Clri 2007 - Study Pack Full

Common law reasoning and institutions
Study pack
2007
LLB 2650031
Diploma in Law 2690031
page University of London External System
The items in this study pack were selected by the principal author of the Common Law
Reasoning and Institutions Subject Guide:
 Professor Wayne Morrison, Director, University of London External Laws Programme.
 Section 5 – ‘Reading Research Materials’ specially written by Vickie Thanapal, copyright
2007.
 Section 6 – ‘The Judicial Practice of Precedent’, and Section 7 – ‘The Judicial Practice of
Statutory Interpretation’ specially written by Adam Gearey, copyright 2007.
With thanks for location of originals and scanning to Carolyn Malsher, Robert Tarbuck and
the University of London Library.
The items in this study pack are principally reproduced under licence from the Copyright
Licensing Agency.
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Common law reasoning and institutions Study Pack page
Contents
Subject guide
chapter
2 1 ‘Law and Society: the Purposes and Functions of Law’
Martin Partington . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3 2 ‘The Significance of Courts’
Fiona Cownie, Anthony Bradney and Mandy Burton . . . . . . . . . . 27
5 3 ‘Finding Cases and Statutes’
Anthony Bradney . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4 ‘Finding Books, Journals, and Official Publications’
Emily Finch and Stefan Fafinski . . . . . . . . . . . . . . . . . . . . . 57
5 ‘Reading Research Materials’
Vickie Thanapal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6 6 ‘The Judicial Practice of Precedent’
Adam Gearey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
7 7 ‘The Judicial Practice of Statutory Interpretation’
Adam Gearey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
8 8 ‘The Jury’
Michael Zander . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
9 ‘The Jury Trial (2): A Theatre of Justice’
Sadakat Kadri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
10 The Impact of Human Rights on Criminal Investigation’
Dennis Clark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
9 11 ‘The Hierarchy’
Marcel Berlins and Clare Dyer . . . . . . . . . . . . . . . . . . . . . 199
12 ‘The Judiciary’
Gary Slapper and David Kelly . . . . . . . . . . . . . . . . . . . . . 207
13 ‘Judicial Appointments’
Kate Malleson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
10 14 ‘The Effect of the Convention in any Litigation’
John Wadham (ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . 301
11 15 ‘The Civil Justice System’
Catherine Elliott and Frances Quinn . . . . . . . . . . . . . . . . . . 309
16 ‘Solving Civil Justice Problems: what might be best?’
Professor Hazel Genn . . . . . . . . . . . . . . . . . . . . . . . . . 349
17 ‘Civil Justice’
Michael Zander . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
18 ‘Paying for Legal Services’
Catherine Elliott . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
12 19 ‘The legal profession and legal services’
John Adams and Roger Broadsword . . . . . . . . . . . . . . . . . . 411
1 ‘Law and Society: the Purposes and Functions of Law’

Martin Partington
Staff and students of the University of London External

Laws Programme are reminded that copyright subsists
in this extract and the work from which it was taken.
This copy has been made under a licence from the
Copyright Licensing Agency of the UK (www.cla.co.uk).
Any digital or printed copy supplied to or made by you
under the terms of this licence is for use in connection
with this course of study. You may retain such copies
after the end of the course, but strictly for your own
personal use.
Except as provided by copyright law, no further copy-
ing, storage or distribution (including by email) is
permitted without the consent of the copyright holder.
The author has moral rights in this work and neither
staff nor students may cause or permit the distortion,
mutilation or other modification of the work, or any
other derogatory treatment of it, which would be prej-
udicial to the honour or reputation of the author(s).
Reproduced by the University of London External
Programme, 2007.
Chapter 2 from Pilkington, M. Introduction to the English
Legal System. (Oxford: Oxford University Press, 2006) third Scanning authorised by Professor Wayne Morrison
edition [ISBN 978-0199278299]. (designated person).
Common law reasoning and institutions course (LLB,
This reading relates to the Common law reasoning and
Diploma).
institutions subject guide, Chapter 2.
page 10 University of London External System
Common law reasoning and institutions Study Pack page 11
2 ‘The significance of Courts’

Fiona Cownie, Anthony Bradney and Mandy Burton

personal use.
Programme, 2007.
Chapter 2 from Cownie, Bradney & Burton: The English Legal
System in Context. (Oxford: Oxford University Press, 2007) Scanning authorised by Professor Wayne Morrison
fourth edition ISBN 978-0199289882. (designated person).
Diploma).
3 ‘Finding Cases and Statutes’

Anthony Bradney

personal use.
Programme, 2007.
Chapter 4 from Bradney, Cownie, Masson, Neal, and
Newell. How to Study Law. (London: Sweet & Maxwell, Scanning authorised by Professor Wayne Morrison
2005) fifth edition [ISBN 978-0421893801]. (designated person).
Diploma).
4 ‘Finding Books, Journals, and Official Publications’

Emily Finch and Stefan Fafinski

personal use.
Programme, 2007.
Chapter 8 from Finch, E. & Fafinski, F. Legal Skills.
(Oxford: Oxford University Press, 2007) first edition Scanning authorised by Professor Wayne Morrison
[ISBN 978-0199203901]. (designated person).
Diploma).
5 ‘Reading Research Materials’

Vickie Thanapal

This reading was written for the Common Law Reasoning Any digital or printed copy supplied to or made by you
and Institutions study pack by Vickie Thanapal. Copyright under the terms of this licence is for use in connection
© 2007 University of London. All rights reserved. with this course of study. You may retain such copies
This reading includes the articles ‘Experts, Juries and after the end of the course, but strictly for your own
Witch-hunts’ by Tony Ward from Journal of Law and Society personal use.
(2004) Vol. 31 (3) pp. 369-386, and ‘Who Killed Sally Clark?’ Except as provided by copyright law, no further copy-
by Richard Stott which is reproduced with special permis- ing, storage or distribution (including by email) is
sion from Trinity Mirror Newspapers. permitted without the consent of the copyright holder.
This reading is for use in connection with this course of The author has moral rights in this work and neither
study. Except as provided by copyright law, no further staff nor students may cause or permit the distortion,
copying, storage or distribution (including by email) is mutilation or other modification of the work, or any
permitted without the consent of the copyright holder. other derogatory treatment of it, which would be prej-
Programme, 2007.
mutilation or other modification of the work, or any other
derogatory treatment of it, which would be prejudicial to Scanning authorised by Professor Wayne Morrison
the honour or reputation of the author(s). (designated person).
Diploma).
Reading research materials

In Part 2 of the Learning skills for Law Guide (Hanson, Senter and Brown, 2007), you would
have been introduced to some of the techniques recommended for effectively reading
legal research materials. However, in the course of your study, you may need to refer to
other forms of research materials to build your understanding and shape the arguments
you wish to make. The type of research materials utilised depends on the question you seek
to answer. Examination questions can be designed as problems or essays, some subjects
consists of one type more than the other (Criminal Law for example usually consists of more
problem questions, while Public Law consists of mainly essay questions).
In answering a problem question, you would need to apply the relevant statutes and decid-
ed cases to the specific facts of the scenario described; your arguments would be shaped
by your understanding of the sources of law. Essay questions require a different approach,
they call for arguments based on your understanding of a state of affairs and may call for
you to give a soundly reasoned opinion on a normative question. As such, you may have to
make reference to a wider range of research materials, such as reports from government
departments, academic writings and materials from other social science disciplines, such
as criminology, sociology, economics and politics (Bradney et al, 2005).
Familiarity with the social sciences is essential in the study of the law. Contemporary issues
in constitutional law, changes in the rules of evidence, reforms in public policy regulation
and the adjudication of a great number of civil and criminal cases, have relied extensively
on social science evidence. Courts and legislative bodies rely on their beliefs about certain
facts when they contemplate legal policy and those beliefs are largely shaped by an under-
standing of available scientific evidence.
There are several methods of researching in the social sciences. The three principal meth-
ods used are document reading, interviewing and personal observation (Bradney et al,
2005). Interviews and observation are known as field research, and require the researcher
to effectively identify the research subjects and initiate contact to start the research proc-
ess. At the undergraduate level, it may not be feasible for you (due to constraints of time,
budget and access) to undertake field research, thus in practice you will be mainly involved
in documentary research.
As part of your study, you must be able to effectively:

 identify the relevant documentary materials
 recognise the promise and limitations of each type of material
 read and interpret the material presented.
What are documents?

Documents are commonly defined as materials that can be read, but this definition is
overly restrictive. Jupp (1996) seeks a more inclusive definition and draws a distinction
between a ‘document’ and a ‘text’. A document is the medium on which the message is
stored and text is a method of conveying the message though the symbols which consti-
tute writing. Following this definition, documents can include photographs, drawings, and
graphic symbols.
Classifications of documents
 Personal documents: life histories, biographies, diaries, oral histories, letters, personal
photographs and sketches and various other sources
 Official private documents: Official information about private organisations
 Official state documents: Government publications
(Scott, 1990)
Scott’s (1990) definition provides a starting point in identifying the different sources of
documents, but it is useful to note that the mass media and the internet are also valid
documentary sources.
You will neither encounter, nor are you required to access, all the different sources of
documents in the course of your study. The following section identifies the type of docu-
ments (which may constitute text and graphics) which are commonly utilised, and while
they do not strictly constitute sources of law, they nonetheless contribute to the overall
understanding of the law.
Types of documents
 Newspaper articles
 Magazine/Journal articles
 Internet publications
 Novels
Analysing research documents is different from leisure browsing. You should not skim
through the document in immediate search of a conclusion. Following Bryman (2004),
readers are active interpreters of what they see/hear, but the extent of interpretation
should not be such that you arrive at a conflicted understanding of what the author is trying
to communicate. Read a document at least twice; the first time to allow yourself to gain a
general understanding of the subject and the keywords used in the document. Your later
readings should be more detailed, summarise each part of the document and make notes
on the significant stands of argument raised by the author, highlight any examples used and
examine them for similarities or differences. You should also make a list of any points which
can be associated to your legal study. This will generate ideas on the need for collecting fur-
ther data or examining other documents. Try to use a standard format when you are making
notes, it reduces the risk of you forgetting what you meant when you refer to them later.
You should not passively accept the content of any document as conclusive. Make a list of
reasons why you agree with the ideas presented in the document, you can substantiate
your reasons with evidence from other research or even your personal beliefs. Like wise if
you disagree, and if so, are there any possible alternative ideas that you can put forth?
When you are approaching a specific question in your legal study, collate all your research
notes and read through them again, bearing in mind the question which you are attempt-
ing to answer. How do the points in your notes relate to the questions? Discard those
which are irrelevant. Of the information which you want to include, where does it fit into
the strands of argument you raise and can it be justified with a reference if necessary?
Newspaper articles
Newspapers are an excellent source of research materials and provide insights to current
issues and cultural trends and debates. Section 15 in the Law Skills Study Guide (Hanson and
Senter, 2006) highlights the importance of culture when studying English Law. Newspaper
articles chart the course of cultural themes throughout the progress of society. Good
journalism acts as a catalyst in forming your own ideas and opinions for discussion and may
also provide examples and references to be used in your answers.
In reading newspaper articles however, you must be aware that most adopt a particular
stance on political and social issues and the resulting journalism may be reflective of it.
Beharrell’s (1993) content analysis on HIV/AIDS reporting in the British press found that
broadsheet newspapers like The Times, The Independent and The Guardian were largely
supportive of the government’s educational strategy on HIV/ AIDS, while other papers
like The Sun and The Daily Mail were critical of the initiatives. Tabloid newspapers may also
sometimes indulge in sensationalism and make unsupported allegations.
While you are not expected to quote specific articles or journalists as references in your
answers, up-to-date content analysis of current issues affecting the law will provide the
backdrop to your study and understanding.
The best way to keep up to date with the news is to purchase copies of newspapers.
Alternatively, libraries may keep copies for browsing and copies of pertinent articles can be
made from them. Past issues of mainstream newspapers are usually preserved on microfilm
in library archives. For students who are living outside of the UK, obtaining English newspa-
pers may be slow or expensive, thus you may find it more convenient to access them online.
The Guardian, The Sun, The Independent and The Times, among other titles, can all be accessed
online free of charge and each site contains a function which enables a specific search within.
The Laws Virtual Learning Environment (VLE) also provides links to law relevant newspaper
articles which you can access using your student password after registering with the VLE.
Exercise 1
The following is a recent opinion piece written just after the death of Sally Clark on 16th
March 2007, four years after her release from prison in 2003 following a successful appeal
(her second attempt) resulting in her conviction being quashed.
Read the article and answer the following questions:

i What was Sally Clark convicted of?
ii What do you think was Sally Clark’s defence against the charges of murder?
iii How many different parties/agencies does the author identify as being potentially
responsible for her wrongful conviction?
iv What does the author claim to be the main factor that persuaded the jury to convict?
v What was the evidence withheld from the court during the trial which might have been
useful to Sally Clark’s defence?
vi Why did the Court of Appeal allow Sally Clark’s second appeal?

Who killed Sally Clark?

LOOKING back we should not be surprised Sally Clark is dead. Shocked, angry, horrified,
bitter, chastened and ashamed. But not surprised.
Sally Clark, wife of a solicitor and daughter of a senior policeman, was wrongly convicted
of murdering her two small sons and spent three years in jail before the law recognised it
had make a ghastly mistake. Mrs Clark never recovered.
So who killed Sally Clark?

Not us, say Cheshire Police who investigated the deaths of her sons Christopher and Harry.
They made lots of assumptions. She was a drinker, a depressive, she didn’t want to lose her
glamorous lifestyle. Highly prejudicial.
But... proper evidence? There wasn’t a shred. Yet we didn’t kill her, it wasn’t us. We didn’t
kill Sally Clark, say the police.

Not us, say the Crown Prosecution Service, whose job it is to rigorously examine the facts
and decide whether they are good enough to bring charges. There was medical evidence,
don’t blame us if it was all wrong, opinionated and discredited. It wasn’t our fault vital
evidence was suppressed. Don’t blame us. We didn’t kill Sally Clark, say the CPS.

Not me, says Professor Sir Roy Meadow, the paediatrician expert witness called by the police.
Yes. I did say there was a one-in-73 million chance of two cot deaths in an affluent family.
Rubbish said the Royal Statistical Society later, yet it helped sway the jury. After all. such an
eminent man can’t be wrong, can he? He was eventually discredited and struck off. but rein-
stated. Don’t point the finger at Sir Roy. I didn’t kill Sally Clark, it wasn’t me, says Sir Roy.

Not me says the prosecution pathologist Alan Williams, who kept vital evidence of infec-
tion in Harry, Mrs Clark’s second son to himself. Six years after her conviction Williams
was to be struck off the list of Home Office pathologists. But kill her? Not me, says Alan
Williams. I didn’t kill Sally Clark.

