. Chapter 16, writes that there is an assumption that the
institutions of the criminal justice system... operate[s] in an objective fashion with one
common aim to produce a seamless system where agencies cooperate to police
and prosecute criminals. To understand this argument we need, first of all, to deal with
some basic definitions. The criminal justice system involves a wide range of agencies
and interests. They include:
u the Police Service
u the Crown Prosecution Service
u the Serious Fraud Office
u other investigating/prosecuting authorities (such as the Inland Revenue and the
Health and Safety Executive)
u Magistrates courts
u the Crown Court
u the Appeal Courts
u the Criminal Cases Review Commission
u the Prison Service
u the National Probation Service for England and Wales
u the Criminal Defence Service
u the Criminal Injuries Compensation Board for victims
u other victim and witness care services.
10.3 Tensions in the criminal justice system
All commentators agree that criminal justice is a multi-layered arena of social activity
that contains many conflicts and competing policies. A constant dilemma is how to
achieve a proper balance between the provisions of criminal law and the freedom
of the individual. Furthermore, the boundaries of the criminal law change over time.
They are not always set by the outcome of purely rational debate and argument. They
also reflect the preferences prejudices even of politicians and those who influence
public opinion (we return to these themes in our discussion of sentencing below).
As Jago points out in Chapter 16 of Gearey et al., [t]he criminal justice system is best
understood therefore as a series of processes with many of its practitioners working
with different values. It is worth remembering this realist vision of criminal justice
as you read through this chapter. Jagos account is also informed by the idea that the
criminal justice system is part of the prison-industrial complex. What does this mean?
We can borrow an insight from the work of Michael Foucault. Foucault draws our
attention to the contradictions that criminality introduces into the idea that we are
all equal subjects of the law. For Foucault, law creates criminality:
...It would be hypocritical or naive to believe that the law was made for all in the name
of all; ...it would be more prudent to recognize that it was made for the few and that it
was brought to bear upon others; that in principle it applies to all citizens, but that it is
addressed principally to the most numerous and least enlightened classes...
(Foucault, 1975, p.276).
Whether or not you agree with Foucault, there are certain interests that continue to
benefit from crime. The criminal justice system is big business. The criminologist Nils
Christie (2000) has written a book entitled Crime control as industry that warns of a
spreading semi-industrial empire of institutions and prisons in the Western world.
The book is subtitled Towards gulags, western style, a reference to the great empire
of prisons and forced-labour camps that underpinned the Soviet Union. In the United
Kingdom the criminal justice system certainly employs many people and consumes a
considerable amount of public money: in 2002 around 12 billion a year (or 200 for
each man, woman and child). Over half (7.5 billion) went on policing, followed by the
Prison Service (1.8 billion), criminal legal aid (0.9 billion) and the Probation Service
(0.5 billion). Politically, the rhetoric of war against crime means that there is little
public opposition to spending more. The critic may note that if this were an industry
devoted to a product namely the reduction of crime the fact that the system seems
to fail in its prime objective would lead to a questioning of the service and a search for
new products.
10.4 Policing
Essential reading
Gearey et al., Chapter 16 Imagining criminal justice, sections entitled Policing:
local battles and national wars and Local battles.
Jago argues in Chapter 16 of Gearey et al. that policing by consent has broken down
over the last thirty years or so. He focuses on the idea that policing should be local
hence more responsive to local needs and more in touch with the communities of
those people being policed. This theme is connected to a concern with racism and
the issue of legitimate policing, or policing by consent. He also touches upon kettling
(public order policing) and terrorism.
We will start with some background on the concern with terrorism. First of all, we
want to develop Jagos point that policing has been influenced by an attempt to
respond to the perceived increased threat of terrorism. We will then go on to look
at racism in the context of the murder of Stephen Lawrence, the broader issues of
legitimate policing and problems arising from police use of stop and search powers.
It is worth remembering that policing against terrorism has something of a history. In
the context of the British criminal justice system, the scrutiny of police powers and
indeed, some attempt to achieve a balance between due process and crime control
were products of a series of miscarriage of justice cases. The miscarriages concerned
individuals who were wrongly prosecuted for committing terrorist acts on behalf of
the IRA. These notorious instances of the failure of criminal justice are known as the
cases of the Guildford Four, the Maguire Seven and the Birmingham Six. In all these
cases, the defendants had their convictions quashed by the Court of Appeal (CA). The
government went on to announce the setting up of the Royal Commission on Criminal
Justice on the day that the Birmingham Six were set free.
We will briefly look at the structural reforms proposed and accepted by both the May
inquiry into the Guildford Four and the Runciman Commission, which reported in 1993,
and the establishment of the Criminal Cases Review Commission in 1997. Although this
represents an important structural reform, there are still broader and more troubling
questions which have to be asked. These questions are about the context of policing
and the context of criminal justice.
Ashworth (1998, 2000) has argued that legal rules are often regarded as the primary
means of preventing errors, but the miscarriages cases show that many errors,
deliberate or accidental, have taken place despite the existence of legal rules and
powers that were meant to cover the processes. Hence we need to look for wider
solutions. Practical measures include the need for training, and properly adhering
to the codes of practice in the Police and Criminal Evidence Act 1984 (PACE), but the
real operational context is the institutional culture in which the various decisions
are made. Ashworth talks in terms of inculcating an ethical perspective on decision
making in the criminal process. We will develop these points below when we look at
the Macpherson report into the murder of Stephen Lawrence.
The response to the miscarriages cases did address institutional reform. As mentioned
above, one of the most important recommendations of the Royal Commission was
the creation of Criminal Cases Review Commission (CCRC) by the Criminal Appeals Act
1995. The CCRC replaced the powers of the Home Secretary under s.17 of the Criminal
Appeals Act 1968 to review criminal convictions and provided an independent
element in the appeals process.
Whilst the CCRC goes some way to repairing the system, significant problems remain
(see Sanders and Young in M. Maguire, R. Morgan and R. Reiner Oxford handbook of
criminology (2012), p.861). Prospects for change depend in part on ones view of the
reasons for the failure of criminal justice to live up to its rhetoric. We will examine the
normative method in policing below; however, it is unlikely that any single method
of reform, institutional, ethical or otherwise, will begin to deal with the problems of
the criminal justice system. Jago draws attention to two problems that we want to
examine in detail: the Macpherson Report that shed light on the institutional racism
of the Metropolitan Police (London) and problems arising from stop and search
powers.
10.5 The murder of Stephen Lawrence and the Macpherson Report
Questions about miscarriages of justice were raised following the racist murder of
Stephen Lawrence, who was stabbed to death while waiting at a bus stop in south
London. The English legal system failed to bring all his killers to justice in a timely
manner. In contrast to the IRA Cases, where innocent men and women were
convicted of crimes they did not commit, the Lawrence Inquiry revealed failures in
the criminal justice system to convict individuals when evidence indicated their guilt.
In 1997 a judicial inquiry was set up by the Home Secretary under a former High Court
judge, Sir William Macpherson. The Macpherson Report (Cm 4262-I) was published in
1999. The report accuses the Metropolitan Police of institutional racism and made a
series of recommendations. The most radical recommendation was to end the ancient
principle of double jeopardy whereby a person cannot be tried more than once for
the same crime, or substantially the same crime. This derived from a failed private
prosecution by Stephen Lawrences father against the chief suspects in the case. The
judge ruled that there was insufficient evidence to proceed and ordered the jury
to acquit the three men. The Macpherson Report recommends that the CA should
have the power to permit a new prosecution after acquittal where fresh and viable
evidence is presented.
In 2012 two of Stephen Lawrences attackers were found guilty of murder.
We want to have a more detailed look at the Reports conclusions:
46.1The conclusions to be drawn from all the evidence in connection with the
investigation of Stephen Lawrences racist murder are clear. There is no doubt but that
there were fundamental errors. The investigation was marred by a combination of
professional incompetence, institutional racism and a failure of leadership by senior
officers.....
[...]
6.4 Racism in general terms consists of conduct or words or practices which advantage
or disadvantage people because of their colour, culture or ethnic origin. In its more subtle
form it is as damaging as in its overt form.
6.34 Institutional Racism consists of the collective failure of an organisation to provide an
appropriate and professional service to people because of their colour, culture or ethnic
origin. It can be seen or detected in processes, attitudes and behaviour which amount
to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist
stereotyping which disadvantage minority ethnic people.
46.26 At its most stark the case against the police was that racism infected the MPS
and that the catalogue of errors could only be accounted for by something more than
incompetence. If corruption and collusion did not play its part then, say the critics,
the case must have been thrown or at least slowed down because officers approached
the murder of a black man less energetically than if the victim had been white and the
murderers black.
[...]
46.31 The need to re-establish trust between minority ethnic communities and the police
is paramount. Such distrust and loss of confidence is particularly evident in the widely
held view that junior officers discriminate in practice at operational level, and that they
support each other in such discrimination...
46.32 Seeking to achieve trust and confidence through the demonstration of fairness will
not in itself be sufficient. It must be accompanied by a vigorous pursuit of openness and
accountability across Police Services. Essentially we consider that the principle which
should govern the Police Services, and indeed the criminal justice system, is that they
should be accountable under all relevant legislative provisions unless a clear and specific
case can be demonstrated that such accountability would be harmful to the public
interest...
What are the chief findings of the Macpherson Report as suggested by the (edited)
conclusion above?
The Macpherson Report drew attention to the institutional racism of the Metropolitan
Police and recommended rebuilding the trust between the police and the
communities they served.
How can we understand institutional racism?
