Malaysia Does Not Practice the Rule of Law

Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:

(1) the supremacy of regular law as opposed to arbitrary power;
(2) equality before the law of all persons and classes, including government officials; and,
(3) the incorporation of constitutional law as a binding part of the ordinary law of the land.

The second precept of the Rule of Law states that there is equality before the law of all persons and classes. Malaysia does not practice the Rule of Law because it treats different people of different races and religions differently. So those who are given preferential treatment will ultimately consider themselves superior to those who are not given preferential treatment and maybe even above the law.

So long as Malaysia does not respect the Rule of Law, racism, dhimittude and similar behaviour patterns will continue to exist.

Civil Justice System Reforms

Why has Lord Woolf’s reforms to the civil justice system not had its desired effect? - Justin Santiago

Lord Woolf’s reforms to solve the three main problems of the civil justice system namely cost, timeliness and complexity was the main thrust of the proposals. Broadly he set out to promote early settlement, better court management and unified procedures at the various court levels. These were incorporated into the Civil Procedure Act 1997 and the Civil Procedure Rules 1998.

However the problems in the civil justice system are inherent and are not going to go away simply because of Lord Woolf’s reforms. There has always been a desire to minimize the main deficiencies in the civil justice system namely delay, cost, complexity and access to justice. There have been no fewer than five reforms since the Second World War the Evershed Report in 1953, the report of the Winn Committee in 1968, the Cantley Working Party in 1979, the Civil Justice Revew in the late 1980s and then Lord Woolf’s reforms.

His attempt albeit one which tries to plug the leaks rather than replacing the plumbing has not had its desired effect.

Judicial Case Management (JCM) was one of the most significant of the reforms. The involvement of the courts in the active management of litigation away from the lawyers was designed to bring cases to trial quickly and efficiently by adhering to strict timetables. JCM also introduced the principle of proportionality where the financial and time resources of the courts are applied appropriately according to the small claims track, fast track or multi track depending on the financial value of the claim. Through this method of dividing cases into the three tracks and ensuring that the courts take an active role in efficiently allocating the cases to the correct court system, Lord Woolf hoped to ensure that trials were handled more quickly and efficiently.

It also introduced a new principle: proportionality. Not only should the time and money spent on a case reflect what was being litigated over, the resources of the courts should also be applied appropriately, taking into account other calls on the courts’ limited time and assets.

The oppositions to judicial case management tend to raise three objections – firstly that it requires judges to make snap decisions based on the stricter time tabling and an interventionist judge hastening the dispensation of justice. Secondly lawyers’ work actually increased as a result of having to respond to the court’s management directions and tended to increase rather than reduce cost. Thirdly it overestimates the judges time, skills or inclination to undertake the task of case management who will want to focus on delivering judgements instead of dealing with other matters.

However Professor Michael Zander explains in his 1999 Hamlyn Lectures that the judge has to make snap decisions based often on inadequate information. There may be problems if a fast track case takes longer than expected resulting in refusal to grant an extension of time which may cause injustice to one party or perhaps to both. Judges who have to ensure that court procedures are followed and to write their judgements may find a third task too heavy a burden.

Zander’s criticisms of the reforms however focused on the fact that they concentrated on the lawyers and courts when the real problem was with the litigious and compensation seeking culture of the English public. The problem with costs will also not go away as there will be front loading of fees by the lawyers and this may even act as a deterrent as litigants will need to come up with the money at a very early stage. There is still no sizeable decrease in delay as the courts are still under resourced in terms of manpower and technology.

Lawyer’s work actually increase as a result of having to respond to the court’s management directions and tended to increase rather than reduce costs. Multi track cases with two pre trial hearings will generate even more additional costs and this is reflected in front loading of costs which does not solve the problem of expensive litigation.

Pre Action Protocols were also proposed where there was a strict timetable for the exchange of documents and claims and encouragement of a culture of openness between the parties by having earlier and fuller exchange of information to facilitate pre-action investigation and to encourage early settlement.

However pre action protocols have also resulted in the front loading of costs. Some complex cases involve lengthy pre-action stages. The case of McGlinn shows that there is a potential irrecoverability of elements of pre-action costs if there are claims that are not subsequently pursued in the proceedings. It was decided that costs incurred at the pre-action stage which dealt with issues that are subsequently dropped cannot be considered costs incidental to the proceedings. This may deter litigants from doing all they can at the pre-action stage and may simply comply with the requirements of the Pre-Action Protocol by indulging in formalities.

In factually complex cases, the pre-action stage can be very time consuming and be extremely costly and as the decision in McGlinn shows, there is a potential irrecoverability of elements of pre-action costs if there are claims that are not subsequently pursued in the proceedings. This may deter litigants from doing all they can at the pre-action stage and may simply comply with the requirements of the Pre-Action Protocol by indulging in formalities only.

Professor Hazel Genn discussed the issue of who were the reforms supposed to benefit and her argument was that out of the many stakeholders in the civil justice system, the party which had the least to benefit were the litigants themselves.
Part of the problem was the retention of the adversarial system which was inherently unjust, inaccessible, inefficient, untimely and costly.

To tackle the root of the problem we would have to look into alternative ways to settle disputes rather than depending solely on adversarial trials. It would appear that the adversarial system goes against achieving the objectives of the civil justice system which was to provide for processes that were just, accessible, efficient, timely and effective. The motivation for having such a platform is clear enough : to encourage people to conduct their daily affairs with the knowledge that they would have recourse to the law

Under this system :-

1.The lawyers dictate the intention of the parties resulting in a boxing ring culture rather than a solution seeking culture. The adversarial system translates into the dominance of lawers in the process which enables them to dictate the intention of the parties and the marginalization of the parties which resulted in a boxing ring culture rather than a solution seeking culture

2.The courts acts as umpire taking a hands off approach in the matter of hand so long as the complex boxing ring procedures are followed.

3.The complex procedures involved meant time and costs which are unsustainable to private individuals and small companies which meant that the Rule of Law is unfavourably balanced on the side of the party with deeper pockets

One suggestion is to bypass the courts altogether through Alternate Dispute Resolutions (ADR) which were emphasized to bypass the courts altogether through arbitration, conciliation/mediation and early independent evaluation. Courts were given power to order parties to attempt mediation failing which the courts could impost cost penalties or cost sanctions on the winning party. ADRs would seem to be the most practical solution to avoid the time and cost wastage in bringing a case to trial as most civil disputes are settled out of court anyway.

However there has been a consistent lack of demand for ADR when when it is provided at very low cost. The volume of mediation is low as there has been resistance to the idea of mediation. The desire for vindication and public acknowledgement of a wrong suffered can be very strong. The settlement rates of cases going for mediation have also dropped dramatically. This could be due to half hearted attempts to comply with mediation for fear of being judged unreasonably for not considering mediation.

To increase the demand for ADR new rules under the Legal Aid scheme stated that an application for legal aid for representation may be refused if there are ADR options which ought to be tried first. The government has also stated that it would attempt to resolve all disputes involving government departments through ADR wherever possible.

The reforms were implemented in the Civil Procedure Rules implemented in April 1999 and the courts were given power to order parties to attempt mediation failing which the courts could impose cost penalties or cost sanctions on the winning party. This was put into practice in cases such as Dunnet v Railtrack plc where it was stated that if a party rejected ADR out of hand, they would suffer the consequences of a discretionary order. In Halsey v Milton Keynes General NHS Trust it was added that members of the legal profession should routinely consider with their clients whether their disputes are suitable for ADR.