Not us say the judges in their legal wisdom and blood red robes. It was just unfortunate
nobody exposed Professor Meadow and nobody pointed out there was no real evidence
to convict. Don’t blame the mighty Appeal Court that said the evidence against her was
overwhelming when it was no such thing. Yes, the wheels of justice grind slow. That’s
why when the damning evidence not presented by Alan Williams was finally revealed, it
took more than a year to bring the case back to court. Fifteen months in which Sally Clark
remained locked up, mercilessly abused by fellow prisoners. But don’t blame the majesty
of the law. say the judges, shaking their wigs. We are The Law. We cannot be blamed. We
didn’t kill Sally Clark.
When she was finally released, an innocent woman, Sally Clark said: “Today is not a victory.
There are no winners here. We have all lost out.” We have indeed.
And poor, dead Sally Clark, who nobody killed, lost everything. Even, finally, her life.
© Trinity Mirror Newspapers

Exercise 2
The following is an article accessed from the online archives of The Guardian newspaper.
Read the article and answer the following questions:
i What does the author draw out as the common theme in causing miscarriages of justice
in the cases he discusses in the article?
ii In what way is it similar to one of the factors which resulted in the wrongful conviction
of Sally Clark (see Exercise 1)?
iii What was the change brought about after the successful appeals of Judith Ward and the
Taylor sisters?
iv Why did police and prosecution complain about this change?
v What was the compromise reached in the Criminal Procedure and Investigations Act
1996?
vi What does research reveal about the effectiveness of the Criminal Procedure and
Investigations Act 1996?

Prosecution in the dock

Ten years on from the Guildford Four, prosecutors are still failing to disclose relevant evi-
dence to the defence. Ben Emmerson reports on a recipe for miscarriages of justice.
Monday November 15, 1999
The Guardian
A young woman with no previous convictions was charged with arson. The police claimed
to have found hundreds of matches scattered over the floor of the house where the fire
broke out. The evidence seemed overwhelming. But on the first day of her trial her solici-
tor discovered that the homeowner had asked the police to discontinue the case against
her. His letter alleged that the police themselves had scattered the matches on the floor.
When asked why, an officer replied: “In case this gets to court.” Further enquiries reveal
that scenes-of-crime officers took photographs immediately after the woman’s arrest.
These show only three matches on the floor. None of this material had been disclosed to
the defence, or even to the prosecuting barrister.
This story doesn’t come from the script of the latest Lynda La Plante thriller. It is one of a
depressingly large number of complaints by lawyers to the criminal bar association and
the law society about the failure of the law which requires the prosecution to disclose
evidence in its hands which could be relevant to the defence.
The reputation of the criminal justice system has been badly damaged over the last 10
years by a series of miscarriages of justice, many arising out of non-disclosure of evidence
to the defence.
In October 1989 the court of appeal quashed the convictions of the Guildford Four for pub
bombings, following the discovery that vital evidence had been withheld. Ten years on,
criminal lawyers are facing up to the reality that despite the litany of wrongful convictions,
the recommendations of the royal commission on criminal justice in 1993, and statutory
reform, the regime for disclosure of material to the defence is still bedevilled by systemic
failings, and miscarriages of justice are still happening.
The royal commission was established in the immediate aftermath of the judgment
overturning the convictions of the Birmingham Six, and aimed to ensure that the lessons
of these grave miscarriages would be learned. While it was still taking evidence, the court
of appeal decided the case of Judith Ward, who had served 18 years for a multiple murder
caused by an IRA bombing in 1973.
During her appeal it emerged that the prosecution had failed to disclose vital evidence,
including psychiatric and forensic evidence, which could have established her innocence.
In quashing her conviction the court described non-disclosure of evidence as “a potent
source of injustice.” From that point on, the prosecution would be required to provide the
defence with all relevant evidence unless the trial judge ruled that it could be held back
on grounds of public interest.
Soon after the Ward judgment, another disclosure scandal erupted. Two sisters, Michelle
and Lisa Taylor, appealed against their convictions for the murder of Michelle’s lover.
Shortly before the hearing, a junior defence lawyer looked at the unused material which
had become available only after the conviction. He discovered a note recording an original
description of one of the suspects which had been provided by the only identifying
witness. This was significantly at odds with the appearance of either sister.
This discovery, along with massive adverse publicity in the tabloid press, led to the quash-
ing of the sisters’ convictions. The Ward judgment, reinforced by the Taylor sisters’ case,
brought about real change. Decisions about the relevance of unused evidence were no
longer made by the police and prosecution - the people who had an interest in securing a
conviction. Instead, the defence was granted access to the “common pool” of material.
But before long, police and prosecuting authorities began to complain that the Ward
judgment was imposing an impossible burden on them. Defence lawyers, they argued,
were making unreasonable demands for large quantities of irrelevant material.
There was, in reality, very little evidence that the system was being abused. But the lob-
bying paid off. The bill that was to become the Criminal Procedure and Investigations Act
was introduced in Parliament in November 1995. Its key feature was that the prosecution
became, once again, judges in its own cause.
In every case a police officer would be appointed “disclosure officer”, responsible for carry-
ing out the duties imposed by the act. The prosecution would no longer be required to
disclose all the evidence in its possession. The crown prosecution service is now required
to disclose any material which in the prosecutor’s opinion might undermine the prosecu-
tion case, and any material which might reasonably be expected to assist the defence.
That sounds fair enough in theory. But it depends entirely on the judgment, diligence
and honesty of the police officer who compiles the information in the first place, and the
impartiality of the CPS lawyer who assesses whether the material may assist the defence.
It amounts to a return to the days when police and prosecution had effective control over
the disclosure of information damaging to the prosecution case. As one senior barrister
has put it, “the fox is back in charge of the henhouse”.
Amid growing concern, the Criminal Bar Association, the British Academy of Forensic
Sciences, and the Law Society conducted a survey of 300 prosecution and defence lawyers
between February and May this year. Their report, compiled with the help of the Home
Office, will be published on December 1. It makes worrying reading: 87% of respondents
thought that police decisions on disclosure were either unreliable or highly unreliable,
and over 90% considered there was no effective method of independent scrutiny.
Among the most frequent complaints were that the disclosure officer was often involved
in the investigation and therefore had an interest in securing a conviction, and that police
assessments of what was relevant to the defence were unreliable and often clearly wrong.
Material which did not fall within any established category of public interest immunity
was listed for non-disclosure or else not listed at all. Prosecuting solicitors and barristers
often failed to consider the material personally, leaving it to the police to decide whether
an item of information should be disclosed.
In a preliminary report, lawyers Anthony Heaton-Armstrong and David Corker, who led
the research, say it revealed “an alarming picture of incompetence, poor training, pig-
headedness, blatant obstruction and generally a widespread inability amongst police and
prosecution authorities to comprehend and put into practice” the rules on disclosure.
Complaints that evidence which contradicted the prosecution case had been deliberately
withheld from the defence were “alarmingly frequent”. Not surprisingly, the great majority
of respondents felt the current regime was failing to serve the interests of justice. Two
examples are typical.
Last May a 17-year-old boy with no previous convictions faced a rape charge. The allega-
tion, reported 10 days after the incident, was that he had dragged the victim from a night-
club into an alleyway where he had raped her. A video camera had been positioned near
the entrance, but the police maintained the videotape showed nothing relevant.
At the end of the first day of evidence, the tape was finally disclosed to the defence. It
showed the defendant and the complainant leaving the nightclub, walking side by side.
Once the prosecution barrister had seen the video, the charge was dropped.
In another case, two men were alleged to have attacked four innocent people late at
night. Both were said to have been carrying knives. The men denied this, insisting they had
been set upon and had acted in self-defence. Despite defence requests, the CPS failed to
disclose the police log made on the night. Just before the jury was sworn in, after a further
delay, the log was produced, recording a 999 call from a passer-by who had witnessed part
of the incident. He had seen only one man with a knife who, from the description, could
not have been either defendant. The case was dropped.
In theory, irregularities should be picked up when the file is reviewed by the prosecuting
barrister. But the surveys suggest that this failsafe mechanism operates only in the most
serious cases. One prosecuting barrister described how, when he asked to look at unused
material personally so he could advise on disclosure, the CPS lawyer accused him of a lack
of trust and “fostering a culture of blame”. Another barrister described how a CPS lawyer
claimed he was “too defence minded” when he advised that the previous convictions of a
prosecution witness should be disclosed.
The director of public prosecutions, David Calvert-Smith, issued a blunt warning to chief
crown prosecutors last May. There was evidence, he said, that prosecutors were still
not complying with their disclosure obligations, and innocent people were liable to be
wrongly convicted. He has commissioned a review by the CPS inspectorate to identify the
scale of the problem.
Many lawyers believe the present regime will fall foul of the human rights act when it
comes into force next October. As one senior lawyer put it in the survey: “In simple terms
nobody can assess what undermines the prosecution case or supports the defence case,
except the defence. Only they know what areas they intend to explore and the relevance
of what may appear to the prosecution to be trivial or unimportant.”
Magazine/journal articles
Like newspapers, magazines are excellent sources for providing insight into culture. Some
magazines may employ a livelier and more provocative tone of writing than broadsheet
newspapers, and issues may be discussed in more depth than a single page newspaper
commentary. Titles like The Economist and Time frequently publish commentary pieces on
politics, human rights and economic influence on the legal system. Mainstream titles are
usually stocked by most libraries and newsagents. You may access The Economist, Lawyer
and Forbes through EBSCO database via the laws online library. To do so you must register
with the laws online library, who will issue you with an Athens username and password
which will enable access to all the databases contained within the online library.
Journal articles provide academic insight on issues affecting the law. There are several legal
articles which you would have been directed to read, in the individual subject study guides,
as part of your study. They can be accessed via databases on the laws online library.
However, in addition to keeping up to date with the Cambridge Law Journal, Oxford Journal
of Legal Studies and Criminal Law Review (to name a few), your understanding of the law can
benefit from reading materials contained in non-law specific academic journals as well.
Academic analysis in sociology, psychology and political science frequently raise issues
relating to and affecting the law. The EBSCO database contained within the online library
has a wide selection of full text academic journals which are non law specific. If you are
looking for articles in a specific area, for example, miscarriages of justice, you may start off
by entering the search keywords in the WESTLAW and LEXIS NEXIS databases to obtain a
selection of relevant articles. However, most of the journal titles on these two databases
are law specific. You may next want to broaden your search by entering the same keywords
in the EBSCO database and locating social science journal articles which may be of help in
enhancing your store of arguments about the social implications of the law.
Your research would be more focused and effective if you have a detailed research plan. It
would save a lot of time to have prepared your basic notes about the area you are researching
and the main legal issues surrounding it. This will provide you with more specific keywords
when conducting your search and also help you to sift through articles of little relevance.
In Exercises 1 and 2, the articles focused on a common theme, namely that of miscarriages
of justice. The newspaper article in Exercise 1 implied that the jury being misled by expert
evidence was in part to blame for the wrongful conviction of Sally Clark. The following
journal article examines in greater detail the impact of expert evidence on jury members
in a criminal trial. Read the article and answer the following questions. The answers to the
questions in Part A can be derived from the text of the article, while those in Part B seek
your opinion after having understood the issues discussed.
Exercise 3 - Part A
i What does James Fitzjames Stephen defend?
ii What does James Fitzjames Stephen regards to be a ‘true verdict’?
iii What are Fuller’s objections to the claim that rationality requires one to depend upon
the conclusion of experts?
iv The Palmer and Cannings cases were both likened to ‘stories’ in the article; what role did
expert evidence play in each ‘story’?
v What advantage do judges have over juries when it comes to weighing up certain types
of evidence?
Exercise 3 – Part B
i George Cornewall Lewis and James Fitzjames Stephen argue that it is NOT irrational for
one to accept another’s opinion even if one did not know of the evidence on which that
opinion is founded. Do you agree?
ii George Cornewall Lewis states that lay people have a choice in deciding which authority
to believe in. In the case of a criminal trial where the jury is presented with conflicting
expert authority, how do you think they might exercise that choice?
iii What do attitudes of Victorian juries on cases of infanticide demonstrate about the jury
trial?
iv The author contends that the weight attached to expert evidence by juries depends
heavily on social trust; do you think there will be any difference if criminal cases are
decided by judges alone?
Internet publications
The vastness and relative accessibility of the internet presents great potential for obtaining
research materials. Most government and private agencies post reports and discussion
papers on the internet in addition to publishing traditional hard copy versions. The internet
also allows you to access opinions from other individual web users who may post material
on topics which you are researching.
Care must be employed when reading internet publications. Bear in mind that the anonym-
ity of the world wide web allows anyone to be able to set up a website and post informa-
tion. The information posted may be distorted by the personal agenda of the site master,
whose authenticity and credibility may sometimes be suspect. While material accessed
from the official websites of agencies like The Department of Constitutional Affairs, the
Criminal Justice System of England and Wales and The Office of National Statistics do not
present a problem with credibility, other sites from organisations like INNOCENT, PORTIA
and Miscarriages of Justice Organisation were set up for a specific purpose which may be
reflected in the information. While this does not always render the information inaccurate,
you should be aware that there may be alternative views. Indeed, you should make it
part of your reading exercise to come up with possible counter-arguments to assertions
presented. Be wary of extreme views, sweeping statements and lack of credible referencing
on any internet publication.
You would gain more out of your internet search experience if you have made basic notes
on a specific area of research, like what are the key cases involved, are there any prominent
individuals featured and have there been any latest developments? Searching for general
internet publications using mainstream search engines like Yahoo or Google, produces a
huge amount of results. Once you have some general idea of the areas of interest within
a certain topic, this will provide you with specific keywords which you can use to narrow
your search. You may want to sift through the results by skim reading through them and
checking how much of the content relates to your notes, before selecting those which are
worth further study. Then, read through the selected material in detail, employing your
note taking and content critique techniques. Also, since the internet is in constant flux, it is
advisable to print out any useful material you access in order to have a permanent copy to
reference.
Novels/movies/television programs
Normally used for entertainment, such material can help you visualise the law and legal
system in context. The movie Twelve Angry Men depicts jury deliberations over the possibil-
ity of reasonable doubt, My Cousin Vinny provides a humorous account of an adversarial
criminal trial and A Civil Action illustrates a long, drawn-out, expensive personal injury civil
suit. Shakespeare’s classic play The Merchant of Venice centres on a contractual dispute.
Novels by John Mortimer and C.H. Rolph although fictitious provide fairly accurate depic-
tions of the working of English police and the Criminal Courts. Several prime time television
shows in recent years have used the police or forensic investigations as plot points.
When you come across such material, even if you are not actively engaged in research, try
to look out for issues relevant to your study. Seek to identify with the characters’ actions.
Take note of the context in which technical terms are used. Although such material cannot
be cited as references in your examination, they provide good exercise to get your mind
constantly thinking about law and its social ramifications. You must bear in mind that such
materials are primarily created as a source of entertainment and the creators may some-
times sacrifice accuracy in favour of entertainment value. Exaggeration and sensationalism
are not uncommon and you are advised to use discretion in your analysis.
Reading research materials – bibliography