The Macpherson Report, and the concept of institutional racism, has to be seen in
the context of official reports into both policing and civil disorder. Lord Scarmans
Report into the Brixton Disorder in 1981 had rejected the allegation that British
institutions were systematically involved in racial discrimination. The limitations of
Lord Scarmans definition of racism were apparent to the Lawrence Inquiry. Both the
Police Complaints Authority (PCA) and the Police had failed to understand the problem
of discrimination, as they saw it as restricted to a few rotten apples who let the side
down (Cm 4262-I, at 6:14). Equally at fault was the practice of following the traditional
way of doing things. The overarching aspect of this ideology is the reluctance to
come to terms with the need to police a multi-racial society. For a police force that is
attached to a notion of unarmed and consensual policing, such a refusal to move with
the times is profoundly damaging.
The Macpherson Report also found that the culture of policing does not encourage
a critical self-understanding that would make prejudice easier to identify and to
challenge. Evidence from officers in the Black Police Association (BPA) drew attention
to a powerful occupational culture (6:28) which was shaping or influencing black
officers own views about race and crime from the perspective of white experience,
white beliefs and white values. This was self-perpetuating, as white officers tended
only to meet black people in confrontational situations that supported assumptions
and stereotypes about black criminality and lawlessness. As the Lawrence Inquiry was
told, it may be that these attitudes are prevalent throughout British society. Such
a concern was obviously outside the Inquirys terms of reference, although some
tentative suggestions were made about wider attitudes. As institutional racism it is
expressed not only in the failures of the Lawrence murder investigation, but also in the
disparity in the numbers of black people stopped and searched, the underreporting
of racial incidents and the inability of the police to take the issue seriously at the
level of training (6:45) (A Her Majestys Inspectorate of Constabulary Report: Winning
the race showed that before 1998, not a single officer had received training in racism
awareness).
The law might begin to understand racism through the concept of institutional
discrimination (6:22). The Report itself refers back to a text by two black American
activists, Stokely Carmichael and Charles V. Hamilton, to develop this definition. Racism
must be seen as operating within the most respected forces and as a combination
of both active and pervasive racist attitudes; underlying these is a belief in black
inferiority. This does need supplementing by assumptions about black lawlessness
that have their own particular history. For instance, one account of black history in
Britain quotes a Metropolitan Police Commissioner as saying: in the Jamaicans, you
have people who are constitutionally disorderlyIts simply in their makeup. They
are constitutionally disposed to be anti authority (P. Fryer Staying power: the history of
black people in Britain.(London: Pluto Press, 2010)).
Also important is the perception of mugging as a race crime. Although official Home
Office investigations into race relations tended to stress the role of a minority amongst
a fairly respectable majority, the panic over mugging in the later 1970s led to a series
of violent confrontations between the police and black youths. Still the subject of
complex and fierce debate in criminology and policy circles, it is difficult within the
space of this chapter to account for these explosions of violence. One fact is salient.
Official accounts tended to play down the political motivations of the rioters. In
the wake of the Notting Hill riots of 1976, a new set of stereotypes was created. The
image of the black mob entered into the public imagination: violence seemed to
make the link between blackness and disorder more complex and profound (See P.
Gilroy Aint no black in the Union Jack. (London: Routledge, 2002). This in turn led to a
new escalation in the tensions that had produced rioting in the first place. The police
strategy of containment and aggressive use of powers of search and arrest led to
further riots in the 1980s.
After the Lawrence Inquiry these attitudes and tactics are no longer acceptable. In the
words of Sir John Woodcock, the Chief Inspector of Constabulary in 1992, the Inquiry
reveals a wider cultural failure (6:61). Thus, in its recommendation for tackling racism,
there is a need for, in the words of the Reverend David Wise, a radical transformation
involving not only the police but all levels of society. The Inquiry becomes the point
at which a previously radical critique enters within official discourse. Again, with
reference to the words of Sir John, the police remain a 19th century institution, a
mechanism set up to protect the affluent from what the Victorians described as the
dangerous classes (6:61).
10.6 The legitimacy of policing
Our study of racism raises the issues of how policing might become more legitimate.
Recent research has made use of the notion of procedural justice as a way of
rebuilding the trust that people have of the police. What, then, is legitimacy?
[L]egitimacy exists when the policed regard the authorities as having earned an
entitlement to command, creating in themselves an obligation to obey. If people willingly
offer their obedience to systems of authority that command legitimacy, questions about
the drivers of legitimacy become of central policy importance.
These insights are built on the findings of American researchers.
Contrasting instrumental and normative models of compliance, Tyler argues that
normative compliance is economically more viable and is more stable over time
than instrumental compliance, which in the US context at least carries a growingly
unaffordable social and fiscal cost. (The case for such an approach will be strengthened, of
course, as the need to reduce public expenditure becomes more pressing over the years
ahead.)
(M. Hough et al. Procedural justice, trust, and institutional legitimacy (2010) 4 (3) Policing
20310)
Instrumental methods of compliance assert the authority of the law as a coercive
means towards an end: crime control. Normative methods of compliance relate to the
arguments about legitimacy: in other words, people obey the law not because they
fear sanction, but because they perceive that policing is a legitimate way of protecting
the community from crime. As Hough et al. point out, normative methods are less
costly than instrumental methods. The normative method of policing would, then,
provide at least some response to the problems of the prison industrial complex.
What evidence is there for the effectiveness of normative policing?
On the basis of various surveys of the public, Tyler has demonstrated that public
perceptions of the fairness of the justice system in the United States are more significant
in shaping its legitimacy than perceptions that it is effective. An important distinction here
is between a sense of justice based on process and one based on outcome. Tylers findings
suggest that procedural justice that is, fair and respectful treatment that follows the
rules is more important to people than obtaining outcomes that that they regard either
as fair or favourable to themselves. In other words, in encounters with the police, it is the
quality of treatment received that is more important than the objective outcome.
(Hough et al., 2010)
These arguments would resonate with the ideas of moral personhood that are
developed in Gearey et al. Re-read Chapter 16 of Gearey et al. if you dont understand
this idea. Remember that it relates to the moral authority of the court to punish
citizens. We use the concepts of integrity, participation and open justice to elaborate
this idea. We deal with these themes in the context of the criminal trial below. Bear
in mind that the idea of procedural justice relates to policing, but it is also coordinate
with arguments about the legitimacy of the fair trial.
We now want to see how these ideas might apply to powers to stop and search. As
Jago has argued, stop and search powers reveal real problems with the legitimacy of
policing. Where does the problem lie? Is it in the law itself, or in the way in which the
law is used by police officers?
10.6.1 Powers to stop and search
Our focus will be on the Police and Criminal Evidence Act (PACE). Our investigation will
focus on a number of concerns: we will be interested in the extent to which the Act
balances police powers against safeguards on those powers. If the Act balances police
powers and safeguards, we might be able to conclude that the problem of legitimate
policing lies not so much with the law, as the way in which police officers put the law
into effect.
PACE begins by defining where the police can exercise their powers:
1. Power of constable to stop and search persons, vehicles etc.
(1) A constable may exercise any power conferred by this section
(a) in any place to which at the time when he proposes to exercise the power the
public or any section of the public has access, on payment or otherwise, as of right or
by virtue of express or implied permission, or
(b) in any other place to which people have ready access at the time when he proposes
to exercise the power but which is not a dwelling.
Note subs.3:
(3) This section does not give a constable power to search a person or vehicle or anything
in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen
or prohibited articles
Note also subs.6:
(6) If in the course of such a search a constable discovers an article which he has
reasonable grounds for suspecting to be a stolen or prohibited article he may seize it.
Activity 10.1
Look up PACE Part I and study the definition of offensive weapons and prohibited
articles. How does PACE define offensive weapons and prohibited articles?
Activity 10.2
Now look up PACE Code of Practice A. Can a constable perform a stop/search on
someone on the basis of a stereotypical understanding of what a kind of person is
likely to do?
Lets return to the question we posed above. It would appear that the law does
balance powers with safeguards. We could also argue that stop and search powers
are limited in extent (i.e. a search of outer garments) and the places where they can
be used (they are not search powers of property). The Act also provides clear limits
on what the police can search for. Moreover, Code A seems to stress that stereotypes
cannot inform the decision to make use of stop and search powers.
If we conclude that the law is clear, and, at least on paper, a reasonable balance of
powers and safeguards, then we might have to conclude, along with the Macpherson
Report, that the problem is an institutional culture.
Activity 10.3
We now turn to a slightly different concern. Throughout the subject guide we have
been concerned with reading and applying the law. Using the sections of PACE
outlined above answer the following question:
Constable A is on patrol on Blank Street, a residential road, at 01.00 on 9 July. He
sees B walking along the road. Every now and then B stops and looks closely at the
houses he is passing. A thinks he recognises B as someone who looks like a burglar,
as he is of Afro-Caribbean appearance, and B surmises that such people are likely
to be criminals. He observes B walk up a short path across a small garden to a front
door, take something out of his pocket, and then replace it in his pocket. B then
turns to leave the property, but, by this time, A has walked up the short path and
confronts B. He asks B what he is doing. B replies nothing. This is my house. A then
tells B that he is going to search him for drugs and stuff. B reluctantly agrees. A
finds a key and a nail file in Bs pocket and confiscates them. He then places B under
arrest.
Discuss breaches of PACE and Code of Practice A.
10.6.2 Public order and kettling
Essential reading
Gearey et al., Chapter 16 Imagining criminal justice, section entitled Local battles.
Our concerns with legitimate policing are not restricted to the context of racism.
We will follow Jagos concerns with public order in Chapter 16 of Gearey et al. In our
concern with kettling, we want to focus on the role that human rights play in policing.
