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Law reform role of judges - judicial creativity

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Statutory Interpretation

Interpretation of statute or delegated legislation creates law

Example of case that by interpreting statutes in a broad way have created the legal position that was not necessarily foreseen by Parliament.

R v Brown & Others

The case of R v Brown & Others concerned sado-masochistic sex and raised the question of whether consensual assault amount to a crime under Offences Against the Person Act 1861 or common law?


The Act did not deal with consent, and at common law consent was a defence to common assault.


Lord Slynn thought the precedents cited were not conclusive and said it is a matter of policy for the legislature to decide, in other words it was such an important issue that Parliament should decide.


Lord Mustill said if the level of harm amounted to assault regardless of consent then it would need to be considered whether private sexual activities should be exempt, this was for Parliament to decide, it was a task which the courts are not suited to perform


The other 3 judges thought the courts should intervene to protect society as a whole; pleasure derived from pain was evil.


Distinguishing as law making

Distinguishing a precedent effectively amends the law by narrowing the scope of the earlier rule. Sometimes it is based on very dubious distinctions, the following are well known examples:

Departing as law making

The House of Lords faced with an inconvenient precedent can simply depart from it under the terms of the 1966 Practice Statement.


The following are examples where the House of Lords has done just this:

The 1966 Practice Statement itself is an example of judicial law making

Equity as law making

Judges can develop or "discover" new equitable remedies. Lord Denning was remarked in Eves v Eves that "equity is not past the age of childbearing"

Inherent jurisdiction and law making

"Inherent jurisdiction" relies on ancient powers as representatives of the sovereign exercising the Royal Prerogative. E.g. supervising inferior courts and tribunals, ensuring natural justice is and wardship family law

In the 1960s - as guardians of the nation's morals -the courts created new crimes but this particular power is no longer recognised

Professor Michael Freeman

in ‘Standards of Adjudication, Judicial Law’ 1973 described different judicial styles

Judicial restraint

The Court in Morgans v Lauchbury [1973] decided that an injured person could not sue a wife whose husband had taken her car, with permission, and then loaned it to a third person who caused an accident, the House of Lords refused on invitation to introduce a new rule allowing the action to succeed

‘...the proposed development constitutes such a radical and far-reaching departure from accepted principle that it seems to me to smack of naked legislation’ (Lord Salmon)

Judicial cowardice

In Myers v DPP [1965] the House of Lords refused to relax the hearsay rule to allow the evidence of numbers fixed to cars to prove that they had been stolen


Lord Morris said;

‘ had been decided eighty years ago (that such evidence was inadmissible)...

Lord Hodson said;

‘...would be judicial legislation with a vengeance...’

Advocating legislation in giving his judgement Lord Reid said;

‘...there are limits...If an exception was created here, others should be created, and there would be a series of seems to me to be against public policy to produce uncertainty.’

Judicial boldness

In two cases with similar facts, the first being Shaw v DPP [1962] the House of Lords in effect invented a new offence of conspiracy to corrupt public morals.


In the second case Knuller v DPP [1973] the law lords went further and recognised another offence - of conspiracy to outrage public decency.


The case involved small ads by homosexuals in the International Times.


Professor Freeman

Of the Knuller case, Professor Freeman expressed his distaste for this form of ‘judicial law making at its worst.’


To Freeman it lacks historical context, is hypocritical and he believes that four of the law lords tied themselves in knots trying to rationalise their arguments.


Not only did it add uncertainty to the criminal law it flew in the face of legislative policy (The Obscene Publications Act 1959), and ministerial assurance (House of Commons, Hansard vol 695 col. 1212 3 June 1964).


It endorsed the values of certain sectional interest and flouted others. It did not embody the compromise that consensus demands in a democratic society.


Judicial creativity

British Railways Board v. Herrington [1972] The House of Lords overruled its own earlier decision in Addie v Dumbreck (1929), unanimously deciding that there could be liability to a trespasser.