Beharrell, P. (1993) ‘AIDS and the British Press’ in Eldridge, J. (ed), Getting the Message: News,
Truth and Power, London: Routledge.
Bradney, A; Cownie, F; Masson, J; Neal, A and Newell, D (2005) How to Study Law (Fifth edi-
tion), London: Sweet and Maxwell.
Bryman, A. (2004) Social Research Methods, Oxford: Oxford University Press.
Hanson, S., Senter, H., and Brown. B,(2007) Learning skills for Law, London: University of
London Press.
Jupp, V. (1996) ‘Documents and Critical Research’ in Sapsford, R. and Jupp, V. (eds) Data
Collection and Analysis, London: Sage.
May, T. (1993) Social Research – Issues, Methods and Process, Buckingham: Open University
Press.
McNeil, P. (1985) Research Methods, London: Tavistock Publications.
Neuman, W.L. (1997) Social Research Methods – Qualitative and Quantitative Approaches (Third
Edition), London: Allyn and Bacon.
Scott, J. (1990) A Matter of Record, Cambridge: Polity Press.
6 ‘The Judicial Practice of Precedent’

Adam Gearey

personal use.
This reading was written for the Common Law Reasoning Except as provided by copyright law, no further copy-
and Institutions study pack by Adam Gearey. Copyright ing, storage or distribution (including by email) is
© 2007 University of London. All rights reserved. permitted without the consent of the copyright holder.
Programme, 2007.
Diploma).
The judicial practice of precedent
1 Precedent as a judicial practice

To describe precedent as a practice is to draw attention to the way in which judges
interpret the law and act on the basis of those interpretations. Practices take shape within
a culture that determines how they are composed. In this chapter we will thus direct our
attention to the institutional context of judicial interpretation. This will take us towards an
understanding of the hierarchy of courts. Court hierarchy needs to be seen as a factor that
has influenced and determined the forms of the judicial practice. As Danny Nicol says:
‘Underlying precedent is an emphasis on stability, permanence and the wisdom of the
past – the common law being conceived as an accumulation of such wisdom – com-
bined with reverence for the higher courts as the ‘elders and betters’ of the lower courts.
Precedent reflected the vision of law as an undertaking based on learning, acquired skills
and experience. At the same time, since precedents exist in order to be applied, the
system essentially empowered the higher courts to legislate. Presented as a restraint,
precedent camouflaged law-making whilst in reality constituting law-making.’
Danny Nicol, Public Law 2006, Law and Politics after the Human Rights Act
However, practices are never unitary. They are animated by tensions that reflect disagree-
ments over the precise way in which the practice should be performed. A consensus shared
between practitioners over the techniques and performances that constitute a practice
reflects the stability of the practice as a whole. We will see that judicial interpretation is
a relatively stable practice. However, there have been important disputes over its precise
operation and in some important areas, notably human rights, debates are ongoing.
Note that a thorough study of the judicial practice of precedent would analyse the
interpretative techniques that determine the statements of ratio and obita dicta. It would
also have to concern itself with the techniques of over-ruling, distinguishing and following
previous decisions. The most thorough account of judicial practice would then have to go
on to study the education and training of judges, and their embedding within a particular
culture or cultures of legal behaviour.
What are the consequences of this argument? If practices are essentially ways of acting in
given circumstances, any general theory may be too distant from the practice to capture
how judges actually interpret cases. Judicial interpretation is always a matter of a specific
†
case and a singular set of facts. To understand why a judge in a particular case comes to English legal education does
a particular conclusion necessitates a study of a precise legal context. In other words, a not contain a formal training in
general account of precedent perhaps tells us more about the practice of academic writ- precedent. The study of precedent
ing than it does about the work of judges. It may be that the best way to understand the is restricted (for the most part)
practice of judicial interpretation is to abandon any general account, and to see how it to an element of a first year
proceeds in different doctrinal areas of law. This would indicate that the best way to under- introductory course of the LLB
stand the practice of precedent is to study cases within their specific contexts†. (and is absent from the CPE). To
understand the law is to read
Precedence and judicial creativity cases, and to engage in practical
However, given that we need a general account of precedent, we can suggest some over- arguments about them. Likewise,
arching concerns that structure judicial practice. The historical beginnings of the present professional training does not
doctrine of precedent obscure the extent to which judicial practice is creative. Judges consist of training courses on the
make law, as Lord Browne-Wilkinson said in Kleinwort Benson v Lincoln City Council [1998] 4 interpretation of cases. On the
All ER 513: whole this reflects the empirical
‘The theoretical position has been that judges do not make or change the law: they and practical culture of the
discover and declare the law which is thought the same. According to this theory, when common law- and the fact that
an earlier decision is overruled the law is not changed; its true nature is disclosed, having until relatively recently, legal
existed in that form all along…In truth judges make and change the law. The whole of the training was more akin to an
common law is judge made and only by judicial changes in the law is the common law apprenticeship than a course of
kept relevant in a changing world.’. university study. The law in general,
and precedent in particular, are
It was necessary to deny this fact in order to stress stability and certainty as the primary val-
thus essentially ways of ‘doing’
ues of the doctrine of interpretation. This was inexorably linked to the hierarchy of courts.
law that have never seen the
Stability and regularity in decision-making required each court to respect its place in the
usefulness of general or abstract
hierarchy that stretched from trial courts, through to the ultimate tribunal, the House of
accounts of their operation.
Lords. Deviations could not be tolerated. There was also a constitutional argument. Judges
could not trespass on the province of Parliamentary legislation, as constitutional doctrines
stressed the legal and political sovereignty of Parliament.
This position proved to be untenable, in part because it went against the older doctrine of
judicial competence over the common law. It also proved a difficult line to hold, because
the need to do justice could not so easily be removed from judicial practice in the name
of unqualified procedural regularity. The demands of justice disturbed both the settled
hierarchy and the sense of constitutional boundaries. Cases presented compelling argu-
ments for departure from the hierarchy of courts, and even for urgent changes in the law
to be made by the courts themselves. A central tension emerged between hierarchy and
flexibility in judicial practice. This can be understood as an issue of institutional legitimacy.
Judicial creativity raises the question of institutional legitimacy, because it puts at stake
the legitimacy of judicial law making. This, of course, raises the question of the relationship
of parliamentary and judicial legislation. The present constitution affirms the priority of
the former over the latter. However, given that judges do make law, the real question is
the extent to which this is legitimate – ‘just’ or acceptable within current understandings
of constitutional propriety. Judicial practice has responded to issues of institutional legiti-
macy by providing guidelines that define and regularize the practice, although a definitive
articulation of the relationship of the courts and Parliament has been avoided. We will see
that this debate now proceeds increasingly in human rights terms. It cannot be understood
in the terms of the conventional practice of precedent. Indeed, disagreements reflect the
transitional nature of the practice itself, although it would be too soon to say whether or
not we are witnessing a fundamental shift in judicial practice.
Our study of precedent will begin with an overview of the tension between hierarchy and
flexibility that underlies the broad issues of institutional legitimacy. We will then look
specifically at the relationship between the House of Lords and the Court of Appeal, and the
possible development of an alternative practice of judicial interpretation. The final sections
will engage specifically with the judicial law making and human rights. The chapter will
conclude with some final reflections on substantive justice and procedural legitimacy.
Hierarchy and flexibility

The practice of precedent works within the context of the court structure. Indeed, the
hierarchy of the courts provides the fundamental institutional structure. This can be seen
as having three distinct elements:
‘These are the respect paid to a single decision of a superior court, the fact that a decision
of such a court is a persuasive precedent even as far as the courts above that from which it
emanates are concerned, and the fact that a single decision is always a binding precedent
as regards courts below that from which it emanated.’ Cross and Harris, Precedent in English
Law, (Clarendon: Oxford, 1991), 3.
The hierarchy of the courts is based on the ‘respect’ given to the decisions of superior
courts. The ‘binding’ nature of precedent applies to the inferior courts. However, as the
persuasive nature of an inferior court on a superior court has not been a particularly con-
tentious issue, we will not consider it in this chapter. However, note that these distinctive
features of precedent are introduced as being an accurate description ‘[a]t present’ (5).
This is somewhat peculiar. It suggests that the doctrine itself is developing and changing
over time. Any global definition has to be sensitive to this particular problem; a problem
that corresponds with the idea that precedent is a practice, and that practices themselves
develop. The doctrine asserts that decisions of the House of Lords bind all the courts below
it in the hierarchy (this could be linked to the dominance of the declaratory theory of
common law interpretation). London Tramways v London City Council (1898) was central to
the foundation of what was to become the conventional form of the doctrine. In London
Tramways, The House of Lords decided that it was bound by its own previous decisions:
‘Of course, I do not deny that cases of individual hardship may arise, and there may be a
current of opinion in the profession that such and such a judgment was erroneous; but
what is that occasional interference with what is perhaps abstract justice, as compared
with the inconvenience…of having each question subject to being rearguarded and the
dealings of mankind rendered doubtful by reason of different decisions, so that in truth
there is no final court of appeal. My Lords, ‘interest rei publicae’ is that there should be ‘finis
litium’ sometime and there can be no finis litium if it were possible to suggest in each case
that it might be rearguarded because it is ‘not an ordinary case’ whatever than may mean.’
(London Tramways v London City Council [1898] AC 375).
Lord Halsbury acknowledges that cases of individual hardship may result from the House
of Lords being bound by its own decisions. However, the need for clear general principles
over-rides the hardship caused in individual instances. Does the need for general principles
also over-ride the requirement that the court make just judgments? Lord Halsbury rules
that justice is of little consequence in comparison with the need for finality in litigation. His
argument denies that there could be such a thing as an extraordinary case where justice
may demand a departure from general principles.
London Tramways is an important case because it lays down the parameters of the practice.
The preference is for a clear, unambiguous statement of the binding nature of precedent.
Very little allowance is made for a departure from the hierarchical ordering of the courts
(Rookes v Barnard [1964] AC 1129). The next significant moment in the development of
contemporary judicial practice is the Practice Statement of 1966. The Practice Statement
created principles that stress the need for the flexible development of the law:
‘Their Lordships regard the use of precedent as an indispensable foundation upon which
to decide what is the law and its application to individual cases. It provides at least some
certainty upon which individuals can rely in the conduct of their affairs, as well as a basis
for the development of legal rules’ (Practice Statement (Judicial Precedent) [1966]1 WLR
1234, at 1234).
What does this tell us about the re-shaping of the practice? Precedent is now described as
fulfilling a dual function: it has a doctrinal aspect – the development of legal rules, and a
social function as well. But note how this argument is different from that of Lord Halsbury:
‘Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to †
Some indications are given
injustice in a particular case and also unduly restrict the proper development of the law’ in Jones v Secretary of State for
(ibid, 1234). Social Services [1972] 1 AC 944.
The Practice Statement has reclaimed the concern for the individual case. It asserts that It is insufficient that the case
there is no point having general rules, if these lead to injustice in individual instances. What was wrongly decided. Lord Reid
is to be done? Their Lordships resolve to ‘modify’ the way they approach precedent: they refused to give precise criteria
will consider that they are normally bound by their previous decisions, but, in certain cases – arguing only that experience
they will depart from previous decisions when ‘it is right to do so’. (Later in this chapter, would prove to be a guide for
we will see that this claim coordinates with one about the need to do justice in individual discretion. He indicated that it
cases.) How are we to know when the time is right? Their Lordships will consider: would involve ‘broad issues’- of
both justice and legal principle
‘the danger of disturbing the basis on which contracts, settlements of property and fiscal
– and that in the instant case
arrangements have been entered into and also the especial need for certainty as to the
neither of these criteria were
criminal law.’ (ibid, 1234)
present. Lord Wilberforce argued
This gives some general guidelines as to how the judges will understand the institutional on slightly different grounds
legitimacy of their practice. The law would be illegitimate if it simply asserted the need that if an interpretation of a
for general rules, and ignored the fact that justice required general rules to be changed. statute had been given, then,
However, the law would also become illegitimate if it simply treated each case as excep- unless Parliament was to change
tional and failed to develop general rules. Law fulfils a social function: there is a social inter- that statute, the interpretation
est in settled general principles of law. If there is an implicit acknowledgement of judicial was to stand. Lord Pearson’s
law making in the Practice Statement, there is also an understanding that the power should argument stressed the idea of
be used sparingly and that stability would ultimately be preferred to creativity. ‘finality of decision’ supported
by arguments with which we
In the years after 1966, it indeed became clear that departing from precedent decisions
are already familiar. Of all the
would only take place in very rare circumstances†. We can develop this point by examining
judgments, Lord Simon’s is
some important decisions. In Miliangos v George Frank [1975] 3 WLR 758, the House of Lords
perhaps the most interesting,
departed from a previous decision, arguing that changing the law would enable the courts
because he provides a list of
to ‘keep step with commercial needs’ and, furthermore, would not lead to ‘practical and
reasons for not departing from
procedural difficulties.’ The following passage from Lord Wilberforce’s judgment is worth
the earlier case. Alongside
considering in detail:
reasons with which we are
‘The law on this topic is judge-made: it has been built up over the years from case to already familiar, he added a
case. It is entirely within this House’s duty, in the course of administering justice, to give consideration of the nature of
the law a new direction in a particular case where, on principle and in reason, it appears the parties and the litigation in
right to do so. I cannot accept the suggestion that because a rule is long established only issue – it was a revenue case with
legislation can change it - that may be so when the rule is so deeply entrenched that it has frequent litigants.
infected the whole legal system, or the choice of a new rule involves more far-reaching re-
search than courts can carry out…Indeed, from some experience in the matter, I am led to
doubt whether legislative reform, at least prompt and comprehensive reform, in this field
of foreign currency obligation, is practicable. Questions as to the recovery of debts or of
damages depend so much upon individual mixtures of facts and merits as to make them
more suitable for progressive solutions in the courts. I think that we have an opportunity
to reach such a solution here. I would accordingly depart from the Havana Railways case
and dismiss this appeal.’ (Ibid, at 470)
Lord Wilberforce argues that because the law in this area is judge-made, it is legitimate to
alter it provided that ‘on principle and in reason, it appears right to do so’. The sterling prin-
ciple for the award of damages had become anachronistic. The law of damages has to keep
pace with modern developments. There is thus a strong argument for change. However,
it is also important to note that the rule can be changed without upsetting other deep-
seated principles. Miliangos thus refers to a set of rules that may be of ancient providence,
but, because they are in an area of judge made law, it would not be necessary to defer to
Parliament. The particular mixture of ‘facts and merits’ makes this pre-eminently an area
for judicial law making. A close reading of the relevant cases might suggest the presence, or
variation, of some of Lord Wilberforce’s concerns in Jones. Lying behind Herrington v British
Railways Board [1972] AC 877 are arguments about social change. It is no longer acceptable
that a property owner should have limited responsibilities to trespassers, and the law
must be amended accordingly. However, in Knuller v DPP [1973] AC 435, the House of Lords
refused to over-rule Shaw v DPP [1962] AC 220. Does this suggest that there are slightly
different considerations in criminal law? In Shaw, the court made the claim that it had a
jurisdiction to try offences against good morals, even though Parliament had not legislated
to cover such behaviour, or the existing law was either ambiguous or silent. In Knuller, the
court refused to over-rule the earlier case, even though it was wrong. Does this suggest
that their Lordships are willing to go much further in the area of social control, than they
are in commercial law or tort?
Miliangos suggests that there are certain factors that legitimise judicial law making in civil
law. Are there similar considerations in criminal law? Given limitations of space, we will
look in detail at two important cases: Shivpuri and Howe. In R v Shivpuri [1986] 2 WLR 988.,
the House of Lords over-ruled itself. The case concerned the construction of S. 1 of the
Criminal Attempts Act 1981. In an earlier case, Anderton v Ryan [1985] AC 560,† the House †
The section provided that a
of Lords had argued that the section could be approached on the basis of a distinction person is guilty of an offence if
between acts that were ‘objectively innocent’, and those that were not so considered. s/he does an act which is ‘more
However, in Shivpuri, they were of the opinion that Anderton had been wrongly decided. than merely preparatory’. 1(2)
goes on to state that even if
Lord Bridge’s judgment in Shivpuri is worth looking at in detail, in particular his criticisms
‘the facts are such that the
of the notion of objective innocence. He argues that the concept is ‘incapable of sensible
commission of the offence is
application’ in criminal law. This is very emphatic language. The concept of objective in-
impossible’, a person may still
nocence makes little sense because it avoids the central concept of the actor’s intention.
be found guilty of an attempt to
This is the essential ingredient in the law of attempt. Thus, if a person attempts to buy
commit an offence.
drugs, but is sold a harmless substitute, the criminal law must approach the attempted of-
fence from the viewpoint of the actor’s criminal intention. It would be wrong to argue that
‘objectively’ the act is innocent because the drugs did not exist. Acts cannot be considered
‘independently’ of the state of mind of the actor†. Lord Bridge also stressed his own ‘convic- †
Ibid., at 22. An alternative ground
tion’ as a ‘party to the decision’ that Anderton was ‘wrong’ (ibid, 22). to justify the decision in Anderton
was to analyse attempts in
If Anderton was so clearly flawed, what course of action was open to the House of Lords? It
terms of the actor’s ‘dominant
was not possible to distinguish Anderton from Shivpuri. If their Lordships were bound by the
intention.’ However, this test also
unworkable test, the law of attempt would be based on flawed concepts. The only alterna-
runs into difficulties, because
tive would be to invoke the Practice Statement. Was this a justifiable course of action?
it is very difficult to distinguish
Departing from a precedent case would lead to uncertainty in the law. However, in Shivpuri
between dominant intention and
this was justifiable. As Anderton was a recent decision, settled law had not yet developed.
incidental beliefs; there are also
However, this is not the determining factor. The most pressing factor is the need to correct
problems in devising any way of
a ‘serious error’, ‘a distor(tion)’ in the law.
articulating a meaningful test
It might appear, then, that any understanding of the interpretation of Shivpuri is rooted in that would be helpful to a jury.
the context of the criminal law, and the serious error in which the House of Lords had fallen
into in Anderton. Can we observe a similar pattern if we turn our attention to a R v Howe?
In Lynch (DPP for Northern Ireland v Lynch [1975] 2 WLR 641), the House of Lords had held
that the defence of duress was available to someone who had been charged with aiding or
abetting murder†. In R v Howe [1987] 2 WLR 417, the House of Lords over-ruled this decision. †
Per Lord Bridge: in the law
As with Shivpuri, we encounter very strong language. Lord Bridge asserted ‘I can find noth- established by Lynch and Abbott,
ing whatever to be said for leaving the law as it presently stands’ (ibid. 12). He went on to duress is a complete defence to
argue that an ‘odd quirk of the system’ had allowed the decision in Lynch to stand, despite a murderer otherwise guilty as a
the fact that four out of the seven presiding law lords (in the appellate courts in Northern principal in the second degree;
Ireland and England) had rejected the reasoning in the case (ibid. at 436). it is no defence to a murderer
guilty as a principal in the first
Lord Hailsham argued that R v Howe afforded an ideal opportunity to re-consider the issue
degree.
from the standpoint of ‘authority’ (ibid., at 427). A review of the law of homicide stretch-
ing back to Hale and Blackstone showed that duress had never been available for murder.
It was possible to invoke the Practice Statement because Lynch could not ‘be justified on
authority.’ Furthermore, ‘judicial legislation [had] proved to be an excessive and perhaps
improvident use of the undoubted power of the courts to create new law by creating
precedents in individual cases.’ The improvident use of judicial legislation in Lynch was
also indicated by Parliament’s refusal to legislate on the issue. Lord Bridge pointed out
that Parliament had not acted on the Report of the Law Commission’s recommendation to
allow a defence of duress (ibid. at 437). Parliament’s refusal to legislate suggests that the
judges should not have taken upon themselves the reform of the law.
Lynch was fundamentally wrong in principle. Lord Hailsham justified this criticism by
referring to ‘the overriding objects of the criminal law’ to set ‘standards of conduct’ that
are clear in specifying how people are to ‘avoid criminal responsibility’ (ibid.). This means
that the duress defence must not blur the offence of murder. The law must be based on the
principle that it is never justifiable to commit murder, even to save one’s own life. Does this
mean, though, that as other offences allow a duress defence, the criminal law is inconsist-
ent? This criticism is met with an argument from principle: ‘[c]onsistency and logic ….are
not always prime characteristics of a penal code based like the common law on custom
and precedent’ (ibid, 423). Indeed, if law is an art, rather than ‘an exact science’, a pragmatic
response to problems is more important than a consistent development of abstract princi-
ples (ibid. 434).
What, then, can Howe and Shivpuri tell us about the practice of precedent within criminal
law? The law lords in both cases approach the law from the perspective that there have
to be very compelling arguments for change. The House of Lords will over-rule itself when
it has fallen into serious error, and when the circumstances of the case are such that it is
practical to over-rule an earlier decision. These narrow guidelines preserve the legitimacy
of judicial law making. The House of Lords is ensuring the consistent development of prin-
ciples. Criminal law is legitimised as the courts dispel the errors into which they have fallen.
It is not necessary to depart from the hierarchical organisation of the courts to achieve
this end. However, in turning to the question of the Court of Appeal’s jurisdiction, we now
have to grapple with this very problem. How does this raise the problem of institutional
legitimacy in a slightly different context?
2 The House of Lords and the Court of Appeal: precedent and justice
Perhaps one of the most fraught questions in the area of precedent relates to the right of
the Court of Appeal to depart from a judgment of the House of Lords. This is linked to the
question of whether the Court of Appeal was bound to follow its own decisions.
Tensions between the Court of Appeal and the House of Lords had developed in Schorsch
Meier. The Court of Appeal had argued that circumstances had changed so much since the
House of Lords ruling in Havana Railways (in Re United Railways Of Havana [1961] AC 1007)
that ‘the sterling judgment rule’ principle should no longer apply. Denning MR stated that
the underlying reason for damages being given in sterling was essentially ‘practical’.† He †
It was outside the competence of
went on to invoke the principle cessante ratione legis cessat ipsa lex (Schorsch Meier v Henin the court to determine the value
[1975] QB 416., at 425.) or – as he pithily put it: ‘[s]eeing that the reasons no longer exist, we of a currency other than sterling;
are at liberty to discard the rule itself.’ Lord Denning justified this principle by arguing that besides, it was ‘appropriate
it would be wrong to abrogate substantive rights by reference to procedural concerns. to trading conditions’ in a
However, it would appear that there are at least two factors that justify the use of the prin- time before instantaneous
ciple. In a prior case, Jugoslavenska Oceanska Plovidba v Castle Investment Co. Inc. [1974] QB communications (ibid).
292, the court had allowed arbitrators to make awards in foreign currency. Denning MR also
made reference to this principle in the Court of Appeal’s hearing of Miliangos. Furthermore,
in Schorsch Meier v Henin, Denning pointed out (and Lawton LJ agreed) that Article 106 of
the Treaty of Rome required that judgment should be given in the currency of the member
state in which the creditor resided.
This suggests the development of an alternative practice of interpretation that departs