As has been pointed out, [p]ublic order is listed as one of the five main threat areas in
the Strategic Policing Requirement. (www.homeoffice.gov.uk/publications/police/pcc/
working-beyond-force-area/dealing-with-public-order?view=Binary). The police must
maintain security whilst allowing peaceful protests to take place. As Lord Denning
once pointed out: English law upholds to the full the right of people to demonstrate
and to make their views known so long as all is done peaceably and in good order
(R v Chief Constable of Devon and Cornwall Ex p Central Electricity Generating Board
[1982] QB 458). The specific issue we will concern ourselves with in this section is the
management of demonstrations. A recent report put the issue well:
We should remember that public protests have been part of British political life for a very
long time. Protests are an important safety valve for strongly held views. In addition, the
right to protest in public is a synthesis of iconic freedoms: free assembly and free speech.
(Her Majestys Inspectorate of Constabulary Adapting to protest, www.hmic.gov.uk/media/
adapting-to-protest-20090705.pdf)
The Public Order Act 1986 created a power for a senior police officer to impose
conditions on public processions. Conditions for the imposition of a change of time,
place or route of a march can be made if the police officer reasonably believes that
the procession that would result either is serious public disorder, serious damage to
property or serious disruption to the life of the community. Conditions can also be
imposed if the purpose of the march is to intimidate others. Directions may be given
to those organising or taking part which appear within the discretion of the police
necessary to prevent destruction of property, disorder or intimidation. An organiser
who knowingly fails to comply with an imposed condition is guilty of an offence. The
defence is that failure was due to circumstances beyond the organisers control.
Section 14 of the Act applies similar conditions to assemblies.
This takes us to concerns about policing and public order.
Activity 10.4
Read the European Court of Human Rights (ECtHR) ruling in Austin and others v UK
(App nos39692/09, 40713/09and41008/09).
Why was there no breach of Article 5?
Do you prefer the majority or the dissenting minority in this case? Give reasons for
your answer.
10.7 Terrorism, policing and criminal justice
Essential reading
Gearey et al., Chapter 16 Imagining criminal justice, section entitled National
wars.
A concern with terrorism and the rule of law is a recurrent theme in this subject guide,
and it is worth linking our comments on policing with our studies of this problem in
other chapters, particularly in Chapter 8 on the judiciary.
Read Jagos analysis (in Gearey et al., Chapter 16) of the consequences of the war
on terrorism on policing. Jagos comments on policing correspond with Baroness
Kennedys argument that no state should be assumed to be benign (Legal conundrums
in our brave new world (London: Sweet and Maxwell, 2004), pp.412). Although there
are legitimate requirements that the community is protected against terrorists, there
is also the risk that the state uses the threat of terrorism to increase its own coercive
powers. We should not assume that increasing police powers or forms of preventative
detention are the best way to deal with the threat of terrorism. This argument returns
to the idea that policing should be by consent. What role do human rights play in this
approach to terrorism?
Consider the following argument from Ivan imonovi c, UN Assistant Secretary-General
for Human Rights (2012):
In the global context, particularly since 2001, it has often been argued that human rights
considerations must be secondary to a States counter terrorism objectives. Human
rights and security are seen as being at two opposite ends of a spectrum that cannot
be reconciled. At best, according to this view, specific human rights or fundamental
freedoms must be balanced against specific security requirements. By the same logic
Governments cannot be expected simultaneously to deliver - both security and freedom
of expression, religion and belief; protection from acts of terrorism and freedom from
torture and other forms of ill treatment, habeas corpus and the presumption of innocence.
This reasoning is flawed as it ignores two fundamental facts: Firstly, the international
protection of human rights derives from a need for security and serves to enhance
security. Secondly, the provision of security to individuals under their jurisdiction is itself
a duty of States under human rights law. It is part of one of the most basic human rights
obligations: the protection of the right to life.
Countering terrorism is therefore, in itself, a human rights objective. The provision
of human rights protection and the provision of security are not competing, but
complementary obligations; not subsequent, but simultaneous obligations. They should
be part of the same strategy to effectively protect the population, and part of the same
obligation of the State to provide human security.
[...]
Not only is there no contradiction between protecting human rights and countering
terrorism, but protecting human rights itself actively contributes to the countering of
terrorist activity effectively. The Global Counter-Terrorism Strategy makes this clear by
identifying respect for human rights and the rule of law as the fundamental basis of the
fight against terrorism.
Some measures taken to counter terrorism pose grave challenges to the protection and
promotion of human rights, and can be self-defeating. Measures that violate human rights
risk undermining the very goals that States seek to achieve in countering terrorism, and
can even increase radicalization that can lead to extremist violence.
(www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12367&LangID=E)
Simonovi argues that human rights and security are compatible ideas. It would be
wrong to see the two terms as existing in a contradictory relationship. For a start, the
right to life relates to the states duty to protect its citizens from terrorist violence.
Secondly, human rights actively contribute to countering terrorism. Failure to
respect human rights leads to a withdrawal of trust in the state and its agencies and
may even exacerbate the conditions that cause individuals to resort to violence in the
first place.
Although Simonovi does not spell it out, his arguments about human rights are
compatible with our arguments about legitimate policing. Legitimate policing does
not rely on coercion, and attempts to build trust between law enforcement officers
and the communities they serve. One could assume that respecting the human rights
of suspects would help achieve this end.
10.8 Arrest
Essential reading
Gearey et al., Chapter 16 Imagining criminal justice, section entitled Powers of
arrest and human rights.
Whatever we might say about legitimate policing, one has to confront the fact that
police powers will inevitably be coercive. For a rule of law society, these coercive
powers have to be defined and limited by safeguards. We want to think about these
issues with reference to the law on arrest. Arrest is the point when the liberty of the
subject is suspended and the power of an executive agency of the state is brought to
bear on the individual. What legitimises arrest powers? Clearly, there is a legitimate
interest in the policing of crime, and powers of arrest are necessary in this context. We
will argue that the law does indeed take the issue of legitimacy seriously, and we will
study the way in which arrest powers are defined by the law.
Section 24(13) of PACE outlines the definition of an arrestable offence. We are
primarily concerned with the power to arrest without warrant. The more important
section is s.24(4), which defines the power of arrest. It is a little difficult to follow,
because first it defines the citizens power of arrest, before turning to the power that a
police officer has:
(4) Any person may arrest without a warrant
(a) anyone who is in the act of committing an arrestable offence;
(b) anyone whom he has reasonable grounds for suspecting to be committing such an
offence.
(5) Where an arrestable offence has been committed, any person may arrest without a
warrant
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(6) Where a constable has reasonable grounds for suspecting that an arrestable offence
has been committed, he may arrest without a warrant anyone whom he has reasonable
grounds for suspecting to be guilty of the offence.
(7) A constable may arrest without a warrant
(a) anyone who is about to commit an arrestable offence;
(b) anyone whom he has reasonable grounds for suspecting to be about to commit an
arrestable offence.
PACE preserves, at s.24(4) and (5), the power of any individual to make an arrest if
there are reasonable grounds to believe that an arrestable offence is in the process of
being committed or when an arrestable offence has been committed. The powers of
arrest given to police officers are more extensive.
A police officer can arrest on reasonable grounds of suspicion that an arrestable
offence has been committed. In other words, an officer is effectively protected from
a civil action if he makes an arrest and an offence has not been committed: s.24(6).
Moreover, a constable has a preventative power of arrest (s.24(7)) which a private
citizen does not have. The only exception is when an imminent breach of the peace is
anticipated. A citizen (as well as a constable) may then make a preventative arrest.
10.8.1 What is reasonable suspicion?
The key requirement of reasonable suspicion is based on the information available
to the arresting officer at the time that they make the arrest: see Redmond-Bate
v DPP [1999] Crim LR 998. This principle is elaborated by a later case: Clarke v DPP
(Unreported, 14 November 1997). It must be made clear to the court what the officer
had in mind when they made the arrest.
Castorina v Chief Constable of Surrey (1988) 138 NLJ 180 (CA) is one of the major cases. It
is interesting to look at the decision of the trial judge who defined reasonable cause
(under s.2(4) of the Criminal Law Act 1967, now s.24(6) PACE) as honest belief founded
upon reasonable suspicion leading an ordinary cautious man to the conclusion that
the person arrested was guilty of the offence. This argument was founded on the
authority of Dumbell v Roberts (1944), which applied to arrests the principle that
everyone is innocent until proven guilty. The CA disagreed with the argument of
the trial judge, asserting that the proposed test was too severe. The CA stressed that
the test should be objective. The trial judges reference to honest belief was thus
misleading, as it raised a question of subjective belief. It would appear that reasonable
cause does not mean that an ordinary cautious man would conclude that the person
was guilty of the offence; it was enough to suspect that he was guilty.
See also Holgate-Mohammed v Duke [1984] 1 All ER 1054. The House of Lords determined
that where a police officer reasonably suspects an individual of having committed
an arrestable offence, he may arrest that person with a view to questioning her at the
police station. This decision can only be judicially reviewed if the constable acted
improperly by taking something irrelevant into account.
In terms of the common law definition of arrest, the element of compulsion is also
essential. The arresting officer must, therefore, indicate that the suspect is under
arrest either physically, or orally. The problem in relation to indicating arrest by oral
means alone is that it may not necessarily indicate the required compulsion. It is
suggested that if a police officer told a suspect orally that they were under arrest, and
the detainee escaped before being physically restrained, the arrest is not complete.
See Alderson v Booth [1969] 2 QB 216.
Note: the requirements under s.28 (see below) are strictly separate from this necessity
to indicate that the detainee is under compulsion.
10.8.2 Arrest formalities
As we saw above, at common law it was necessary for the person making the arrest to
make it clear to the person under arrest, by either (a) physical means or (b) orally, that
they had been arrested. PACE supplements the common law with further requirements.