Unfortunately five judges reached that decision in different ways and the matter was referred to the Law Commission, and eventually the passing of the Occupier’s Liability Act 1984 that now governs the position of trespassers and certain other non-visitors.


House of Lords refused to rule Hunting Act contrary to Human Rights law

29 November 2007
The House of Lords Judicial Committee dismissed the case brought by the Countryside Alliance which challenged to the lawfulness of Hunting Act 2004.

The Countryside Alliance that brought the action claimed the Act violated the fundamental human rights of thousands of people whose livelihood and way of life. Between 6,000 and 8,000 were expected eventually to lose their jobs, and many would also lose the homes that went with the jobs. Others would lose businesses and the commercial "goodwill" attached to them.

In the ruling, Lord Bingham said the law had been drawn up and passed in line with the constitution and should not be undone by an interest group.

"The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the act achieve through the courts what they could not achieve in Parliament."

In the leading opinion given by the senior Law Lord, Lord Bingham said, that the Hunting Act 2004 must “be taken to reflect the conscience of a majority of the nation. He also said,

 “ … the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided.”

The decision was a unanimous ruling by five Law Lords.

It is the second time an appeal against the Act has been rejected. (The previous attempt failed to satisfy the Lords that the ban was illegal because the Act had been passed using the Parliament Act without the consent of the House of Lords).

American legal realism

The American jurist Oliver Wendell Holmes (1841-1935) discussed law from the point of view of "the bad man", who had no interest in axioms or deductions but simply wanted a prediction of what the court would do in any particular case.


In many cases this is straightforward, of course, and the court is virtually certain (barring a sudden attack of insanity) to decide a particular way.


What matters to the "bad man" is to know whether he will win or lose, and what the effects on him are likely to be.


Karl Llewellyn (1893-1962) described law as "what officials do about disputes", and insisted that law should be evaluated in terms of its effects.


Judicial creativity

The claim that judges use the rules to rationalise their intuitive decisions is borne out by some of the judgments of Lord Denning.


His concern, he said, was to do justice in the case before him, and if that required a creative interpretation of existing rules, so be it.


Equity was a particularly fruitful field for his creative efforts, and a number of cases are discussed above.

Advantages and disadvantages

Who leads, society, the courts or Parliament?

How does the law reflect social change? Should society lead and the law follow or the other way round?


For example, homosexuality, prostitution, use of cannabis. As society changes and becomes more tolerant the law is eventually changed to reflect this.


It can be argued this should be left to Parliament but this is a lengthy process and the courts can develop the common law to meet changing conditions more quickly.


Increased technology leads to new problems, case law responds to such changes as they occur whereas Parliament considers what may happen and legislates for the future.


Judges and the future

Judges can respond immediately unlike conventional legislators, they do not have to predict in advance the different combinations of facts that might occur

The possibility of unlimited growth to meet novel situations that could not have been foreseen

Bellinger v Bellinger [2001] CA


Lord Browne-Wilkinson said the ability to sustain life artificially was of recent origin, and existing law may not provide an acceptable answer to the new legal questions it raised.


Should judges seek to develop new law to meet a wholly new situation?


He had no doubt it was for Parliament.

Judicial decisions made on limited information

Case law is made "in haste", without regard to wider implications.


Courts commonly give decisions on the spot and only rarely take time for consideration


Judges have to rely on the evidence and arguments presented to them in court, and do not have access to wider evidence (e.g. statistical data, economic forecasts or public opinion surveys)

Judges and Parliament

Judges can act when Parliament is unwilling or unable

Parliament should find the time rather than allowing an obviously unjust situation to continue.


However, it is only possible in matters of common law or statutory interpretation. Judges cannot set aside the clear words of a statute however unjust it may be.


Judges out of touch

Judges are unrepresentative of the people white males from higher-class backgrounds

The democratic mandate

Judges have not been elected to their positions.


They have no democratic mandate, and they should not be asked to make essentially political decisions where the law is unclear.


They should certainly not seek to use their position to frustrate the wishes of the elected government.


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