Judges and the law

W100_3   Rules, rights and justice: an introduction to law

Judges and the law

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Judges and the law

About this free course

This free course provides a sample of Level 1 study in Law

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Judges and the law

Contents
 Introduction

 Learning outcomes

 1 The role of the courts and the judiciary

 2 Part A Historical development of the common law

 2.1 The history of the common law

 2.2 Use of language

 2.3 Summary of Part A

 Part B Precedent
 3.1 Introduction

 3.2 The hierarchy of the courts

 3.3 Structure of the court system in England and Wales

 3.4 Binding precedent

 3.5 Summary of Part B

 4 Part C Accurate law reporting

 4.1 Introduction

 4.2 Tyes of reports

 4.3 Summary of accurate law reporting

 4.4 Summary of Part C

 5 Part D The need for statutory interpretation

 5.1 Reasons for unclear meaning
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 5.2 Summary of Part D

 6 Part E The rules of statutory interpretation

 6.1 Introduction

 6.2 The literal rule

 6.3 The golden rule

 6.4 The mischief rule

 6.5 The purposive approach

 6.6 Rules of language

 6.7 Intrinsic aids

 6.8 Extrinsic aids

 6.9 Summary of Part E

 7 Part F Common law, equity and statute law

 7.1 Equity

 7.2 Statute law and common law

 7.3 Summary of Part F

 8 Part G Common law and civil law systems

 8.1 The differences between common law and civil law
systems

 8.2 Summary of Part G

 9 Part H Consolidation

 Conclusion

 Keep on learning
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 References

 Acknowledgements

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Introduction
This course considers the way that judges make law, how the
common law system works and the advantages and
disadvantages of a system like the British one that relies heavily
on such rules and rule making. The course will set out the basic
differences between ‘civil code’ systems and ‘common law’
systems, and consider the relationship between judge-made law
and statutory law.

This OpenLearn course provides a sample of Level 1 study in Law.

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Learning outcomes
After studying this course, you should be able to:

 understand what is meant by a common law system

 demonstrate a good knowledge and understanding of
what is meant by the common law and how its rules
are made and changed
 discuss how a precedent can be altered or avoided
 identify the ratio decidendi and obiter dictum of a court
case
 read and analyse legal materials (cases, statutes and
academic commentary).

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Judges and the law

1 The role of the courts and the

judiciary
This course will explore the role of the courts and the judiciary in
England and Wales. The English legal system is often referred to
as a ‘common law’ legal system. Before medieval times the law in
what we now call Great Britain was largely regional. Different
regional kingdoms had different law. Over time, the same law was
applied by judges across the single kingdom established after
1066 and so became common to all parts of the country. This was
known as ‘the common law’. (The common law is a system that is
followed in many countries – Canada, Australia, India, New
Zealand and the USA, to name but a few – but we will concentrate
on its development in England and Wales.)

This means that many of our primary legal principles have been
made and developed by judges (rather than by Parliament) from
case to case in what is called a system of precedent, where the
lower courts are bound to follow principles established by the
higher courts in previous cases. The common law (or judge-made
law) is at least as important to us as the law made by Parliament.
For example, there is no Act of Parliament telling us that murder is
a crime; it is a common law crime which has been refined over the
centuries by judges.

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Another important role played by the judiciary is that of statutory

interpretation. Whilst the meaning of law in a statute should be
clear and explicit, this is not always achieved. Many cases come
before the courts because there is a dispute over the meaning of a
word in a statute. For example, the Dangerous Dogs Act 1991
contains the phrase ‘any dog of the type known as the pit bull
terrier’ but it did not say whether ‘type’ meant the same as ‘breed’.
In order to assist with the interpretation of statutes the judiciary
have developed a number of rules: the literal rule, the golden rule,
the mischief rule and the purposive approach. They all take slightly
different approaches and the judiciary do not always agree on
which approach should be used, so the interpretation of a statute
may depend on the judge hearing the case. Once that
interpretation has been made, however, it may form a precedent
for later cases.

Finally, this course will examine how the common law system
works, the basic differences between ‘civil code’ (continental)
systems and ‘common law’ systems, and the advantages and
disadvantages of the common law system that relies heavily on
rules and rule making. This course will set out to explore the role of
the judiciary in the law-making process by examining the historical
origins of common law, the system of precedent and the rules of
statutory interpretation.

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The law of England and Wales has been developed over many
centuries. There are a number of ways of creating and developing
the law. Historically, as you will see, the most important influences
were local customs and judges. As Parliament became more
powerful in the eighteenth century, statutes became a main source
of new laws. Judicial decisions remained important as they filled in
the gaps where there was no statute law and they interpreted the
meaning of statutory law. This course will explore some of those
judicial decisions.

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2 Part A Historical development of the

common law
2.1 The history of the common law
Prior to the Norman Conquest of England in 1066, there was no
unitary, national legal system. Before 1066 the English legal
system involved a mass of oral customary rules, which varied
according to region. The law of the Jutes in the south of England,
for example, was different from that of the Mercians in the middle
of the country (see map below). Each county had its own local
court dispensing its own justice in accordance with local customs
that varied from community to community and were enforced in
often arbitrary fashion. For example, courts generally consisted of
informal public assemblies that weighed conflicting claims in a case
and, if unable to reach a decision, might require an accused to
show their guilt or innocence by carrying a red-hot iron or
snatching a stone from a cauldron of boiling water or some other
‘test’ of veracity. If the defendant's wound healed within a
prescribed period, he was set free as innocent; if not, execution
usually followed.

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Figure 1: A map of pre-1066 Britain – a country with different regional laws

Unlike continental civil law, the English system does not originate
from any particular set of texts but from what has been called
‘tradition expressed in action’. It began as customary law used in
the King's court to settle disputes and conflicts which affected the
monarch directly. To begin with, these only included the graver
crimes which became ‘Pleas of the Crown’. After the Norman
invasion there were still many different types of court apart from
the royal court – the stannary (tin mining) courts of Devon and
Cornwall, the courts of the royal hunting forests, for example – but
principally, in potential rivalry with the royal court, were the feudal
and manorial courts. It was during Henry II's reign that the clerics

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in his court began specialising in legal business and acting in a

judicial capacity. Clerics were part of the King's royal entourage.

In 1154, Henry II institutionalised common law by creating a unified

court system ‘common’ to the country through incorporating and
elevating local custom to the national level, ending local control,
eliminating arbitrary remedies, and reinstating a jury system of
citizens sworn on oath to investigate criminal accusations and civil
claims. Judges of the realm went on regular journeys throughout
the country bringing the King's justice to every citizen. Their aim
was that there should be a common system of law throughout the
land, hence the laws became known as the common law. The
travelling judges formed a nucleus of judges with national
jurisdiction who had no local roots. They were thus much less
susceptible to the corruption which had spoilt a similar attempt
earlier in the twelfth century in which the royal judges had actually
been based in the local communities. It was under Henry II that
judges were for the first time sent on ‘circuits’, hearing pleas in the
major places they visited and taking over the work of the local
courts. In time the decisions of the judges were written down. As
the decisions of these courts came to be recorded and published,
so the practice developed where past decisions (precedents)
would be cited in argument before the courts and would be
regarded as being of persuasive authority.

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These practices developed into the common law of England, the

law which was available throughout the realm. Perhaps the most
convincing of the reasons why Henry II should be regarded as the
‘father of the common law’ is that he was largely responsible for
the regional and itinerant royal justice through which the law truly
became common – available to all. It is true that Henry II, who
reigned from 1154 to 1189, did much of significance to enhance
the development of the common law, for instance by popularising
the King's court. However, we don't know how the King's court
(called the Curia Regis) acted during the Norman period before
Henry II, because the earliest documents date from his reign, so it
might be presumptuous to credit too much to Henry II. In any
event, many factors of a general historical nature contributed to the
development of the common law and it might be more meaningful
to speak of the various parties which helped nurture the common
law from its first green shoots to its full bloom rather than to try to
find a ‘father’.

In the expansion of the King's legal powers, an important role was

played by the clerics. They developed a range of claim forms,
called writs, and established procedures which, perhaps
significantly, gave them greater importance and provided them
with a generous income! Another important development, for
example, was the expansion of the ‘King's Peace’. This was the
monarch's, as opposed to a local lord's, right to deal with any local
disorder or crime.
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Another reason the royal courts obtained a lot of business and

thus power was the interpretation given to the Statute of
Gloucester (1278) by the royal judges. This statute provided that
no cases involving an amount of less than 40 shillings should be
brought in the royal courts, but that they should be tried before
local tribunals. The judges interpreted this to mean that no
personal actions to recover a sum greater than 40 shillings could
be commenced in the local courts, thus reserving all important
cases for themselves. It is relevant here that the judges were
anxious to attract litigants because their fees varied with the
amount of business done.

The distinctive feature of common law is that it represents the law

of the courts as expressed in judicial decisions. The grounds for
deciding cases are found in the principles provided by past court
decisions, as contrasted to a system which is based solely on Acts
of Parliament. Besides the system of judicial precedents, other
characteristics of common law are trial by jury and the doctrine of
the supremacy of the law. Originally, supremacy of the law meant
that not even the King was above the law; today it means that acts
of governmental agencies and ministers can be challenged in the
courts.

2.2 Use of language

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Use of language is extremely important in law. As a law student it

is important that you use language in an accurate way. The rest of
Part A of this course will therefore consider the importance of
language in law.

Box 1 Use of language

By now you will have had a few opportunities to look up the
meaning of words you were not sure about. Using language in an
accurate way is often very important. Suppose I tell you that
‘recently an organisation produced a report that said most new
houses built this century are of a bad quality’.

You might well think then that what was wrong with the houses
included things like defective woodwork, broken tiles, windows that
do not shut properly, and sloping floors. If it turned out that what
the report was really identifying as bad were features like lack of
front gardens (as double driveways were used instead), and lack
of visible similarity with older properties in the same district, then
you might well say: ‘That's not bad quality. If anything, it is bad
design. It is the design of the houses that the report seems to be
attacking, not the quality of the workmanship.’ Such a
misunderstanding stems from the fact that, initially, I said to you
that the report claimed houses were of ‘bad quality’.

This sort of misunderstanding that comes from using language in a

careless way happens all the time. In any area where rules
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operate, it is essential for people to be careful about the way they

use language.

I should now like you to attempt the first four activities, in which
you are asked to use dictionaries. Where we introduce a specialist
word or phrase, I will give you a definition of it. However, you might
not be sure of the meaning of some of the other words in this
course. (The same applies for asociated law courses.)

If you go into a large bookshop and head for the section called
something like ‘Dictionaries and Reference’, you will discover a
wide range of dictionaries. Some are general and some are
specialist reference dictionaries, such as a dictionary of science.

You may also discover that there are a wide variety of dictionaries
available online.

Activity 1 Using a dictionary

0 hours 20 minutes

Why do you use a dictionary? Try to think of at least four

occasions when you have referred to one.

View discussion - Activity 1 Using a dictionary

Activity 2 Which dictionary?

0 hours 30 minutes

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Read the following passage and write down your own definitions of
the three words in bold:

The earliest dictionaries were word lists inscribed on clay tablets

organised like a thesaurus, in the second millennium BCE. Even
after the invention of the alphabet later in the same millennium,
many centuries passed before alphabetic ordering became a
common tool for organising information. The need for a dictionary
in which difficult English words were explained by easier English
words took shape in the late sixteenth century and, by the
eighteenth century, the dictionary was competing with spelling
books as a quick ‘look-up’ source. Monolingual dictionaries, like
the Oxford English Dictionary, list and define the words of one
language. Bilingual dictionaries offer the equivalent of language A
in language B. Pronouncing dictionaries arrived later in the
eighteenth century, and speciality dictionaries for technical
subjects or controversial usage such as slang in the nineteenth
and twentieth centuries; an example of the latter is Fowler's A
Dictionary of Modern English Usage.

Once you have written down your definitions, look up the three
words in a general dictionary and compare your definitions with
those from the dictionary.

View discussion - Activity 2 Which dictionary?

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2.2.1 Prefixes and suffixes

Prefixes and suffixes can offer clues to the meaning of words.
Prefixes come before the main part of the word:

 In ‘antenatal’, ‘ante’ is a prefix meaning ‘before’ and

the whole word means ‘before birth’.

Suffixes are added to the end of the word:

 -ive, -ing, -ness and -ion are all suffixes and are used
to form words such as active, willing, willingness and
action.

Activity 3 Understanding vocabulary

0 hours 30 minutes

See how many words you can find beginning with the following
prefixes:

1. sub- (meaning ‘under’)

2. super- (meaning ‘above’)

3. trans- (meaning ‘across’).

View discussion - Activity 3 Understanding vocabulary

Activity 4 Broadening your vocabulary

0 hours 20 minutes
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Try looking up three words you frequently use in writing – for

example, important, relevant, and significant. See if you can find
other words that you may prefer to use as alternatives.

View discussion - Activity 4 Broadening your vocabulary

Note: These activities are taken from ‘The effective use of English’,
Open University Student Toolkit 1.

2.3 Summary of Part A

In Part A you have learned:

 that the English legal system is a common law system;

 that this means that much of the law has been
developed over time by the courts;

 how to develop your use of language.

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Part B Precedent
3.1 Introduction
Precedent is the basis of the common law. The doctrine of binding
precedent is known as the doctrine of stare decisis, which is Latin
meaning ‘to stand by/adhere to decided cases’, i.e. to follow
precedent. In other words, once a principle is decided it should be
followed in future cases. The doctrine refers to the fact that, within
the hierarchical structure of the English courts, the decision of a
higher court will be binding on a lower court. In general terms, this
means that when judges try cases they will check to see if a similar
situation has come before a court previously. If the precedent was
set by a court of equal or higher status to the court deciding the
new case, then the judge in the present case should follow the rule
of law established in the earlier case. Where the precedent is from
a lower court in the hierarchy, the judge in the new case may not
follow but will certainly consider it.