An arrest under PACE has to meet with certain formalities contained in s.28(1), which
states that the arrest is not lawful until the person arrested is told of the reason for
arrest, as soon as practicable after the arrest. Under s.28(3) an arrest is not lawful
unless the arrestee is informed of the ground for arrest: Christie v Leachinsky [1947] AC
573 gives the reason:
a person is prima facie entitled to personal freedom [and] should know why for the time
being his personal freedom is being interfered withNo one, I think, would approve
of a situation in which when the person arrested asked for the reason, the policeman
replied that has nothing to do with you: come along with me... And there are practical
considerationsif the charge is then and there made known to him, he has the
opportunity of giving an explanation of any misunderstanding or of calling attention
to the other persons for whom he may have been mistaken, with the result that further
inquiries may save him from the consequences of false accusation
In Lewis v Chief Constable of South Wales [1991] 1 All ER 206 (CA) the plaintiffs were told
of the fact of the arrest, but the police delayed telling them the grounds. The CA stated
that an arrest arose as a question of fact from the deprivation of a persons liberty. As
it was a continuing act, what had started as an unlawful arrest could become a lawful
arrest. In other words, an arrest becomes lawful once a ground is given.
DPP v Hawkins [1988] 1 WLR 1166 is authority for the fact that if it is not practicable for
reasons to be given at the time of the arrest, the arrest is lawful and remains so until
such time as reasons should be given.
The arrest does not need to be confirmed by words (such as, I arrest you), a statement
of the fact of the arrest is sufficient. In Abbassey [1990] 1 All ER 193 there was no need
for the technical or precise language to be used, provided the person knew that they
had been arrested. This was a question of fact to be answered by the jury. However, the
reason given must be the correct reason. If an incorrect reason is given the arrest is
unlawful: see DPP v Edwards and Mullady v DPP.
In Fox, Campbell and Hartley v UK (1990) 13 EHRR 157, the principle developed in Abbassey
was confirmed by the ECtHR as coherent with Article 5(2) of the Convention.
An arrest is not made unlawful if undue force is used: see Simpson v Chief Constable of
the South Yorkshire Police (1991) 135 Sol Jo 383 (CA).
10.9 Evidence and the trial
Essential reading
Gearey et al., Chapter 16 Imagining criminal justice, section entitled
Courtroom: science as truth, experts as truth tellers
In Gearey et al., Jago argues that the overreliance on expert evidence has negative
consequences for the criminal justice system. Make notes on this section of the
chapter, and remember to review your studies of the miscarriage cases as they also
suggest that expert evidence is not infallible.
10.9.1 Confession evidence
Essential reading
PACE, s.76.
We can also consider confession evidence. The most important provisions concerning
confession evidence are contained in s.76 of PACE. A confession is defined as evidence
which goes against the accused person. If there is any suggestion that the confession
was obtained either by the oppression of the accused, or in consequence of anything
said or done which was likely, in the circumstances existing at the time, to render
unreliable the evidential value of the confession, the court will not allow the evidence
to be used in court unless the prosecution proves that the confession was not
unfairly obtained.
The exclusion of the confession does not affect, however, the admissibility of evidence
discovered from the confession. Oppression is defined at subs.(8) as including torture,
inhuman or degrading treatment and the use or threat of violence.
10.9.2 Inadmissible evidence (s.78)
Section 76 of PACE has to be seen as working in conjunction with s.78. Section 78 allows
a court to refuse to allow evidence so this is wider than just confession evidence on
which the prosecution seek to rely if it seems to the court that, with regard to all the
circumstances, the admission of evidence would have such an adverse effect on the
fairness of the proceedings that the court ought not to admit it.
PACE leaves in place the common law power to exclude prejudicial evidence: see
s.82(3).
Section 56 confers the right to have someone informed of your arrest. This is bolstered
by the right to have access to legal advice at s.58. This is the right to privately consult a
solicitor at any time.
The courts consider the breach of s.58 to be a very serious matter, see R v Samuel [1988]
152 JP 253 (CA), which quashed a conviction for robbery, and Ambrose v Harris [2011]
HCJAC 116.
10.9.3 Sentencing and prisons
Essential reading
Gearey et al., Chapter 16 Imagining criminal justice, section entitled
Sentencing: art or science? and Overcrowded prisons: a crisis of numbers and
conditions.
Activity 10.5
Sentencing is a matter for judges, not politicians. Do you agree?
10.9.4 Is there a crisis in the prison system?
We want to conclude this section by referring again to Foucaults thinking on the
prison:
But perhaps one should reverse the problem and ask oneself what is served by the
failure of the prison; what is the use of these different phenomena that are continually
being criticized; the maintenance of delinquency, the encouragement of recidivism, the
transformation of the occasional offender into a habitual delinquent, the organization of
a closed milieu of delinquency. Perhaps one should look for what is hidden beneath the
apparent cynicism of the penal institution which after purging the convicts by means
of their sentence, continue to follow them by a whole series of brandings...and which
thus pursues as a delinquent someone who has acquitted himself of his punishment as
an offender? Can we not see here a consequence rather than a contradiction? If so, one
would be forced to suppose that the prison, and no doubt punishment in general, is not
intended to eliminate offences, but rather to distinguish them, to distribute them, to use
them; that is not so much that they render docile those that are likely to transgress the
law, but that they tend to assimilate the transgression of the laws in a general tactics of
subjection.
(Foucault, 1975, p.272)
And this from Cavadino and Dignan:
The crisis of legitimacy, it is worth repeating, is at least threefold. The penal system needs
to legitimate itself with different groups of people: with the public (including politicians,
commentators etc.), with penal staff (including prison staff and probation officers)
and with penal subjects (prisoners, probationers and others who are subject to penal
treatment). Failing to satisfy the sense of justice of these different audiences leads to the
alarming visible symptoms of the crisis: political problems, industrial relations problems,
malaise among prison and probation staff, and disorder amongst prisoners. In saying that
the crisis of legitimacy is central, we are saying that the penal crisis is in essence a moral
crisis. By this we do not just mean that many people believe that the system is unjust.
As we hope to make clear ... the penal system is indeed in our opinion the source of very
substantial injustice, and the crisis is unlikely to be solved unless this injustice is mitigated.
(M. Cavadino and J. Dignan The penal system: an introduction (London: Sage, 2007) p.32)
10.10 What makes criminal trials fair?
Essential reading
equality of arms and access to justice, section entitled The value of
participation.
We will now continue our concern with criminal evidence, but from the perspective
of the criminal trial itself. We are now concerned with the principles that make a
criminal trial fair. Remember that Gearey et al. argues in Chapter 2 that the criminal
court needs the moral authority to punish citizens if they are in breach of the criminal
law. The moral authority to punish is underpinned by three principles: integrity,
participation and open justice. Our arguments about the independence of the court,
and the prohibition on the bias of the judge are as relevant in this context as they are
to our discussion of civil justice. Similar comments could be made about the principle
of open justice. What we want to stress in our following analysis is the importance of
participation in the criminal trial.
To understand the role of participation in the criminal trial, remember the comments
on the nature of the normative theory of the trial (Chapter 2 of Gearey et al.).
Concentrate on how the principle of participation makes sense in the context of the
criminal trial; in particular, the reason why the principle has to be limited to take
account of the coercive power of the state and its agencies.
10.10.1 The burden of proof and the presumption of innocence
Essential reading
equality of arms and access to justice, section entitled The presumption of
innocence and the privilege against self-incrimination.
As we suggested above, in order to ensure a fair trial, the rights of the defendant have
to be recognised. This takes us to a fundamental principle: the burden of proof and
the presumption of innocence. Note how the burden of proof can be understood in
the light of the principles we were discussing in Section X above. The accused does not
have to take part in their trial, and does not bear the burden of proof. The fact that the
prosecution bear the burden of proof means that they have to prove the guilt of the
defendant beyond reasonable doubt.
The presumption of innocence
The presumption of innocence can be seen as those rules of evidence that define the
burden and standard of proof in criminal proceedings. Viscount Sankeys speech in
Woolmington v DPP [1985] AC 462 is a classic statement of the role of the presumption
in a criminal court. The prosecution must prove that the accused is guilty of the
crime(s) for which they have been charged. The prosecution also bears the burden of
proof (remember that although the prosecution carry the burden of proof there may
be certain issues that the defence has to prove during the trial. We could thus speak of
shifting the burden of proof).
The prosecution must show that the accused is likely to be guilty beyond reasonable
doubt. How has the court defined reasonable doubt? Senior judges have preferred
not to offer a global definition. Furthermore, they have asserted that, in general, the
presumption of innocence must be related to the maintenance of the integrity of the
criminal justice system and public confidence in it.
Salabiaku v France
In Salabiaku v France (App no 10519/83) the ECtHR considered the presumption of
guilt under the French Custom Code. The problem for the ECtHR was not so much
the existence of the presumption but whether or not it prevented the Court from
genuinely trying the case. In Salabiaku, although the presumption was almost
impossible to rebut, a defence was available to the applicant. This was not a breach
of Article 6, even though the defence had the burden of proof of showing that the
defence applied. Hoang v France 1992 16 EHRR 53 clarified the general principle: the
primary burden of proof must be borne by the prosecution.
Privilege against self incrimination
The privilege against self incrimination, like the presumption of innocence, relates to
whether or not certain kinds of evidence can be used in a criminal trial. The privilege is
in fact a set of principles that relate to different kinds of evidence and the justification
for their admission or exclusion from a trial. We could also make a distinction between
pre-trial silence (for example, a refusal to answer police questions) and a particular
kind of evidence: the accuseds silence during the trial.
The courts have been careful not to equate silence with guilt, and much of the
case law concerns quite how the accuseds silence could be used in court. The
Criminal Evidence Act 1898 laid down the principle that silence during trial could be
commented on by the prosecution, and a number of authorities have clarified this
principle; in particular, the precise words that the judge could use in commenting on
the accuseds silence in court. The Criminal Justice and Public Order Act 1994 changed
the law, but, the case law on the relevant sections of this Act suggests that a judge
needs to be very careful when commenting on an accuseds silence.