from the conventional understanding of the doctrine of the hierarchy of the courts. See
also Broome v Cassell [1972] AC 1027. The Court of Appeal had attempted to show that the
House of Lords had acted per incuriam, or incorrectly, in the case Rookes v Barnard [1964] AC
1129. The case concerned the issue of damages. Lord Hailsham articulated the conventional
position clearly:
‘In the hierarchical system of courts which exist in this country, it is necessary for each
lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.’
Lord Hailsham’s words return to the notion that far worse than individual injustice is the
compromise of general principles. The response of the House of Lords to the Court of
Appeal in Schorsch Meier came in Miliangos. Lord Simon, with the explicit agreement of Lord
Wilberforce, rejected Lord Denning’s use of the cessante ratione cesset ipsa lex principle. The
wide meaning of the principle would mean that any court could ‘disclaim any authority
of any higher court on the ground that the reason which had led to such higher court’s
formulation of the rule of law was no longer relevant.’ Application of the principle would
mean that the court could even overrule Acts of Parliament, if it judged that the reasons for
the rule no longer applied; as such the rule has ‘no place in our own modern constitution’.
This reassertion of the conventional understanding of the practice did not prevent another
deviation arising on a later occasion. However, the matter now concerned the question of
whether the Court of Appeal could depart from its own previous decisions. The conven-
tional position, as stated in Young v Bristol Aeroplane Co. asserted that even if the Court of
Appeal regretted a previous decision, it was obliged to follow it and recommend an appeal
to the House of Lords.† As the Court of Appeal was created by statute, it had to adhere to its †
Young v Bristol Aeroplane Co.,
statutory powers, and could not exceed its limited role. Lord Greene concludes: [1944] K.B. 718, at 725. This would
‘On a careful examination of the whole matter we have come to the clear conclusion also apply whether the Court of
that this court is bound to follow previous decisions of its own as well as those of courts Appeal was sitting as a ‘full court’
of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) or as a division with only three
are those already mentioned which for convenience we here summarise: (1) The court is members present.
entitled and bound to decide which of two conflicting decisions of its own it will follow.
(2) The court is bound to refuse to follow a decision of its own which, though not expressly
overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court
is not bound to follow a decision of its own if it is satisfied that the decision was given per
incuriam.’
Lord Denning attempted to avoid this rule in Davis v Johnson [1974] AC 264. In Davis v
Johnson, the Court of Appeal considered the case of a victim of domestic violence. Ms Davis
had unsuccessfully asked the court for an order to compel her abusive partner to leave
the flat that they had been sharing. To allow her appeal, the Court of Appeal would need
to depart from previous decisions where injunctions had not been awarded in similar
situations.† Lord Denning made a strong argument from principle. †
In B v B [1978] 1 All ER 821 and
Cantliff v Jenkins [1978] 2 WLR,
He began by admitting that, in normal cases, the Court of Appeal was bound by its own
it was held that the county
previous decisions. He went on to criticise the consequences of this argument. It may be
court did not in fact have the
that an appeal is never made to the House of Lords, or that there is a long delay before
power that it claimed under
the House of Lords has an opportunity to over turn an incorrect decision. (The example is
the Act. The task of the court in
the 60 year period before the wrong decision in Carlisle and Cumberland Banking Co. Ltd.
Davis v Johnson is to ‘review’ the
v Bragg [1911] 1 KB 489 was corrected in Gallie v Lee [1971] AC 1004.) It may also be that an
decisions – and if they are wrong,
individual lacks the financial means to bring the appeal to the House of Lords. This problem
to articulate correct principles.
is compounded by the fact that wealthy litigants can ‘pay off’ appellants, and so perpetuate
Clearly, against this position is
a decision erroneous in law. Moreover, in the present case, the delay that an appeal would
the conventional argument that
cause would add to Ms Davis’ hardship. She was resident in a battered women’s refuge in
the Court of Appeal is bound to
‘appallingly’ overcrowded conditions:
follow its own previous cases
‘In order to avoid all the delay – and the injustice consequent upon it – it seems to me that in the area, and if the law is
this court, being convinced that the two previous decisions were wrong, should have the incorrect, it must be altered by
power to correct them and give these women the protection which Parliament intended an appeal to the House of Lords.
they should have’.
There is a compelling case for the avoidance of delay. However, what are the consequences
of allowing the Court of Appeal to overrule itself? Would the lower courts be left in confu-
sion? For instance, a judge in a county court would not know which Court of Appeal case
stated the correct law. Lord Denning argues that the lower court would simply follow the
later decision, based on the principle that as long as the later case contains a ‘full consid-
eration’ of the earlier cases, it was the preferable authority (Minister of Pensions v Higham
[1948] 2 KB 153, 155).
This is a good illustration of the conflict between general procedural principles and indi-
vidual injustice. But, how, as a question of law, would it be possible to get around Bristol
Aeroplane Co.? Lord Denning showed that Bristol Aeroplane Co. was not an accurate state-
ment of the law. This argument returns to roots of the jurisdiction of the Court of Appeal.
When the Court was set up in 1873, it was the final appellate court, as the jurisdiction of the
House of Lords was not established until 1875. The Court ‘inherited’ the jurisdiction of the
Exchequer Chamber and the Court of Appeal in Chancery. As these courts were always con-
sidered to have the power to review their own decisions, it would be fair to assume that
the new court had inherited this jurisdiction. The argument also returns to Hutton v Bright
(1852) 3 HL Cas 341, which held that ‘every court of justice [,] possesses an inherent power to
correct an error in which it had fallen.’ What conclusion can be drawn from this argument?
As Lord Denning succinctly puts it, Young v Bristol Aeroplane Co ‘overruled the practice of a
century.’ The Court of Appeal is not, as a matter of law, bound to follow its previous deci-
sions. It does so as a ‘matter of judicial comity.’ Arguing that the 1966 Practice Statement
effectively overturns the London Tramways case, Lord Denning concludes:
‘a rule as to precedent (which any court lays down for itself) is not a rule of law at all. It is
simply a practice or usage laid down by the court itself for its own guidance: and, as such,
the successors of that court can alter that practice or amend it or set up other guide lines,
just as the House of Lords did in 1966.’ (ibid. at 197)
We are compelled to the conclusion that the Court of Appeal can follow the 1966 Practice
Statement and depart from its own decisions if it considers them wrongly decided.
These arguments were not ultimately successful. The conventional form of the doctrine
was re-asserted by the House of Lords.† The court considered the alternative approach to †
The House of Lords rejected the
the problem articulated by Sir George Barker P and Shaw LJ in the Court of Appeal. The lat- argument that the CA could
ter had argued that ‘stare decisis should be relaxed’ only when applying a precedent would depart from its own decisions if
mean that ‘actual and potential victims of violence’ would be deprived of the protection it considered itself to be in error,
afforded them by an Act of Parliament. It was stressed that this situation would be very and affirmed the doctrine with
rare. However, Lord Diplock preferred that the House of Lords should ‘re-affirm expressly, which we are familiar. The CA
unequivocally and unanimously’ the rule in Bristol Aeroplane Co. (ibid. at 328). is bound by its own decisions,
except in the exceptions laid
Viscount Dilhorne elaborated this argument. It had to be the case that the 1966 Practice
down in Bristol Aeroplane Co.
Statement applied only to the House of Lords. If it did not, any court could argue that it
was not bound by its previous decisions. Lord Denning’s argument ignored ‘the unique
character of the House of Lords sitting judicially’ (ibid. 336) As the Practice Statement was
based on this feature of the House of Lords, it could not be extended to another court.
Lord Salmon and Lord Diplock elaborated this point by citing the concluding words of
the 1966 Statement: ‘This announcement is not intended to affect the use of precedent
elsewhere than in this House’.(ibid. 344) Furthermore, the fact that there are up to 17 Lord
Justice in the Court of Appeal meant that, if Lord Denning’s arguments were followed to
their conclusion, there was the risk that there would be a ‘plethora of conflicting decisions’
which would lead to great confusion in the law. Lord Salmon’s argument goes some way
to countering some of Lord Denning’s points about the denial of justice, by proposing that
the Court of Appeal could be granted a power to grant, when circumstance dictated, the
payment of costs out of public funds.
Davis v Johnson is a unique case. Although Lord Denning’s arguments make a compelling case
for the Court of Appeal to respond to the demand for justice, the House of Lords effectively
asserted that there were no exceptions to the priority of general procedural rules. The case
shows judicial law making at its most dramatic. Perhaps this is precisely the problem. Lord
Denning has an eccentric appreciation of the boundaries of institutional legitimacy. He raises
the protection of substantive rights over the general understanding of the limits of judicial
creativity. For the purposes of our argument, we need to locate a more modest understanding
of the legitimate parameters of judicial legislation. However, as we will see towards the end of
the chapter, substantive issues of justice cannot be entirely expelled from judicial practice.
3 Judicial Law Making