These cases typify the cold response to ADR and the low take up rate. The perception is that successful ADR saves the likely cost of proceeding to trial and may save expenditure by promoting earlier settlements. However unsuccessful ADR can increase the costs for the parties. There is also a death of knowledge about and familiarity with mediation and other ADR processes not only among the general public but among the legal profession as well.

In suggesting changes, the ultimate goal should be that justice is served on the parties making the claim. To solve the inherent problems of delay, cost and complexity the following suggestions are proposed :-

1.Moving towards a more inquisitorial system in which the judge would take a more investigative role and the two parties would be required t cooperate by revealing all the evidence to each other. Tactics would be less important. This can already be seen in Small Claims Courts where arbitrators now take a more interventionist approach which seems to have received strong support from the public according to J.Baldwin in his article "Litigants’ Experiences of Adjudication in the County Courts"

2.Reducing the time and costs factor by cutting down on the number of cases that eventually go to court with greater use and legitimacy of the ADR process. This would mean making it compulsory for selected cases to solve their disputes via this route. Another way to do this is to create encouragements to the legal profession to go via this route as ultimately they act as an important gatekeeper to clients’ choice of dispute resolution process.

Pepper v Hart - Statutory Interpretation

On the whole, the scope of Pepper v Hart has been reduced to such an extent that the ruling has almost become meaningless. - Justin Santiago

The ruling in Pepper v Hart allowed references to be made to Hansard in limited circumstances as an aid to statutory interpretation in cases where the legislation was ambiguous leading to absurdity. This was an extension of the purposive approach to statutory interpretation which sought to look at Parliament's intention in drafting the statute and to give meaning to its intentions.

Lord Browne Wilkinson's triple locks for the admissibility of parliamentary material - references can only be made to statements made by a Minister and that statement must be clear are slowly being unpicked ... and that Hansard has become, or is becoming, an open book for guidance on the meaning and purpose of legislative provisions' which went beyond the original intention of Pepper v Hart.

Courts turned to Hansard although they held the relevant provision to be clear and unambiguous; 'de bene esse', as it was sometimes said. The second requirement that the material relied upon consists of one or more statements by a minister was not construed restrictively either. In R v Secretary of State for Education and Employment ex p. Begbie , decided six months after Pepper,the House of Lords had recourse to a statement by a single MP promoting a change in a Bill. All this was done in the name of usefulness of the recourse to parliamentary materials. materials. 'Happily', Lord Bridge stated 'our new freedom to refer to Hansard solves the mystery'.

The third requirement of a clear statement by a minister used to be the most difficult hurdle to overcome and the the courts soon discovered that the statements referred to often were ambiguous and did not provide a clear answer and therefor there was no distinguishing as to which statements could be referred to. This later led to an aditional requirement by Lord Brown-Wilkinson in Melluish (Inspector of Taxes) v BMI, three years after Pepper, who confined them to statements directed to the very point in question in the litigation thereby adding a fourth requirement.

There were practical problems as well. Lord Mackay’s dissenting judgement in Pepper v Hart citing additional costs and delays in making references to Hansard seemed to have been prophetic even though there has been development of Hansard as an online resource since 1993.

It was, however, the argument from the separation of powers angle which almost all the commentators advanced as the most serious concern. 'Again and again in their Lordships' speeches', Sir John Baker, the Cambridge legal historian, pointed out, 'the intention of the minister is equated with the intention of Parliament ...: the minister's words are to be read as a source of law, attached as it were to the Act'. 'This government-centred approach' he thought to be 'rather chilling' since the Law Lords were effectively undoing 'many centuries of constitutional struggle to eliminate the notion that the policy of the government should have the force of law; now, it seems, something very like it is slipping through the back door'. This was all the more deplorable since, in Professor Baker's view, 'so drastic and potentially troublesome a change' had been introduced without the legal objections to it being fully and explicitly canvassed in the House of Lords.

Pepper v Hart went against Article 9 of the Bill of Rights 1689 which provided against discussing proceedings in Parliament outside of Parliament which was regarded as “a cornerstone of parliamentary democracy”. This was to prevent the courts from using statements made in Parliament concerning the purpose of Bills as a guide to the interpretation of ambiguous statutory provisions.Lords Bingham, Hope and Hutton in R v Secretary of Sate, ex parte Spath Holme felt that Pepper v Hart was never designed to allow references to Hansard in order to ascertain what the Executive had in mind as their policy.

The decision in Pepper v Hart usurped the power of Parliament and the courts. Lord Hope put forward 'fundamental considerations of constitutional principle', namely that the 'law-making function belongs to Parliament, not to the executive’ and there was a real danger here of the courts becoming too close to the executive's intentions'. The courts' willingness 'to treat the statement of one member ... as decisive evidence of the intention of Parliament' was characterized by one commentator as 'a fundamental change' or 'major power shift in the British constitution' which had been more or less 'unwittingly set in motion' by the House of Lords.

Lord Steyn called for a retreat from Pepper v Hart in the case of McDonnel concerning the circumstances in which reference may be made to Hansard as an aid to statutory construction and for a reinterpretation of the decision in line with a theory that a Minister speaking in Parliament who gives an explanation of the meaning or effect of a clause in a Bill should be taken to create a binding legitimate expectation that the executive will apply the provision, once enacted, in that sense.

In McDonnell Lord Steyn rejected the useof Hansard for another reason. He repeated his estoppel argument and summarized the debate as follows:

It is permissible to use Hansard to identify the mischief at which a statute is aimed. It is, therefore, unobjectionable to use ministerial and other promoters' statements to identify the objective background to the legislation. To the extent that Pepper v Hart permits such use of Hansard the point is uncontroversial. A difficulty has, however, arisen about the true ratio of Pepper v Hart. It is certainly at least authority for the proposition that a categorical assurance given by the government in debates as to the meaning of the legislation may preclude the government vis-à-vis an individual from contending to the contrary. This may be seen as an estoppel or simply a principle of fairness. This view of Pepper v Hart restricts its ratio to the material facts of that case. There is, however, a possible broader interpretation of Pepper v Hart, viz that it may be permissible to treat the intentions of the government revealed in debates as reflecting the will of Parliament. This interpretation gives rise to serious conceptual and constitutional difficulties. In my view the narrower interpretation of Pepper v Hart ought to be preferred.

In 2003, the House of Lords, in the judgment on Wilson and others v Secretary of State for Trade and Industry, restated the scope of Pepper v Hart, accepting that its purpose was to require the executive to honour any legitimate expectations created, but stated:
The court is called upon to evaluate the proportionality of the legislation, not the
minister’s exploration of the policy options or of his explanations to Parliament. The
latter would contravene article 9 of the Bill of Rights.

While allowing references to Hansard has an additional aid to interpretation is welcome, references to Hansard can give rise to further ambiguity i.e. legislation being found to be incorrect, the appropriate weight to attach to the references and how relevant are the references to the point in question. There is also a danger of encroachment of the doctrine of the separation of powers and parliamentary priviledge. As such there are strict guidelines to prevent its overuse.

Due Process

The case law developing with reference to Article 6 ECHR shows that due process is effectively re-defining many fundamental common law ideas. - Justin Santiago

Article 6 of the ECHR provides for the right of fair trial before an independent and impartial tribunal and for the presumption of innocence. In addition, Article 6 requires that those accused of a criminal offence are informed promptly of the charges, have adequate time to prepare a defence, have a right to be represented by a lawyer and have free legal assistance when the interests of justice so require.

