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Law reform role of judges - judgments

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Court Judgments

Human Rights Act 1988


If, during a trial, it is alleged that an Act of Parliament cannot be read in a way that complies with the Human Rights Act, High Court Judges and above can declare that the Act of Parliament is incompatible with the Human Rights Act. 


A fast track procedure is in place for amending the offending Act, this happens very rarely.


Loophole identified  in R v Preddy [1996]

Judges can recommend that Parliament changes the law on other circumstances. 


Lord Goff took the very unusual step (for a Law Lord) of proposing a Law Commission bill that subsequently became the Theft (Amendment) Act 1996


In R v Preddy the defendant was found not guilty of the crime he was accused of because the Theft Act 1968 did not adequately cover the exact circumstances of his actions.

C (a minor) v DPP [1995] HL

D, a 12-year-old interfered with motor vehicles, the judges in the House of Lords called on Parliament to review the ancient and well-established rule that a child aged between 10 and 14 could not be convicted of a criminal offence unless the prosecution could prove a "mischievous discretion" going beyond the ordinary mens rea (guilty mind).


Parliament obliged with s.34 of the Crime and Disorder Act 1998 abolishing the rule.


Sanders v Chichester (1994) QBD (Election Court)

In the elections to the European Parliament, a candidate stood as a "Literal Democrat" and attracted votes away from the official candidate.


The judges suggested that Parliament might consider a formal register of political parties and a ban on potentially misleading descriptions.


Schedule 2 to the Registration of Political Parties Act 1998 amended the election rules accordingly.


Coroner's courts can also bring about law reform

At an inquest in July 1994 into the deaths of twelve children and a teacher from Hagley RC School in a road accident while on a school trip, the coroner made recommendations that led to a change in the law.  (News report here)


The coroner recommended that seat belts be fitted to all minibuses used to carry parties of schoolchildren. The Road Vehicles (Construction and Use) (Amendment) (No.2) Regulations 1996 (SI 1996/163) followed and it became compulsory for any minibus or coach carrying groups of children to be fitted with sufficient seatbelts for the number of children carried.


It also ended the practice of 3 children under 14 occupying two seats.

Kleinwort Benson v Lincoln City Council (1998) HL

The Kleinwort Benson case revised the old rule that a payment made under a mistake in contract is not recoverable.


This was a major change in the law and recognised by the House of Lords when they came to the judgment.  What was radical in this case was the inevitable impact of the retrospective nature of their decision.

European Law

P v S & Cornwall County Council (1996) ECJ

The effect of European Court of Justice decisions are not so frequent as domestic court decisions but have equal weight and equally dramatic effect on law reform. 


In the case of P v S & Cornwall County Council (1996) ECJ, the claimant was sacked by Cornwall County Council the true reason being that she was a transsexual.


The effect of this European case was that it extended anti-discrimination protection to transsexuals, the government made The Sex Discrimination (Gender Reassignment) Regulations 1999, amending the Sex Discrimination Act 1976 so as to bring English law into line with European requirements.


The influence of other European Institutions

The Data Protection Act 1998 is just one of many examples of UK laws enacted as a response to Council Directives.


European Court of Human Rights

If the European Court of Human Rights rules that English law violates rights guaranteed by the Convention, the government is under an international obligation to change the law to bring it into line, however it has in the past ignored ECtHR rulings.


Under the Human Rights Act 1998 a domestic court can make a "Declaration of Incompatibility".


Malone v UK (1984) ECHR

During Malone’s trial the prosecution at his trial admitted that his telephone had been tapped which violated of Art.8 of the Convention.


The Interception of Communications Act 1985 was enacted to correct the weakness in the law.


International Treaties and Conventions

The Landmines Act 1998 prohibits the manufacture and use land mines.  It was passed to give effect to the Ottawa Convention 1997.


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