Determining the boundaries of judicial law making is partly a doctrinal and partly a
constitutional question. If we require some broad guidelines, a useful place to start is Lord
Scarman’s speech in McLoughlin Appellant v O’Brian [1983] 1 AC. 410. The appeal in this case
raised the very question of the relationship between the legislature and the judiciary. Lord
Scarman argued that the judge had a jurisdiction over a common law that ‘knows no gaps’
and no ‘casus omissus’. If this is the case, the task of the common law judge is to adapt the
principles of the law to allow a decision to be made on the facts in hand. This may involve
the creation of new law. Whatever the case, judicial reasoning begins from ‘a baseline of
existing principle’. The judge works towards a solution that can be seen as an extension
of principle by process of analogy. For Lord Scarman, this is the ‘distinguishing feature of
the common law’: the judicial creation of new law, as the justice of the case demands. This
process may involve policy considerations, but, the judge can legitimately involve him/
herself in this activity, provided that the primary outcome is the formation of new legal
principles. In those cases where the formation of principle involves too great an intrusion
into the field of policy, the judge must defer to Parliament:
‘Here lies the true role of the two law-making institutions in our constitution. By concen-
trating on principle the judges can keep the common law alive, flexible and consistent,
and can keep the legal system clear of policy problems which neither they, nor the foren-
sic process which it is their duty to operate, are equipped to resolve. If principle leads to
results which are thought to be socially unacceptable, Parliament can legislate to draw a
line or map out a new path’ (ibid at 430).
This argument demarcates quite clearly the role of judge and Parliament. Judicial interpre-
tation keeps the common law ‘flexible’ and responsive to change, and defers to Parliament
on those issues with which the courts are not well equipped to deal. Parliament also acts as
a final adjudicator. If the courts make mistakes, they can be corrected by legislation. Whilst
this argument is compelling, it is hard to see precisely where the dividing line lies between
principle and policy. We will examine this issue below, but it is perhaps worth bearing in
mind that where this line falls is a rather complex issue that cannot be precisely deter-
mined by some general theory. Before we examine this issue, however, it is worth looking
at another aspect of Lord Scarman’s argument:
‘The real risk to the common law is not its movement to cover new situations and new
knowledge but lest it should stand still, halted by a conservative judicial approach. If that
should happen, and since the 1966 practice direction of the House it has become less likely,
there would be a danger of the law becoming irrelevant to the consideration, and inept in
its treatment, of modern social problems. Justice would be defeated. The common law has,
however, avoided this catastrophe by the flexibility given it by generations of judges’ (ibid).
This is the second reference to justice in this passage – and it might suggest that Lord
Scarman’s account of judicial creativity is indeed underpinned by such a concept. It is a
description of the common law judge as the guardian of the conscience of the common
law. The judge is charged with the development of the law in such a way that its principles
remain coherent as it develops and adapts itself to changing social conditions. Thus the
flexibility of the common law is an element of what makes it just.
However, things are somewhat more complicated. Flexibility is inseparable from the ‘risk’
of ‘uncertainty in the law’. This risk varies with the context of the legal problem under
consideration. In other words, problems of uncertainty take a different form in areas of
‘commercial transaction’ and ‘tortious liability for personal injuries.’ Returning to the issue
of justice, Lord Scarman argues that justice can demand a degree of loss of certainty in the
law (‘the search for certainty can obstruct the law’s pursuit of justice, and can become the
enemy of the good.’). In the area of damages for nervous shock, certainty could have been
achieved by leaving the law as it stood as stated by authorities in the early 1900s (Victorian
Railways Commissioners v Coultas, 13 App.Cas. 222, Dulieu v White & Sons [1901] 2 KB 669 or
in 1970 (Hinz v Berry [1970] 2 QB 40). However, the law has had to respond to advances in
‘medical science’ and technology, and adapt the relevant test for foreseeability. The extent
of these developments means that the problem has now become one for Parliament.
Arguments of principle have become over-determined by arguments of policy. We could
say, then, that one important element of this theory of interpretative justice is that the
judge should know when it is necessary for Parliament to intervene.
What do we make of Lord Scarman’s presentation of the role of the judge? It would be too
bold to argue that all judicial accounts of their task make use of a theory of interpretative
justice. However, in looking at some other important cases in which the role of judicial law
making has been considered, we can pick up and develop the concern with judicial devel-
opment of the common law. We will examine a sample of cases from different areas of law.
Regina v R [1991] 3 WLR 767 is perhaps one of the best examples of judicial creativity. The
House of Lords determined that a husband could be held guilty of raping his wife. This
involved a particularly bold interpretation of the Sexual Offences (Amendment) Act 1976,
which would otherwise seem to perpetuate the husband’s exemption to a charge of
rape. Indeed, Lord Lane asserted that this was precisely the conclusion to which a literal
interpretation of the Act would come. He proposed a ‘radical’ solution (ibid., at 609). It was
necessary to:
‘disregard the statutory provisions of the Act of 1976 and [thus]… it is said that it goes
beyond the legitimate bounds of judge-made law and trespasses on the province of
Parliament. In other words the abolition of a rule of such long standing, despite its emas-
culation by later decisions, is a task for the legislature and not the courts. There are social
considerations to be taken into account, the privacy of marriage to be preserved and
questions of potential reconciliation to be weighed which make it an inappropriate area
for judicial intervention.’ (ibid.)
Lord Lane’s interpretation of the Act is creative enough to amount to judicial legislation.
However, against these ‘formidable objections’ is the authority of the judge to update the
common law to ‘changing social attitudes’. Furthermore, the powerful authority S v HM
Advocate [1989] LT 469 would appear to be on Lord Lane’s side. In the wake of this case,
the exception is revealed as ‘a fiction’—and ‘fiction is a poor basis for the criminal law’. The
conclusion of the argument is compelling:
‘It seems to us that where the common law rule no longer even remotely represents what
is the true position of a wife in present day society, the duty of the court is to take steps
to alter the rule if it can legitimately do so in the light of any relevant Parliamentary enact-
ment.’ (ibid. 610)
The legitimacy of the court’s action is further justified by the fact that it is not creating a
new criminal offence, but removing from the ‘common law an anachronism that is ‘offen-
sive’ to contemporary social attitudes and standards of behaviour.
R v Clegg [1995] 2 All E.R. 43 suggests the kind of situation in which a judge will not legislate.
The House of Lords held that on a charge of murder, there was no distinction between the
use of excessive force in self defence, and the use of force in crime prevention. Most impor-
tantly for our purposes, though, the House of Lords refused to change the law in relation
to the reduction of murder to manslaughter, stating that it was a matter for Parliamentary
legislation.
Why, in this instance, did their lordships refuse to alter the law? Lord Lloyd’s speech is
instructive. Interestingly, he refers back to Lynch as encouraging judicial legislation. In par-
ticular he refers to Lord Wilberforce’s argument (ibid. 684-685) that asserts that in ‘the do-
main of the common law’ judges have the power and authority to interpret legal principles
in the light of the facts that are presented to them. There are of course problems with this
position. As we know, Lynch was over-ruled in Howe. There are also important distinctions
between the contexts of Lynch and Clegg. Although the defences of duress, self defence
and the use of force in the prevention of crime were created by judges, the essential dif-
ference is that in the latter case, Parliament had passed the 1967 Act which did not create
a defence that related to the excessive use of force. This would make the present case very
different from Lynch, precisely because one of the most compelling reasons for overruling
this case was the fact that Parliament had not legislated. Lord Simon’s speech from Lynch
thus becomes relevant. Although Lord Simon acknowledges that judges do make law, they
have to refrain from so doing when policy matters are involved. Picking up on Lord Simon’s
principle, Lord Lloyd argues that in distinction to Reg v R [1992] 1 AC 599, where the House of
Lords did change the common law without waiting for Parliament to legislate, the present
issue is indeed one for the legislature.
A variation on this theme can be found in C v DPP [1995] 2 WLR 383. The case concerned
the concept of doli incapax, or the presumption that a child between 10 and 14 was
incapable of committing a crime. The House of Lords refused to abolish the rule, arguing
that although it was not consistently applied, it was necessary for Parliament to legislate.
A number of Acts showed a definite legislative position on the presumption of doli incapax.
Legislation stressed that it was still necessary for the prosecution to show that the child
knew that what s/he was doing was ‘seriously wrong’ (White Paper entitled Crime, Justice
and Protecting the Public (1990) cited by Lord Lowry, 26). Although this policy had met with
objections and criticism, this was not enough to justify judicial legislation. Again, though,
this begs the question of where the line between judicial intervention, and the correct
province of Parliament lies. Lord Lowry is careful to point out that this is indeed a difficult
line to draw. He draws support for the refusal to overturn the presumption from R v Kearley
[1992] 2 AC 228, where the House of Lords refused to alter the hearsay rule. This allows
certain guidelines to be posited:
‘(1) If the solution is doubtful, the judges should beware of imposing their own remedy.
(2) Caution should prevail if Parliament has rejected opportunities of clearing up a known
difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of
social policy are less suitable areas for judicial intervention than purely legal problems. (4)
Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a
change unless they can achieve finality and certainty.’
It is hard to know what the status of these guidelines is. Although C v DPP has been an
influential decision in the area of criminal responsibility, Lord Lowry’s thoughts on judicial
activism do not appear to have been cited. However, these principles go some way to
articulating the areas where judges can safely legislate. The grounding idea appears to
be in deference to Parliament when the ‘solution is doubtful’ – or Parliament has already
considered the issue and refused to legislate. There is also a presumption against changing
the law; and change should only come when it brings with it ‘finality and certainty’. Lord
Lowry’s guidelines are congruent with those of Lord Lloyd in Clegg.
In case it seems like all the examples that we have chosen come from criminal law, we
will turn our attention to Airedale NHS v Bland [1993] 1 All ER 821 – a case that raised difficult
moral, ethical and legal issues about the role to be played by medicine in keeping alive
someone in a persistent vegetative state (PVS). On the facts of this case, the court had to
determine whether or not the patient’s treatment could be continued. Medical opinion
was unanimous that there was no hope of recovery. The court held that there could be no
further benefit to the patient of continuing medical treatment; and medical staff were no
longer under a duty to continue the treatment that sustained the patient’s life. For Lord
Browne-Wilkinson, the case presented the opportunity to consider the correct role of the
courts in such a fraught area. Precisely because there was no consensus in society about
the correct values that should inform this area of medical ethics, it was not fitting for the
judges to ‘develop new, all embracing, principles of law’ that only reflect ‘the individual
judges’ moral stance.’ A judge thus had to work with the ‘existing law’. Although this is in
itself ‘unsatisfactory’ – a judge was unsuited to consider the wider issues that were attend-
ant on the decision in this given case. Given these circumstances, Lord Browne-Wilkinson
considered that it was ‘imperative that the moral, social and legal issues raised by this case
should be considered by Parliament’. It was up to Parliament, and the ‘democratic process’
to give voice to principles that reflected a consensus.
These cases show that the perceptions of the legitimate boundaries of judicial law making
are difficult to draw precisely. The closest that we come to a definitive statement, Lord
Lowry’s guidelines, suggest some of the factors that a judge would take into account.
However, the precise dynamics of how these factors are weighed, or, indeed, the extent
to which other factors may be influential, is impossible to determine in abstraction. That
common law interpretation proceeds for the most part without such guidelines being
absolutely explicit, suggests that they may be embedded within judicial culture in such
ways that they remain obscure to observers and commentators. A general statement
about institutional legitimacy may allow us to glimpse the contours of the practice, but
it will never allow us to get ‘inside’ its operation. We are able, however, to further explore
the way in which the practice is transforming itself, and the parameters of institutional
legitimacy are being renegotiated.
4 Judicial Law Making and Human Rights