There are three essential elements to this system of precedent:

 the hierarchy of the courts

 binding precedent

 accurate law reporting.

3.2 The hierarchy of the courts

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A court hierarchy establishes which decisions are binding on which

courts. There are some exceptions and complications to what
follows but, in general and for most purposes, the higher up a court
is in the hierarchy, the more authoritative its decisions. I mean
‘authoritative’ in the sense that decisions of the higher courts will
bind lower courts to apply the same decided principle.

Activity 5 asks you to explore the court structure further.

Activity 5 The court structure in England and

Wales
0 hours 20 minutes

It will be helpful to examine a diagram of the court structure for

England and Wales.

1. HM courts service

You may find it useful to open this link in a separate window on

your browser.

The diagram you will see is presented by the Courts and Tribunals
Judiciary, which is the collective name for the judges who sit in the
courts in England and Wales. Take a few moments to consider the
diagram of the court structure and familiarise yourself with where
the different courts stand. There are over 200 magistrates’ courts
in England and Wales and thousands of magistrates dealing with a

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great many cases every day. There are a huge number of these
cases (over one million a year) and they do not usually involve any
dispute over what the relevant law means, so these cases do not
have to be followed by other magistrates’ courts in the system of
precedent. By contrast, the UK Supreme Court deals only with
about 80 cases a year and its decisions bind all other courts.

You may find it helpful to see if you can find newspaper stories
about cases in as many of these courts as you can identify.

3.3 Structure of the court system in

England and Wales
3.3.1 Supreme Court of the United Kingdom
This is the highest appeal court in the UK and was created by the
Constitutional Reform Act 2005. The court became operational on
1 October 2009. Generally permission to appeal must be sought
before a case can be brought to the UK Supreme Court.

As the highest court of appeal it hears matters which involve points

of law of general public importance and concentrates on cases of
the greatest public and constitutional importance. Its decisions are
binding on all courts lower in the court hierarchy. In concentrating
on cases involving points of law which are of public importance
and cases of the greatest public and constitutional importance the
court makes decisions which help shape society. The court:

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 is the final court of appeal for all UK civil cases

 is the final court of appeal for all criminal cases from
England
 Wales and Northern Ireland (but not Scotland)
 is the final arbiter on devolution issues.

The rest of this course will make reference to the House of Lords.
Until 1 October 2009 the House of Lords had been the highest
appeal court in England and Wales. The powers and rules of the
former House of Lords therefore remain relevant to your studies.

Box 2 Understanding the importance of thinking

To have come this far, you will have done a great deal of thinking.
Thinking is something we do all the time. It is a vital part of life.
However, although we are all taught lots of things in school, it is
not that common to be trained in the art of thinking. Before we
proceed further into the course, it is worth pausing to consider a
few important aspects of thinking. Activities 6 and 7 will help you
improve your thinking.

I would like to start by asking you to consider some fundamental

questions about education.

Activity 6 The importance of thinking skills

0 hours 30 minutes

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Note down your responses to the following questions:

1. Why would you like to become a university student?

2. What do you see as the purpose of higher education?

3. How do you think your answers to the previous

question would differ from answers that the
Government, employers or university teaching staff
might give?

View discussion - Activity 6 The importance of thinking skills

Activity 7 Thinking skills in education today

0 hours 10 minutes

Can you suggest why thinking skills are considered to be so

important in education today?

View discussion - Activity 7 Thinking skills in education today

Note: These two activities are taken from ‘Extending and

developing your thinking skills’, Open University Student Toolkit 9.

House of Lords
Until the creation of the UK Supreme Court, the House of Lords
had been the most authoritative court in England and Wales. The
House of Lords used to be bound by its own previous decisions
until it changed this practice in 1966. The rationale for the old
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practice was that decisions of the highest court in the land should
be final so that there would be certainty in the law and finality in
litigation. This practice changed to enable the House of Lords to
adapt the law to meet changing social conditions and to pay
attention to the decisions of superior courts in the Commonwealth.

The possibility of the House of Lords changing its previous

decisions is a recognition that law, whether expressed in statutes
or cases, is a living and changing institution which must adapt to
the circumstances to which it applies if it is to retain practical
relevance.”

3.3.2 The styling of legal cases

Activity 8 asks you to read Reading 1 – a short extract from The
English Legal System (Slapper and Kelly, 2003) – and identify what
you consider are the advantages of allowing the House of Lords to
overrule its previous decisions. This extract provides you with
examples of instances when the House of Lords has not followed
its own previous decisions.

This may be the first time you have read the name of a legal case.
Case names are written in a particular style. For example, the first
case referred to in Reading 1 is Conway v Rimmer (1968). The ‘v’ in
the middle stands for versus, which is Latin for ‘against’. Either
side of it are the names of the parties. The first name is the person
or organisation that brought the case. If the case is a civil case,
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that person is called the claimant (formerly called the plaintiff) and
the other party is called the defendant. In a criminal case, the
person bringing the case is called the prosecutor, and the other
person is called the defendant. If the case is R v Smith, the ‘R’
stands for Rex (Latin for King) or Regina (Latin for Queen) and
shows that the case is a criminal prosecution being brought by the
Crown, that is the state. The 1968 refers to the year the case was
reported, and we will be examining the issue of case reporting later
in this course.

You should read Reading 1 through at least twice. The first time
you should try to get an overall picture of what the Reading is
saying. You should then reread the question and on the second
reading you should take some notes and extract the relevant
information and arguments from the Reading in order to answer
the question.

Activity 8 Allowing the House of Lords to

overrule its previous decisions
0 hours 45 minutes

Please read Reading 1: ‘Cases of the House of Lords overruling

previous decisions’ and write a short paragraph (about 50 words)
outlining what you consider to be the advantages of allowing the
House of Lords to overrule its previous decisions.

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Judges and the law

Now click here to read the document Reading 1 (PDF, 0.1mb, 2

pages).

View discussion - Activity 8 Allowing the House of Lords to overrule its

previous decisions

Figure 2: It is important for the law to be clear and certain so that no one can
be surprised when it is enforced

3.3.3 The Court of Appeal

The Court of Appeal is always bound by previous decisions of the
House of Lords.

The Court of Appeal generally is also bound by its own previous

decisions. There are, however, a number of exceptions to this

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Judges and the law

general rule. Lord Greene MR listed these exceptions in Young v

Bristol Aeroplane Co. Ltd (1944).

MR means ‘Master of the Rolls’. This is the judge who is head of

the Court of Appeal Civil Division. The odd name comes from the
Middle Ages when a senior clerk in the Chancellor's office was in
charge of the Chancellor's Roll, i.e. written material. A good source
of information about legal terminology is on the internet at the
official Court Service website. You will find a free glossary of legal
terms there.

It is not important for you to read this case at this point. What is
important is the exceptions that arise, which are:

 Where there is a conflict between two previous

decisions of the Court of Appeal.

In this situation, the latest court must decide which

decision to follow and which to overrule. One reason
why there can be two earlier Court of Appeal
decisions that apparently say different things about
the same law is that the second of the two cases
might simply have been unaware of the first one when
it gave its pronouncement.

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Judges and the law

 Where a previous decision of the Court of Appeal has

been overruled, either expressly or impliedly, by the
House of Lords.

An express overruling would obviously occur where

the House of Lords actually considered the Court of
Appeal precedent, but it is equally possible that a
precedent from the Court of Appeal could be
overruled without the actual case being cited and
considered. In this situation, the Court of Appeal, in
line with the normal rules of precedent, is required to
follow the decision of the House of Lords.

 Where the previous decision was given per incuriam

(Latin for ‘through an error’).

In other words, that previous decision was taken in

ignorance of some authority, either statutory or case
law, that would have led to a different conclusion. In
this situation, the later court can ignore the previous
decision in question. The missing authority must be a
sufficiently important one that it would have led to a
different conclusion; the mere possibility is not
enough. There are so many case authorities that it is
simply not possible to cite all of them in any one case.
However, it is the absence of any consideration of the

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essential authorities that renders a decision per

incuriam. Instances of decisions being ignored on the
basis of a ruling of per incuriam are very rare.

 The European Communities Act 1972 gives the Court

of Appeal grounds for ignoring any of its previous
decisions which conflict with subsequent decisions of
the European Court of Justice.

This effectively fits the European Court of Justice into

the traditional hierarchical structure of precedence as
the court of last resort in relation to European Union
law matters.

 Section 2 of the Human Rights Act 1998 requires all

courts and tribunals to take into account any
judgment, decision, declaration or advisory opinion of
the European Court of Human Rights.

The Human Rights Act 1998 renders decisions of the

European Court of Human Rights directly binding on
the United Kingdom courts. This means that the
decisions of the European Court of Human Rights
now become precedents for the United Kingdom
courts to follow. Any domestic precedent which is in
conflict with a decision of the European Court of

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Human Rights is now invalidated and should not be

followed.

3.3.4 Divisional courts

The legal terminology for these courts is not very straightforward!
The High Court is divided into three ‘divisions’, each one dealing
with different sorts of cases – the Family Division, the Chancery
Division (that deals with property and money cases) and the
Queen's Bench Division (that deals with cases involving things like
contracts and negligence). Each of these divisions, however, also
has the capacity to act as a court to hear appeals from lower
courts and, when the judges sit in that capacity, the court is called
a ‘Divisional Court of the High Court’. The Divisional Courts hear
appeals from courts and tribunals below them in the hierarchy.
They are bound by the doctrine of stare decisis in the normal way
and must follow decisions of the House of Lords and the Court of
Appeal. In turn, they bind the courts below them in the hierarchy,
including the ordinary High Court cases. The High Court is also
normally bound by its own previous decisions although, in civil
cases, it may make use of the exceptions open to the Court of
Appeal in Young v Bristol Aeroplane Co. Ltd (1944). In criminal
appeal cases the Queen's Bench Divisional Court may refuse to
follow its own earlier decisions where it feels the earlier decision to
have been made wrongly.

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Judges and the law

Figure 3: Judges have a lot of opportunity to develop the common law

3.3.5 The High Court

The High Court is also bound by the decisions of superior courts.
Decisions by individual High Court judges are binding on courts
inferior in the hierarchy, but such decisions are not binding on
other High Court judges, although they are of strong persuasive
authority and tend to be followed in practice. It is possible,
however, for High Court judges to disagree and for them to reach
different conclusions as to the law in a particular area. The
question then becomes – how is a later High Court judge to select
which precedent to follow? It is usually accepted, although it is not
a rule of law, that where the later decision has actually considered
the previous one and has given a reason for not following it, then
that is the judgment which later High Court judges should follow.
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Judges and the law

Conflicting decisions at the level of the High Court can, of course,

be authoritatively decided by reference upwards to the Court of
Appeal and then, if necessary, to the House of Lords, but when the
cost of such appeals is borne in mind, it is apparent why, even on
economic grounds alone, it is important for High Court judges not
to treat their discretion as a licence to destabilise the law in a given
area.

In relation to conflicting judgments at the level of the Court of

Appeal, the High Court judge is required to follow the later
decision.

Crown Courts, County Courts and magistrates' courts cannot

create precedent and their decisions can never amount to more
than persuasive authority.

Box 3 Crown Courts, County Courts and

magistrates' courts
The Crown Court tries more serious criminal cases, as well as
hearing appeals from the magistrates' courts. Crown Courts sit in
over 90 permanent centres throughout England and Wales, each
centre being designated as first, second or third tier, reflecting the
seriousness of the offences tried. County and district boundaries
have no statutory significance in determining where a case should
be heard. Most Crown Court cases are heard at the centre most

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Judges and the law

convenient to the magistrates' court which committed the case for

trial.

The County Court deals primarily with civil law, so it doesn't fight
crime in the same way as the criminal courts in England and
Wales. Despite their name, the County Courts do not fit within
county boundaries in England and Wales and in fact the 230
County Courts are scattered around the towns and cities that
require their services. All property cases up to £30,000, all
personal injury claims less than £50,000, and bankruptcy matters
are all carried out by the district judge at the County Court.

Approximately 96 per cent of criminal cases are dealt with at a

magistrates’ court. The case may be tried either by at least two,
but usually three, lay magistrates, or by a district judge who sits
alone. Until August 2000 these district judges were known as
stipendiary magistrates, but were renamed in order to recognise
them as members of the professional judiciary, as they are legally
qualified and salaried.

Activity 9 asks you to use your knowledge from Reading 2, what

you have studied in this course so far and your own everyday
experiences to summarise the principal advantages and
disadvantages of the doctrine of precedent. You may find some of
the language of the Reading a little difficult, but don't worry. It is
not necessary for you to understand all that is being said, you

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Judges and the law

simply have to identify and summarise the main good and bad
points of the doctrine of precedent.

Activity 9 The advantages and disadvantages of

the doctrine of precedent
0 hours 45 minutes

Please read Reading 2: ‘English legal system in context’ and

answer the following question: What do you consider to be the
advantages and disadvantages of the doctrine of precedent?

Now click here to read the document Reading 1 (PDF, 0.1mb, 2

pages).

View discussion - Activity 9 The advantages and disadvantages of the

doctrine of precedent

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Judges and the law

Figure 4: There are so many thousands of reported legal cases in the law
library that operating the doctrine of precedent can be difficult.

Reading 3 is an article which highlights the uncertainty of the law

in relation to the citizen's right to protect their own property. The
article discusses the case of Tony Martin and other court
judgments. You may recall the case of Tony Martin, the Norfolk
farmer who shot and killed a trespasser on his property. As you
are reading Reading 3 make a note of the inconsistent decisions
which the courts have arrived at on this single issue of the right to
protect property.