Article 6 in relation to the privilege against self incrimination and unfairly
obtained evidence
The key cases are Saunders v UK (App no 19187/91), John Murray v UK (App no 18731/91)
and Condron v UK (App no 35718/97).
In Saunders, the ECtHR held that the right not to be compelled to contribute
incriminating evidence was implicit in Article 6 and should be linked to the
presumption of innocence which was expressly guaranteed by Article 6(2). In John
Murray v UK, the ECtHR considered that the right to silence was open to qualification,
and was not an absolute right. Furthermore, prosecution comments on an accuseds
silence did not amount to improper compulsion.
Condron v UK saw the ECtHR ruling on s.34 of the Criminal Justice and Public Order Act
1994. In particular, the ECtHR found that the imprecise guidelines issued to the jury by
the judge did amount to a breach of Article 6.
10.11 Equality of arms
Essential reading
equality of arms and access to justice, section entitled Equality of arms.
What is equality of arms?
Following Trechsel (Human rights in criminal proceedings. (Oxford: Oxford University
Press, 2006)) we can understand equality of arms in the following way. Note that
Article 6 does not itself mention the doctrine. The ECtHR has developed equality of
arms from the Article. The foundation of the principle is that each party must be
afforded a reasonable opportunity to present his case including his evidence under
conditions that do not place him at a disadvantage vis--vis his opponent (Trechsel,
2006, p.96). The doctrine applies to both civil and criminal cases; and has obviously
been developed in different ways to deal with the differences between civil and
criminal litigation. The general principle, as outlined by the ECtHR, is that there should
be a fair balance between parties. In civil cases, this means that each party must be
given a reasonable opportunity to present his case (Feldbrugge v The Netherlands (26
May 1986) at para.44). The focus of this chapter, however, is on the meaning of the
doctrine in criminal cases.
NB: The doctrine of equality of arms also applies in civil cases. Our focus on this course,
however, is on the doctrine in the context of criminal procedure.
How have the British courts understood equality of arms in criminal litigation?
The key cases are Edwards v UK (16 December 1992), Rowe and Davis (16 February 2000)
and Fitt v UK (16 February 2000). In Edwards, the applicant alleged that there had
been a breach of equality of arms because a Police Complaints Authority report into
the investigation of his prosecution was not taken into account in his appeal or his
petition to the Lord Chancellor. In particular, Edwards argued that the prosecution had
made unfair use of evidence because they had relied on a public interest immunity
certificate, which meant that Edwards counsel had been unable to properly examine
the evidence against him. The ECtHR held that there had been no breach of equality of
arms. Although the prosecution had relied upon public interest immunity, there were
other checks and balances that meant that the CA had been able to properly consider
Edwards case. Rowe and Davis also concerned public interest immunity. The applicants
argued that the CA had not been able to examine evidence against them properly.
In an ex parte hearing the CA held that the prosecution could make use of sensitive
evidence that was not made available to the defence. Somewhat later, it transpired
that the prosecutions evidence was obtained by a paid informer. The ECtHR held that
the ex parte consideration of the evidence in question by the CA was unfair and that the
prosecution had enjoyed an advantage over the defence. Fitt can be distinguished from
Rowe and Davis, where evidence obtained from a police informer could be used in a trial
without disclosure to the defence without giving the prosecution an unfair advantage
over the defence because of the checks and balances that existed in the criminal trial.
However, note the powerful dissenting opinions in this case and the argument that
there should be a special counsel to consider evidence obtained from informers.
10.12 Article 6 and hearsay evidence
Essential reading
R v Horncastle [2009] UKSC 14.
In Horncastle, the Supreme Court (SC) refused to follow the ECtHR in Al-Khawaja &
Tahery v UK. Al-Khawaja saw the ECtHR apply the sole or decisive rule on hearsay
evidence to the common law. This rule held that the rights of the defendant are
unduly restricted if a conviction is solely or mainly based on evidence provided by
witnesses whom the accused is unable to question at any stage of the proceedings
Hearsay: the scheme of the CJA 2003
Evidence is normally given by a witness who is present in person in the court. The
witnesss evidence can thus be tested and their claims assessed. Hearsay evidence is
evidence which is not so given, but rather is given second hand, whether related by
a person to whom the absent witness has spoken, contained in a written statement
of the absent witness, given in the form of a document or record created by him,
or otherwise. The law of England and Wales has normally considered that hearsay
evidence is inadmissible, and thus cannot be given in court. However, because a
blanket ban on hearsay evidence would itself be unjust, exceptions have developed.
This has, in turn, led to problems with the coherent development of the law.
The CJA 2003 relates to identified but absent witnesses. It does not permit the
admission of the evidence of anonymous witnesses. As far as anonymous witnesses
are concerned the ECtHR case Doorson v The Netherlands 22 EHRR 330 introduced the
sole or decisive test when hearsay evidence was used in a conviction of a defendant.
As far as identified but absent witnesses are concerned, the court must engage
in a balancing exercise necessary to see whether admission of hearsay evidence
would make the trial unfair, and whether or not the rights of the defence would be
compromised by admission of the evidence. The position of anonymous witnesses is
dealt with by the Criminal Evidence (Witness Anonymity) Act 2008 but this Act was not
in question in Horncastle.
The SC in Horncastle was critical of the ECtHRs argument that there could be no
counterbalancing factors under the relevant test that would justify the use in court
of an untested hearsay statement that was the sole or decisive evidence used in
the conviction of a defendant. However, under Article 6(3)(d), the prosecution does
not have an unqualified right to confront witnesses if there were no exceptions
to the right to confront witnesses this would effectively amount to a blanket
prohibition on hearsay evidence. The SC stressed that a legitimate justification for
the admission of the absent witnesss statement must be established and appropriate
counterbalancing measures must be taken to ensure that the defendant is not
placed at an unfair disadvantage and his rights respected. The SC went on to hold
that there is no justification, in the case of an identified but absent witness, for an
absolute rule that no counterbalancing measures can be sufficient where hearsay
evidence is the sole or decisive evidence against the defendant. In reaching this
decision, the SC took into account the fact that the Law Commission and Parliament
had rejected an absolute prohibition when hearsay evidence was sole or decisive in
securing a prosecution. A second important factor was the code set out in the CJA
2003 which provides the rigorous conditions for admissibility. Third, the ECtHR did
not give full consideration to the issue of whether the evidence in question could itself
be assessed and tested. Moreover, the CJA provides a failsafe position where the
reliability of the evidence must be considered. Finally, as Article 6 does not contain an
absolute right for a defendant to have all witnesses against them tested, the balancing
test is not in breach of Article 6.
10.13 The jury
Essential reading
prohibition on bias, section entitled Bias, human rights and the jury.
The jury has played a central role in the English legal system. It used to be said that
the jury was one of the leading exports of the United Kingdom, along with football,
cricket, the common law and the parliamentary system. It became enshrined in the
US Constitution, where currently in most criminal cases the charge is first considered
by a grand jury with between 12 and 23 members. However, the jury is not beyond
criticism. Opponents of juries argue that they are ineffective, irrational and cause
delay; proponents argue that juries bring community standards to bear, can moderate
the effects of harsh laws and are a protection against incompetent judges.
In recent years in the United Kingdom, there has been intense debate as to the future
of the jury in criminal trials. The New Labour government was criticised for attempting
to remove the right to jury trial through its various attempts to decrease the
defendants right to determine the mode of trial.
The Criminal Justice Act 2003

amended the Juries Act 1974 by abolishing certain categories of ineligibility (excluding
mental disorder), and excusal as of right. The bar on judges, clergy, etc. was lifted.
Members of Parliament, etc. are no longer entitled to refuse to serve. These groups
now must do jury service unless they can show good reason not to. The only limitation
on jury service now is disqualified and mentally disordered individuals: no one is
excused as of right.
Most importantly, the 2003 Act made provision for applications by the prosecution for
certain fraud cases to be conducted without a jury (s.43) and also some cases where
there is danger of jury tampering (s.44). Under s.43, in cases of serious or complex
fraud, the prosecution may apply to a judge of the Crown Court for the trial to be
conducted without a jury. If the judge is satisfied that the complexity or length of the
trial (or both) are likely to make the trial too burdensome to the members of a jury,
the judge may decide that, in the interests of justice, the trial should be conducted
without a jury. In deciding this, the judge should take into account any steps that
could reduce the complexity or length of the trial. If the judge does so decide, then the
Lord Chief Justice or such judge nominated by the Lord Chief Justice must approve the
The mode of trial

refers to trial either by
judge alone or by judge
and jury.
decision. In the case of jury tampering, there would have to be a substantial likelihood
of tampering taking place to make it necessary in the interests of justice for the trial to
be conducted without a jury.
10.13.1 Trial without a jury
The conviction of the so-called Heathrow heist four at the Old Bailey has raised
concerns about the circumstances in which the right to trial by jury may be removed
for serious cases. On 31 March 2010 each of the four defendants received long prison
sentences for their part in the robbery. Henry Porter has severely criticised the
reforms which allowed the trial to proceed with no jury, in an article entitled Trial
by jury is basis of British justice in the Guardian (1 April 2010 www.guardian.co.uk/
commentisfree/henryporter/2010/apr/01/trial-by-jury-heathrow-case). He says:
A profound change has occurred in Britain where it is now possible for counsels and a
judge to decide the fate of defendants without the involvement of 12 ordinary citizens
the fundamental guarantee against arbitrary state punishment represented so well by the
use of the star chamber under King Charles I.
