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Law reform role of judges - policy, introduction

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Are propositions that describe rights


Are propositions that describe goals

Arguments of policy

Consist of recommendations that something be done because it is necessary in order to secure some social goal.


Arguments of principle will require that something be done because it secures some individual or group right.

Rights are trumps

They protect individuals from interference by society in its pursuit of certain goals.


The courts are important vehicles for the protection of rights, and in the process of adjudication, judges should base their decisions on principles that specify rights, rather than on policies, which are propositions about social goals.


Where a judge is confronted with a 'hard case', i.e. a case to which no specific rule of law applies clearly, then the judge will search through the various other standards available in the law in order to determine the question 'who has a right to win?'


These standards constitute the moral fabric of society and the court will always be able to find the right answer and use this to protect the rights of individuals.


The supremacy of rights

Rights, once established, cannot be extinguished and strong rights should always override any considerations of policy where there is a conflict.


However, the operation of certain rights may be restricted where some major benefit is to be acquired for all the members of society.

Examination focus

Textbook writers frequently criticise courts’ decisions.

Students too can criticise precedents and the consequences of applying the precedents to the given problem.


It may be useful to use the three Ps;

P1: Does the decision conflict with a principle of law?

P2: Does the decision run counter to a declared policy objective?

P3: Will the decision cause problems in practice?

The UK constitution consists of bits and pieces, moulded and shaped by practical experience, was also perhaps to be expected in a country where empiricism had flourished

The characteristic approach to problems of public policy was pragmatic, as demonstrated in legal development by the common law and in the constitutional sphere by incrementalism.


The ‘building’ which Jennings described as ‘added to, patched and generally reconstructed’ was not architect designed, but was put together by different builders at different times, called in to carry out repairs or to construct extensions.


There had been no grand plans.

Examples of Judges using policy as an excuse for their decision

'Yorkshire Ripper'

Both the defence and prosecution wanted the trial to proceed on the basis of diminished responsibility, and were backed by well-respected psychiatric experts. But the judge refused and Sutcliffe was eventually convicted of murder.


Since Sutcliffe has spent his sentence in solitary confinement in a mental hospital, it looks as though the lawyers and psychiatrists were right, but as Helena Kennedy QC has pointed out, it appears that public policy demanded that a man accused of such a notorious string of crimes should, if guilty, bear the label of murderer.


Shaw v DPP [1961]

Other Judges are of the opinion that this is a matter for Parliament, not the courts. For an example of this viewpoint we may refer to the dissenting judgement of Lord Slynn in the Brown case [1993].

"It is a matter of policy in an area where social and moral factors are extremely important and where attitudes can change. In my opinion it is a matter of policy for the legislature to decide. If society takes the view that this kind of behaviour, even though sought after and done in private, is either so new or so extensive or so undesirable that it should be brought for the first time within the criminal law, then it is for the legislature to decide."

Here was a policy decision pure and simple.


Morgans v Launchbury [1973]

Failed claim against wife who owned car involved in accident when friend was driving. It was said that it was not for the courts to make law where social policy matters are involved.


Ashton v Turner and Another (1980)

A participant to a crime does not owe a duty of care as a matter of public policy to a partner in the crime.


Claimant and defendants had been drinking together and the second defendant allowed Turner to drive his car without insurance. Ashton and Turner later committed burglary and when driving away from the crime had an accident, which injured Ashton (the passenger).


Turner pleaded guilty to dangerous driving and driving while drunk. Ashton claimed damages against both defendants and the court held that, as a matter of public policy the claimant was not owed a duty of care when injured during the commission of a crime. The court also held that Turner could successfully plead the defence of volenti non fit injuria.


Parliament removes discretion from judges

The Criminal Justice Act 2003 requires the courts to apply the following sentencing principles to any murders for which sentence is passed on or after 18 December 2003:

Whole life will be the starting point for murderers aged 21 or over in respect of:

  • Multiple murders (two or more) that show a substantial degree of premeditation, involve abduction of the victim prior to the killing or are sexual or sadistic;

  • murder of a child following abduction or involving sexual or sadistic conduct;

  • terrorist murder; and

  • murder where the offender has been previously convicted of murder.

Second level attracting a starting point of 30 years for:

  • Murders of police and prison officers during course of duty;

  • murder involving the use of a firearm or explosive;

  • killing done for gain (burglary, robbery etc includes professional or contract killing);

  • killing intended to defeat ends of justice (killing witness);

  • race/religion/sexual orientation motivated;

  • single sadistic or sexual murder of an adult;

  • and multiple murders (other than those above).

Any other murders

Any other murders will have a 15 year starting point.

"Life means life" to the Home Secretary, but not to judges.

In a dispute with judges that has continued since 2002, David Blunkett reminded judges of their place.

"I'm putting the situation back to what most sensible people thought it should be, which is that Parliament  lays down the rules and the judges apply them," 

The Bar Council put it even more bluntly when they accused him of

"trying to institutionalise the grip of the executive around the neck of the judiciary".

In a letter to The Times, retired Law Lord Lord Ackner warned that the Home Secretary's attempts to "bludgeon" judges was "doomed to failure", as they would retain the last word in sentencing.


What would happen, when push came to shove and the Home Office demanded that a murder should carry 30 years and the judges impose 10?


All that ministers could do was put  pressure on the Attorney-General to appeal to the Court of Appeal, which Lord Ackner believed would back the judge anyway.

The Law Lord also predicted that judges would ignore the new guidelines. "They can, and I think they should, and they would" he predicted.


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