Activity 10 Castles built on law

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Judges and the law

0 hours 10 minutes

Please read Reading 3: ‘Castles built on law’.

Now click here to read the document Reading 3 (PDF, 0.1mb, 2

pages).

View discussion - Activity 10 Castles built on law

3.3.6 Summary of the system of precedent

The basis of the system of precedent is the principle of stare decisis
and this requires a later court to use the same reasoning as an
earlier court where the two cases raise the same legal issues. For
example:

 House of Lords’ decisions are binding on all other

courts in the legal system, except the House of Lords
itself.
 The Court of Appeal is bound by previous decisions of
the House of Lords. The Court of Appeal generally is
also bound by its own previous decisions, with the
following exceptions:

1.where there is a conflict between two

previous decisions of the Court of Appeal;

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Judges and the law

2.where a previous decision of the Court of

Appeal has been overruled by the House
of Lords;

3.where the previous decision was taken in

ignorance of some statutory or case law
authority that would have led to a
different conclusion;

4.where the previous decision is

inconsistent with European Community
law or with a later decision of the
European Court of Justice;

5.Section 2 of the Human Rights Act 1998

requires all courts and tribunals to take
into account any judgment, decision,
declaration or advisory opinion of the
European Court of Human Rights.

 Divisional Courts must follow decisions of the House of

Lords and the Court of Appeal and are also normally
bound by their own previous decisions.

 The High Court is also bound by the decisions of

superior courts. Decisions by individual High Court
judges are binding on courts inferior in the hierarchy.

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Judges and the law

Remember that throughout your studies you are also using reading
and note-taking skills. Table 1 has been provided to illustrate how
this summary could be expressed in an alternative format. You
need to find a note-taking style which suits you.

Table 1 The system of precedent

C Ot Ot
ou he he
rt r r
co co
ur ur
ts ts
it it
bi m
nd us
s t
fol
lo
w
Eu Al N
ro l on
pe ot e
an he
Co r
urt co
of urt
Ju s
sti on
ce m
att
ers
of
E
U
la
w

Eu Al N
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Judges and the law

ro l on
pe ot e
an he
Co r
urt co
of urt
H s
u on
m hu
an m
Ri an
gh rig
ts hts
iss
ue
s
(S
ect
io
n
2
19
98
H
u
m
an
Ri
gh
ts
Ac
t)

H Al Eu
ou l ro
se ot pe
of he an
Lo r Co
rd co urt
s urt of
s Ju
in sti
th ce
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Judges and the law

e on
En E
gli U
sh la
le w
ga
l
sy
ste
m
Eu
ro
pe
an
Co
urt
of
H
u
m
an
Ri
gh
ts
on
hu
m
an
rig
hts
iss
ue
s

Co Its Eu
urt elf ro
of (s pe
A ub an
pp jec Co
eal t urt
to of
so Ju

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Judges and the law

m sti
e ce,
ex Eu
ce ro
pti pe
on an
s, Co
e.g urt
. of
Yo H
un u
gv m
Br an
ist Ri
ol gh
Ae ts
ro an
pl d
an H
e ou
Co se
. of
Lt Lo
d rd
(1 s
94
4))
Di
vis
io
na
l
Co
urt
s
Al
l
ot
he
r
lo
we
r
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Judges and the law

co
urt
s

Di N Eu
vis or ro
io m pe
na all an
l y Co
Co ha urt
urt ve of
s to Ju
fol sti
lo ce,
w Eu
th ro
eir pe
o an
w Co
n urt
pr of
ev H
io u
us m
de an
cis Ri
io gh
ns ts,
H
ou
se
of
Lo
rd
s
an
d
Co
urt
of
A
pp
eal
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Judges and the law

Hi
gh
Co
urt
Al
l
ot
he
r
lo
we
r
co
urt
s

Hi Co Eu
gh un ro
Co ty pe
urt Co an
urt Co
s urt
of
Ju
sti
ce,
Eu
ro
pe
an
Co
urt
of
H
u
m
an
Ri
gh
ts,
H
ou

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Judges and the law

se
of
Lo
rd
s,
Co
urt
of
A
pp
eal
,
Di
vis
io
na
l
Co
urt
s
M
ag
ist
rat
es'
co
urt
s

Cr Po Eu
o ssi ro
w bl pe
n y an
Co m Co
urt ag urt
ist of
rat Ju
es' sti
co ce,
urt Eu
s ro
pe

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Judges and the law

an
Co
urt
of
H
u
m
an
Ri
gh
ts,
H
ou
se
of
Lo
rd
s,
Co
urt
of
A
pp
eal
,
Di
vis
io
na
l
Co
urt
s,
Hi
gh
Co
urt
,
i.e
.
all
hi
gh

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Judges and the law

er
co
urt
s

Note that both the County Court and magistrates' courts do not
create precedent. They are bound by the decisions of all higher
courts.

In OpenLearn course W100_2 Parliament and the law there was an

opportunity to read an Act of Parliament. In Activity 11 I would like
to show you how to read a law case.

Activity 11 Reading a case

0 hours 45 minutes

Now click here to read the document (A v Essex County Council)

(PDF, 0.2mb, 23 pages).

You should now be looking at the following case: A v Essex County

Council.

Take a few moments to look at the case report. You will see at the
top of the case the citation [2004] 1 FLR. This shows that the
report is from the first volume of the Family Law Reports for 2004.
(You will be examining the conventions of law reporting in more
detail later in this course.)

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Judges and the law

The next thing you will see is the name of the case: A v Essex
County Council. A refers to the person or people who brought the
case – in this case the adoptive parents of a young boy. In order to
protect his anonymity the courts have called the parents A so that
the boy will not be easily identifiable. A are bringing a case against
Essex County Council.

Beneath the name of the case is the citation [2003] EWCA Civ
1848. This is known as the neutral citation. (You will learn more
about the neutral citation later in this course.) Below this are
details of the court and the judges who decided the case.

Then you will see what is called the headnote, which has a
summary of the facts of the case, followed by a statement of what
the court decided. The barrister who reported the case, whose
name is given at the end of the report, writes all of this. Headnotes
are a very useful summary of the case but it is not unknown for
headnotes to miss an essential point. Therefore law students
should always read cases in their entirety (although that is not
necessary for this activity).

Further down is a list of statutes and a list of previous cases which

were referred to in the judgment. ‘Judgment’ (rather than
‘judgement’) isn't a misspelling; it refers to legal decisions or
verdicts. The length of these lists will vary from case to case and
may be long or short depending on the issues being addressed.

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Judges and the law

Then the judgment itself starts. There is no need for you to read
the judgment. The object of this activity was to show you the
physical layout of a law case. You may find it interesting to read
the case if you wish.

One tip for your studies is to use a highlighter pen to highlight

every case name/statute you come across in your law studies.
This will make them easier to find when reviewing a course and
also assist with your note taking.

Activity 12 requires you to use your internet skills to look up the

House of Lords' website and examine a recent House of Lords'
decision of your choice. You are asked to make a note of how
many Law Lords gave a judgment and how many Law Lords were
in agreement.

Activity 12 House of Lords' judgments

0 hours 20 minutes

1. Go to the
http://www.supremecourt.gov.uk/decided-cases/index.html
UK Supreme Court judgments .

2. 2. This will provide you with a list of the latest UK

Supreme Court judgments. Take 15 minutes or so to
look through a judgment of your choice. While doing
this make a note of how many Justices of the
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Judges and the law

Supreme Court gave the judgment and how many

were in agreement.

There is no requirement to read the judgment in its entirety.

However, if you look at the first and last paragraph of each
judgment you will see whether each of the Justices agrees or
disagrees with the others.

View discussion - Activity 12 House of Lords' judgments

3.4 Binding precedent

Not everything in a court case sets a precedent. The contents of a
case report can be divided into two categories:

 1. The reason for the decision – ratio decidendi

 The ratio decidendi of a case is not the actual decision,
like ‘guilty’ or ‘the defendant is liable to pay
compensation’. The precedent is set by the rule of law
used by the judge or judges in deciding the legal
problem raised by the facts of the case. This rule,
which is an abstraction from the facts of the case, is
known as the ratio decidendi of the case (see Box 4).

Box 4 Example of ratio decidendi

A couple leave their dog in their car while they pop out to a shop.
For a reason that cannot later be discovered, the dog gets excited

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and starts jumping around. There is no issue that the dog was
suffering from dehydration or being overheated. The dog paws the
rear glass window. It shatters and a shard of glass flies off and,
unfortunately, into the eye of a passer-by, who later has to have
his eye removed. Are the couple liable to pay compensation for the
man's eye? The court said no. People should take care to guard
against ‘realistic possibilities’. They should only be liable, the court
said, if they caused others harm by doing something that could be
reasonably foreseen as likely to cause harm. We are not liable if
we fail to guard against ‘fantastic possibilities’ that happen to
occur. The accident in this case, the judges ruled, was just such a
‘fantastic possibility’. The couple therefore did not have to pay
compensation. The reason for the decision in this case, the ratio
decidendi, can therefore be expressed simply as: where harm was
caused to a pedestrian by a dog smashing the window of the car
that it was in, and where this sort of incident was unforeseeable,
the defendants were not liable.

 2. Obiter dictum
 In a case judgment, any statement of law that is not an
essential part of the ratio decidendi is, strictly speaking,
superfluous. Any such statement is referred to as
obiter dictum. This is Latin for ‘a word said while
travelling’ or ‘along the way’ (obiter dicta in the plural).
Although obiter dicta statements do not form part of
the binding precedent, they are persuasive authority
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and can be taken into consideration in later cases, if

the judge in the later case considers it appropriate to
do so (see Box 5).

Box 5 Example of obiter dictum

In the case above about the dog and the man injured by the shard
of glass, one judge said that if you knew your dog had an excitable
tendency or went mad in cars, then you would be liable if it caused
someone harm in a predictable way (not in the freakish broken
window scenario) and would have to pay compensation. The judge
did not need to rule on that in the dog-and-the-car-window case,
because the couple did not have a dog with a known excitable
temperament. His observations were, therefore, made ‘by the way’
and thus can be referred to as an obiter dictum. In a future case
involving a dog known by its owners to be excitable, a lawyer for
an injured claimant could refer back to the judge's obiter dictum in
the car window case and use it as ‘persuasive’ but not ‘binding’
authority.

The division of cases into these two distinct parts is a theoretical

procedure. Unfortunately, judges do not actually separate their
judgments into the two clearly defined categories and it is up to the
person reading the case to determine what the ratio is. This is a bit
like listening to, or reading, a speech made by a politician or a

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Judges and the law

sports team manager and trying to identify what the most important
part of the speech was.

In some cases this is no easy matter, and it may be made even

more difficult in cases where there are three or five judges and
where each of the judges delivers their own lengthy judgment so
there is no clear single ratio.

In some cases it may be difficult to ascertain precisely the ratio of

the case and to distinguish the ratio from the obiter dicta.

Activity 13 provides you with two illustrative examples of how to

identify the ratio decidendi of court judgements. These examples
highlight that this is a complex task and there is no one method of
approach to determining the ratio.

Activity 13 Identifying the ratio decidendi

0 hours 45 minutes

Please read Reading 4: ‘Ratio decidendi and obiter dictum’, which

examines two law cases, Carlill v Carbolic Smoke Ball Co. Ltd and
Alcock v Chief Constable of South Yorkshire Police. It outlines the facts
of these cases and identifies what the ratio decidendi of each case
is. This Reading is longer than previous Readings in this course,
but the same advice applies as for all of them. You should read it
through once to get an overall understanding of the piece. You
should then read it a second time and take notes in order to clarify
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for yourself what is being said. You may find that you need to read
through it a third or fourth time if necessary. When you have
studied Reading 4, you should have a good idea of what is meant
by the ratio decidendi of a case.

Now click here to read the document Reading 4 (PDF, 0.2mb, 4

pages).

Having seen examples of how ratio and obiter are determined in

Reading 4, Activity 14 requires you to read Reading 5 and to
summarise the ratio and the obiter of the case in question. Reading
5 discusses a dispute which arose about a television
advertisement for the alcoholic drink Guinness. The TV
advertisement, Anticipation featured a dance routine – you may
have seen the advertisement which appeared on TV from 1993 to
1994. The dispute concerned whether Guinness had copied the
dance from a short film called Joy. You will be aware that it is a
serious matter if students in an exam were to copy each other, or if
a student was to copy another student's assignment or pass
another's work off as their own. So you can see why the makers of
Joy were so upset at the thought that their work had been copied.
Reading 5 is shorter and more straightforward than Reading 4.
You should still read the article at least twice and attempt the
exercise that follows.

Activity 14 Pure genius or plagiarism?

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Judges and the law

0 hours 25 minutes

Please read Reading 5: ‘Pure genius or plagiarism?’ and attempt

the following exercise: Summarise the ratio decidendi and obiter
dicta in the High Court case for breach of copyright brought by the
commercial's director Mehdi Norowzian against Guinness and
Arks.

Now click here to read the document Reading 5 (PDF, 0.1mb, 2

pages).

Figure 5: Practically every aspect of what we do can be the subject of legal

disputes. When does a dance become a drama?

The GUINNESS word is a trademark. © Guinness & Co.

View discussion - Activity 14 Pure genius or plagiarism?

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Judges and the law

Please note that this case was subsequently appealed to the Court
of Appeal.

As has been noted previously, in delivering judgments in cases,

judges do not separate and highlight the ratio decidendi from the
rest of their judgment and this can lead to a lack of certainty in
determining the ratio decidendi. This uncertainty is compounded by
the fact that reports of decisions in cases may run to considerable
length, and where there are a number of separate judgments,
although the judges involved may agree on the decision of a case,
they may not agree on the legal basis of the decision reached. It is
for the judge deciding the case in which a precedent has been
cited to determine the ratio of the authority and so work out
whether he or she is bound by the earlier case or not. This factor
provides later courts with a considerable degree of discretion in
choosing whether to be bound by a particular authority.