The issue of judicial law making is now thoroughly bound up with the issue of human
rights. The Human Rights Act 1998 has effectively brought to judicial practice new princi-
ples that are having a significant impact on its form. Whether or not we are looking at a
moment as definitional as London Tramways is hard to say. Perhaps the most accurate de-
scription of the impact of The Human Rights Act is to suggest that it is transforming judicial
practices within the terms of the constitution. We will see that, whilst judges are still work-
ing within the broad terms of the doctrine of precedent, in certain areas, the courts have
seized the chance to create new law and to re-shape their relationship with Parliament.
Kay and others v Lambeth London Borough Council [2006] UKHL 10 concerned Article 8 of the
Convention and the extent to which it could be used to defeat a local authority’s right to
possession of property. The House of Lords held that as the defendants in the case had no
rights under domestic law, they could not make a claim against the local authority under
Article 8. The House of Lords ruled that whilst domestic courts were not bound to follow
the decisions of the ECHR, they did have to give cognisance to European jurisprudence
in their decisions. However, this principle was itself subordinate to the fundamental
adherence to the doctrine of precedent. It would only be in extreme cases that the Court
of Appeal could overrule a decision of the House of Lords. Lord Bingham offered some
guidelines that would help the court to consider when it could depart from the House of
Lords, and follow a case of the ECHR. The Strasbourg case would have to have been decided
after the domestic case; the case would have to put forward a clear interpretation of both
Convention law and UK law; there is an incompatibility between domestic and Convention
law and the domestic law was not based on an Act of Parliament. In these instances, the
correct course of action would be to look to 6(2) of the HRA (ibid. 496).
What do we make of these principles? The guiding concern of the House of Lords is to es-
tablish a constructive dialogue between the domestic courts and Strasbourg. This concern
is clearly based on fundamental principles of precedent and the relationship between the
executive and the judiciary. Lord Bingham’s guidelines suggest that the instances when the
Court of Appeal could depart from a precedent of the House of Lords are thus rare, applying
only in very limited circumstances. In other words, a ‘mere tension or possible inconsisten-
cy’ (ibid.) would not justify the overturning of a precedent. Lord Bingham’s guidelines are
also pragmatic. The lower courts, and even different Law Lords within the appellate courts,
had taken different views on the compatibility issue. The law would be left in a chaotic
state if differences of opinion in the lower courts justified departure from the established
rules of precedent. It is interesting that this argument is very similar to one that the House
of Lords deployed in Davis v Johnson. Kay can thus be read as the re-assertion of the conven-
tional doctrine of precedent in the wake of the Human Rights Act, in the same way that the
House of Lords in Davis reasserted conventional doctrine against Lord Denning’s creative
heresies. However, the way forward proposed by Lord Bingham is also consistent with the
wider Strasbourg jurisprudence, which allows a ‘margin of appreciation’ to national courts
in interpreting Convention Rights. This places the primary responsibility on domestic
courts as the correct forums for the determination of how European Human Rights law is to
apply in a domestic context.
How do Lord Bingham’s guidelines relate to the Court of Appeals decision in D v East
Berkshire Community NHS Trust [2004] QB 558? In this case, it was held that a House of Lords
decision, X (Minors) v Bedfordshire County Council [1995] 2 AC 633, was inconsistent with
the HRA. The House of Lords agreed with the argument of the Court of Appeal, accepting
that the justification for the ruling in the case could no longer stand (see [2005] 2 AC 373).
However, there were other important factors. X had been decided before the HRA, the case
had made no reference to the Convention and the plaintiffs in the case later were success-
ful in pleading a breach of Article 3 in the ECHR. This combination of factors allows Lord
Bingham to present this case as exceptional, and thus entirely coherent with his guidelines.
These issues can be further explored if we turn to the series of cases that considered
mandatory life sentences. These cases show how the appellate courts are defining their
relationship to Parliament after the Human Rights Act (see, in particular Re S [2002] 2 WLR
720). Unless one remembers the political context of these cases, this issue can seem rather
abstract. The Crime (Sentences Act) 1997 was passed by Michael Howard, the Conservative
Home Secretary. S 2 of the Act required judges to pass mandatory life sentences when a
person convicted of a serious offence had a previous conviction for a similar offence. The
judges considered this to be an unjustifiable intervention into an area of judicial compe-

tence by the executive. One might expect, therefore, that the Human Rights Act would be
seized upon as a way of re-dressing the balance. In R v Offen and others [2001] 1 WLR 253,
the Court of Appeal could have issued a declaration of incompatibility, however, it chose
to employ a less confrontational approach. It used its discretion to limit the reach of the
provisions of s2 of the 1997 Act. Lord Woolf argued that s2 would be Convention compliant
if the courts interpreted it in such a way that people convicted of a second serious offence
would not receive an automatic life sentence if they did not present a ‘a significant risk to
the public.’ Assessing whether or not there was a significant risk fell to the courts and had
to be considered on the facts of each case (ibid., 277).
Other cases show the courts taking a far more creative approach to human rights.† †
Wadham et al. The Human Rights
Act 1998. (Oxford: Blackstone
Douglas v Hello [2001] QB 967 is a good example. The court showed that it was willing to
Press, 2003) has argued that the
protect the privacy of celebrities against journalists using particularly intrusive methods
courts have a duty to develop
of photography. We will consider Sedley L.J.’s argument that the courts should recognise
the common law in line with
a right of privacy. Sedley L.J. begins by pointing out that the common law and equity have
Convention rights by virtue of 6(3).
developed slowly and ‘by uneven degrees’; moreover, they have tended to be ‘reactive’.
Arguably, the time has come for the articulation of ‘discrete principles of law’ that relate to
the protection of privacy. Why is this?
‘The reasons are twofold. First, equity and the common law are today in a position to
respond to an increasingly invasive social environment by affirming that everybody has
a right to some private space. Secondly, and in any event, the Human Rights Act 1998
requires the courts of this country to give appropriate effect to the right to respect for
private and family life set out in Article 8 of the European Convention on Human Rights
and Fundamental Freedoms.’ (ibid. 997)
So, in Douglas, the court felt that it was now necessary to develop a ‘positive institutional
obligation to respect privacy’. Clearly, this is a bold decision, and the courts had been
struggling with the issue of privacy for a long time prior to this case. What Douglas does not
suggest is that, in all areas of law, the courts will take upon themselves the obligation to ex-
tend both the common law and the range of the HRA to cover private parties. Nevertheless,
Douglas does suggest that the courts will take seriously the need, in certain situations, to
make sure that a limited definition of public authority does not lead to rights abuses. Some
have even suggested that the impact of Douglas will lead to the development of a new tort
of invasion of privacy.
Conclusion
It would be hard to think about the impact of human rights on judicial practice in the terms
of the hierarchy of courts, and the old debates centring on Schorsh Mier and Davis v Johnson.
Whilst Kay shows that the courts are not suddenly going to depart from the hierarchic
structure of the common law, human rights law has, in certain areas, been the spur to the
creation of new law. It would be presumptuous to see this as a constitutional revolution.
After the Human Rights Act, judges are doing precisely what they did before the Act came
into force: making law. It may be that the mechanisms of the Human Rights Act lead to a re-
working of judicial practice, subtly shifting the sense of where the legitimate boundaries of
judicial legislation lie. Ultimately, this is what makes it difficult to offer any final conclusion.
Practices take time to develop, and time to shift the terms in which they are performed.
It will be interesting to see the precise form that the judicial practice of precedent will as-
sume – and the tensions between flexibility and hierarchy balanced out.
7 ‘The Judicial Practice of Statutory Interpretation’

Adam Gearey

personal use.
This reading was written for the Common law reasoning Except as provided by copyright law, no further copy-
and institutions study pack by Adam Gearey. Copyright ing, storage or distribution (including by email) is
© 2007 University of London. All rights reserved. permitted without the consent of the copyright holder.
Programme, 2007.
Diploma).
The Judicial Practice of Statutory Interpretation
1 Statutory interpretation and institutional legitimacy

Statutory interpretation has very little to do with the rules of interpretation. Whether or
not these rules accurately reflect the approach of the courts in the past, they are largely
irrelevant to the contemporary practice. At best, the priority of the literal rule stresses
the general problematic: interpretation needs to be kept within certain constitutional
constraints. In Duport Steels Ltd v Sirs [1980] 1 WLR 142, Lord Scarman stressed: ‘In the field
of statute law the judge must be obedient to the will of Parliament as expressed in the
enactments. In this field Parliament makes and unmakes the law, the judge’s duty is to
interpret and to apply the law, not to change it to meet the judge’s idea of what justice
requires. Interpretation does, of course, imply in the interpreter a power of choice where
differing constructions are possible. But our law requires the judge to choose the construc-
tion which in his judgment best meets the legislative purpose of the enactment.’ (169).
The main question in this chapter is thus a variation on one of the key points of the previous
chapter: given that interpretation is law making, what are the acceptable constraints of
judicial legislation? It is, of course, the question of institutional legitimacy. Of course, the ma-
jority of cases do not raise this problem of where the boundaries of interpretation lie. If the
language of a statute is clear, then interpretation is presumably entirely secondary to the ap-
plication of the statute to the facts. We are thus concerned with those instances where statu-
tory language is ambiguous, or capable of carrying different meanings; or, where the law
places on judges a particular set of interpretative demands stemming either from European
law, or the interpretative provisions of the Human Rights Act. The choice of one meaning
rather than another may amount to law making. As the courts cannot be seen to overstep
the boundaries in their legislative role, and intrude upon the province of Parliament, the real
issue in terms of the constitution of the practice is where this boundary lies.
†
In elaborating this issue, we need to remind ourselves of some important arguments from We also need to be careful with
the previous chapter. One should be careful when discussing rules of statutory inter- the argument that community or
pretation not to impose too great a degree of rigidity or a level of generality that fails to civilian manners of interpretation
reflect what the judges are actually doing when they interpret statute. There are a couple should be adopted, or are being
of points to bear in mind. Any discussion of these ‘techniques’ as ‘rules’ is problematic. adopted, by English judges. The
Not least because we will be concerned with a practice as a rule in a non-legal sense: a problem is in part definitional.
rule as a guide to action. Future references of the rules of statutory interpretation will be It is not entirely clear what is
understood as referring to the techniques that compose judicial practice. There is a second meant by continental ways
problem. Statements of practice in one case may or may not be understandable as general of interpretations, other than
theories of interpretation. Judges tend not to give methodological statements that reflect stating that they are purposive.
in a general sense on what they are doing. This begs another question: if judges practice As the mischief rule is purposive,
statutory interpretation without a textbook, then why do textbooks have chapters on English judges have always
statutory interpretation? had recourse to purposive
interpretation; Re Marr would
We have to understand that our task in this chapter is to engage with a number of key
also suggest that the judges
cases, to try and determine how different judges in different areas of law deploy the tech-
themselves do not necessarily
niques of interpretation. It is only at this level that anything useful or relevant can be said
see purposive interpretation as
about statutory interpretation.
European. It is more a question
It is worth considering another point that will run through this chapter. If we were trying of preserving the idea that the
to describe contemporary judicial practice, then we would have to take into account court defers to parliament.
European ‘purposive’ methods of interpretation. The conventional rules of interpreta- In European law, purposive
tion have the virtue of reminding us that – at least in a historical perspective – purposive interpretation may be legitimate,
interpretation was always part of the common law. (The literal rule reflects the relatively but there is the risk that if
recent dominance of Parliament over the courts.) Indeed, Twining has argued that pur- followed too far, it would involve
posive interpretation by British judges is justified not by references to European law, but the courts in making, rather than
to common sense. (William Twining, How to Do Things with Rules (London: Weidenfeld and interpreting, the law. Besides, as
Nicolson, 1992), p.368).† Twining writes: ‘the pragmatism
of English judges makes
Twining argues that interpretation of statutes can be analysed as falling into two stages.
discussion of the proposition
The first stage is to acquire a general sense of both the legal and factual context and the
that they ought in general to
intention of the legislature; the next stage is to read the particular words in their primary
adopt a purposive approach a
and natural meaning if they are ordinary words – or – according to their technical meaning.
little unrealistic’. (p.368)
If this leads to an absurd interpretation, the interpreter may put forward an interpretation
that avoids the absurdity. With reference to this second stage, there are limits of the kind of
materials of which the interpreter can make use. Another misleading aspect of statutory in-
terpretation is that it suggests that there may be more of a clear distinction between literal
and purposive interpretation than is ��
in fact there
��
in practice. It suggests a rather artificial
approach that imagines a judge asking first about whether the words are unambiguous and
if not, then how can they be read so as to give effect to the intention of Parliament? Glanville
Williams has suggested that a more accurate description of the judge’s practice would read
as follows: ‘What was the statute trying to do? Will the proposed interpretation be ruled out
by the language of the statute?’ What does this mean? He explains: ‘literal and purposive
interpretation may be seen to represent varying emphases on how these questions are to
be answered; in particular, on how far a judge is prepared to go in deciding whether a pro-
posed interpretation is or is not sustained by the language of the statute. In short, context,
language and purpose are all relevant, but there is still no settled priority rules for weighting
these factors.’ (Cited in William Twining, How to Do Things with Rules, p.369).
Twining is describing modern judicial practice. It is largely determined by pragmatism,

and an engagement with the language of the Act in question in its legal context. This goes
a long way to suggesting how judges approach statutory interpretation in those cases
where no European or Human Rights issues might impinge; or, indeed, where no reference
to Pepper v Hart is necessary. We need, therefore, to move towards an engagement with
these problematic and developing areas.
However, for the moment, we can ask some further questions about the suppositions that
inform modern practice, and examine the role of the presuppositions of statutory interpre-
tation. The presumptions are:
 against the alteration of the common law
 that mens rea should be an element in criminal offences
 against the retrospective application of statute
 against the deprivation of individual’s liberty, property or rights
 a presumption that legislation does not apply to the crown
 a presumption against breach of international law and a presumption that words take their
meaning from their context.
The presumptions reflect the cast of the common law and the orientation of practice
towards pragmatic questions of context and sense. Let us review the presumptions as a
means of developing this argument.
The first presumption, against the alteration of the common law, suggests that interpreta-
tion is inherently conservative: the law appears as a repository of meanings that are author-
ised by its history. Thus, rather than presuming a change in the law, a judge will presume
that the law is coherent and without gaps. There are also presumptions that have a partic-
ular slant towards rights or liberties.† That the Human Rights Act contains an interpretative †
The requirement that criminal
provision suggests that these presumptions may not have been as effective as they might offences have mens rea;
have been in protecting rights and liberties. Nevertheless, we could say that common law that statute does not apply
interpretation appears to have always had a commitment to preserving these values. The retrospectively; that people are
presumptions against breach of international law can be seen as informing a notion that not to be deprived of rights and
common law is coherent with international law, unless Parliament has stated otherwise. It liberties.
suggests some interesting points about the relationship of national and international legal
norms, but we cannot engage with this material in this chapter. The presumption that leg-
islation does not apply to the Crown is historic and suggests the privileges accorded to the
Crown. The seventh presumption reflects on the aids to construction that can be utilised.
Within this catalogue, there is a basic distinction between intrinsic and extrinsic evidence,
and a grouping of rules that relate to presumptions about how certain verbal formulations
are to be understood. We could say that this represents the legal employment of certain
grammatical rules. These rules reflect more on the micro economic level of interpretation,
and stress that statutory interpretation is inherently a form of textual close reading. It is as
much about resolving grammatical and syntactical problems as it is about the operation of
specifically legal principles of interpretation. The presumptions remind us that statutory
interpretation is about rules that are necessarily involved in acts of reading that operate
within a specifically legal context.
2 Pepper v Hart
To return to our principle of analysis: we will examine the contemporary practice of
statutory interpretation through a close reading of some central cases. One of the most
important cases that defines contemporary practice is Pepper v Hart [1993] 1 All ER 42.
To what extent did Pepper v Hart revolutionise methods of interpretation by allowing