He further stated that there were three disturbing aspects of this case:
First, the evidence against the accused was very good indeed. Darren Brockwell, the inside
man at Heathrow, had turned Queens evidence and this seems certain to have swayed a
jury, which had been properly protected by the police, to find the men guilty.
Second, the decision to go ahead without a jury was partly taken for financial reasons. A
jury trial was estimated to cost 6m, while one without a jury costs 1.6m. To the Crown
Prosecution Service it seemed a no-brainer, but since when did we agree that a principle
of every defendants right to be tried in front of his peers had a price on it.
Third, and most important, the defence teams were not allowed to know the evidence
of previous jury tampering, nor whether their clients were implicated in these alleged
activities. The court and the public are expected to accept the word of the police that
there are sensitive issues concerning this evidence and trust in their good faith. That is
unacceptable.
On any measure, the Heathrow case was an unusual prosecution. The trial was the
fourth attempt to prosecute the men, with each of the three previous trials collapsing.
The CA ruled in June 2009 (T and others v R [2009] EWCA Crim 1035) that there was a
serious danger that the jury could be influenced and therefore set up the fourth, final
and judge-only trial. Ultimately, the case cost 25 million to prosecute, which was
significantly more than the men stole. For many commentators the circumstances of
their trial represent a dangerous precedent in terms of legal principle. On the other
hand, this prosecution may also prove a rare exception and a practical solution to the
difficult problem of jury intimidation.
10.13.2 Case law on trials without a jury
The Lord Chief Justice has emphasised in two CA judgments KS v R [2010] EWCA Crim
1756 and J, S, M v R [2010] EWCA Crim 1755 that juryless trials must be a last resort and
take place only in truly exceptional cases.
These comments seemed aimed at restricting requests for juryless trials in
prosecutions of serious crime, following the controversial Heathrow case. As
mentioned above, the Criminal Justice Act 2003 limited for the first time the right to
trial by jury in the Crown Court, where trials for serious crimes take place. Section 44
provides for the option of judge-only trials if there is a real and present danger of jury
tampering.
J, S, M v R involved three men who allegedly conspired to pervert the course of public
justice. The judge had ruled that the two pre-conditions to an order for trial without
a jury were satisfied. There was evidence of a real and present danger the jury
tampering would take place meaning that a trial without a jury was necessary in the
interests of justice. Delivering the main judgment the Lord Chief Justice rejected the
decision in strong terms, stating that the arrangements for juryless trials introduced
by the 2003 Act remains and must remain the decision of last resort and should only
be used in extreme cases.
KS v R was another case where there were serious concerns over potential jury
tampering. The case involved an allegation arising from a very substantial VAT fraud.
Again, the Lord Chief Justice ruled that the concerns went nowhere near far enough
to allow for a juryless trial. Rather, a fairly limited level of jury protection could
reasonably be provided which would sufficiently outweigh the potential threat of jury
tampering. He went on to restate the principles underlying the trial by jury reforms,
just as he had done in J, S, M v R:
We emphasise the link between the nature of the threat and danger of jury
contamination, and the steps reasonably available to be taken to reduce the risk to
manageable proportions and caution against any unduly alarmist proposals, alarmist,
both in the sense of the likely adverse impact on the members of the jury themselves, and
on the drains on precious police resources of providing them.
He also stated that the police must actively manage jury protection, reminding them
that the new statutory arrangements do not undermine, but rather confirm, the need
for the issues of jury protection to be handled in a realistic and proportionate way.
So juryless trials must not become a stress-free alternative to having to protect a jury
from influence. Rather, they must only occur where that protection would entail a
disproportionate drain on resources.
The Lord Chief Justices strong statements of principle have gone some way to
bolstering the right to trial by jury in serious criminal trials in the Crown Court, and
should make it harder for juryless trials to be granted.
10.13.3 Article 6 and the jury
Essential reading
prohibition on bias, section entitled Bias, human rights and the jury.
In this section we will concentrate on the impact of Article 6 on the jury. We will
examine some key House of Lords decisions, and some rulings by the ECtHR and
the European Commission. Our main question will be: to what extent is the jury
compatible with the jurisprudence of Article 6?
One of the key cases is R v Mirza [2004] HRLR 11. Mirza was convicted of indecent
assault. He appealed against conviction. His argument was based on a letter that had
been written by one of the jurors and had been brought to the attention of the judge
before he passed sentence. The letter alleged that the jurys verdict was subject to
racial prejudice. The court also heard appeals from two other appellants. Their appeals
against their convictions for wounding offences were based on letters received by the
Crown Court after the verdict but before sentencing. The letters alleged that most of
the jurors were looking for a quick verdict and had therefore decided to give a guilty
verdict to both defendants even though many thought that it might have been only
one of them who had committed the offence.
The CA dismissed both the appeals, holding that it was bound by R v Qureshi [2001]
EWCA Crim 1807, [2002] 1 WLR 518, which had stated the rule of secrecy of jury
deliberations after verdict. The jurors letters were therefore inadmissible. The CA did,
however, remit an important question of law to the House of Lords for determination:
were the common law rules that prohibited jury deliberations being admitted as
evidence in breach of Article 6 if that evidence suggested that the jury was not
impartial?
The House of Lords decided that:
the general common law rule was that the court would not investigate, or receive
evidence about, anything said in the course of the jurys deliberations while they were
considering their verdict in their retiring room. Attempts to soften the rule to serve the
interests of those who claimed that they were unfairly convicted should be resisted in
the general public interest, if jurors were to continue to perform their vital function of
safeguarding the liberty of every individual. It was noted that in the Report of his Review of
the Criminal Courts of England and Wales (2001), Auld LJ recommended that the Court of
Appeal should be able to inquire into alleged impropriety by a jury, whether in the course
of their deliberations or otherwise. This would involve a substantial, if not complete,
departure from the present law and from its underlying policies. Any such far-reaching
reform of the law on this topic must be a matter for Parliament rather than for the House
in its judicial capacity.
The House of Lords went on to discuss the common law exceptions to the rule. These
exceptions related to the situation where the jury was alleged to be affected by
extraneous influences (although this was not an issue in the present case). Another
problem was also considered: if it was alleged that the jury as a whole declined to
deliberate at all, but decided the case by other means such as drawing lots or by the
toss of a coin, then the court would intervene, as such behaviour would amount to a
complete repudiation by the jury of their only function which, as the jurors oath put
it, was to give a true verdict according to the evidence.
The court stressed that the rationale which underlay the common law rule had been
accepted by the ECtHR. The ECtHR had acknowledged that the rule was legitimate, and
served worthwhile objectives (Gregory v UK [1997] 25 EHRR 577). We now need to turn
our attention to Gregory, and see in a little more detail how the case was argued.
Gregory concerned the trial of a black defendant for robbery. After the jury had retired
to consider its verdict, a note was passed to the judge that read:
Jury showing racial overtones. One member to be excused.
The judge went on to show the note to both the prosecution and the defence, and
warn the jury that they had to ignore any prejudice, and try the case on its facts. The
jury found the defendant guilty by a verdict of 10 to 2. The applicant argued that he
had not received a fair trial, and that his rights under Article 6 and Article 14 had been
breached.
The court held that there was no breach of Article 6, and it was not necessary for
a judge to discharge a jury to ensure that it was impartial. This case could thus be
distinguished from another important authority, Remli v France (1996) 22 EHRR 253. In
this case, the judge had not taken any action when a member of the jury had been
overheard saying that he was a racist. The ambiguous nature of the note that the judge
received in Gregory meant that the judges actions were reasonable.
In Sanders v UK (2001) 31 EHRR 44, Gregory was distinguished. The applicant had been
convicted of conspiracy to defraud. However, his trial was adjourned because the
judge received a complaint from one of the jurors that two other members of the jury
had been making racist comments. The judge then received a letter from one of the
jurors apologising, and a letter from the jury as a whole denying racial prejudice. The
judge chose not to discharge the jury. He redirected them. This formed the basis of the
applicants appeal. The appeal argued that the correct course of action would have
been to discharge the jury as there was a real danger of bias. The CA affirmed that the
trial judge had taken the right course of action, and the applicant applied to the ECtHR.
The ECtHR argued that there had been a breach of Article 6. The judge was not sure
that there was not actual bias in the jury, and should have made further investigations.
In particular, there were doubts over the credibility of the letter received from the
jurors. The letter had been the product of a impromptu response and represented
a collective position of persons with different motives for denying race bias and
accordingly could not be viewed as reliable as it was natural that upon accusation a
person would deny racial bias. On these facts, the applicant had not received a fair
trial. What seems central to the reasoning of the court is that the judge had both
been informed of a serious allegation and received an indirect admission that racist
remarks had been made. In such a situation, in the ECtHRs view, the judge should
have discharged the jury.
10.13.4 Are juries fair?
A major research report Are juries fair? was published in February 2010. This was a
two-year long survey of juries in England and Wales by Cheryl Thomas, Professor at the
Centre for Empirical Legal Studies at University College London. The survey included
more than 1,000 jurors at Crown Courts and a separate study of over 68,000 jury
verdicts. Professor Thomas summarised the findings:
This research shows that juries in England and Wales were found to be fair, effective and
efficient and should lay to rest any lingering concerns that racially-balanced juries are
needed to ensure fairness in trials with BME defendants or racial evidence. But it is also
clear from the research that jurors want and need better information to perform this
crucial role. The study recommends that all sworn jurors be issued with written guidelines
explaining what improper conduct is, including use of the Internet, and how and when to
report it.
(www.ucl.ac.uk/news/news-articles/1002/10011701)
The study also recommends that judges consider issuing jurors with written
instructions on the law to be applied in each case. Both changes will help maintain
the integrity of the jury system. The then Secretary of State for Justice, Jack Straw
commented:
The jury system is working, and working well. The studys findings on the fairness of
jury decisions, including for people from black and minority ethnic backgrounds, will
help to maintain public confidence in juries and the jury system. But we cannot allow
complacency about the justice system. We will carefully consider the recommendations
for helping jurors do their job to the best of their ability.