The main mechanisms through which judges alter or avoid

precedents are:

 overruling

 distinguishing.

3.4.1 Overruling
Overruling is the procedure whereby a court higher up in the
hierarchy sets aside a legal ruling established in a previous case.
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Judges and the law

It is strange that, within the system of stare decisis, precedents gain

increased authority with the passage of time. As a consequence,
courts tend to be reluctant to overrule longstanding authorities
even though they may no longer accurately reflect contemporary
practices or morals. While old principles are not usually good in
dentistry or computer science, they are often seen that way in law!
In addition to the wish to maintain a high degree of certainty in the
law, the main reason for judicial reluctance to overrule old
decisions would appear to be the fact that overruling operates
retrospectively, with the effect that the principle of law being
overruled is held never to have been law. It may even lead to the
imposition of criminal liability on previously lawful behaviour. It has
to be emphasised, however, that the courts will not shrink from
overruling authorities where they see them as no longer
representing an appropriate statement of law.

The decision in R v R (1992) to recognise the possibility of rape

within marriage may be seen as an example of this, although, even
here, the House of Lords felt constrained to state that they were
not actually altering the law, but were merely removing a
misconception as to the true meaning and effect of the law.

As this suggests, the courts are rarely ready to challenge the law-
making rights of Parliament in an open way. An example of this
reluctance can be seen in the House of Lords’ decision in Curry v
Director of Public Prosecutions (1994). There used to be a
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Judges and the law

presumption that children between the ages of 10 and 14 who

were charged with a criminal offence did not know that what they
did was seriously wrong and that the prosecution had to provide
evidence to rebut that presumption (this presumption was known
as the doctrine of doli incapax, meaning ‘incapable of a wrong’). In
an appeal involving two young boys who had been convicted of a
crime involving a motorbike, Lord Justice Mann justified reversing
the presumption by claiming that, although it had often been
assumed to be the law, it had never actually been specifically
considered by earlier courts.

The presumption of doli incapax was abolished in England and

Wales by section 34 of the Crime and Disorder Act 1998. Prior to
the Act, for a child aged over 10 but under 14 to be convicted of a
criminal offence in England and Wales, the prosecution had to
rebut the presumption of doli incapax as well as prove the offence.
This meant that they must prove beyond reasonable doubt not only
that the child did the act in question, but that they knew what they
were doing was seriously wrong, rather than just naughty. To rebut
the presumption, the prosecution had to show that the young
person knew the act in question was seriously wrong. Since the
1998 Act, the prosecution no longer have to prove this.

On such reasoning, he felt justified in departing from previous

decisions of the Court of Appeal which otherwise would have
bound him. The House of Lords subsequently restored the
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Judges and the law

previous presumption and said that in order to get convictions, the

prosecution in any case would have to rebut the presumption that
10–14-year-olds don't know the difference between right and
wrong. Although the Law Lords recognised the problem, and
indeed appeared to sympathise with Mann LJ's view, they
nonetheless thought that such a significant change was a matter
for parliamentary action rather than judicial intervention.

Overruling should not be confused with ‘reversing’, which is the

procedure by which a superior court in the hierarchy reverses the
decision of a lower court in the same case.

3.4.2 Distinguishing
In comparison with the mechanism of overruling, which is rarely
used, the main device for avoiding binding precedent is that of
distinguishing. As has been previously stated, the ratio decidendi of
any case is based upon the material facts of the case. This opens
up the possibility that a court may regard the facts of the case
before it as significantly different from the facts of a cited
precedent, so it will not find itself bound to follow that precedent.
Judges use the device of distinguishing where, for some reason,
they are unwilling to follow a particular precedent. Law reports
provide many examples of strained distinctions where a court has
quite evidently not wanted to follow an authority that it would
otherwise have been bound by.

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Judges and the law

3.4.3 Summary of binding precedent

In this section you have seen:

 that not everything in a court case sets a precedent

 the difference between ratio decidendi (the statement of
legal principles material to the decision) and obiter
dictum (the discussion of legal principles raised in
argument but not material to the decision)

 that the binding element in a future case is the ratio

and that, while the obiter will never be binding, it may
have strong persuasive force

 the situations in which judges do not have to follow

previous decisions:

 overruling a previous case

 distinguishing a previous case.

Table 2 Summary of binding precedent

Le De C
ga fin o
l iti m
te on m
r en
m t
rat Th Th
io e e
de re pa
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Judges and the law

ci as rt
de on of
nd for th
i de e
ci ju
di dg
ng m
en
t
w
hi
ch
cr
eat
es
la
w
–
th
e
bi
nd
in
g
pr
ec
ed
en
t
ob Th Ot
ite in he
r gs r
di sai pa
ct d rts
a al of
on th
g e
th ju
e dg
wa m
y en
t.
Th
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Judges and the law

es
e
m
ay
be
pe
rs
ua
siv
e
bu
t
do
no
t
cr
eat
e
la
w
Th Th
e e
de ou
cis tc
io o
n m
e
of
th
e
ca
se
for
th
e
pa
rti
es
in
vo
lv
ed
O A R
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Judges and the law

ve de v
rru cis R
lin io (1
g n 99
w 2)
hi is
ch an
sta ex
tes a
th m
at pl
a e
le
ga
l
rul
e
in
an
ea
rli
er
ca
se
is
wr
on
g
Di A
sti m
ng et
uis ho
hi d
ng of
av
oi
di
ng
a
pr
ev
io
us
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Judges and the law

de
cis
io
n
be
ca
us
e
th
e
fa
cts
in
th
e
pr
es
en
t
ca
se
ar
e
dif
fer
en
t
Activity 15 The courts and judicial precedent
0 hours 40 minutes

This activity will enable you to check your knowledge and

understanding of the court hierarchy and system of precedent. It is
important that you have a thorough understanding of them. This
activity is in three parts.

Interactive content is not available in this format.

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Judges and the law

3.5 Summary of Part B

In Part B you have learned that:

 the system of precedent requires later courts to use

the same reasoning as an earlier court, where two
cases raise the same legal issues;
 the contents of a case report can be divided into two
categories:

 ratio decidendi – the statement of legal

principles essential to the decision. The
ratio is the binding element of the case

 obiter dictum – any statement of law that is

not an essential part of the judgment. The
obiter is never binding, but can be
persuasive authority which can be taken
into consideration in later cases;

 the main ways in which judges can alter or avoid

precedents are:

 overruling – where the court sets aside a

legal ruling established in a previous case

 distinguishing – if the court regards the

facts of the current case as materially
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Judges and the law

different from previous decisions, then

the court will not apply the precedent, as
it will not be relevant to the current case.

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Judges and the law

4 Part C Accurate law reporting

4.1 Introduction
You cannot cite precedents to a judge and ask him or her to follow
them if you don't have a good record of all the earlier cases and
how they were decided. The operation of binding precedent,
therefore, relies on the existence of an extensive reporting service
to provide access to previous judicial decisions.

This section will briefly set out where you might locate case reports
on particular areas of the law. This is of particular importance to
advocates (usually barristers but sometimes solicitors), who are
under a duty to bring all relevant case authority to the attention of
the court, whether it advances their case or not, so they are
expected to make themselves thoroughly aware of the current
reports. It will also be useful to you as a law student.

4.2 Tyes of reports

4.2.1 Year Books (1275–1535)
The earliest reports of particular cases appeared between 1275
and 1535 in what are known as the Year Books. These reports are
really of historical interest as they were originally written in a
language known as Law French. As with the common law
generally, the focus was on procedural matters and forms of
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Judges and the law

pleading. Those who are engaged in the study of legal history will
find the most important cases translated and collected together in
the Seldon Society series or the Rolls series but, in the main, they
represent a backwater little navigated by those whose concern is
modern law.

4.2.2 Private reports (1535–1865)

These reports bear the name they do because they were produced
by private individuals and are cited by the name of the person who
collected them. They were, however, published commercially for
public reference. An ongoing problem with the private reports
relates to their accuracy. At best, it can be said that some were
better, that is, more accurate, than others. Of particular importance
among the earlier reports were those of Plowden, Coke and
Burrows, but there are many other reports that are of equal
standing in their own right with full and accurate reports of the
cases submitted by counsel together with the reason for the
decisions in the particular case. A substantial number of the
private reports have been collated and published as the English
Reports. The series comprises 178 large volumes – 176 volumes
being reports and the last 2 volumes providing an index of all the
cases reported. In addition, the reports are accompanied by a
useful wallchart to assist location of individual reports.

4.2.3 Modern reports (1865 to present)

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Judges and the law

As you have seen, the private reports were not without their
problems. In addition to, at least occasional, inaccuracy, their
publication could be both slow and expensive. This situation was
at last remedied by the establishment of the Council for Law
Reporting in 1865, subsequently registered as a corporate body in
1870 under the name of the Incorporated Council of Law Reporting
for England and Wales. The council was established under the
auspices of the Inns of Court and the Law Society with the aim of
producing quicker, cheaper and more accurate reports than had
been produced previously.

4.2.4 The Law Reports

These are the case reports produced by the Incorporated Council
of Law Reporting for England and Wales. They have the distinct
advantage of containing summaries of counsels’ arguments and,
perhaps even more importantly, they are subject to revision by the
judges in the case before they are published. Not surprisingly, the
Law Reports are seen as the most authoritative of reports and it is
usual for them to be cited in court cases in preference to any other
report.

The current series of Law Reports, from 1891, is issued annually in

four parts:

A (A
pp C)
eal
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Judges and the law

Ca
se
s
Ch (C
an h.)
ce
ry
Di
vis
io
n
Fa (F
mi a
ly m.
Di )
vis
io
n
Ki (K
ng' B/
s/ Q
Q B)
ue
en'
s
Be
nc
h

Delays in reporting can obviously mean that cases decided in one

year are not reported until the following year. Since the start of the
current series, individual volumes of reports carry the year of
publication in square brackets together with a volume number if
there is a need for more than one. Cases are cited, therefore, by
the year and volume in which they are published, rather than the
year they were decided.

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Judges and the law

4.2.5 Weekly Law Reports (citation WLR)

These have also been published by the Incorporated Council of
Law Reporting since 1953 and, although they are not reports of
cases decided in the current week as the name might suggest,
they are produced much more quickly than the Law Reports. The
need for speed means that these reports do not contain counsels'
arguments, nor do they enjoy the benefit of judicial correction
before printing. There are four volumes of reported cases, the
latter two containing the cases that will also appear in the Law
Reports.

4.2.6 All England Law Reports (citation All

ER)
These reports are produced by the legal publishers Butterworth's
and, although they do enjoy judicial revision, they do not contain
counsels’ arguments. They are published weekly and are then
collated annually in volumes.

4.2.7 Legal periodicals and newspapers

The Solicitors’ Journal (Sol Jo or SJ) has been reporting cases
since 1856 and some cases are only to be found in its reports. In
such circumstances, the reports may be cited in court. The same is
also true for cases reported in other journals, such as the New Law
Journal (NLJ) or the other specialist legal journals.

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Judges and the law

Figure 6: The Solicitors' Journal has been reporting cases since 1856

The reports in the broadsheet newspapers (The Times, Guardian

and Independent for example) may also be cited in such
circumstances, as long as they have been produced by
appropriately qualified individuals (the Courts and Legal Services
Act 1990 extended this right to solicitors as well as barristers).
However, some of these reports are rather insubstantial in nature.

4.2.8 Specialist reports

There are a number of specialist reports. Indeed, there are more
than can be mentioned here, but amongst the most important are:

In (I
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Judges and the law

du R
str L
ial R)
Re
lat
io
ns
La
w
Re
vi
ew
K (L
ni G
gh R)
t's
Lo
cal
G
ov
er
n
m
en
t
Re
po
rts
Ll (L
oy lo
d's yd'
La s
w Re
Re p.)
po
rts
Re (T
po C
rt or
on Ta
Ta x
x Ca

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Judges and the law

Ca s)
se
s
Fa (F
mi L
ly R)
La
w
Re
po
rts
Cr (C
im r.
in A
al pp
A .
pp R)
eal
Re
po
rts

4.2.9 European Community reports

Although European cases may appear in the reports considered
above, there are two specialist reports relating to EU cases.

 European Court Reports (ECR)

These are the official reports produced by the

European Court of Justice. As such, they are
produced in all the official languages of the
Community and consequently suffer from delay in
reporting.

 Common Market Law Reports (CMLR)

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Judges and the law

These are unofficial reports published weekly in

English by the European Law Centre.

Reports of the European Court of Human Rights in Strasbourg are

provided in the European Human Rights Reports (EHRR).

4.2.10 DVD-ROMs and internet facilities

As in most other fields, the growth of information technology has
revolutionised law reporting and law finding. Many of the law
reports mentioned above are available both on DVD-ROM and via
the internet through legal databases such as Justis, Lawtel, Lexis-
Nexis and Westlaw UK. Many such databases, however, require
you to complete a registration process and there may be a charge
for the service. Altrnatively they may be available, for free, to
registered university or college students studying recognised
accredited courses. You will find that many case databases are not
immediately available to you.

The first major electronic cases database was the Lexis system,
which gave immediate access to a huge range of case authorities,
some unreported elsewhere. The problem for the courts was that
lawyers with access to the system could simply cite lists of cases
from the database without the courts having access to paper
copies of the decisions. The courts soon expressed their
displeasure at this indiscriminate citation of unreported cases

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Judges and the law

trawled from the Lexis database (see Stanley v International

Harvester Co. of Great Britain Ltd (1983)).