This is not very much different from the common law idea of procedures and practices based on Dicey’s third precept of the Rule of Law which states that the courts are protectors of individuals’ rights and liberties. The common law ideas of due process was whether there was in relation to any given judge a real danger or possibility of bias which was a subjective test on the part of the court.

The effect of Article 6 would be are more objective test to conclude whether there was a real possibility of bias and in R v Gough two tests were proposed - the reasonable suspicion test – whether a reasonable and fair minded person sitting in the court and knowing all the relevant facts would have had a reasonable suspicion that a fair trial of the defendant was not possible. The second test – the real likelihood test – was whether there was a real danger that a trial may not have been fair as a result of bias.

Porter v Magill established the new test for bias taking into account Article 6 which would simply be whether a fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased. The test was further elaborated in Jones v DAS Legal Expenses Insurance Co. Ltd & Ors where the courts must scrutinize all the circumstances which were relevant to the allegation that the judge was biased.

Several cases that have been decided in the UK courts and even some of the inherent characteristics of the judicial system have cast doubts on whether the common law principles of a right to a fair trial can still hold up to the rigours of Article 6.

In Osman v Ferguson the police were granted immunity from civil actions under the rule formulated in Hill v Chief Constable of West Yorkshire Police which stated that no action could lie against police for their negligence in the investigation and suppression of crime based on public policy reasons. The case was brought up to the ECtHR where it was ruled in Osman v UK that Article 6 had been violated in respect to the police’s immunity from prosecution and that the that the exclusionary rule constituted a disproportionate restriction on the applicant’s right of access to a court. Osman suggests that if the state places any restrictions on the right to a fair trial, they have to be proportionate to the desired end and the courts have to balance compelling norms with the rights to a fair trial.

In R v A it was decided that Section 41 of the Criminal Evidence Act 1999 which precluded evidence of previous consensual sexual relations with the complainant by the defendant had gone too far and denied the defendant his due process rights under Article 6 of the ECHR.

In the area of legislation, English law continues to allow the detention without trial of terrorist suspects that go against Article 6. For example the Prevention of Terrorism Act 2000 allows for detention without trial and where it is difficult to overrule a minister on a detention order. Under the Anti Crime and Terrorism Suspects Act 2001, the Home Secretary’s powers to detain suspects were subject to judicial review by the Special Immigration Appeals Commission which was an independent commission with a wide jurisdiction to hear appeals but which was not a court and this denied suspects the right to a fair trial. Additionally the Assylum and Immigration Act 2004 under Section 26 ousts the jurisdiction of the courts in all but limited cases in appeals against decisions from immigration tribunals.

The judicial system in the UK also appears not to follow due process and several steps have been put in place in light of Article 6. The position of Lord Chancellor having judicial, legislative and executive functions was seen to lead to partiality when it came to the selection of judges appeared which led to the Constitutional Reform Act 2006 which removed the judicial and legislative functions of the Lord Chancellor and put in place a Judicial Appointments Commission. The situation of the judicial committee of the House of Lords being impartial in a trial as observed in Davidson v Scottish Ministers when one of the judges in the case had also spoken on the issue in the Scottish Assembly led to the formation of the Supreme Court which severed the judicial function of the House of Lords from its legislative function which strengthened the concept of due process at the highest level of courts in the UK.

With regard to the jury, Article 6 has been invoked in order to incorporate a jury that was more widely representative of the community after Sanders v UK which was a wake up call for courts to be more vigilant in jury selection when it came to sensitive decisions.

Article 6 however does not guarantee any particular substantive content for civil rights and obligations in national law, but provides only the procedural guarantees for the determination of tenable rights. For Article 6to apply, there must be a right, obligation or charge at stake that already exists. Article 6 only protects procedural rights not substantive rights.

Therefor we see that in the case of H v Belgium the court will consider that Article 6 has been breached if certain procedural safeguards are not observed but in the case of James v UK, Article 6 was not operative because the national law already provided for access to an independent body such as a tribunal. If there was an exemption from liability this acted as a bar to litigation and as such was a substantive right and Article 6 could be avoided : Matthews v Ministry of Defence.

There are also limitations of due process in the interests of the wider functioning of the legal system. In Fiscal v Brown it was decided that the right to a fair trial under Article 6 would not overwhelm the requirement of local traffic legislation on the basis that the rights of individuals had to give way to the wider interests of the community.

Therefor although Article 6 provides for some safeguards to justice, the article itself is limited. Ultimately what is required is a return to

Legal Aid

Recent reforms in legal aid does not provide the right to justice for all. - Justin Santiago

Legal aid allows those without means to have access to lawyers and legal advices and is a means of providing fairness and justice to all regardless of a person’s financial capability. Access to justice is one of the fundamental rights of individuals and it is important that access to justice is made available. This is guaranteed by the Legal Aid and Advice Act of 1949, which ensured "assistance and legal advice...so that no one will be financially unable to prosecute a just and reasonable claim or to defend a legal right".

However legal aid as been plagued with problems related to costs and limited access to the best lawyers.

With regard to costs a number of inherent problems were present in the system –
payment for services by the hour which led to overcharging and calculating the bill after the work is completed rendering a limited ability of the state to control eventual costs. The rise in spend on is partly due to the lack of robust mechanisms to control the amount of work undertaken and a system which rewards volume rather than efficiency.

A number of reforms were put in place namely the Access to Justice Act together with the Conditional Fee Arrangements Regulations 2000 and the Collective Conditional Fee Arrangements Regulations 2000 which improved on the earlier provision in the Courts and Legal Services Act. The courts now have the power to make the losing party pay the success fee of the winning parties’ solicitor on the winning parties’ behalf as well as the insurance fee. Insurance policies to cover costs of the other party and the client’s own costs were also made available.

In addition to the contraction of services of lawyers in private practice the Criminal Defence Service will employ lawyers directly as salaried defenders who will be able to offer the same service as solicitors in private practice at a lower cost.

Lord Carter in his report in 2006 has has additionally proposed moving a market based approach to legal aid and among the key recommendations are best value tendering for legal aid contracts based on quality, capacity and price and fixed fees for solicitors carrying out legal aid work in police stations including cutting costs related to waiting and traveling times.

However such schemes are not without its disadvantages. In many cases it was the lawyer who would really win a case since he or she would be able to claim a significant part of the damages. Defendants also stand to lose out as in most cases cost efficient services are not necessarily the best.

The main culprit is still the heavy bias towards court based solutions with inherently high fees especially so in areas of criminal defence. Attempts have been made to promote the earlier resolution of criminal cases. At the police station the Crown Prosecution Service is rolling out the provision of Duty Prosecutors in police stations to make the best possible decisions on charge as well as encouraging maximum sentence discounts for an early guilty plea.

With regard to limited access to the best lawyers,the scheme to hire salaried defenders would mean that the defendant’s choice of representative is limited to contracted or salaried defenders. Defendants also stand to lose out as in most cases cost efficient services are not necessarily the best.

In an article by a legal aid solicitor Matt Foot in the Guardian entitled “An attack of convenience” he argued that large firms which have economies of scale would get the majority of contracts leaving small firms, which traditionally have fought harder and paid closer attention to clients, on the line. Quality may be sacrificed at the expense of efficiency and it would be the litigant who will suffer.