(www.guardian.co.uk/uk/2010/feb/17/jurors-judges-legal-advice-report)
The report can be found here: www.justice.gov.uk/downloads/publications/research-
and-analysis/moj-research/are-juries-fair-research.pdf
You should read the report carefully, particularly the summary on pp. iix.
Summary
Examinable areas of this chapter are:
u the Lawrence Inquiry and policing
u stop and search powers
u powers of arrest
u powers of arrest and Article 6
u kettling in the context of policing
u legitimate policing
u sentencing and prisons
u forensic evidence
u the jury in the context of the Criminal Justice Act 2003
u the jury in the context of bias and Article 6.
A question on these areas, or a question that mixes together themes from these areas
may appear in Part B of the examination.
Quick quiz
Question 1 In McIntosh v HM Advocate, Lord Bingham quoted Sachs J in the
Constitutional Court of South Africa case of The State v Coetzee and others to point
out that:
There is a paradox at the heart of all criminal procedure, in that the more serious the
crime and the greater the public interest in securing convictions of the guilty, the more
important do constitutional protections of the accused become. The starting point of
any balancing inquiry where constitutional rights are concerned must be that the public
interest in ensuring that innocent people are not convicted and subjected to ignominy
and heavy sentences, massively outweighs the public interest in ensuring that a particular
criminal is brought to book... Hence the presumption of innocence, which serves not
only to protect a particular individual on trial, but to maintain public confidence in the
enduring integrity and security of the legal system.
What did he mean?
a. The criminal justice system has to balance the public interest in prosecution
with the rights of the defence. As it is more important that innocent people
are protected from prosecution than individuals criminals are found guilty, the
presumption of innocence has been developed as a way of ensuring the integrity of
the criminal justice process.
b. The criminal justice system has to balance the public interest in prosecution with
the rights of the defence. As it is more important that guilty people are prosecuted
than individuals protected from miscarriages of justice, the presumption of
innocence has been limited by the judges in order to ensure the integrity of the
criminal justice process.
c. Criminal justice is a paradox.
d. The presumption of innocence is an inconvenience to the prosecution of guilty
criminals.
Question 2 The Report into Stephen Lawrences murder found that:
Institutional Racism consists of the collective failure of an organisation to provide an
appropriate and professional service to people because of their colour, culture or ethnic
origin. It can be seen or detected in processes, attitudes and behaviour which amount
to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist
stereotyping which disadvantage minority ethnic people.
Which statement below is the most accurate definition of institutional racism?
a. Institutional racism is where one or two individuals in an institution are racist.
b. Institutional racism is a complex and general failure of an institution to offer
an effective service to all people because of both conscious prejudice and
ignorance about minority ethnic people.
c. Institutional racism is conscious racism.
d. Institutional racism is a problem for policing a multi-ethnic community.
Question 3 The ECtHR has developed equality of arms from Article 6. The
foundation of the principle is that each party must be afforded a reasonable
opportunity to present their case including their evidence under conditions that
do not place them at a disadvantage vis--vis their opponent.
Which of the following is the most accurate definition of equality of arms?
a. Each party must have an absolutely equal chance to present their case.
b. Equality of arms is not an absolute right.
c. Equality of arms is a qualified right.
d. Equality of arms requires each party to have a roughly equal chance to present
their case. The key idea is that neither party is to suffer a real disadvantage.
Question 4 In R v Mirza, the House of Lords asserted that:
the general common law rule was that the court would not investigate, or receive
evidence about, anything said in the course of the jurys deliberations while they were
considering their verdict in their retiring room. Attempts to soften the rule to serve the
interests of those who claimed that they were unfairly convicted should be resisted in
the general public interest, if jurors were to continue to perform their vital function of
safeguarding the liberty of every individual.
a. When an individual alleges that they have been unfairly convicted, the court can
hear evidence of how the jury considered the evidence in their case.
b. A court can never normally hear evidence on a jurys deliberations.
c. A court cannot normally hear evidence on jury deliberations as it would
compromise the integrity of the jury.
d. The jury meets and decides in secret and is therefore in breach of Article 6.
Question 1 To what extent has Article 6 redefined the participation of the
defendant in the criminal trial?
Question 2 The trial of the Heathrow heist four and subsequent rulings by the
Court of Appeal showthat a criminal trial can successfully take place without a jury
and still command public respect provided that we acknowledge that trial without
jury is an exceptional event. Discuss.
Question 1 The starting point for this question would be to stress, first of all, that
at common law there has always been a strong commitment to the rights of the
defendant that have defined the terms of their participation in the trial. At this stage
in the essay a good answer would define precisely what participation means; as it is
not being used in its everyday sense. Thus, the rights that are under discussion are,
in fact, ones that allow the defendant not to incriminate themselves and require the
prosecution to bear the burden of proof. It would certainly be then worth showing
how cases like Saunders, John Murray and Condron have impacted on the common
law and certainly made for changes in procedure. The other significant area of case
law relates to Edwards, Rowe and Davis and Fitt. Whilst Convention jurisprudence has
made for changes at common law, these cases do not suggest that there are serious
problems with the compatibility of the common law with international human rights
standards. In conclusion, one may argue that although Convention jurisprudence
has had an impact the run of cases show that there is a broad compatibility between
the structure of the common law that allow the participation of the defendant in their
trial and international human rights standards.
Question 2 This question focuses on ss.44 to 50 of the Criminal Justice Act 2003, R v
Twomey, Blake, Hibberd and Cameron; J, S, M v R; KS v R. A good answer will be focused
on the issues raised by ss.44 and 50 of the Criminal Justice Act 2003, and will not be
framed at a general overview level. A good answer will consider the development
of the case law in relation to ss.44 and 50, and come to a considered conclusion on
whether or not there are sufficient safeguards for a trial to take place without a jury.
Further reading
Jackson, J. Re-conceptualizing the right of silence as an effective fair trial
standard (2009) 58(4) International & Comparative Law Quarterly 83561.
u What are the tensions in the criminal justice process?
u What are the issues raised by the Lawrence Inquiry?
u Can you explain the police powers to stop and search and arrest?
u What are the problems around public order and kettling?
u What is the role of human rights in policing and criminal justice?
u Explain the points raised in this chapter in relation to criminal evidence.
u What are the current issues around sentencing and prisons in the UK?
u Define burden of proof, presumption of innocence and the doctrine of equality of
arms.
u What are the arguments for and against trial by jury?
Contents
Using feedback. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Feedback to activities
Using feedback
Feedback is designed to help you judge how well you have approached the activities in
the text. It will show you whether you have understood the question, and chosen the
correct solutions.
Do not look at the feedback until you have answered the questions. To do so
beforehand would be pointless, perhaps even counter-productive. Doing the activities
helps you to learn. Checking the feedback helps you to learn more. Remember that
doing activities teaches you as much as reading does.
Common law reasoning and institutions Feedback to Activities page 183
Chapter 3
Activity 3.13.4
Activity 3.5
In subs.(4), para.(b), the words a judge in square brackets were substituted by the
Police and Criminal Justice Act 2006, s.52, Schedule 14, para.61. The words previously
were an ordinary judge.
Activity 3.63.9
Chapter 5
Activity 5.1
Activity 5.2
B should be advised as follows. When the prosecution proposes to make use of
the confession in court, Z will argue that as the confession was obtained under
oppression (s.76(2)a) it should not be used in evidence against him. The prosecution
will then have to show the court that the confession was not obtained by torture.
The prosecution would have to have good evidence to convince the court beyond
reasonable doubt that the confession had not been obtained by torture.
Chapter 6
Activity 6.1
There was an application of the 1966 Practice Statement in Miliangos v George Frank
[1976] AC 443. The House of Lords departed from a previous decision.
Activity 6.26.6
Activity 6.7
Pinnock is consistent with Horncastle. Only when the ECtHR misunderstands a
significant feature of domestic law will the SC depart from its clear articulation of legal
principles.
Activity 6.8
The House of Lords held for the applicant. The House of Lords stressed that the family
life to be taken into account can take various forms. On the facts of this case, the
bond between the mother and her son was such that return to Lebanon would be so
serious as to amount to a flagrant breach of Article 8, as it would deny or nullify the
applicants right to a family life.
We can look at a short extract from Lord Hopes argument:
17...[T]he key to identifying those cases where the breach of articles 8 and 14 will be
flagrant lies in an assessment of the effects on both mother and child of destroying or
nullifying the family life that they have shared together. The cases where that assessment
shows that the violation will be flagrant will be very exceptional. But where the
humanitarian grounds against their removal are compelling, it must follow that there is
an obligation not to remove. The risk of adding one test to another is obvious. But in the
absence of further guidance from Strasbourg as to how the flagrancy test is to be applied
in article 8 cases, I would adopt that approach in this case.
18 As I said as the outset of this opinion, the case for allowing the appellant and her son to
remain in this country on humanitarian grounds is compelling. This is particularly so when
the effects on the child are taken into account. His mother has cared for him since his
birth. He has a settled and happy relationship with her in this country. Life with his mother
is the only family life he knows. Life with his father or any other member of his family in
Lebanon, with whom he has never had any contact, would be totally alien to him. This
enables me to conclude that this is a very exceptional case and that there is a real risk of a
flagrant denial of their article 8 rights if the appellant and her child were to be returned to
Lebanon. I would allow the appeal.
Lord Hope is exploiting the failure of clarity in the Strasbourg test, to press the
particularly humanitarian conclusion of this case. Perhaps if the facts of the case were
less compelling, the House of Lords would have been less willing to interpret the test
in such a creative way.