Figure 7: Many reports can be found online

4.2.11 Neutral citation

In line with the ongoing modernisation of the whole legal system,
the way in which cases are to be cited has been changed. Since
January 2001 a new neutral system was introduced, and cases in
the various courts are now cited as follows (‘EW’ means England
and Wales):

H [y

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Judges and the law

ou ea
se r]
of U
Lo K
rd H
s L
ca
se
no
.
Co
urt
of
Ap
pe
al
Co [y
urt ea
of r]
A E
pp W
eal C
(C A
ivi Ci
l v
Di ca
vis se
io no
n) .
Co [y
urt ea
of r]
A E
pp W
eal C
(C A
ri Cr
mi im
na ca
l se
Di no
vis .

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Judges and the law

io
n)
Hi
gh
Co
urt
Ch [y
an ea
ce r]
ry E
Di W
vis H
io C
n ca
se
no
.
(C
h)
Pa [y
te ea
nts r]
Co E
urt W
H
C
ca
se
no
.
(P
at)
A [y
d ea
mi r]
nis E
tra W
tiv H
e C
Co ca
urt se
no
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Judges and the law

.
(A
d
mi
n)
Co [y
m ea
m r]
er E
cia W
l H
Co C
urt ca
se
no
.
(C
o
m
m)
A [y
d ea
mi r]
ral E
ty W
Co H
urt C
ca
se
no
.
(A
d
ml
ty)
Te [y
ch ea
no r]
lo E
gy W
& H
Co C

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Judges and the law

nst ca
ru se
cti no
on .
Co (T
urt C
C)
Fa [y
mi ea
ly r]
Di E
vis W
io H
n C
ca
se
no
.
(F
a
m)

Within the individual case, the paragraphs of each judgment are

numbered consecutively, and where there is more than one
judgment the numbering of the paragraphs carries on sequentially.
Thus, for example, the neutral citation for International Transport
Roth GmbH v Secretary of State for the Home Department is [2002]
EWCA Civ 158 and if you were looking for the citation for the
quotation from Simon Browne LJ from the case, this is at
paragraph 53. The specific Law Report series within which the
case is reported may be found at [2002] 3 WLR 344.

4.3 Summary of accurate law reporting

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Judges and the law

This section stressed the importance of accurate law reporting

which allows for legal principles to be collated, identified and
accessed. I examined where you might locate case reports on
particular areas of the law. These are:

 Year Books (1275–1535)

 Private reports (1535–1865)

 Modern reports (1865 to present)

 The Law Reports

 Weekly Law Reports (citation WLR)

 All England Law Reports (citation All ER)

 Legal periodicals and newspapers

 Specialist reports

 European Community reports

 DVD-ROMs and internet facilities.

4.4 Summary of Part C

In Part C you have learnt that:

 accurate law reporting allows for legal principles to be

collated, identified and accessed;

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Judges and the law

 there are many sources of law reports: Year Books

(1275–1535), private reports (1535–1865), modern
reports (1865 to present), the Law Reports, Weekly
Law Reports, All England Law Reports, legal
periodicals and newspapers, European Community
Reports, DVD-ROMs and legal databases available
via the internet.

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Judges and the law

5 Part D The need for statutory

interpretation
5.1 Reasons for unclear meaning
The meaning of law in a statute should be clear and explicit, but
this is not always achieved. Thus, many of the cases which come
before the courts concern a dispute over the meaning of a word or
phrase in a statute. In those cases the task of the court is to decide
the exact meaning of that particular word or phrase. There are a
number of factors which can lead to an unclear meaning.

 A broad term – There may be words designed to cover

several possibilities and it is left to the user to judge
what situations fall within it.

London and North Eastern Railway Company v

Berriman [1946] 1 All ER 255
Mr Berriman was a railway worker who was hit and killed by a train
while he was doing maintenance work. Regulations stated that a
lookout should be provided for men working on the other railway
line ‘for the purposes of relaying or repairing it’. Mr Berriman was
maintaining the line. His widow tried to claim compensation for his
death because the railway company had not provided a lookout
man. The court ruled that the relevant regulation did not cover
maintenance work and so Mrs Berriman's claim failed.
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Judges and the law

The court looked at the specific words in the regulation and was
not prepared to look at any broad principle that the purpose of
making a regulation that a lookout man should be provided was to
protect those working on railway lines.

 Ambiguity – A word may have two or more meanings

and it may not be clear which meaning should be
used.
 A drafting error – The parliamentary council which
drafted the original Bill may have made an error that
has not been noticed by Parliament. This is more
likely to occur where a Bill has been amended several
times during debates.

 Wording may be inadequate – There may be many ways

in which the wording may be inadequate, for example,
a printing error, or another error such as the use of a
word with a wide meaning which is not defined.

 New developments – New technology may mean that an

old Act of Parliament does not apparently cover
present-day situations.

 Changes in the use of language – The meaning of words

can change over the years.

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Judges and the law

 Certain words not used – The draftsmen may refrain

from using certain words that they regard as being
implied. The problem here is that users may not
realise that this is the case.

 Failure of legislation to cover a specific point – The

legislation may have been drafted in detail, with the
draftsman trying to cover every possible contingency.
Despite this, situations could arise which are not
specifically covered. The question then is whether the
court should interpret the legislation so as to include
the situation which was omitted or whether they
should limit the legislation to the precise points listed
by Parliament.

Brock v DPP (23 July 1993)

In the Dangerous Dogs Act (1991 S.I.) there is a phrase ‘any dog
of the type known as the pit bull terrier’. This led to a debate as to
whether ‘type’ means the same as ‘breed’. In Brock, the Queens
Bench Divisional Court decided that ‘type’ had a wider meaning
than ‘breed’ and it could cover dogs that were not pedigree pit
bulls but which had a substantial number of characteristics of such
a dog.

In all legislation there is the potential for words and phrases to

create uncertainty which can only be resolved by judicial
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Judges and the law

interpretation. That interpretation is a creative process and

inevitably involves the judiciary in the process of creating law.

The question arises as to what techniques the judges should use

as they are required to define that term or phrase. A number of
rules have been developed to assist judges in this process, the
rules of statutory interpretation. These have been produced over
the centuries by judges themselves and Parliament has played no
role in their development. It can be argued, however, that
Parliament remains the supreme law-making body. If it does not
like the definition produced by the court, it can choose to pass new
legislation which overturns the court's decision.

5.2 Summary of Part D

Part D explored several of the reasons which may result in a word
or phrase in an Act of Parliament having an unclear meaning. This
was illustrated by a number of examples. Interpretation of those
words or phrases becomes a task for the courts. In this role, it can
be argued that the courts are involved in the law-making process
as they have been required to interpret and define a statute.

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Judges and the law

6 Part E The rules of statutory

interpretation
6.1 Introduction
In this part we will explore the number of rules developed by the
courts to assist with the interpretation of a statute. These are:

 the literal rule

 the golden rule

 the mischief rule

 the purposive approach.

These rules each take different approaches to interpretation of a

statute. Some judges prefer one rule, while other judges prefer
another. Some judges also feel that their role is to fill the gaps and
ambiguities in the law whilst others think that it should be left to
Parliament as the supreme law-maker. As the rules can result in
very different decisions, it is important to understand each of them
and how they may be used.

6.2 The literal rule

Under this rule the judge considers what the statute actually says,
rather than what it might mean. In order to achieve this, the judge
will give the words in the statute a literal meaning, that is, their
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Judges and the law

plain ordinary everyday meaning, even if the effect of this is to

produce what might be considered as an otherwise unjust or
undesirable outcome. The literal rule says that the intention of
Parliament is best found in the ordinary and natural meaning of the
words used. As the legislative democratic part of the state,
Parliament must be taken to want to effect exactly what it says in
its laws. If judges are permitted to give an obvious or non-literal
meaning to the words of parliamentary law, then the will of
Parliament, and thereby the people, is being contradicted. Lord
Diplock once noted:

Where the meaning of the statutory words is plain and

unambiguous it is not then for the judges to invent fancied
ambiguities as an excuse for failing to give effect to its plain
meaning because they consider the consequences for doing so
would be inexpedient, or even unjust or immoral.

Duport Steel v Sirs (1980)

The use of the literal rule is illustrated by the case of Fisher v Bell
(1960). The Restriction of Offensive Weapons Act 1959 made it an
offence to offer for sale certain offensive weapons including flick
knives. James Bell, a Bristol shopkeeper, displayed a weapon of
this type in his shop window in the arcade at Broadmead. The
Divisional Court held that he could not be convicted because,
giving the words in the statute a tight literal meaning, Mr Bell had

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not offered the knives for sale. In the law of contract, placing
something in a shop window is not technically an offer for sale; it is
merely an invitation to treat. (An invitation to treat is an invitation to
others to make offers, as by displaying goods in a shop window.) It
is the customer who makes an offer to the shop when he proffers
money for an item on sale. The court upheld that under the literal
meaning of offer, the shopkeeper had not made an offer to sell and
so was not guilty of the offence. Parliament subsequently changed
the law to make it clear that displaying a flick knife in a shop
window was an offence.

The literal rule has both advantages and disadvantages.

Constitutionally it respects parliamentary supremacy and the right
of Parliament to make any laws it might wish no matter how absurd
they may seem. It also encourages precision in drafting and
ensures that anyone who can read English can determine the law,
which promotes certainty and reduces litigation. Some
disadvantages, however, can also be identified. It fails to recognise
that the English language itself is ambiguous and that words may
have different meanings in different contexts. The use of this rule
can sometimes lead to absurdities and loopholes which can be
exploited by an unmeritorious litigant. Judges have tended to over-
emphasise the literal meaning of statutory provisions without giving
due weight to their meaning in a wider context. Placing emphasis
on the literal meaning of words assumes an unobtainable

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perfection in draftsmanship. Finally, it ignores the limitations of

language.

6.3 The golden rule

This rule is a modification of the literal rule. It states that if the
literal rule produces an absurdity, then the court should look for
another meaning of the words to avoid that absurd result. The rule
was closely defined by Lord Wensleydale in Grey v Pearson (1857)
HL Cas 61, who stated:

The grammatical and ordinary sense of the words is to be adhered

to unless that would lead to some absurdity or some repugnance
or inconsistency with the rest of the instrument in which case the
grammatical and ordinary sense of the words may be modified so
as to avoid the absurdity and inconsistency, but no farther.

The rule was used in the case of Adler v George (1964) to avoid an
absurd result. Under section 3 of the Official Secrets Act 1920, it
was an offence to obstruct HM Forces in the vicinity of a prohibited
place. Mr Frank Adler had in fact been arrested whilst obstructing
such forces within such a prohibited place (Markham Royal Air
Force Station, Norfolk). He argued that he was not in the vicinity of
a prohibited place as he was actually in a prohibited place. The
court applied the golden rule to extend the literal wording of the
statute to cover the action committed by the defendant. If the literal
rule had been applied, it would have produced absurdity, as
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someone protesting near the base would be committing an offence

whilst someone protesting in it would not.

Re Sigsworth (1935) concerned a case where a son had murdered

his mother. The mother had not made a will and under the
Administration of Justice Act 1925 her estate would be inherited by
her next of kin, i.e. her son. There was no ambiguity in the words
of the Act, but the court was not prepared to let the son who had
murdered his mother benefit from his crime. It was held that the
literal rule should not apply and that the golden rule should be
used to prevent the repugnant situation of the son inheriting.

The golden rule provides no clear means to test the existence or

extent of an absurdity. It seems to depend on the result of each
individual case. Whilst the golden rule has the advantage of
avoiding absurdities, it therefore has the disadvantage that no test
exists to determine what is an absurdity.

6.4 The mischief rule

This third rule gives a judge more discretion than either the literal
or the golden rule. This rule requires the court to look to what the
law was before the statute was passed in order to discover what
gap or mischief the statute was intended to cover. The court is
then required to interpret the statute in such a way to ensure that
the gap is covered. The rule is contained in Heydon's Case (1584),

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where it was said that for the true interpretation of a statute, four
things have to be considered:

1. What was the common law before the making of the

Act.
2. What was the mischief and defect for which the
common law did not provide.

3. What remedy Parliament hath resolved and appointed

to cure the disease of the Commonwealth.

4. The true reason of the remedy; and then the office of

the Judges is to make such construction as shall
suppress the mischief and advance the remedy.

This rule gives the court justification for going behind the actual
wording of the statute in order to consider the problem that the
particular statute was aimed at remedying. At one level it is clearly
the most flexible rule of interpretation, but it is limited to using
previous common law to determine what mischief the Act in
question was designed to remedy. The case itself concerned a
dispute about legislation passed under Henry VIII in 1540 and a
legal action against Heydon for intruding into certain lands in the
county of Devon.

An example of the use of the mischief rule is found in the case of

Corkery v Carpenter (1951). In 1951 Shane Corkery was sentenced

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to one month's imprisonment for being drunk in charge of a bicycle

in public. At about 2.45 p.m. on 18 January 1950, the defendant
was drunk and was pushing his pedal bicycle along Broad Street in
Ilfracombe. He was subsequently charged under section 12 of the
Licensing Act 1872 with being drunk in charge of a carriage. The
1872 Act made no actual reference to bicycles. The court elected
to use the mischief rule to decide the matter. The purpose of the
Act was to prevent people from using any form of transport on a
public highway whilst in a state of intoxication. The bicycle was
clearly a form of transport and therefore the user was correctly
charged.

6.5 The purposive approach

This approach has emerged in more recent times. Here the court
is not just looking to see what the gap was in the old law, it is
making a decision as to what they felt Parliament meant to
achieve. Lord Denning in the Court of Appeal stated in Magor and
St. Mellons Rural District Council v Newport Corporation (1950), ‘we
sit here to find out the intention of Parliament and of ministers and
carry it out, and we do this better by filling in the gaps and making
sense of the enactment by opening it up to destructive analysis’.