Jury Trials

Most defenders of jury trials are seduced by rhetoric and ignorant of its history. In reality there are no rational arguments for its retention. - Justin Santiago

They jury consisting of 12 people randomly chosen from the electoral lists called upon to decide on matters of fact and determine whether a person is guilty on the basis of their understanding of the law as explained to them by the judge. The rationale for jury duty is that it enables one to exercise a duty of citizenship and to give the impression that since the public is taking part in the process there is trust and confidence in the law and that one is being tried by ones peers.

To say that a trial by jury is the lamp that shows that freedom lives ignores its roots and supporters of the jury are ignorant of its beginnings. A quote from Robert Frost would appear to be more contemporaneous “A jury consists of twelve persons chosen to decide who has the better lawyer.”

If one goes back to the origins of the jury system we would find that the jury system would have difficulty living up to this ideal. Anyone claiming that a jury trial is to enable one to be tried by one’s peers would find that the origins of jury trials had anything to do with being tried by one’s peers unless one were a land owner. Jury members had to be landowners who paid a certain quantum of tax and hence were rich and were all men.

The situation today is no better. In a quest to achieve egalitarianism in the jury, the jurors of today consists mostly of blue collar workers with who are not well versed in the law and are unable to grasp the the increasing complexity of cases.
The Roskill Committee concluded that trial by random jury was not a satisfactory way of achieving justice with many jurors out of depth. The committee also concluded that jurors who found difficulty in comprehending the complex issues invoved in fraud prosecution were more likely to acquit.

It has been shown that jurors find it difficult to assess the credibility of witnesses and struggle with elements of intent and the standard of proof. A study by Middlesex University criminologists found that fewer than half of jurors understood everything that was going on in court. In R v Young there had to be a retrial because it was found that some members of the jury were attempting to contact the victim through an Ouija board. In R v McKenna the jury were pressured into making a decision after deliberations were going on for some time and the guilty verdict that was delivered was quashed on appeal.

The jury sometimes comes to a decision not according to the law but based on their idea of fairness and justice. The jury may be sympathetic to the causes pursued by the defendants and jury equity sometimes prevails in the absence of judicial power to instruct juries to convict and the secrecy of the jury room under Section 8 of the Contempt of Court Act 1982 prohibiting asking jurors about the basis on which they reached their decision can lead to perverse decisions. In criminal law, it is an absolute rule that there can be no appeal against a jury’s decision to acquit a person of the charges laid against him although Section 36 of the CJA 1972 allows for the AG to refer the case to the Court of Appeal to seek its advice on points of law to highlight mistake in the law. In civil law cases, the possibility of the jury’s verdict being overturned on appeal does exist, but only in circumstances where the original verdict was perverse, that is, no reasonable jury properly directed could have made such a decision.

The jury in R v Kronlid found three anti war protestors charged with committing criminal damage and another one charged with conspiracy to cause criminal damage to fighter jets that were to be delivered to the Indonesian government innocent although they had not denied their responsibility in the act but justified it on the basis that it would be used in its genocidal campaign against East Timor.

In the case of R v Clive Pontine, the defendant was charged under the Official Secrets Act 1911 for leaking information on the sinking of a ship during the Falklands War to parliamentary members. The jury acquitted him although the judge ruled that there was no defence as he had committed the act.

In the Stephen Owen Case the jury refused to find Stephen Owen guilty of killed a lorry driver because it was felt that the driver deserved to die for killing Stephen Owen’s son.

The Auld Review has recommended that legislation should declare that juries have no right to acquit defendants in defiance of law or in disregard of the evidence. The Auld Review also suggested that for jury’s verdicts that appear to be perverse, the prosecution should be entitled to appeal on the grounds that the perversity is indicative that the verdict is likely to be unfair or untrue. There should also be amendments made to Section 8 of the Contempt of Court Act1982 to enable jurors to provide a basis on which they arrived at a decision and more openness should be encouraged in the jury room. This would instill a greater confidence in the system. The Auld review has also recommended that in order to assist a jury in their work, the prosecution and defence advocates should prepare a written summary of the case and the issues that need to be decided.

Whether a jury trial is truly representative is questionable and there has also been accusations leveled at whether a jury allows one to be tried by his or her peers. There is an under representation of people below 20 on the electoral register so someone below 20 is unlikely to be tried by his peers. Additionally there are a large number of people who are not registered to vote especially women and ethnic minorities and this will create under representation from these groups. The Runciman Commission has endorsed the proposal that 3 of the jurors come from the same ethnic minority as the defendant. However this proposal has never been implemented. The rationale for this was there is no principle that a jury should be racially balanced was given in the case of R v Ford which refused to allow a racially mixed jury.

Suggestions have been made for jurors to be selected from other lists such as those with driving licenses to encourage a wider participation of voters but even this may be deficient because it could possibly exclude those who don’t own a car.

However even with all these checks in place, complex and lengthy trials do not encourage jury participation due to sacrifice of time to participate in the trial. In the Jubilee Line case too lengthy a trial had resulted in one juror saying that having to attend the trial had wrecked their lives, one asked to be dismissed for stress and another said he had difficult surviving on the expenses rate. And research also shows that people have less time for jury duty and may want to come up with a verdict quickly or to acquit in order to fulfill their jury duty, pack their bags and go home. Today, most people would would rather avoid jury duty. It could be a change in the value system that does not place as much importance on being tried by one’s peers or it could be the exigencies of daily living and minding one’s business has obviated the need to decide whether ones peer is guilty or not. Section 43 allows a High Court judge to try a case without jury for complex fraud trials.



To reduce the accusation that the jury has been chosen from men and women of average intelligence and thus unable to understand the complexities of a modern day trial, Paragraph 2 of Schedule 33 of the Criminal Justice Act 2003 has substantially increased the number of people eligible for jury duty by removing the various former grounds of ineligibility and secondly by reducing the scope for people to avoid service when called up by abolishing the excusal as of right. Among those ineligible who are now eligible for jury duty include judges, lawyers, court staff and police officers and prison officers. This would increase the likelihood of a proper understanding of the facts of a case and a less likelihood of a perverse decision.

The very notion of twelve minds being better than one should be questioned especially if they are picked from an electoral register. The average man on the street can be easily swayed by eloquent lawyers as easily as a strong minded single judge and there is a strong likelihood that the herd mentality may persist.
Judicial bias based on the restricted social background of judges especially in cases involving women and minority defendants can be cured by opening of the judiciary to people of more varied backgrounds.

The decline in importance of jury trials is reflected in the small percentage of cases currently that go to jury trial. In criminal trials, only trials by indictment are conducted by jury. In civil trials, only cases involving libel, slander, malicious prosecution, false imprisonment and allegations or fraud are conducted by a jury. Section 69(1) of the Supreme Court Act 1981 adds a proviso that the courts can refuse a jury if it is of the opinion that the trial would be inconvenienced by a jury.

The Criminal Justice Act 2003 has further reduced the number of jury trials reflecting the trend of decreasing the dependence on juries. Section 154 of the CJA 2003 has increased the sentencing power of a magistrate from 6 to 12 months making more offences triable summarily and thus limiting the power of an accused to elect for jury trial. Sections 44 and 46 of the CJA 2003 provide for a trial on indictment in the Crown Court to be conducted without a jury where there is a danger of jury tampering. In the case of Ward v James jury trials were only allowed in personal injury cases only in exceptional situations. Such is the feeling towards the limitations of a jury that several countries including Singapore and Malaysia have abolished trial by jury.

It might be considered that using a bench with three or five judges who have themselves been selected from a varied background may be a solution to the inherent problems associated with a jury.