Activity 6.9
Article 3 was engaged by the Secretary of States decision to withdraw support. As
the obligation under Article 3 was absolute there was no necessary adaptation to the
relevant test of severity because government policy was being followed. The court
had to consider the facts and context of each case and determine whether or not the
restrictions and deprivations that surrounded the claimant amounted to inhuman or
degrading treatment. On the facts, the applicants had suffered such treatment.
Lord Hope interprets the relevant test as absolute. Although it clearly applies to (for
example) a prohibition on torture, it also applies to a positive act to prevent suffering
reaching the requisite level of severity. The Court has laid down a minimum level of
severity, and Lord Hope follows Convention jurisprudence in taking into account all
the facts of the case. He interprets the law so as to make the Secretary of State directly
responsible for the applicants destitution.
Activity 6.10
Chapter 7
Activity 7.17.2
Activity 7.3
Anderson certainly seems to suggest a change of direction. Lords Bingham, Steyn and
Hutton followed Lord Nicholls approach in Re S and stepped back from what seemed
to be more creative approaches to interpretation. Given that Anderson was decided
by a panel of seven, and appears to be followed in Bellinger, the case appears to be
authority for a more restricted understanding of the interpretative powers given to
the judges by the HRA. However, commentators such as Kavanagh have argued that
there are such significant differences between Re S and Re A that Anderson cannot
be seen as a clear statement of a new direction of travel. Anderson is thus limited
to its facts and law. It might be possible to see the tensions in the cases and the
interpretations of the cases as evidence of a new relationship between the courts and
Parliament. Klug certainly sees the tensions between R v A and Anderson as the attempt
to work out the terms of a dialogue; a dialogue that uses both interpretative powers
and declarations of incompatibility.
Activity 7.47.6
Chapter 8
Activity 8.1
Activity 8.2
Lord Steyn is pointing out that there are limits on the supremacy of Parliament. He
draws attention to the limits imposed by European Law, but the focus of his argument
is on the European Convention on Human Rights. He suggests that although Diceys
account of Parliamentary sovereignty or supremacy is still generally accurate, it is
increasingly out of step with the reality of the contemporary constitution. Most
importantly, he claims that the sovereignty of Parliament is a judicial creation, and
that the judges could alter or amend it. Note his examples. Lord Steyn is effectively
stating that in the extreme hypothetical situations that he mentions, the judges and
not Parliament are the guardians of the rule of law. It would be consistent with the rule
of law to refuse to obey an Act of Parliament which was in breach of a constitutional
fundamental. Lord Steyns argument, as pointed out in the extract is radical and obiter.
He clearly states that [n]o such issues arise on the present appeal. The significance of
this obiter argument, then, is it points at a constitutional revolution. The principle of
Parliamentary sovereignty presently the key doctrine of the constitution could be
questioned, and even changed by the Supreme Court. The broader point is that this
forces us to think about democracy in the UK. A constitution in which there are human
rights limitations on Parliament is clearly one model of a democratic constitution.
Judges would play a very different role under such a constitution than they do now.
They would effectively be the guardians of human rights. Human rights would become
sovereign. Parliament could not legislate in such a way as to breach human rights. It is
worth stressing that in the present constitution Parliament remains sovereign and can
legislate against the Human Rights Act if it so chooses.
Activity 8.3
Chapter 9
Activity 9.1
B and P v UK suggests that the common law and European human rights law are more
or less consistent on the issue of secrecy in proceedings where childrens issues are at
stake. It is also clear from our reading of Scott v Scott that the common law has always
attempted to balance competing principles of justice.
Activity 9.2
Activity 9.3
The main point of relevance to the question, and to our idea of integrity, can be
outlined as follows. Dockray doubts that there is an unlimited reserve of powers that
the courts can use to regulate proceedings and prevent abuse of process; he also
doubts whether the inherent jurisdiction is derived from an imminent attribute of
a superior court or even whether the doctrine of a single, all-embracing inherent
jurisdiction is viable at all. As far as the reserve of powers is concerned, judges have
not argued that they have a a wide discretion to do whatever seems right that day
although, on balance, one can refer to the inherent powers of the courts provided
one does not see it as a single jurisdiction. So, here is the important point:
we should not treat the inherent jurisdiction as a kind of ubiquitous judicial prerogative
originating in the ineffable spirit of the court, but rather as a rational collection of related
common law powers, each of which has a separate history, aims and boundaries, but all of
which must take second place to statutes and to mandatory procedural rules.
Integrity of procedure requires that the dominant organising principles of civil justice
are drawn from statutes and binding procedural rules. The integrity of the rules would
be compromised if judges asserted that they had an inherent jurisdiction to do what
was just on a day to day basis. At the same time, there is a residual or supplemental
sense in which we can talk about the inherent jurisdiction of the courts. Provided that
this is seen as limited, it can assist the development of integral procedures. We can
also stress the distinct but related point that judges develop principles in procedural
law in the same way that they develop other areas of law.
Activity 9.4
Activity 9.5
Torture is obtained by violence, and as such, is inhuman, morally wrong and unfair.
Furthermore, torture evidence is inherently unreliable. The rule of law cannot
countenance torture or torture evidence because it is founded on moral principles;
the principles of fair trials, and, in terms of the arguments made in Gearey et al., the
moral personhood of individuals. The admission of torture evidence is also a breach
of Article 6, because Article 6 embodies rule of law values. Note that the ECtHR in Abu
Qatada also argues that the exclusion of torture evidence protects the integrity of
the court. Whilst the court is not using this word in the same way as Gearey et al. does,
there is some overlap between the courts understanding of integrity and that of the
book. Integrity thus suggests the moral coherence of the law.
Activity 9.6
Section 31.3 states (at s.31.3.(1)) that [a] party to whom a document has been disclosed
has a right to inspect that document. It then creates certain exceptions. The ground
most relevant to B is (b), that the party disclosing the document has a right or a duty
to withhold inspection of it. This relates to (2).
Where a party considers that it would be disproportionate to the issues in the case
to permit inspection of documents within a category or class of document disclosed
under rule 31.6(b)(a)he is not required to permit inspection of documents within
that category or class; but (b)he must state in his disclosure statement that inspection
of those documents will not be permitted on the grounds that to do so would be
disproportionate.
This means that B can refuse disclosure provided that he states in his disclosure
statement that disclosure is not permitted on the grounds that it is disproportionate.
Activity 9.79.8
Chapter 10
Activity 10.1
Offensive weapons and prohibited articles:
(7) An article is prohibited for the purposes of this Part of this Act if it is
a. an offensive weapon; or
b. an article
i. made or adapted for use in the course of or in connection with an offence to
which this sub-paragraph applies; or
ii. intended by the person having it with him for such use by him or by some other
person.
The Act goes on to state:
(8) The offences to which subsection (7)(b)(i) above applies are
a. burglary
b. theft.
Activity 10.2
The Code of Practice stresses a number of points: an exercise of stop and search
powers cannot be discriminatory. Reasonable suspicion must rest on an objective
basis and cannot be based on personal factors or stereotypical images or
assumptions about categories of people. Although specific information may give rise
to reasonable suspicion, a stop/search could be carried out in the absence of specific
intelligence. The following paragraph is worth bearing in mind given our concerns
about policing by consent:
Searches are more likely to be effective, legitimate, and secure public confidence
when reasonable suspicion is based on a range of factors. The overall use of these
powers is more likely to be effective when up to date and accurate intelligence or
information is communicated to officers and they are well-informed about local
crime patterns (www.homeoffice.gov.uk/publications/police/operational-policing/
pace-codes/pace-code-a-2011?view=Binary).
Activity 10.3
A, first of all, appears to have breached s.1. Presuming that this is indeed Bs house,
the power to stop and search cannot be used. A also appears to have breached the
Code of Practice as he has made use of information to inform his suspicions about B
on the basis of a racist stereotype. He has also breached s.3(1) of the Act, in not making
a record of the search. He also failed to bring information to the attention of B some
of the relevant information under s.2(3). Note that whilst A can legitimately search for
offensive weapons and prohibited articles, he cannot search for drugs under PACE. He
would also need to show that he had valid grounds under s.3 for having reasonable
suspicion.
Activity 10.4
The argument starts from the assertion that the court has to take account of the
difficulties involved in policing modern societies and the unpredictability of human
conduct which means that the police must be afforded a degree of discretion in
taking operational decisions. The court must also take into account developments in
communications that allow protestors to mobilise rapidly, and the fluidity of public
order situations. So, Article 5 cannot be interpreted in such a way as to make it
impracticable for the police to fulfil their duties of maintaining order and protecting
the public. The correct way in determining whether or not a kettled protestor
has been deprived of his or her liberty is to ask a set of questions about the type,
duration, effects and manner of implementation of the containment measure that
the police have used. In assessing these questions, the court has to also assume that
the public may be called on to endure restrictions on freedom of movementor liberty
in the interests of the common good. The restrictions themselves must, however, be
limited in duration and extent. Indeed, it may be the case that certain containment
techniques amount to a breach of Article 5. The court stressed that measures of crowd
control should not be used by the national authorities to stifle protest.
However, consider the dissenting judgment of Judges Tulkens, Spielmann, and Garlicki.
They stressed that:
14. In the present case, the applicants were confined within a relatively small area,
together with some 3,000 other people, and their freedom of movement was greatly
reduced; they were only able to stand up or sit on the ground and had no access to toilet
facilities, food or water. The cordon was maintained through the presence of hundreds
of riot police officers and the applicants were entirely dependent on the police officers
decisions as to when they could leave. Furthermore, the police could use force to keep
the cordon in place, and refusal to comply with their instructions and restrictions
was punishable by a prison sentence and could lead to arrest. All the applicants were
contained in those conditions for six to seven hours.
Activity 10.5

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