This attitude was criticised on appeal by the House of Lords. Lord

Simmons called this approach ‘a naked usurpation of the
legislative function under the thin disguise of interpretation’. He

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went on to say that ‘if a gap is disclosed, the remedy lies in an

amending Act’.

These comments highlight one issue with the purposive approach.

How Parliament's intentions can be determined and whether
judges should really be refusing to follow the clear words of
Parliament. The purposive approach is one used by most
continental European countries when interpreting their own
legislation. It is also the approach which is taken by the European
Court of Justice in interpreting EU law.

Since the United Kingdom became a member of the European

Economic Community in 1973, the influence of the European
preference for the purposive approach has affected the English
courts in a number of ways. First, the courts have been required to
accept that, from 1973, the purposive approach has to be used
when deciding on EU matters. Second, as they use the purposive
approach for EU law they are becoming accustomed to using it
and more likely to use it to interpret domestic law. One example is
Pickstone v Freemans plc (1998). Here, women warehouse
operatives were paid the same as male warehouse operatives.
However, Miss Pickstone claimed that the work of the warehouse
operatives was of equal value to that done by male warehouse
checkers who were paid £1.22 per week more than they were. The
employers argued that a woman warehouse operative was
employed on like work to the male warehouse operatives,so she
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could not bring a claim under the Equal Pay Act 1970 section 1(2)
(c) for work of equal value. This was a literal interpretation of the
1970 statute. The House of Lords decided that the literal approach
would have left the United Kingdom in breach of its treaty
obligations to give effect to an EU directive. It therefore used the
purposive approach and stated that Miss Pickstone was entitled to
claim on the basis of work of equal value even though there was a
male employee doing the same work as her.

When using one of the rules of statutory interpretation the courts

may rely on a presumption or secondary aids to assist them in
making their decision.

6.5.1 Presumptions
When determining the meaning of particular words the courts will
make certain presumptions about the law. If the statute clearly
states the opposite, then a presumption will not apply and it is said
that the presumption is rebutted. The main presumptions are:

1. A presumption against change in the common law.

It is assumed that the common law will apply unless

Parliament has made it plain in the Act that the
common law has been altered.

2. A presumption that mens rea (‘guilty mind’) is required

in criminal cases.
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Judges and the law

Mens rea is one of the elements that has to be proved

for a successful criminal prosecution. There is a
common law rule that no one can be convicted of a
crime unless it is shown they had the required
intention to commit it.

3. A presumption that the Crown is not bound by any

statute unless the statute expressly says so.

4. A presumption that a statute does not apply

retrospectively. No statute will apply to past
happenings. Each statute will normally only apply from
the date it comes into effect. This is, however, only a
presumption and Parliament can choose to pass a
statute with retrospective effect. This must, however,
be expressly stated in the statutes, for example, the
War Damage Act 1965, the War Crimes Act 1991 and
the Adoption Act 1976.

The secondary aids are rules of language, intrinsic and extrinsic

aids.

6.6 Rules of language

The courts may also choose to look at other words in the statute to
ascertain the meaning of specific words. To enable them to do this
they have developed a number of rules of language to help make

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Judges and the law

the meaning of words and phrases clear. There are three main
rules of language:

 Ejusdem generis

This rule states that where there is a list of words

which is followed by general words then the general
words are limited to the same kind of items as the
specific words. In the case of Powell v Kempton (1899)
AC 143, a ring at a racecourse was held not to fall
within the terms ‘house, office, room or other place’
because the list of words indicated that ‘other place’
should be construed as an indoor place.

 Expressio unius est exclusio alterius

Where the express mention of one thing excludes

others. Where there is a list of words which is not
followed by general words, then the Act applies only
to the items in the list. In the case of R v Inhabitants of
Sedgley (1831) the use of the words ‘lands, houses
and coalmines’ excluded application to other types of
mine.

 Noscitur a sociis

A word is known by the company it keeps. The words

must be looked at in the context and interpreted
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Judges and the law

accordingly. This involves considering other words in

the same section or other sections of the Act. In the
case of Muir v Keay (1875) LR 10 QB 594, the
purpose of licensing theatrical or musical
entertainment did not fall within the words of the Act
covering houses ‘for public refreshment, resort and
entertainment’, because the word ‘entertainment’ in
the Act referred to refreshment houses, receptions
and accommodation of the public.

6.7 Intrinsic aids

Intrinsic aids are matters within an Act itself which may help make
the meaning clearer. The court may consider the long title, the
short title and any preamble. Other useful internal aids may include
headings before a group of sections and any schedules attached
to the Act. There are also often marginal notes explaining different
sections; however, these are not generally regarded as giving
Parliament's intention as they will have been inserted after
parliamentary debates and are only helpful comments put in by the
printer.

Some Acts include sections in which words are expressly defined.

For example, the 1963 Animal Boarding Act section 5(2) states: ‘In
this Act animal means any dog or cat.’ The Interpretation Act 1978
section 6 also states that unless the contrary intention appears,

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words importing the masculine gender also include the feminine

and words importing the feminine gender also include the
masculine. In addition, words in the singular also include the plural
and words in the plural include the singular.

6.8 Extrinsic aids

Extrinsic aids are matters which may help put an Act into context.
Sources include previous Acts of Parliament on the same topic,
earlier case law, dictionaries of the time, and the historical setting.
In addition, Hansard can now be considered. Hansard is the official
report of what was said in Parliament when the Act was debated.
The use of Hansard was permitted following the decision in Pepper
(Inspector of Taxes) v Hart (1993) where the House of Lords
accepted that Hansard could be used in a limited way. It permits
Hansard to be used where the legislation is ambiguous or obscure
or leads to an absurdity, and the material relied on comprises one
or more statements by a Minister or other promoter of the Bill and
such other parliamentary material as is necessary to understand
the statements, and the effect and the statements that were relied
on have to be clear.

Extrinsic aids also include international conventions, regulations or

directives which have been implemented by English legislation. It
is thought that English law should be interpreted in such a way as
to be consistent with international law. Section 3 of the Human

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Judges and the law

Rights Act 1998 expressly states that as far as it is possible to do

so, an Act must be read and given effect in a way which is
compatible with the rights in the European Convention on Human
Rights. This only applies to any case where there is an issue of
human rights.

6.9 Summary of Part E

R C C
ul o as
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Th Us Fi
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of

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Judges and the law

w
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Judges and the law

es
un
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av
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Judges and the law

in
co
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iti

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Judges and the law

on
or
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Judges and the law

or
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so
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to
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Judges and the law

e
La
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Judges and the law

m 8)
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Judges and the law

ch
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Judges and the law

w
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Judges and the law

e
Ac
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Judges and the law

t
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Judges and the law

l
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tio
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Judges and the law

7 Part F Common law, equity and

statute law
7.1 Equity
This term refers to a particular division within the English legal
system. As the common law progressed, there developed a
formality among judges, typified by a reluctance to deal with
matters that were not or could not be processed in the proper form
of action. Such a refusal to deal with injustices because they did
not fall within the particular procedural and formal constraints, led
to much dissatisfaction with the legal system. A modern analogy
would be with a company or Government department that refused
to deal with your complaint because none of its existing forms was
suitable even though you had obviously suffered a wrong. In
addition, the common law courts were perceived to be slow, highly
technical and very expensive, and a trivial mistake in pleading a
case could lose a good argument. The only available remedy was
damages, but such monetary compensation was not always the
best remedy. How could people obtain justice, if not in the
common law courts? The response was the development of equity.

Claimants (then called plaintiffs) unable to gain access to the

common law courts could appeal direct to the sovereign, and such
pleas would be passed for consideration and decision to the Lord
Chancellor, who acted as ‘the King's conscience’. The Chancellor
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Judges and the law

based his decisions on principles of natural justice and fairness,

making a decision on what seemed ‘right’ in the particular case
rather than following previous precedents. He would look beyond
documents which were considered legally binding by the common
law courts. To make sure his decisions were fair, new procedures,
such as a subpoena requiring a witness to attend court, and new
remedies, such as injunctions and specific performance, were
developed. This resulted in the emergence of a specific court, a
court of Chancery, constituted to deliver ‘equitable’ or ‘fair’
decisions in cases which the common law courts declined to deal
with. The Court of Chancery gets its name from the fact that the
court was under the control of the Lord Chancellor. The Court of
Chancery was the Court of Equity which developed to provide
remedies not available in the courts of common law.

There were a number of important conditions which a person

seeking justice from the Court of Chancery had to meet:

 They had to show that they could not receive justice in

the common law courts.
 They had to show that they were without blame. This
was called coming to the court with ‘clean hands’. By
contrast, claimants using the older common law courts
did not have to show they were acting in a morally
blameless way.

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Judges and the law

 They had to show that they had not delayed in bringing

this case before the court.

The common law courts and Court of Chancery operated

separately. On occasion, this led to conflict, as the common law
courts would make an order in favour of one party, and the Court
of Chancery the other party. This situation was resolved by the
Earl of Oxford's case (1615), when the King ruled that in such
cases equity would prevail. The division between the common law
courts and the courts of equity continued until they were eventually
combined by the Judicature Acts 1873–5. Prior to this legislation, it
was essential for a party to raise their action in the appropriate
court: for example, the courts of common law would not implement
equitable principles, so if an injunction was sought, the case had to
be heard by the Court of Chancery. If damages were sought, then
the case had to be heard by the common law courts. The Acts,
however, provided that every court had the power and the duty to
decide cases in line with common law and equity, with the latter
being paramount in the final analysis (section 25 Judicature Act
1873).

Table 3 Comparing common law and equity

C E
o qu
m ity
m
on

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Judges and the law

la
w
Or Th
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Judges and the law

en en
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Judges and the law

xi
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to
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Judges and the law

cr
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7.2 Statute law and common law

The ‘common law’ means the substantive law and procedural rules
that have been created by the judges through the decisions in the
cases they have heard. I have here lumped together two types of

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Judges and the law

common law: substantive law and procedural law. Let me explain

the difference between them.

A substantive rule is a rule about our behaviour, for example, that

we cannot commit murder or that we will be forming a contract if
we do such-and-such on an email exchange. These substantive
rules are different from procedural rules, as the latter govern
simply how things should be done. For example, regardless of
what sort of case is in court, the rules governing the admission of
evidence into court are the same.

Statute law, on the other hand, refers to law that has been created
by Parliament in the form of legislation. Although there has been a
significant increase in statute law in the twentieth and twenty-first
centuries, the courts still have an important role to play in creating
and operating law generally and in determining the operation of
legislation in particular. This is despite the fact that there is no
legislative or express democratic authority for the court to be law-
makers.

Activity 16 requires you to read an article which discusses the role

of Parliament and the role of the courts in making legal rules. This
article is longer than previous Readings, but don't let this daunt
you. You will be familiar with the ideas which are discussed in the
Reading.

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Judges and the law

Exercise 1 then asks you to apply your understanding and

knowledge of the common law and summarise the importance of
the common law system being both flexible and certain. You are
then asked to weigh and evaluate the arguments and say whether
you think the ‘judicial computer’ discussed in Reading 6 should
replace the common law. This is not a question of arriving at the
‘right answer’ any more than there is a scientific ‘right answer’ to
what is the best political party or the best soup! It is about being
able to give reasons for a viewpoint you have arrived at.

Activity 16 Making law: the use of precedent

1 hour 0 minutes

Now click here to read the document Reading 6: ‘The law factories’
and complete the three exercises (PDF, 0.2mb, 5 pages).

Exercise 1
0 hours 20 minutes

Explain why there is a need for a balance between certainty and

flexibility in common law. Do you think it would be better if the
common law were replaced by a ‘judicial computer’ like that
depicted in Reading 6?

View discussion - Exercise 1

Exercise 2
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Judges and the law

0 hours 20 minutes

Having considered why certainty and flexibility are important,

please now describe how certainty and flexibility are introduced
into the common law system.

View discussion - Exercise 2

Exercise 3
0 hours 20 minutes

Again based upon your knowledge and understanding of this

course, summarise the advantages and disadvantages of a system
of precedent. You should take some time to revise the notes you
made from the previous activities, and perhaps reread part of the
course.

View discussion - Exercise 3

7.3 Summary of Part F

In Part F, we have compared and contrasted:

 common law and equity

 common law and statute law.

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Judges and the law

8 Part G Common law and civil law

systems
8.1 The differences between common
law and civil law systems
Having explored the origins and development of the common law
and its characteristics, the final part of this course will compare
and contrast the common law with civil legal systems.

The terms common law system and civil law system are used to
distinguish two distinct legal systems and approaches to law. The
use of the term ‘common law’ in this context refers to all those
legal systems which have adopted the historic English legal
system. Foremost amongst these is, of course, the United States,
but many other Commonwealth and former Commonwealth
countries retain a common law system. The term ‘civil law’ refers
to those other jurisdictions which have adopted the European
continental system of law derived essentially from ancient Roman
law, but owing much to the Germanic tradition.

The usual distinction to be made between the two systems is that

the common law system tends to be case-centred and hence
judge-centred, allowing scope for a discretionary, pragmatic
approach to the particular problems that appear before the courts.
The law can be developed on a case-by-case basis. On the other
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Judges and the law

hand, the civil law system tends to be a codified body of general

abstract principles which control the exercise of judicial discretion.
In reality, both these views are extremes, with the former
overemphasising the extent to which the common law judges can
impose their discretion and the latter underestimating the extent to
which civil law judges have the power to exercise judicial
discretion. It is perhaps worth mentioning at this point that the
European Court of Justice, established, in theory, on civil law
principles, is, in practice, increasingly recognising the benefits of
establishing a body of case law. Although the European Court of
Justice is not bound by the operation of the doctrine of stare decisis,
it still does not decide individual cases on an individual basis
without reference to its previous decisions.