The Supreme Court

The Constitutional Reform Act 2005 is unnecessary. - Justin Santiago

The CRA 2005 that legislated for a separate Supreme Court outside the House of Lords was a lofty ideal to inspire transparency, openness and greater public confidence in Britain’s constitution through a stricter separation of powers between the Executive, Legislature and Judiciary Criticisms. The proposals have valid arguments in light of a lack of a written constitution as well as a lack of a true separation of powers.

The main criticisms were that the judicial capacity of the House of Lords had developed into a body of high standing and to dismantle that capacity would mean that the best legal minds would not be able to participate in the drawing up of legislation especially critical ones such as those dealing with personal liberties. By removing the independent judges from the House of Lords, there is no counterbalance in the form of a truly functioning Supreme Court that could challenge unlawful legislation.

Unfortunately the reforms were are merely the disguise for the Executive’s larger control of the Judiciary. Also the lack of consultation beforehand leads one to believe that the reforms were more of a political decision than anything else. The process by which the CRA 2005 was reached undermined public confidence in the political process.

The CRA 2005 attempted to sever the link between the judicial and legislative functions of the House of Lords by the establishment of a Supreme Court. The judicial functions of the House of Lords will no longer overlap with its legislative functions. The new, independent Supreme Court separate from the House of Lords will act as the highest court of appeal in the UK except for criminal cases from Scotland. The existing role of the Law Lords will be taken over by 12 judges of the Supreme Court to be known as Justices of the Supreme Court. There will be a President, a Deputy President and 10 Justices of the Supreme Court. They will be appointed by the monarch on the recommendation of the Judicial Appointments Commission.

The drive behind the setting up of the Supreme Court was purportedly to move UK’s highest court from under the shadow of the legislature and not to separate those responsible for interpreting the law from having a hand in drafting the law. The continuing ability of the Lords of Appeal in the Ordinary (Law Lords) to participate in the legislative process was seen as untenable. The role of the Lords, who historically have been hereditary, as both judge and legislator seem to be in conflict with this and is reflected in cases like Davidson v Scottish Ministers which ruled that the could be a risk of apparent bias in the mind of the observer as well as avoiding situations such as in R v Bow Street Metropolitan Magistrates ex p Pinochet Ugarte where there was an allegation of bias because Lord Hoffman was one of the judges sitting on the bench was the Chairman and a director of Amnesty International which had taken part in the earlier hearing against the defendant. A retrial had to be reordered.

The new, independent Supreme Court separate from the House of Lords will act as the highest court of appeal in the UK except for criminal cases from Scotland.
The proposal to reconstitute the House of Lords appears to increase the appearance of the separation of powers however the reverse is more correct. In other constitutional systems as in France not only is there a clear separation of powers between the judiciary, executive and the legislature, there is also a distinct Constitutional Court, which deals with such issues. In the US Supreme Court, judges can question legislation and the legislative process. The situation in the UK is quite different with no clear separation of powers and with possibly a second class Supreme Court that will not be able to debate or discuss constitutional matters because of the doctrine of parliamentary sovereignty which will remain unchallenged and which might also curtail judicial independence via legislation.

Lord Woolf the then Lord Chief Justice argued that he saw the move as government encroachment on judicial independence. In his own words, “ a first class appeal court (the House of Lords) would be replaced with a second class Supreme Court. According to Lord Woolf, one of the most important of the judiciary’s responsibilities was to uphold the rule of law, which prevented the government from abusing its powers.

Judicial Appointment

Lack of transparency in judicial appointment is an increasing matter of concern. What has been done in recent years to increase transparency? How well has it worked? - Justin Santiago

Transparency in the judicial selection process has always been a concern as it was felt the judges were picked from too limited a pool that resulted in personal and corporate bias. The question focuses on whether personal bias and corporate bias has been reduced with changes to the selection pool and the selection process from which members of the judiciary are sourced from and finally chosen.

The selection process of judges viewed against the backdrop of the important role of a judge in coming to an unbiased, independent and reasoned judgement makes it paramount that it be a wholly neutral affair. This characteristic has become increasingly important with the increase in diversity of the population of the UK and the increased role of the judiciary in matters relating to the review of administrative decisions, devolution issues and human rights. It was seen to be no longer constitutionally acceptable for judges to be appointed by the government of the day and no longer acceptable for judges to be chosen from among the ‘old boys network’. There had to be a reduction in personal bias and corporate bias.

Traditionally judges were appointed from barristers who had a number of years of experience in the courts. Section 10(1c) of the Supreme Court Act 1981 limited appointment of a puisne judge of the High Court to barristers of at least 10 years standing. This requirement excluded anyone else without previous experience of appearing in court. The rationale for this was that judges had to be on the same wavelength in order that their judgements provide some level of certainty in the outcome of a trial and that they reflected the intention of Parliament. The rationale for this was that a common professional background can lead to a coherence of views and thus a predictability in the judgements.

Because of the large proportion of male to female barristers this produced a judiciary that was largely composed of males. The uneven balance of men to women in the judiciary raised the question of fairness and equality i.e. can judges properly deal with women's issues? For example it took a long while before the courts recognized the incidence of marital rape (R v R) and this could be put down to a male dominated judiciary.

The Courts and Legal Services Act 1990 was the first attempt to open up the possibility of achieving judicial office to legal practitioners other than barristers who have had many years of audience in the courtroom. As a result we now have Lard Hale of Richmond, the first female law lord who was not a practicing barrister and Lawrence Collins the first solicitor to be appointed directly to the High Court.

It is also no longer acceptable for judges to be chosen from a limited group of Oxbridge trained middle class whites due to the increase in diversity of the population of the UK and the increased role of the judiciary in matters relating to the review of administrative decisions, devolution issues and human rights.

Apart from the limited pool from which judges were selected, there have been criticisms leveled at the selection process of judges which theoretically remain in the hands of the Crown on the advice of the government of the day. The Prime Minister advises the Crown on the appointment of the judges of the House of Lords and the Court of Appeal. Judges at the level of the High Court and Circuit Bench are appointed by the Crown on the advice of the Lord Chancellor, a politically appointed cabinet minister as well as the head of the Judiciary who also personally appoints District Judges,lay magistrates and the members of some tribunals. This was compounded by the fact that the selection process for judges above the level of circuit judges was largely based onfeedback from other senior judges known as secret soundings.

The position of the Lord Chancellor with its historical admixture of legislative, judicial, and executive power was untenable as it was not seen to be sufficiently impartial in the judicial selection process and in conflict with the doctrine of the separation of powers. The Lord Chancellor as a cabinet minister (member of the Executive) is also acting as head of the judiciary (member of the Judiciary). The fear of government involvement in the selection judiciary was too apparent. This anomalous position caused some concern. Lord Steyn, one of the Lords of Appeal in Ordinary commented that “The Lord Chancellor is always a spokesman for the government in furtherance of its party political agenda.”

The creation of the Judicial Appointments Commission (JAC) through the Constitutional Refortm Act 2005 and the revamping of the role of the Lord Chancellor was supposed to cure all that. The selection of judges by the commission is expected to improve the diversity and composition of judges, transparency in selection and public confidence in general in the appointment process.

Lord Falconer remarked "The new body will ensure that politicians will no longer be responsible for the selection of judges," he said. "That has to be good for public confidence in the judiciary" (as reported in The Telegraph). However the Judicial Appointments Commission (JAC)has to be critically assessed against the present backdrop.