judges access to Parliamentary materials to which they would not otherwise have access?
The case shows that defining the parameters of judicial interpretative practice involves
questions of constitutional propriety and the very function of the forensic process. Indeed,
the subsequent case law attempts to define a line between the political and the judicial
that may be very difficult to hold.
Prior to Pepper v Hart, the courts had not been able to look at the Hansard record of debates
as an aid to interpreting statute.† Although the case changed this rule, it went on to define †
Hansard is the official record of
narrowly the occasions when a court could make reference to Hansard. To enable a refer- debates in Parliament.
ence to Hansard, legislation must be ambiguous. To resolve the ambiguities, the court can
make use of ministerial statements. This clearly means that the courts cannot make use of
statements made by MPs in debate or argument; and the statements themselves have to
be clear.
How can this approach be justified? Why should the rule that had always structured
judicial practice be relaxed? Lord Browne-Wilkinson gave the leading speech in Pepper v
Hart. He began by reviewing the arguments as to why references to Hansard should still be
prohibited. The primary reason is constitutional. The courts must look only to the words
used in the Act; as otherwise, there is a risk of judicial legislation. Lord Browne-Wilkinson
then touched upon a related issue. Hansard material may not be forensically suitable, as it
may have been said in the heat of debate, or from a politically partisan position. Difficulties
in providing access to definitive text of debates and cost implications had also militated
against the use of Hansard in the court. Against this position, The Law Commission’s report-
ing in 1969 and the Renton Committee had recommended that the rule outlawing the use
of Hansard be reconsidered.
If these are the arguments for preserving the existing practice, what are the issues that
compel change? It would appear that practice itself has already moved beyond the con-
straints of the old approach:
‘… the courts have departed from the old literal approach of statutory construction and
now adopt a purposive approach, seeking to discover the Parliamentary intention lying
behind the words used and construing the legislation so as to give effect to, rather than
thwart, the intentions of Parliament. Where the words used by Parliament are obscure
or ambiguous, the Parliamentary material may throw considerable light not only on the
mischief which the Act was designed to remedy but also on the purpose of the legislation
and its anticipated effect.’
This speech stresses that there is a historical shift in judicial interpretation. This is, in part,
due to the impact of purposive styles of European interpretation – it is no wonder that
Pepper builds on Pickstone v Freemans [1988] 3 W.L.R. 265. Note, that a difference has to be
observed in the interpretation of domestic and European legislation. It is with the latter
that the court can be ‘more flexible.’ (The precise parameters of this flexibility will have to
be defined by subsequent case law.) However, there is another factor in the argument that
suggests that purposive interpretation cannot be so neatly limited to European law. Lord
Griffith’s speech elaborates this point. He argued that the increasing volume of legislation
carries with it the risk that ‘ambiguities in statutory language’ are not apparent at the
time the Bill is drafted. It would seem that the form of judicial practice had not kept up
with practical developments. How should the new approach be defined? It is necessary
to return to fundamental principles. The task of the court is to interpret the intention of
Parliament. If the court cannot use Hansard to interpret ambiguous language, then it may
become frustrated in this task. In summary, Lord Browne-Wilkinson’s guidelines show that
a reference to Hansard is only acceptable when three conditions applied:
 firstly, the legislation in question was ‘ambiguous or obscure, or led to an absurdity’
 secondly, that the material to which reference would be made were ‘statements by a min-
ister or other promoter of the Bill’ with material that might support these statements
 thirdly, these had themselves to amount to a clear statement.
What does this mean? How is the purposive approach to be defined? It is a question of
carefully plotting the parameters that are discoverable in the cases where Pepper v Hart
has been applied.† †
Melluish (Inspector of Taxes)
Appellant v BMI (No. 3) [1996]
In R (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport
AC 454 affirmed that the rule
and the Regions [2001] 1 All ER 195 the House of Lords considered an argument that it was
in Pepper was narrow; the
necessary to make a reference to Hansard. The reference would show that the powers of a
case should not be seen as
minister granted by the Landlord and Tenants Act 1985 to restrict rent increases were narrow
an opportunity to begin to
and applied only to the restriction of inflation in the economy. Rejecting this approach, the
‘widen’ the kinds of materials
court stressed the importance of the first limb of the ratio of Pepper v Hart. Unless this first
that could be considered to
condition was satisfied, there was a danger that any case that raised an issue of statutory
interpret legislation. This rule
construction would necessitate disproportionate costs as lawyers research the relevance of
was clarified still further in Three
parliamentary statements. However, there is also a constitutional element to the House of
Rivers DC v Bank of England (No.2)
Lord’s argument that returns us to one of the structuring concerns of statutory interpreta-
[1996] 2 All ER 363. The court
tion. Whereas it may be acceptable to rely on the statements of the minister sponsoring the
asserted that speeches made in
bill, the court cannot consider parliamentary exchanges in debate. Such matters are unsuited
Parliament could be used by a
for the forensic process. Furthermore, such scrutiny comes close to breaching Article 9 of the
court to ascertain both the true
Bill of Rights. This prohibits the court from questioning proceedings in Parliament.
meaning of statutory language
The case concluded with the court asserting that as the meaning of the relevant section and the intention of Parliament
was not ambiguous, there was no need to make use of Hansard. Also relevant to the argu- in passing a particular Act. More
ment in this case was the status of the 1985 Act as a consolidating statute. The normal rule recently, the issue of the correct
for the interpretation of this kind of statute is that it is not permitted to look at the law that use of Hansard has arisen with
it replaced as an aid to its interpretation. It was only possible to make use of the old law respect to construing the Human
when the Act itself was ambiguous. Spath Holme Ltd thus goes some way to determining Fertilization and Embryology
the form of the post Pepper v Hart practice. We can see that, whilst Pepper v Hart acknowl- Act 1990 s.28(3). The question
edges that a new practice is necessary, this practice has to be informed by a conventional facing the court in U v W (Attorney
understanding of the role of the courts, as defined by the Bill of Rights. The techniques of General Intervening) (No.1) [1997]
purposive interpretation are thus ‘revolutionary’ to a degree. They work within the existing Eu LR 342 was whether a licence
constitutional settlement. It is worth clarifying this point still further. Just because a new was required for certain forms
practice is under development does not mean that the institutional or doctrinal structure of fertility treatment. The
of law is also being transformed. A significant development in a practice is thus entirely court held that Hansard could
consistent with the continuity of other institutions. Furthermore, the fundamental ‘shape’ be used to resolve the issue of
of the practice remains continuous with its general orientation, despite its own transfor- whether or not the restriction on
mation. Purposive interpretation might thus realign, but it does not fundamentally alter, licences was justifiable. This was
the relationship between Parliament and the courts. because relevant issues arose in
the discussion of the Bill in the
House of Lords. The second and
3 European Integration third parts of the Pepper v Hart
This section will examine the court’s interpretation of European law, to determine the conditions also applied. However,
forms that judicial practice is taking. Our analysis starts with the celebrated words of Lord in an interesting adaptation of
Denning: the test, it was held that Hansard
could be referred to, even though
‘No longer must they [the judges] examine the words in meticulous detail. No longer must
the first part of the Pepper v Hart
they argue about the precise grammatical sense. They must look to purpose or intent. To
conditions did not apply.
quote the words of the European Court in the Da Coasta case they must deduce from the
wording and the spirit of the Treaty the meaning of the Community rules…They must di-
vine the spirit of the Treaty and gain inspiration from it. If they fill a gap, they must fill it as
best they can. They must do what the framers of the instrument would have done if they
had thought about it. So we must do the same.’ (Bulmer v Bollinger [1974] Ch 401, at 426.)
The impact of European methods of interpretation is undoubtedly having an important

impact on the practice of statutory interpretation. But think about what Lord Denning is
saying. The claims about ‘no longer’ are somewhat misleading. We have seen above that
common law judges always made use of a form of purposive interpretation. The need to
interpret European law lifts this into a new context; it may even be that this means that the
courts have to follow European law rather than English law if there is a conflict. We will deal
with this matter presently. For the moment, let us focus on one of our key concerns: how
do European methods of interpretation shape or reshape the constitutional parameters of
interpretative practice? We need to return to the principle of the supremacy of European
law. Lord Denning outlined this doctrine in Macarthys v Smith [1979] 3 All ER 32, at 218:
‘It is important now to declare – and it must be made plain – that the provisions of Article
119 of the Treaty of Rome take priority over anything in our English statute on equal pay
which is inconsistent with Article 119. That priority is given by our own law. It is given by the
European Communities Act 1972 itself. Community law is now part of our law: and, when-
ever there is any inconsistency, Community law has priority. It is not supplanting English
law. It is part of our law which overrides any other part which is inconsistent with it.’
European law takes priority over English statutes because Parliament has so provided. How
does the doctrine of sovereignty relate to judicial interpretation? Our concern could be
phrased as follows: in understanding the judicial interpretation of community law and the
extent to which it allows a distortion of the literal meaning of statute, to what extent is
judicial creativity limited by their perception of constitutional boundaries?
Once again, answering this question means looking at the development of the judicial
practice. In Garland v British Rail Engineering Ltd [1982] 2 WLR 918, the House of Lords held
that 6(4) of the Sexual Discrimination Act should be interpreted in such a way as to make
it consistent with Article 119 of the EEC Treaty. The problem was that the words of the rel-
evant section were capable of two different and opposed interpretations: one that suited
the applicants, and one that suited the respondents. Lord Diplock argued, and the rest of
the House concurred, that the meaning of the section which was consistent with Article 119
had to be preferred. Lord Diplock also made use of a principle of interpretation ‘too well es-
tablished to call for citation of authority’ that a statute passed after an international Treaty
had to be interpreted as consistent with the obligations that the country had undertaken.
Interestingly, he avoided the question of whether or not a provision expressly intended by
Parliament to contravene European obligations would be so interpreted by the court.
The parameters of this mode of interpretation can be seen in the later case Duke v GEC
Reliance [1988] 2 WLR 359. In this case the House of Lords interpreted sections 2(4) and 2 (6)
of the Sexual Discrimination Act. It was asserted that the 1975 Act was not meant to give
effect to the Directive on Equal Treatment issued in 1976. As s. 2(4) of the EC Act did not
allow a court to ‘distort’ the meaning of the statute, European employment rights should
not be available in English law. This is surprising. One would expect that the court would
have to construe the British statute in such a way as to make it harmonise with Community
law. However, the court followed an earlier precedent. Marshall v Southampton and South
West Hampshire Health Authority [1986] 2 All ER 584 (cited in Duke at 639) promoted a much
narrower approach to the interpretation of statute; stressing that if the domestic statute
had not been ‘intended’ to give effect to European obligations, then the court was limited
by the words of the Act. On the facts of the present case, as the provisions of the 1976 Act
could not carry the interpretation urged by the appellants, the court had to give effect to
the literal meaning of the Act. The 1986 Sex Discrimination Act was passed to bring retire-
ment ages into line with European law, but, as this Act was not retrospective, it did not help
the appellant’s case.
What conclusions can we draw from these two cases? Although the issues raised are
similar, and the same sections of the 1975 Act are interpreted in both cases, it would seem
that the central difference relates to the court’s understanding of the 1976 Directive and its
effect in English law. As the 1986 Act did not have retrospective effect, it was not possible
to apply a strained interpretation to the 1975 Act to make it consistent with the Directive.
Some commentators have argued that Duke was wrongly decided (see Philip Mead, ‘The
Obligation to Apply European Law’, EL Rev 1991, 16(6), 490-501). Marshall had held that a
directive could not create obligations between individuals. In Marleasing, the ECJ had relied
on an earlier authority, Van Colson, to assert that a court had to interpret national law as
consistent with European obligations whether or not the national law pre-or post-dated a
directive. The ECJ argued that the obligation to enforce directives was a duty under Article
5 and Article 189 of the Treaty of Rome. From this perspective, it would appear that the
courts have a much bolder role to play in the interpretation of national legislation – and
that judicial practice could make use of the Van Colson doctrine to assert, against Duke,
that there was an overriding objective to ensure judicial protection of European rights. (See
Marleasing SA v La Commercial Internacional de Alimentacion SA [1992] 1 CMLR 305. The issue in
these cases is also the extent to which European law is enforceable against private parties
as well as the state. Marleasing went beyond Marshall, and extended European law rights to
private parties.)
Pickstone v Freemans Plc shows the court approaching the interpretation of national
legislation far more robustly than they had in Duke. In this case, the House of Lords had to
interpret s.1(2) of the Equal Pay Act 1970. The Act had been amended to make it coherent
with obligations arising under Article 119 of the Treaty of Rome. The key question was
whether the amendment of the Act actually did give effect to the obligations under the
Treaty. In approaching the interpretation of the Act, their lordships began from a purposive
position. Lord Nicholls, for instance, determined that the purpose of the Article was two-
fold: to ensure consistency in the legal systems of member states across the community;
and to improve working conditions. These objectives are furthered by a directive, and by
ECJ cases that clarify the precise terms of community law. A problem arose because at least
one interpretation of the relevant sections of the UK Act did not accord with European
law. Furthermore, the ‘broad’ interpretation of the section that would have made the law
coherent was difficult to square with the wording of the Act.
What, then, should be the correct approach? Lord Diplock’s argument in Garland provided
a point of reference. Only express wording in an Act passed prior to the date that the
UK had joined the community would allow a court to conclude that it was not intended
to be consistent with European law. The court was thus justified in particularly ‘wide’
departures from the wording of the Act ‘in order to achieve consistency.’ Argument
focused on whether ‘exclusionary’ words in the Act had the effect of limiting the section
in such a way as to not give full effect to Convention Rights. This impacts on interpretative
techniques. Lord Keith argued that it was ‘plain’ that Parliament could not have ‘intended’
to depart from its European law obligations. Under the circumstances of the case, he felt
it was entirely legitimate that the court should consider the draft Regulations. Lord Oliver
was concerned that the case did indeed raise issues that made for a ‘departure’ from the
normal rules of statutory interpretation. It would not normally be open to a court to depart
from a literal interpretation of an Act simply because the Act was passed to give effect to an
international treaty. Furthermore, Parliamentary materials cannot normally be relied upon
as aids to construction. However, European law was different Parliament had in 2(1) of the
EC Act, incorporated European law into domestic law.
What are the consequences of this argument? The literal interpretation would compel
the conclusion that the Act was in breach of European law; furthermore, it would not be
consistent with the principle articulated by Lord Diplock. In Lord Oliver’s opinion, the
Act was reasonably capable of bearing the interpretation that would make it consistent
with European law. Ultimately, it was held that a purposive interpretation allowed the
appellant’s case to succeed. Their argument was helped by the fact that the court took
into account the Equal Pay Regulations of 1983 that had brought the statute in line with
Community law. Although these draft regulations had not been subjected to the same
Parliamentary process as a Bill, they had been passed to give effect to a decision of the ECJ.
It was thus legitimate to take into account Parliament’s purpose in interpreting the draft
regulations.
In Litster and Others Appellants v Forth Dry Dock & Engineering Co. Ltd [1989] 2 WLR 634, the
House of Lords went even further than Pickstone. The court gave a purposive interpretation
to a statutory instrument that concerned rules relating to the transfer of employees’ rights
in the event of the sale of a business. The court ‘implied’ words into the terms of the regula-
tion so as to make it compatible with obligations under European law. Lord Oliver provided
a useful summary of the court’s approach in Litster. The court must first of all determine the
precise nature of the obligations concerned by construing the wording of both the relevant
directive, and the interpretation given to that directive by the ECJ. If it can be ‘reasonably
construed’ in such a manner, UK legislation must then be purposively interpreted so as to
give effect to European law. This approach can allow the courts to depart from the literal
meaning of the words used.
Pickstone v Freemans and Litster certainly seem to show the development of a new judicial
practice that moves beyond the restraints on statutory interpretation prior to 1972.
However, it would be wrong to assume from these cases that practice has so moved on
that literal interpretation is ‘dead’. The starting point remains a literal reading of the stat-
ute. Thus, in Carole Louise Webb v EMO Air Cargo (UK) Limited No 2 [1995] 1 WLR 1454, the 1975
Sex Discrimination Act was again subject to interpretation. As the House of Lords could
interpret the relevant sections of the Act in such a way, there was no need to distort the
language of the statute or to otherwise alter the literal sense. It is also worth remembering
that the law of the EU itself limits the purposive approach. This can be seen in Grant v South
Western Trains (Case 249/96) (1998) The Times, 23 February. The ECJ refused to prohibit dis-
crimination based on sexual orientation. In theory, they might have been able to broaden
the terms of Article 119 and the relevant directives. However, the court felt that as commu-
nity law did not recognise homosexual marriages, this issue could only be dealt with at a
national level. Grant indicates one extreme constitutional line that Community law will not
cross. It is interesting that this raises a question of sexual morality. The consequence of this
means that whilst issues of sexual discrimination have frequently formed the context for
tensions between UK and Community law that have occasioned debates on the acceptable
boundaries of judicial discretion, the resistance to equal rights for gays and lesbians means
that it is unlikely to give rise to acts of bold interpretation.
4 The Politics of Interpretation Under the Human Rights Act