Activity 17 Common law

0 hours 25 minutes

This activity builds on what you have just read about the
differences between the systems of common and civil law. It is an
extract from the BBC Radio 4 Unreliable Evidence programme
broadcast in 2004. While listening, you may want to take notes.
Listen in particular to what is said about the relationship between
common law and civil law systems.

'Common law' part 1

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Judges and the law

Audio content is not available in this format.

'Common law' part 1

View transcript - 'Common law' part 1

'Common law' part 2

Audio content is not available in this format.

'Common law' part 2

View transcript - 'Common law' part 2

View discussion - Activity 17 Common law

8.2 Summary of Part G

In Part G you have explored the difference between common law
and civil law systems.

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Judges and the law

9 Part H Consolidation
The purpose of this part is to bring together your knowledge of law
making in the English legal system. Through a series of activities
you will be provided with the opportunity to review and consolidate
your knowledge of the English legal system gained so far.

Activity 18 Common law

0 hours 20 minutes

The term ‘common law’ has a number of meanings. These

meanings depend upon the context in which the term is used. Note
down the different meanings of the term ‘common law’ you have
come across in this course.

View discussion - Activity 18 Common law

Activity 19 Domestic sources of law

0 hours 20 minutes

Drawing upon your knowledge of how law is made by Parliament

or through the courts, construct a diagram of the sources of law
you have been introduced to in your law studies so far.

View discussion - Activity 19 Domestic sources of law

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Judges and the law

The final activity will help to further consolidate your studies of this
course by considering two controversial cases which were widely
reported in the media.

Activity 20 Courts of law and decision making

0 hours 30 minutes

For this activity, you will need to read the two transcripts exploring
the cases of Tony Martin and the ‘Metric Martyrs’.

Exercise 1 Tony Martin

As you read the attached transcript you may want to take some
notes. In particular, think about the contrast between the outcomes
for Tony Martin and Terry Reagan.

Now click here to read the transcript of the Tony Martin case (PDF,
0.1 MB, 2 pages).

View discussion - Exercise 1 Tony Martin

Exercise 2 The Metric Martyrs

Again, you may want to take notes as you read the transcript,
which explores why the case was brought and the outcomes for
the traders involved. It illustrates how and why the appeals
process is often used.

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Judges and the law

Now click here to read the transcript of the Metric Martyrs case
(PDF, 0.1 MB, 2 pages).

View discussion - Exercise 2 The Metric Martyrs

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Judges and the law

Conclusion
This free course provided an introduction to studying Law. It took
you through a series of exercises designed to develop your
approach to study and learning at a distance and helped to
improve your confidence as an independent learner. 

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Judges and the law

Keep on learning

   

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from on a range of subjects. 

Find out more about all our free courses.

   

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Find out more about studying with The Open University by visiting
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Access Courses or Certificates.

   

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Judges and the law

   

For reference, full URLs to pages listed above:

OpenLearn – www.open.edu/openlearn/free-courses

Visiting our online prospectus – www.open.ac.uk/courses

Access Courses – www.open.ac.uk/courses/do-it/access

Certificates – www.open.ac.uk/courses/certificates-he

Newsletter – www.open.edu/openlearn/about-openlearn/subscribe-the-
openlearn-newsletter

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Judges and the law

References
Cowie, F. and Bradney, A. (2000), English Legal System in Context,
London, Butterworths, pp. 88–90.

‘Extending and developing your thinking skills’, Open University

Student Toolkit 9.

Slapper, G. (2000) ‘Castles built on law’, New Law Journal, 23 June.

Slapper, G. and Kelly, D. (2003) The English Legal System, London,

Cavendish, pp. 75–7 and 84–8.

‘The effective use of English’, Open University Student Toolkit 1.

‘Pure genius or plagiarism?’ (1998) The Times, 25 August.

‘The law factories’ (2002) The Times, 29 October.

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Judges and the law

Acknowledgements
The content acknowledged below is Proprietary (see terms and
conditions) and is made available under a Creative Commons
Attribution-NonCommercial-ShareAlike 4.0 Licence

Grateful acknowledgement is made to the following sources for

permission to reproduce material in this course:

The content acknowledged below is Proprietary and is used under

licence.

Course image: Eric Kilby in Flickr made available under Creative

Commons Attribution-ShareAlike 2.0 Licence.

A vs Essex County Council [2003] EWCA Civ 1848. Crown

Copyright material is reproduced with the permission of the
Controller of HMSO and the Queen’s Printer for Scotland

Readings 1 and 4: Slapper, G. and Kelly, D. (2003) The English

Legal System, Cavendish Publishing Limited

Reading 3: Slapper, G. (2000) ‘Castles built on law’, New Law

Journal, Vol. 150, No. 6941, 23 June 2000

Reading 5: Slapper, G. (1998) ‘Pure genius or plagiarism?’ The

Times, 25 August 1998 © News International Syndication

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Judges and the law

Figures 2, 4 and 6 Alamy.

Figure 3 Empics/PA.

Figure 5 © Guinness & Co. The GUINNESS word is a Trademark.

Figure 7 LexisNexis Butterworths Direct.

Empics/PA.

Don't miss out:

If reading this text has inspired you to learn more, you may be
interested in joining the millions of people who discover our free
learning resources and qualifications by visiting The Open
University - www.open.edu/openlearn/free-courses

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Judges and the law

Activity 1 Using a dictionary

Discussion
My answers are probably quite similar to yours:

1. to find the meaning of an unfamiliar word

2. to check the meaning of a familiar word and related
words

3. to check the spelling of a word

4. to see how to pronounce a word

5. to see what synonyms (different words with very

similar meanings) are available; sometimes a
thesaurus is used for this purpose

6. to look up a specialist word in a specialist dictionary for

a much fuller description (e.g. photosynthesis).

Back to Session 2 Activity 1

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Judges and the law

Activity 2 Which dictionary?

Discussion
Often the general dictionary will tell you whether the word is a
verb, or a noun, or some other part of speech. Some will also give
you an example of the word used in a phrase or sentence.

Back to Session 2 Activity 2

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Judges and the law

Activity 3 Understanding
vocabulary
Discussion
Understanding what the prefix ‘sub-’ means helps you to tackle an
unfamiliar word: knowing that ‘sub’ means ‘below’ and ‘marine’ is
something to do with the sea helps you to understand the word
‘submarine’.

Extending your vocabulary makes your writing more interesting

and vivid. A thesaurus (meaning a ‘treasury’) gives information
about words associated in meaning with the word you are looking
for.

If you look up ‘aroma’ in a thesaurus, you might find the following

associated words (synonyms): bouquet, fragrance, odour,
perfume, redolence, savour, scent, smell, whiff.

You may need to check the usage in your writing – we tend not to
say ‘the flower had a delightful whiff’!

A thesaurus may give words ‘opposite’ in meaning (antonyms), for

example, loveable – hateful.

Back to Session 2 Activity 3

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Judges and the law

Activity 4 Broadening your

vocabulary
Discussion
It really is worthwhile to find the right dictionaries for you: a handy
small one like The Pocket Oxford Dictionary for quick reference and
a larger one, like The Oxford Advanced Learner's Dictionary where
words are put into phrases or sentences that help to make usage
clear.

Back to Session 2 Activity 4

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Judges and the law

Activity 6 The importance of

thinking skills
Discussion
There are, of course, no set answers to questions of this sort.
People and organisations have their own reasons and views.
People give a range of reasons for becoming Open University
students. For example, they may want to improve job prospects, to
explore and gain knowledge of a subject area of interest, to
develop themselves generally, or to have contact with others.
Perhaps your responses to the second question were the same as
to the first. Or maybe you mentioned more general skills and
attributes that can be gained, such as confidence, communication
or interpersonal skills.

Did you include extending or developing thinking skills in any of

your responses? If you did, how important was this in relation to
other reasons you listed for study and higher education? The
ability to think, particularly the ability to think critically, is often cited
as one of the main purposes of education by those involved in
delivering higher education today. Look at the following list and
compare it with your answers.

Traditional aims of higher education:

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Judges and the law

 adopting a distinctive way of thinking about concepts,

evidence and theories
 taking a distanced, critical stance towards subject
matter, assumptions and explanations

 tackling issues systematically, logically and effectively

 examining the adequacy of evidence and checking

alternative interpretations of it

 demonstrating a thorough understanding of complex,

abstract concepts within the discipline

 writing clearly and cogently, following appropriate

academic styles and conventions

 being able to set and solve problems by applying

concepts and techniques appropriately.

Back to Session 3 Activity 2

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Judges and the law

Activity 7 Thinking skills in

education today
Discussion
Education can be seen as the main way of developing individuals
and society. There are a range of possible reasons you might have
suggested for thinking being an important area to develop.
Perhaps your reasons related to economic factors, or perhaps
social, cultural or educational factors. A strong argument these
days is that knowledge is central to our information age and
movement towards a knowledge-based economy. The creation
and use of knowledge depends on our ability to think. Good
thinking could be viewed as empowering for individuals and
society. Education can be seen as a process of joining a
community in a subject. So you may become, for example, a social
scientist or mathematician by learning the thinking styles, language
and other characteristics of that community.

Your reasons for studying and what you see as the purpose of
higher education will influence your thinking, styles of study and
other aspects of learning.

Back to Session 3 Activity 3

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Judges and the law

Activity 8 Allowing the House of

Lords to overrule its previous
decisions
Discussion
This is an example of an answer which does not really give
enough detail:

You will probably have noted other advantages.

Back to Session 3 Activity 4

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Judges and the law

Activity 9 The advantages and

disadvantages of the doctrine of
precedent
Discussion
Did you consider the following advantages and disadvantages?

Advantages:

Consistency and fairness in the law – This refers to the fact that
cases are decided on a like-for-like basis and are not subject to the
whim of the individual judge deciding the case in question. This
aspect of formal justice is important in justifying the decisions
taken in particular cases.

Certainty – Lawyers and their clients are able to predict what the
outcome of a particular legal question is likely to be in the light of
previous judicial decisions. Also, once the legal rule has been
established in one case, individuals can orient their behaviour with
regard to that rule relatively secure in the knowledge that it will not
be changed by some later court.

Efficiency – This refers to the fact that it saves the time of the
judiciary, lawyers and their clients if cases do not have to be re-
argued. For potential litigants, it saves them money in court
expenses because they can apply to their solicitor/barrister for
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Judges and the law

guidance as to how their particular case is likely to be decided in

the light of previous cases on the same or similar points.

Flexibility – This refers to the various mechanisms, by means of

which the judges can manipulate the common law and thus allow
the development of the law in particular areas without waiting for
Parliament to enact legislation.

Disadvantages:

Uncertainty – This refers to the fact that the degree of certainty

presented by the doctrine of stare decisis is undermined by the
huge number of cases that have been reported and can be cited
as authorities. With so many rules and slightly different
interpretations of them in thousands of cases, it is not always easy
to see which interpretation a court will give the law in your case.
This uncertainty is increased by the ability of the judiciary to select
which authority to follow through use of the mechanism of
distinguishing cases on their facts.

You will see some examples of the uncertainty which can be

generated by case law when you attempt Activity 10.

Fixity – This refers to the possibility that the law in relation to any
particular area may become inflexible on the basis of an unjust
precedent, with the consequence that previous injustices are
perpetuated. An example of this is the long delay before the courts

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Judges and the law

were willing to change the law and say that marital rape was a
crime. Since the 1970s, arguments had been put to the courts on
behalf of women raped by their husbands but the law was only
amended by the House of Lords in 1992. We will examine this
House of Lords judgment later in the course.

Unconstitutionality – This is a fundamental question that refers to

the fact that the judiciary are overstepping their theoretical
constitutional role by actually making law rather than restricting
themselves to the role of simply applying it. If they are not elected
as law-makers then why should they be allowed to make law?

You may have thought of some other disadvantages. The system

of precedent can be slow. An area of law may be unclear or in
need of reform but this cannot be done until the case is heard. The
Court of Appeal has to follow its own previous decisions but only
about 60 cases go to the House of Lords every year. This may
result in a long wait for a suitable case to be appealed as far as the
House of Lords. The system also encourages complexity. Even
with online legal databases it is not easy to find all the relevant
case law. The judgment in a case may be long with no clear
distinction between comments, the ratio and obiter. We will go on
to explain these terms more fully.

Back to Session 3 Activity 5

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Judges and the law

Activity 10 Castles built on law

Discussion
Reading 3 provides a very good illustration of why certainty is an
important feature of the legal system. The law in this area has
become rather confused. In 1996, the Court of Appeal decided that
a trespasser engaged in criminal activities can claim compensation
for injuries suffered if the force used against him or her exceeds
‘reasonable limits’. Tony Martin was convicted of murdering a
young man who had broken into his house after dark.

The court decision in the case of Tony Martin contrasts with other
court decisions. As you will have read, between 1300 and 1348
there were frequent acquittals where householders had killed
housebreakers. Reading 3 also refers to the Peterborough Crown
Court case in which a burglar who was beaten with a baseball bat
was said by a judge to have got what he deserved.

Whatever your opinion about which view is correct, I think you will
agree that the law in this area is very uncertain and inconsistent.

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Judges and the law

Activity 12 House of Lords'

judgments
Discussion
From Activity 12 you will see that each judgment of the UK
Supreme Court will involve a number of Justices giving judgment.
To be perfectly accurate, when a judge from the UK Supreme
Court (they are known as Justices) delivers a judgment, it is
technically called an ‘opinion’. They may not always be in
agreement with each other, and, even if they all agree with the
final judgment, their reasons for arriving at this opinion may differ.
The question then arises, which part of the judgment is binding
and sets a precedent? This is what we shall examine next.