The commission will select appointees for the judiciary all the way from the Lord Chief Justice downwards to that of puisne judges. The JAC will make recommendations to the Lord Chancellor and he may reject a candidate only once. His recommendations will then be passed to the Queen to appoint.

However several inherent characteristics remain unaltered in that there is still a lot of involvement of the Executive in the selection process. The names have been changed but the players remain the same.

The position of the Lord Chancellor remains but the function as Head of the Judiciary of England and Wales would be taken over by the Lord Chief Justice (who also heads the Criminal Division of the Court of Appeal).

The Lord Chancellor is no longer automatically the Speaker of the House of Lords. The House of Lords will now have to create a new speakership position known as the "Lord Speaker" (or "Lady Speaker").

The newly created Cabinet position of Secretary of State for Constitutional Affairs (originally created to wholly replace the Lord Chancellor's executive function) will continue, although the holder of that Cabinet post will likely also to hold the ancient office of Lord Chancellor too.

The Lord Chancellor can now be from either the House of Commons or the House of Lords and need not be a judge.

The Lord Chancellor who is still a member of the Cabinet with a higher chance of being a political appointee and possibly without the background of a judge.

The Lord Chancellor is also still actively involved in the selection process. The JAC will make recommendations to the Lord Chancellor and he may reject a candidate and ask for a new name to be put forward. He may also be able to ask for a candidate who is not initially recommended by the Commission to be considered. The recommendations will then go up to the Prime Minister who will then advise on their appointment by the Crown. The selection of Court of Appeal judges and the to be formed Supreme Court judges will be made by the Prime Minister who will advise the Crown on their appointment.

Therefor the selection of judges is still in the hands of the the Executive and independence of the judiciary is an illusion. The judiciary is composed of members who ultimately owe their existence to politicians. The CRA 2005 firmly establishes that. Also it is with the permission and support of the Executive that tenure and salaries of judges maintained. Under these strains, the judiciary attempts to give an outward appearance of independence since an independent judiciary is a sacred cow in a democratic system of government.

The varied racial and background composition of the 15 members of the commission which will include five lay people, five judicial members, a barrister and a solicitor, a tribunal member and a lay magistrate will lend diversity to the appointers and will supposedly provide a more varied selection of candidates. However it is the Lord Chancellor who will appoint members of the JAC thus extending the influence of the government in the selection of members who are themselves charged with the selection of judges and undermining the independence of the commission.

The CRA 2005 also widens access to the judiciary by reducing the requirements as to the rights of audience which will increase the diversity of candidates.

Suggestions for further reform at increasing transparency in the selection of judges are as follows :-

1. Creating a career judiciary as in France there individuals are specifically trained to become judges. However this dos not eliminate the possibility that there will be more white males signing up for the course than females or minorities just like how certain courses like engineering attract more males than females.

2. Attracting candidates through advertisements rather than by invitation. This is definitely a step in the right direction as there would appear to be less bias. All appointments up to and including circuit judges includes advertising positions in the local press. However even this system is not without its flaws if the issue of merit of candidates is not defined and may just as well show up the same type of candidates.

3. Realizing that there were inherent restrictions as to the type of candidates selected to be judges, The Judicial Studies Board was formed in 1979 to train judges. In 1998 training included guidance on human rights issues and in 1999 included guidance on racial awareness in a multi-cultural/multi faith society as well as equal treatment issues such as disability, gender and sexual orientation. However whether such training results in judges being less biased is debatable. The training is conducted by judges for judges and this may perpetuate inherent biasness.

It is still debatable whether there is increased transparency of judicial appointments as reform is still in progress. Undoubtedly the proof will be in the pudding – whether the composition of judges is more varied and reflective of the general population as opposed to coming from a particular segment of society and thus from a certain way of thinking. In an article by Lincoln Crawford in Counsel, the journal for the Bar, it was written that judges were resistant to any interference in a system even if there was inherent institutionalized bias.

Common Law v Civil Law

The common law of England has relied on precedent more than statute and codifications and has been far less amenable than the civil law.- Justin Santiago

Common law therefore arose to refer to principles of law that were applied consistently by the common law judges reflecting precedent derived from centuries of judgments. These principles of law are derived from multiple sources including tradition, custom, precedent and academic writings and increasingly statutes, EU Law and Secondary legislation. There is no one set of rules unlike the code civil which is widely used in civil law jurisdictions. It is a tradition dominated by a body of judicial decisions that is relied upon to decide on future cases. Thus we have judicial decisions that annunciate the law and which are followed religiously in subsequent cases i.e. the neighbourhood principle in Donoghue v Stevenson which laid down the duty of care by manufacturers to the ultimate customer and Carlill v Carbolic Smoke Ball which laid down the obligations by an offeror in unilateral contracts.

Parliament as the supreme law making body has passed more laws in recent years with the increase in electoral rights and representation in Parliament with the growth in importance of the doctrine of parliamentary supremacy. It is true to say that with each bill of parliament that is passed, more law is becoming codified. Judges are able to innovate less and less as opposed in the earlier days when there was not much legislation to rely on. However there is still a heavy reliance on judicial decisions. This is because statutes are written in very specific terms and these will be interpreted according to case law. Take for example Section 2 of the Homicide Act which allows for an “abnormality of mind” as a defence to murder. The abnormality of mind state would be interpreted according to the decision in R V Byrne where Lord Parker CH in the Court of Appeal defined abnormality of mind as "a state of mind so different from that of ordinary human beings." Thus legislation although important is still subject to interpretation by judges because there is a limit to how much detail can be infused into the written law.

Courts are bound by the doctrine of stare decisis which affords certainty and predictability in the outcomes of cases. Under this doctrine courts will follow decisions of courts that are of the same standing or higher and will look to these decisions for direction in deciding a case. This is an inductive form of legal reasoning which differs from the civil law system where courts adopt a deductive form of reasoning on the basis of general rules and principles of the code which are drafted in broad strokes in order to apply to a wide variety of situations.

Here lies one of the major problems of the English common law as wrong or anachronistic decisions will have to upheld by the lower courts due to the doctrine of stare decisis which enables prior injustices to be perpetuated. Case in point is the requirement of objective recklessness in criminal damage cases for more than 20 years following R v Caldwell which was finally overulled by R v G (and another).

There is also a degree of uncertainty as the judiciary can select from multiple case laws decided beforehand as authorities where binding precedents can be avoided by distinguishing based on very fine lines. Thus a case involving mistake as to identity like Ingram v Little allowed for contracts made inter prasentes to be voided was distinguished from Lewis v Avery merely because the defendant in the earlier case had checked on the identity of the rogue that they were dealing with.

If a case came before a court did not have a precedent,the claim would be refused under common law. This caused much unfairness and injustice and led to the establishment of the principles of equity and this is one of the rare instances of the amenability of the common law. However very strict restrictions would apply as in the case of promissory estoppel an equitable principle allowed in cases where there was no consideration but which required there to be

Precedent also may not necessarily be followed where there are changing social circumstances where the courts may not follow earlier decisions as in the case of British Railway Board v Herrington the law of negligence shifted the burden of the duty of care to the railway authorities to have their line fences mended. In Miliangos v Gorge Frank (Textiles) Ltd changes in international trade and the statue of the sterling forced the House of Lords to review earlier decisions that all awards of damages in an English court be made in sterling. The courts could also choose to not follow a precedent which is no longer in step with the roles of individuals in society : R v R where the House of Lords overturned a centuries old common law rule that rape within marriage was not a crime.

The legal system is characterized by the presence of a jury and conducted in an adverial nature of questioning and producing evidence. The law is therefore seen as a system of belief that an answer will be found to any legal problem so long as all the facts are adduced and argued out among the parties in court. However the lack of intervention of the judge unlike the civil law system which is more inquisitorial tends to lead to situations which does not look for truth but rather to see which side has the better argument and to resolve the dispute between the parties. This can lead to situations where the side with the more eloquent lawyer would win the case especially with the presence of a jury (another feature of the common law) who are more easily swayed.

The English legal system is bound to remain as a common law system until the birth of a written constitution and mechanisms that will ensure they are used as a reference point for judicial decisions. The incorporation of EU law and ECHR may see some convergence between common law and civil law principles as well as the adoption of alternate dispute resolutions which is more inquisitorial in nature are beginning to rear its head. However until there is a serious breakdown in the present common law tradition it is difficult to an alternative system supplanting it.

Statutory Interpretation

Statutory interpretation is essentially a personal matter. No rules can bind the process since any such rule must themselves be subjects of interpretation. - Justin Santiago

Statutory interpretation is used by judges to make sense of the law in relation to their judgements. Statutory interpretation uses rules to help interpret what Parliament has enacted.

However it can be said the interpretation of statute has become a hugely personal affair with judges attempting to have their final say and using whatever means to justify their decisions in a particular case. One judge may use a particular rule of interpretation and another judge may use another rule, even for the same case.

The use of numerous rules of statutory interpretation can give rise to different results. Royal College of Nursing v DHSS regarding the status of medical practitioners to perform abortions was decided on different rules of interpretation of the Abortion Act 1967. Lord Woolf at the court of first instance interpreted the phrase ‘medical practitioner’ broadly to include nurses. Lord Denning at the Court of Appeal chose to interpret the phrase literally to mean doctors only. Lord Diplock at the House of Lords overruling the Court of Appeal interpreted the phrase to mean nurses as he felt that that was the purpose Parliament had in mind.

There is a large dependency on the personality of the judge whether he or she wants to take a formal approach to interpretation statute taking into account the internal context of the statute or to take a more flexible approach and look at the statute in its external context.

Admittedly the fault may lie in the way statutes are drafted. The drafting of statute in the Common Law tradition takes the exhaustive approach to drafting laws and statutes are worded to achieve certainty. However there are a number of factors that can cause uncertainty :-

1.There is a limit to how much can be written down i.e not every single situation can be covered.
2.There is a lack of foreseeability and certain things may have not been anticipated and were left out.
3.There is ambiguity in words or phrases used.

Inherently this style of drafting encourages the development of case law where judges define and interprets words contained in the statute. We see examples of both in case law. In Duport Steel v Sirs, Lord Diplock was of the opinion that it is the work of judges to give plain and unambiguous meaning to words contained in the statute and not to worry about the consequences of doing so known as the literal rule. This followed the declaratory theory of law and provided a safe path for judges and upheld the doctrine of the separation of powers and emphasized Parliamentary sovereignty. This sat well with conservative judges who were of the opinion that it was the job of the courts is to discover how Parliament intended the law to apply and to put that into practice and not to make law (otherwise it would be a naked usurpation of the legislative function as per Viscount Simmonds in Seaford Court Estates Ltd v Asher).

However this approach clearly has its shortcomings. What if the literal approach would give rise to an absurdity? Thus a statute which made it an offence to impersonate any person entitled to vote if taken in its literal sense allowed the acquittal of the accused because he impersonated a dead person since a dead person was not entitled to vote : Whitely v Chappell.

Thus in the case of Stock v Frank Jones (Tipton) Ltd,a departure from this literal rule would be allowed where there was a clear and gross anomaly and this anomaly was not envisaged by Parliament confirming the dictum of Lord Wensleydale in Grey v Pearson. This is known as the Golden Rule.

However some fetters were placed on the judicious use of the Golden Rule in C (A Minor) v DPP there were 5 factors that needed to be considered before judges did more than interpreting the law :-

1.Where the solution to a dilemma was doubtful, judges should be wary of importing their own answer
2.Judges should be cautious about addressing areas where Parliament had rejected opportunities to clear up a known difficulty or had passed legislation without doing so
3.Areas of social policy over which there was dispute
4.Fundamental legal doctrines
5.Whether judges involvement in changing the law would achieve finality and certainty on the issue

For the more activist judges their approach to statutory interpretation has been to read into Parliament’s intention which was expressed in Heydon’s Case otherwise known as the Mischief Rule. Judges should interpret the statute in such a way as to put a stop to the problem that Parliament was addressing. Thus cases like Smith v Hughes allowed for prostitutes to be caught by the Street Offences Act 1959 even though they were soliciting from their windows and not on the streets as envisaged by the statute as the main purpose was to clean up the streets of prostitution.

As an aid to find out the mischief that Parliament was addressing, reference to parliamentary proceedings (Hansard) was allowed following Pepper v Hart where legislation was ambiguous or obscure or led to an absurdity.

Judges could also look into past circumstances as a reference to interpretation as found in Chandler v DPP where Lord Reid invoked the historical conditions of the passing of the Official Secrets Act 1911 to support his interpretation of that Act.

However questions do arise as to whether there has been too much strain placed into the construction of statutes and whether one could find the real intention of Parliament even with the use of Hansard. As Michael Zander argues, the rules and priciples of interpretation do little or nothing to solve problems. They simply justify solutions usually reached on other grounds.

There are various argument as why each judge chose a different approach. Lord Denning was noted for his stance against the practice of abortion and his ruling in Royal College of Nursing v DHSS mentioned above would restrict the practice of abortion to qualified personnel thus limiting its practice. Lord Diplock although known for his strict adherence to literal interpretation chose to look at a more broader approach to possibly assert his higher superiority.

Another case that exemplified how different rules of statutory interpretation that has lead to different decisions is Davis v Johnson. In this particular case various rules of statutory interpretation are employed at the various court levels and by different judges at the same level and even different interpretations by the same judge were evident. In Mandla Singh and another v Dowell Lee the Court of Appeal reached its decision on a literal interpretation of the words actually used in the Race Relations Act but the House of Lords made its decision in the spirit of what it believed the Act aimed to do and construed Sikhs to be a race and thus covered by that particular statute.

In an attempt to imbue certainty in the law there have been attempts to put the brakes on purposive interpretation of statutes -Lord Simmons’ rebuke of Lord Denning in Magor and St Mellons v Newport Corporation that the filling of gaps in statutes was the job of Parliament in the form of an amending Act of Parliament and not for judges.

However with the incorporation of EU law via European Communities Act 1972 (ECA 1972) and the Human Rights Act 1998 (HRA 1998) which requires all legislation to be read, so far as possible, to give effect to the rights provided under the European Convention on Human Rights (ECHR) there is a possibility of UK courts taking a more purposive approach to statutory interpretation because of the inherent ways in which the European laws are drafted in the civil fashion. ECA 1972 states that all parliamentary legislation must be construed and applied in accordance with EC law. It was decided in Bulmer v Bollinger that interpretation of the articles of the Treaty of Rome was not possible using the literal rule since it was so broadly worded. Pickstone v Freeman and Lister v Firth Dry Dock stated that the purposive approach was the preferred approach in reading UK law in light of EU legislation. Whether there is a growing trend towards harmonization with European methods of interpretation however is yet to be realised fully.