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Judges and the law

Activity 14 Pure genius or

plagiarism?
Discussion
Mr Justice Rattee dismissed the copyright infringement action.
This was the decision made in this case.

Ratio decidendi
 He decided that although Joy was a point of reference
for Anticipation, it was not a copy of it.

Obiter dicta
 Mr Justice Rattee focused on what was being filmed
and decided that such a frenetic dance was not a
drama.
 The judge stated that Joy was not a ‘dramatic work’,
and therefore was outside the protection of the
Copyright, Designs and Patents Act 1988.

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Judges and the law

Exercise 1
Discussion
Certainty

Certainty is needed to allow people to plan their behaviour and to

allow lawyers to advise their clients. Thus, in 1995 the House of
Lords did not change the doli incapax rule concerning the criminal
liability of children. Also, in the case of the soldier Private Clegg, in
1995 the Lords declined to make any changes to the law of self-
defence.

Therefore, the legal system needs to balance these two

competing, but equally legitimate, aims. If a ‘judicial computer’
were adopted this would guarantee certainty but remove all
flexibility from the legal system.

Flexibility

The common law must be flexible in order to respond to changing

times. Lord Hobhouse noted that the common law develops ‘as
circumstances change and the balance of legal, social and
economic needs changes’. For example, in R v R (1992), the
House of Lords saw fit to abolish the then 256-year-old rule
against a charge of marital rape. Also in Pepper v Hart (1993), the
Lords’ Appellate Committee swept away a 223-year-old
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Judges and the law

constitutional rule that had prevented Hansard being consulted by

law courts in aid of statutory interpretation.

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Judges and the law

Exercise 2
Discussion
Certainty

The binding nature of the ratio decidendi creates a foundation for

certainty.

Flexibility

Flexibility is introduced by:

 Overruling – where higher courts can overrule lower

courts in circumstances where the later court thinks
that the earlier court gave an erroneous analysis.
 Distinguishing – where a lower court is able to point to
material differences that justify the application of
different principles.

 Departing – where, in certain circumstances, a court

can depart from its own previous decision. This can
be done, for example, where ‘times have changed’
since the earlier decision that seems to bind courts
today.

Until 1966 the House of Lords was bound by its own decisions. In
1966, the Lord Chancellor issued a Practice statement which
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Judges and the law

stated that the House of Lords may depart from its own previous
decision where it is right to do so. The reasons given were to avoid
injustice and restrictions on the proper development of the law.

The Court of Appeal can depart from previous decisions if one of

the exceptions in Young v Bristol Aeroplane Co. Ltd (1944) is
established. The Court of Appeal may also depart from a previous
decision where this decision was per incuriam (through lack of
care) because it was made in ignorance of relevant legislation or
House of Lords’ decision with the result that the decision is
demonstrably wrong. In criminal cases the Court of Appeal may
depart from a previous decision if to follow it would lead to an
obvious injustice.

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Judges and the law

Exercise 3
Discussion
Did you include the following advantages and disadvantages?

Advantages

 Precedent allows the legal system to become more

‘just’ as the law is certain – so everyone can know
what the law says about any topic.
 The certainty of precedent is tempered by the flexibility
judges have to not follow previous cases.

 Precedent is more practical – the law can modernise

without the need for Parliament to enact new laws.

Disadvantages

 The development of the law is contingent on

‘accidents’ of litigation, i.e. the courts only rule on the
law in the cases that happen to get brought by
citizens.

The development of the law is hindered by the need for certainty.

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Judges and the law

Activity 17 Common law

Discussion
The discussions ended with the conclusion that neither system
would extinguish the other as both had useful features. What was
in fact happening was that the two systems were adapting features
from each other. You may also have found it surprising to listen to
the discussion of the backgrounds of some of the members of the
European Court of Human Rights, as here the contributors clearly
had different views.

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Judges and the law

Activity 18 Common law

Discussion
1. Common law may be used to describe a legal system
which has developed from the English legal system,
for example, in Australia or America.
2. Common law may be used to distinguish a legal
system from a civil law system. Civil law developed
from the Romano-Germanic legal system and is the
dominant system in much of continental Europe.
France has a civil law system.

3. Common law may be used to mean case law, i.e.

where law has been developed through cases using a
system of precedent.

4. Common law may be used to distinguish it from

statutory law, for example, murder is a common law
offence but the defence of provocation and diminished
responsibility are statutory under sections 2 and 3 of
the 1957 Homicide Act.

5. Common law could refer to a system which is common

to the whole of the country.

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Judges and the law

Throughout your law studies you are likely to see the term
‘common law’ used to describe a legal system or the law which
results from the operation of the doctrine of precedent.

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Judges and the law

Activity 19 Domestic sources of law

Discussion

You may have chosen to add more detail, for example, by

including each of the rules of statutory interpretation. The first box
here refers to ‘domestic’ sources, which are the traditional sources
of law in England and Wales.

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Judges and the law

Exercise 1 Tony Martin

Discussion
The case of Tony Martin concerned the common law concept of
using reasonable force in self-defence. The clips contrasted the
outcome in Martin's case, where he was convicted of murder at his
original trial, with that of Terry Reagan, against whom a case was
dropped. It illustrates the difficult decisions that have to be made
by the judge and jury in the courtroom, and by the police and the
Crown Prosecution Service on decisions to prosecute.

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Judges and the law

Exercise 2 The Metric Martyrs

Discussion
The case of the Metric Martyrs created many heated debates at
the time it was brought. It again illustrates the legal process
through which a particular case may go. It also illustrates how the
media have reported on European issues such as directives. The
case concerned the move to metrication in the UK – a decision
which had been taken long before the UK was required to
implement a European directive on metrication.

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Judges and the law

'Common law' part 1

Transcript
MISHAL HUSAIN
In England the legal system is based on common law. Over the centuries English
judges have unified and developed laws using a system of precedent and established
practice. Bycontrast in the rest of Europe, civil law forms the basis of most legal
systems. Civil systems generallyfeature a code setting out basic rights and duties and
in some cases can be traced right back to Roman law. In 2004 the BBC's Unreliable
Evidence set out to explore the differences between the two systems. Here's presenter
Clive Anderson introducing his panel of experts.
CLIVE ANDERSON:
To discuss laws common and uncommon, civil and uncivil, I am joined by Conrad
Schiemann, one of the English judges at the European Court of Justice. Hugh Mercer
is a barrister specialising in EU competition law, public and private international law.
He has appeared in cases involving the European Commission. Professor Basil
Markesinis who has joined us on this programme before is a leading expert on
comparative law. Professor John Bell is another distinguished academic expert,
currently professor of law at Pembroke College, Cambridge. Well, a distinguished
panel. Professor Markesinis, how would an ordinary person, maybe an ordinary
litigant recognise the difference between a court with a historical basis as a civil law
or the common law?
PROFESSOR BASIL MARKESINIS:
I would have put it in this way, the oracles of the law, the people who tell us what the
law is are in the continental European systems are the academics and the universities,
and in the common law system are the practitioners and the judges. And that's a very
important difference because academics go for system and logic and structure and
theory, and they therefore tend to be system builders. Whereas our lawyers are
practitioners. They look for the problems and they try to find the right remedies. So
they are problem solvers.
CLIVE ANDERSON:
What sort of analogy would be drawn there between the way perhaps a town or a city
might develop in England, using old roads and gradually building up as opposed to
one, a new town which was laid out on a grid pattern.
PROFESSOR BASIL MARKESINIS:
Yes, I think it's true to say that our system has developed incrementally without the
kind of sort of structure that the European systems had from the beginning largely for
the reasons you said. The inheritance of Roman law. But these differences are being
attenuated in practice and gradually I think we're all moving together. There's a give
and take, we are adapting to their ideas and they are taking many of ours.
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Judges and the law

CLIVE ANDERSON:
Can I just talk to Professor John Bell at the moment. Now I've mentioned that under
the civil law system greater respect is given to academic lawyers. Do you look
forward to your views as a professor of law having more weight possibly with English
judges as they approach their judging?
PROFESSOR JOHN BELL:
Well certainly some English lawyers are having considerable weight with English
judges already. And I think the pattern in what are called civil law systems is actually
quite variable. In the areas that I specialise in which are administrative law and public
law, most European systems are actually judge made in developed principles often the
main doctrinal writers are practitioners and not academics.
CLIVE ANDERSON:
So there's a distinction there?
PROFESSOR JOHN BELL:
So that, so that - that blurs the distinction. I think it depends very much on the branch
of law that you're operating. In private law that has tended to be developed from
Roman law. Those principles were taught first in the universities and then exported to
the practitioners. In public law which is the base for the European Convention on
Human Rights and also in constitutional law which relates as much to the European
Union as well, there are influences very much from the practitioners, and there's a
debate between the practitioners and the academics which is a very fruitful one. So I
think what is happening already is that within the civil law systems there is much
more of a mix than perhaps is characterised by the stereotypes that we often use.
CLIVE ANDERSON:
Well Hugh Mercer is a practitioner in this area of the law and is anxious to say
something.
HUGH MERCER:
If one looks at the European Court of Justice where of course Judge Schiemann sits,
this court since, particularly since 1973 has built up what is equivalent to a common
law system. A system built up on decided case law. Influenced by academics but
academic writers possibly don't have quite the same force as they would in the
standard civil law system. A case which came to mind was the Trans Oceanic Paint
case, one of the early cases on the right to be heard. The European Commission had
taken a decision granting an exemption to a company with a particular condition
attached to the exemption. And the company concerned had not been consulted on the
content of the condition. And Advocate General Warner, the British advocate general
of the time looked at the different systems, found the French and Belgian and Italian
systems essentially lacking on this point, and lifted the [LD alder impartum?] rule
from English law and then applied that as a rule of community law.

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'Common law' part 2

Transcript
CLIVE ANDERSON
A very English sounding rule that he brought in. Anyway you're painting a good
picture there of the relevant of the law. But can I just ask Judge Schiemann in the
European Court of Justice, does it make any practical difference to you sitting as a
judge there? Does, have you had to adapt your judging ways to fit in with the
European way of doing things?
CONRAD SCHIEMANN
Oh very much so, indeed. The position here is very noticeably different at first blush
in procedural terms because of the language problems. We are now a community of
nineteen different languages which means that we may be addressed in any one of
nineteen different languages in court with simultaneous translations which is a great
inhibition in having the law hammered out in court, in the same way as traditionally
has been done in England.
CLIVE ANDERSON
Well any flowery advocate would find that rather irritating to have his words
translated and a rather more precise, construal of statute would equally find the
arguments must tail off into translation points. Does that cause problems?
CONRAD SCHIEMANN
Yes it does. Which is why we tend to rely much more on written material which too
may need to be translated but there, there is more time for the translators to get
precisely the right word and also for the national judge who happens to speak that
language to be able to nuance it as required. But there is a language problem which
affects partly the use of the actual words but also in a rather cultural sense also
sometimes the cold conceptual way of talking. I think when I came here first there
was a slight amusement at the fact based approach which the British have tended to
bring to the court to move from the facts of a case to deciding the principle, rather
than doing what in some ways strict theory requires one to do, namely to consider the
point in the abstract which is perhaps more in the French tradition.
CLIVE ANDERSON
So you're perhaps reinforcing the notion that the English legal system is what? More
down to earth, more robust, less addicted to fancy theories?
CONRAD SCHIEMANN
Well, all this can be exaggerated. At the end of the day all our societies face very
much the same type of tensions which it's the function of the law to resolve. Tensions
between freedom of contract and protection of the consumer. Let money lenders fix
what rates they like or lay down maximum rates. That goes back to the Romans.
Tensions between freedom to demonstrate and freedom to walk along the road.
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Tensions between freedom of the legislator to lay down laws and the desire to protect
the minority of the moment against oppression by the legislator. And we all tend to
come up with very much similar examples, albeit by slightly different processes.
CLIVE ANDERSON
Professor Markesinis, would you say there's another - what could we describe as a
convergence of between the various European systems, the English system, French,
German and everything. Are they all going to come together under sort of body of
European law?
PROFESSOR BASIL MARKESINIS
I would most definitely think that that is a convergence. It's a gradual convergence,
it's an incremental convergence which actually suits our mentality, our legal
mentality. And the reason why it's there is very simple. We see a convergence in
tastes, in habits. Everyone nowadays drinks cappuccino instead of tea. We wear the
same clothes, drink Coca-Cola, eat Mcdonald's, the tastes, the customs, the habits are
changing, and so is the law. But in addition to that you have the globalisation
phenomenon. You have the fact that more companies are operating across borders and
of course where companies go, lawyers usually follow.
CLIVE ANDERSON
Professor John Bell.
PROFESSOR JOHN BELL
I would add two things to that. Firstly in public law we have very common rules in the
European Convention on Human Rights where people work together as a team in the
court in Strasbourg to try and create rules which can apply to different countries. So
that we are looking at cases now in England which are bits of litigation in Austria or
in Turkey. So that's one thing. And the other thing is the importance of legal
education and the way in which now we have elements of legal education which are
common and students who study in different European universities are coming from
different European countries and beginning to understand each other socially as well
as legally and that creates a body of people who are able to work together to build a
further European - a legal system
CLIVE ANDERSON
And so as a body of European law that's going to be developed do you think?
PROFESSOR JOHN BELL
Well there will also be national laws that will be different. There will be
experimentation, there will be procedures that are different. But there are common
values, there are common ideas. How we work those through in practice is often
going to be different. Just as within the United Kingdom we're used to the Scots and
the Wel h and the Northern Irish doing things differently say in education from the
English.
MISHAL HUSAIN
Fascinating to learn from that discussion how the English common law is changing
and developing because of a cross-fertilisation with civil law systems.

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