The rules of statutory interpretation are in constant flux and there are no definite guidelines to follow which goes to show no one correct approach to interpreting statute. Any attempt to strictly set limits to the approach would restrict the flexibility of the courts to interpret statute and this in itself would cause injustice.

Ultimately it is not important what rule is used what is more important is that there is a convincing argument. This is important because each decision becomes part of case law and binds future courts at the same level or lower.

Judicial Precedent

To what extent are judges bound by precedent and is it desirable that they should be? - Justin Santiago

Judicial precedent based on stare decisis (let the decision stand) stands on two fundamental limbs. Firstly, once a decision is made on how the law applies to a particular set of facts, similar facts in later cases will be treated in the same way. This follows the declaratory theory of law that states that judges do not make law but merely by the rules of precedent, discover and declare the law that has always been. The second limb of the rule states that the decisions of superior courts bind lower courts and courts of equal status. The principle entrenches the courts structure and the hierarchy of the courts.

The rules of precedent produces an element of consistency and predictability whenever a court at a particular level decides on a case. Without these rules, judges would have a free hand in deciding cases which flies in the face of parliamentary sovereignty and the separation of powers.

The rules of precedent ensure that complications do not arise out of the different effects of retrospective and prospective overruling of which the application is still unclear once a decision has been overruled. A scenario where cases starts overruling each other and a decision in the lower courts overrules a decision in the higher courts would lead to absolute chaos. People would not be able to conduct their affairs as they would not have an understanding of the state of the law at any one time.

The use of precedent balances the fine line between certainty and flexibility in the law. Judges are bound by precedent in so far as providing them with a markers to decide on cases. This enforces the doctrine of the separation of powers and it is the role of courts to interpret the law and not to make the law leaving that job to Parliament. There is little time for Parliament to catch up and we are beginning to see a judiciary with a more robust role in law making without waiting for Parliament to act : Kleinwort Benson Ltd v Lincoln City Council and DPP v Jones which concerned long entrenched laws that would have rightly been amended by legislation.

However judicial precedent needs to import an element of flexibility to allow for the evolution of the law. Changing social norms and developments in social life may require flexibility to judicial precedent. This of course helped develop the law and at times gave rise to legal principles - the oft quoted neighbourhood principle in Donoghue v Stevenson being a case in point and the requirement of virtual certainty of death or grievous bodily harm to indicate intention in murder as decided by R v Woolin.

Judges have also been influenced by external circumstances in their decision not to follow precedent. Some of the examples where the Lords have departed from their own decisions have been based on changes in perception of public policy. In the case of British Railways Board v Herrington the development of the law of negligence shifted the burden of the duty of care to the railway authorities to have their line fences mended. In Miliangos v Gorge Frank (Textiles) Ltd changes in international trade and the statue of the sterling forced the House of Lords to review earlier decisions that all awards of damages in an English court be made in sterling. The courts could also choose to not follow a precedent which is no longer in step with the roles of individuals in society : R v R where the House of Lords overturned a centuries old common law rule that rape within marriage was not a crime.

Application of the law or statute to a particular case is not usually a simple matter. Terminology may be vague or ambiguous. There could be minor differences in details of the facts of the case under consideration from those of the previous case. This is where a judges’ discretion is usually required and it may appear that the doctrine of stare decisis is not followed to the letter. Other ways that judges would try to influence the decision of the current case would be by giving the precedent a very narrow ratio decidendi thus arguing that parts of the judgement are merely obiter dicta which they are not obliged to follow, arguing that the precedent has no clear ratio decidendi. They could also sidestep precedent by stating the previous decision was made per incuriam meaning that the courts failed to considers some relevant statute or precedent.

Additionally with UK law having to take EU law into account the rules of precedent are given a wider meaning and decisions by the ECJ and EtCHR may need to be followed instead of decisions by the domestic courts.

The second limb of the doctrine is followed more strictly especially if you are a lower court although some judges have tried to go around it. Lord Denning was one of these and in a number of instances was rebuked for trying to sidestep the court hierarchy. This was evident at the level of the Court of Appeal in cases like Broome v Cassell where a decision was contrary to the decision in the House of Lords case Rookes v Barnard. The justification was that the decision was made per incuriam. In the case of Shcorsch Meier GmbH v Hennin, Lord Denning again did not choose to follow the decision of the House of Lords case, Re United Railways of Havan and Regla Warehouses the reason being that the earlier decision was based on a rule that had lapsed. In Davis v Johnson, Lord Denning sought to apply the rationale that if the House of Lords could depart from previous decisions, the Court of Appeal could as well without wasting time and costs of further appeals to the House of Lords.

However in all 3 instances, Lord Denning was reprimanded by the House of Lords for making a decision which was rightfully the decision of the House of Lords. It appears that when it comes to following precedent it really matters which level in the hierarchy you are at. The House of Lords is itself not bound by its own decisions passed on the Practice Statement (Judicial Precedent) issued in 1966 which pointed that too rigid an adherence to precedent may lead to injustice and unduly restrict the proper development of the law. No such Practice Statement exists for the Court of Appeal.

Judges at the level of the House of Lords have been known to overrule their decisions some of which have been in existence for many years and this is no one principle by which the House of Lords sets about overturning its own decisions. R v Caldwell was for many years the authority on the level of recklessness (objective) required for non fatal injury crimes. However R v G (and another) overulled R v Caldwell and reinstated the decision in R v Cunningham which stated that subjective recklessness was required for these types of crimes. ReA (conjoined twins) overruled the long established law that necessity was not a defence to murder as decided in the case of Donald v Stevenson. Murphy v Brentwood District Council overturned Anns v Merton London Borough Council based on the rejection of this case by another jurisdiction. Examples such as these go to show that judges at the level of the House of Lords are not bound by previous decisions including those that have been the law for many years and there need not be a reason for doing so other than the fact that the previous case was unsatisfactory.

At the level of the Court of Appeal, they are generally bound by their own decisions. However as decided in Young v Bristol Aeroplane under certain circumstances judges are given some flexibility in making their decisions :-

1. Decisions that are in conflict with each other – in Starmack Enterprises Ltd v CPL Distribution, the latest authority was not followed
2. Decisions that have been overruled expressly or impliedly by the House of Lords
3. Decisions that are made per incuriam – in Morelle v Wakeling Lord Evershed limited the use of the per incuriam rule to cases where there was ignorance of authority which would have been binding on the court and that ignorance led to faulty reasoning

The decisions of other courts have begun to enter the picture and judges are seemingly more open to them. The Privy Council has had a strong influence on decisions by the other courts. Recently the Court of Appeal in R v Faqir Mohammed and later in R v James and R v Karimi preferred to follow the Privy Councils’ decisions in HM Attorney General for Jersey v Holley and Luc Thiet Thuan v R rather than the House of Lords’ decision in R v Smith (Morgan James).

A large amount of law has been case law made by judicial decisions notwithstanding parliamentary supremacy and the increasing use of statutes. Judges have their own mind and will want to maintain their free hand in interpreting and developing the law. The rules of judicial precedent act as a guidepost for judges at the level of the House of Lords to decide on cases. At the level of Court of Appeal and below the rules of judicial precedent acts as a gatekeeper to remind them of their station in life. The effects of precedent are becoming larger with other courts such as the ECJ and EtCHR beginning to come into the picture and it won’t be long before their decisions start having a strong influence on domestic law which would lead to an evolutionin the law.

In summary most judges tend not to veer too much from the doctrine of stare decisis. Only in exceptional cases at the highest levels i.e. House of Lords is there any semblance of going around this well entrenched doctrine.