The interpretative provisions of the Human Rights Act have had a major impact in judicial
interpretative practices. Our consideration of the new practices has to begin by looking
at section 3 of the Act. Note first of all, the range of this provision – it applies to primary
and secondary legislation ‘whenever enacted’ – before or after the Act. The effect of 3(2) b,
however, is that the incompatibility of a piece of primary legislation with the HRA does not
mean that this legislation is held to be void. Moreover, it does not allow a court to hold sub-
ordinate or secondary legislation to be invalid, if the primary legislation does not allow the
incompatibility with the HRA to be remedied. In other words, Parliamentary sovereignty is
left in place. We are thus concerned with the realignment of a judicial practice, rather than
its complete redefinition. The pressing question is: how will the courts interpret legislation
in the light of section 3? The government paper, ‘Rights Brought Home’ stated that section
3 would go ‘far beyond’ the rules prior to the HRA, which had allowed the court to take into
account the ECHR in interpreting legislation and clarifying ambiguity:
‘[t]he courts will be required to interpret legislation so as to uphold convention rights
unless the legislation itself is so clearly incompatible with the Convention that it is impos-
sible to do so.’
(Rights Brought Home: The Human Rights Bill, Command Paper No. Cm 3782, para 2.7)
Whilst this clearly articulates a rule of interpretation, it leaves a great deal of discretion
in the hands of the interpreter to determine whether or not it is impossible to interpret
legislation as compatible with the Convention. We are concerned once again with the
constitutional boundaries of the judicial practice.
One of the first key authorities is Wilson v First County Trust [2003] HRLR 33. Mrs Wilson had
argued that a loan that she had taken from a pawnbroker and not repaid was unenforce-
able, because the agreement did not contain all the prescribed terms, contrary to the
Consumer Credit Act of 1974. In particular Mrs. Wilson was objecting to a fee for preparation
of documents that she had been charged and which was not mentioned in the loan agree-
ment. Her argument was that the 1974 Act made the agreement unenforceable. The County
Court held that the agreement was enforceable, and Mrs. Wilson had appealed to the Court
of Appeal, which reversed the County Court’s judgment. The Court of Appeal also made a
declaration under s 4 of the HRA. The Court of Appeal argued that the 1974 was incompat-
ible with the rights guaranteed to the creditor by Art.6(1) of the European Convention
on Human Rights (‘the Convention’) The Secretary of State, who had been added to the
proceedings, appealed, and the House of Lords allowed the appeal. Let us consider Lord
Nicholls’ argument. He addressed the idea that the courts are themselves public authori-
ties, and therefore bound by the HRA. Would this mean that as the courts are bound by the
Act, they would be compelled to discount an Act of Parliament that was inconsistent with
the Act? This would clearly be a very broad interpretation of the Human Rights Act. Indeed,
it would effectively make the Human Rights Act itself sovereign, and bring to an end the
sovereignty of Parliament. As this was never the intended effect of the Act, it could not
be a valid interpretation. In interpreting a statute in the light of the HRA, it was necessary
to abide by constitutional principles, and give effect to the will of Parliament; however,
the court could consider the ‘proportionality of legislation’. In approaching the issue of
proportionality, the court was fulfilling a reviewing role. Parliament retained the primary
responsibility for deciding the appropriate form of legislation. The court would reach a
different conclusion from the legislature only when it was apparent that the legislature had
attached insufficient importance to a person’s Convention right. The readiness of the court
to depart from the views of the legislature depended on the circumstances, one of which
was the subject matter of the legislation. The more the legislation concerned matters of
broad social policy, the less ready would be a court to intervene.
These are nuanced arguments. In so far as it is possible to draw a conclusion, the House
of Lords might be suggesting that legislation would be interpreted to protect Convention
rights if the court considered it necessary when considering the ‘proportionality of legisla-
tion’. In so doing, the Court would defer to Parliament, but would reserve for itself the
power to ‘reach a different conclusion from the legislature’ if ‘the legislature had attached
insufficient importance to a person’s Convention right’(ibid. H17). We will see that the pre-
cise terms of the proportionality test becomes one of the sites over which the applicability
of the Human Right Act to statutory interpretation become fought out. This is one of the
key concerns in R v A where disputes between the judges represent rival ways in which a
doctrine of human rights interpretation could be forged.
In R v A [2001] 2 WLR 1546, the House of Lords considered whether s 41 of the Youth Justice
and Criminal Evidence Act 1999 amounted to a breach of the defendant’s right to a fair trial.
Section 41 prohibits the questioning of a complainant of rape about previous sexual behav-
iour, except in certain narrowly defined circumstances. This section of the Act serves a clear
purpose. It both prevents irrelevant evidence being given in court and the perpetuation of
harmful stereotypes. However, at the same time, the courts were aware that s41 might lead
to a breach of Article 6 if an accused was never able to put evidence before the court about
consensual sexual relations. Although this evidence could never be used to suggest that be-
cause a woman had consented to sex in the past, she was likely to be consenting at the time
in question, it may have some relevance to the case in hand. Depriving the accused of this
right could conceivably be a breach of a right to a fair trial, as it could jeopardize ‘the overall
fairness of the proceedings’ by excluding relevant evidence (43). How could the House of
Lords interpret this section? Would they have to issue a certificate of incompatibility? Or
would the court assert that the Act had to be followed? Lord Steyn argued that the starting
point for the interpretation of the Act was the ‘mischief’ that Parliament had ‘decided’ to
address. However, at the same time, the House of Lords had to decide whether the Act
made ‘an excessive inroad into the right to a fair trial’ (ibid. 65). How, then, was the court
to assess where this particular provision fell? Reference was made to an important piece of
extra judicial writing by Lord Lester. This suggested a two-tier approach to the assessment of
legislation in the light of the HRA. The first question that the court had to ask was whether or
not the provision in question ‘interfered’ with a Convention right. Answering this question
does not require an essential reference to Parliamentary intent, because it will hardly ever
be the case that Parliament deliberately intended to breach a Convention right. It is at the
second level of the test – where the government attempts to justify the particular provision
– that Parliamentary intention becomes more relevant. This raises the question of whether
or not the provision falls into one of the ‘exception clauses’ under the HRA. The court must
then move to consider the issue of proportionality. (See also Bertha Wilson J, ‘The Making
of a Constitution: Approaches to Judicial Interpretation’ [1988] PL 370, 371-372; and David
Feldman, ‘Proportionality and The Human Rights Act 1998’ in The Principle of Proportionality in
the Laws of Europe edited by Evelyn Ellis (1999), pp.117, 122–123.)
What sense does proportionality make in the present context? We need to start from the
assertion that Article 6 lays down a fundamental set of guarantees to enable a fair trial to
take place. The only way in which this right can be restricted is by reference to Article 6
itself. Lord Steyn summarized this as determining a balance between ‘the interests of the
accused, the victim and society’ (ibid). Applying this set of considerations to the test of
proportionality requires reference to Lord Clyde’s guidelines in the key authority de Freitas
v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69.
These guidelines allow a court to decide whether a restriction on a right is acceptable, or
‘arbitrary or excessive’. The guidelines ask the court to determine, first of all, whether the
objective of the legislation is ‘sufficiently important’; then the court must decide if the
actual limitations in the legislation achieve this end. Applied to the issues of R v A, the court
must thus be sure that the restrictions of the accused’s right to give evidence of consent
to the court in the Act are ‘proportionate’ to the goal of limiting fair trial rights: preventing
irrelevant evidence and perpetuating stereotypes of women’s sexual behaviour.
This is essentially an act of interpretation. Section 41 may be subject to certain exceptions,

but it is effectively a ‘blanket ban’ (ibid. 66). Note how Lord Steyn then makes explicit refer-
ence to techniques of interpretation:
‘Ordinary methods of purposive and contextual interpretation may yield ways of mini-
mizing the prima facie exorbitant breadth of the section. Secondly, the interpretative
obligation in section 3(1) of the 1998 Act may come into play. It provides that ‘So far as it
is possible to do so, primary legislation ... must be read and given effect in a way which is
compatible with the Convention rights’. It is a key feature of the 1998 Act.’
(ibid).
In the context of this chapter, it is important to remember that this is simply a reference
to ‘purposive and contextual ‘methods; it is not any explicit evocation of the mischief rule
or the golden rule. Note also how it is offered as one way in which judicial discretion can
limit the range of s41, and thus grant some power to a judge to determine whether or not
evidence can be admitted. This requires an understanding of the statute in its common law
context. Alongside this is a literal reading of the section; or, rather, what is termed the ‘in-
terpretative obligation’ that is required of the judges by the HRA. We do not have the space
to go into the detailed interpretation of the relevant case law. We can, however, consider
the conclusion to which Lord Steyn comes:
‘In my view, ordinary methods of purposive construction of section 41(3)(c) cannot cure
the problem of the excessive breadth of the section 41, read as a whole, so far as it relates
to previous sexual experience between a complainant and the accused.
Whilst the statute pursued desirable goals, the methods adopted amounted to legislative
overkill.’ (ibid. 67)
We can see how this relates back to the previous paragraph. The purposive interpreta-
tion cannot ‘cure’ the breadth of the section. The judge must therefore make use of the
‘interpretative obligation’. Section 3 applies even where ‘there is no ambiguity’ in the Act;
it does not just mean, therefore, that the Court must take the Convention into account
in interpreting ambiguous statutory language. The ‘duty’ placed on the court by section
3 requires the court to ‘strive’ to make the statute coherent with the Convention. This
takes us beyond normal methods of statutory interpretation. Normally a court can ‘depart
from the language of the statute to avoid absurd consequences’ (67), but s3 is a far more
‘radical’ ‘general principle’ (ibid. 68): interpretation must make Act and Convention
‘compatible’ (68). Following Pepper v Hart, (Citing Pepper v Hart; A Re-examination’ (2001)
21 Oxford Journal of Legal Studies 59; see also Professor J H Baker, ‘Statutory Interpretation
and Parliamentary Intervention’ (1993) 52 CLJ 353) this could amount to an interpretation
‘against the executive’. Thus:
‘In accordance with the will of Parliament as reflected in section 3 it will sometimes be
necessary to adopt an interpretation which linguistically may appear strained. The tech-
niques to be used will not only involve the reading down of express language in a statute
but also the implication of provisions. A declaration of incompatibility is a measure of last
resort. It must be avoided unless it is plainly impossible to do so.’
It may be that Parliament expresses a ‘clear limitation on Convention rights’ (see R v

Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.) However, this is not
one of those cases. In Lord Steyn’ s opinion, this requires an interpretation of the statute
informed by ‘common sense’, and by a supposition that Parliament itself would not have in-
tended that the Act would prevent an accused making a full defence, so long as it made use
of ‘truly probative material’. Words can thus be read into the statute: an ‘implied provision’
that evidence which is probative and is necessary to a fair trial cannot be excluded. It is up
to the trial judge to determine when evidence is probative, and when it is merely irrelevant
or insulting to the victim of rape. What is also important here is that, following this line of
argument, it is not necessary to issue a declaration of incompatibility.
Lord Hope did not agree with Lord Steyn; asserting that s41 was proportionate to the end it
sought to achieve, particularly because the overenthusiastic use of judicial discretion had
resulted in a loss of public confidence in the fairness of rape trials. Moreover, he argued
that the section of the Act itself preserved the defendant’s right to ask questions. This case,
then, does not present itself as an opportunity to consider whether or not issues of general
unfairness are raised. Only in this instance would there be grounds to hold an incompatibil-
ity with Article 6 (ibid. 86). Furthermore, on this argument, the case does not raise the need
to apply section 3 of the HRA; it is not necessary to ‘modify, alter or supplement the words
used by Parliament.’ Lord Hope would not, then, see this case as calling for the ‘radical’
approach:† †
He cites Lord Woolfe in Poplar
‘[S]ection 3 does not entitle the court to legislate; its task is still one of interpretation. Housing and Regeneration
Compatibility is to be achieved only so far as this is possible. Plainly this will not be pos- Community Association Ltd v
sible if the legislation contains provisions which expressly contradict the meaning which Donoghue [2001] QB 48.
the enactment would have to be given to make it compatible. It seems to me that the
same result must follow if they do so by necessary implication, as this too is a means of
identifying the plain intention of Parliament.’
This interpretation of the acceptable use of s3 also begins with the idea that it is based on
the intention of Parliament. However, in a partial agreement with Lord Steyn, Lord Hope
concludes that if the trial judge found it necessary to use section 3, he should do so by fol-
lowing the test articulated by Lord Steyn.
Lord Clyde was also perhaps not as forthright as Lord Steyn. He admitted that it might be
possible to resolve the case without ‘straining’ the language of the provision. Failing this
approach, though, s3 of the HRA could be applied; and the issue of compatibility with the
Convention did not arise. Lord Hutton agreed with Lord Steyn:
‘Therefore pursuant to the obligation imposed by section 3(1) that section 41 must be read
and given effect in a way which is compatible with article 6, I consider that section 41(3)(c)
should be read as including evidence of such previous behaviour by the complainant be-
cause the defendant claims that her sexual behaviour on previous occasions was similar,
and the similarity was not a coincidence because there was a causal connection which
was her affection for, and feelings of attraction towards, the defendant. It follows that I am
in full agreement with the test of admissibility stated by my noble and learned friend Lord
Steyn in paragraph 46 of his speech.’ (Ibid., 106)
The disagreements amongst the law lords as to the precise way in which the Human Rights
Act is to be applied leads to the possibility of two approaches. The relevant section of the
1999 Act could be interpreted by reference to s3 and along the lines suggested by Lord
Steyn, and broadly consented to by Lords Clyde and Hutton, or in the way suggested by
Lord Hope. In Lord Steyn’s understanding, the proportionality test suggests ‘legislative
overkill’, and this requires words to be read into the Act so as to make it consistent with
Article 6. Lord Hope did not feel the case raised a s3 point, and it was not necessary to apply
the proportionality test. Note that this is not a disagreement over the proportionality test
as such, rather, whether it is a dispute over whether it applies on the facts. It is interesting
though, to point out that when this case was applied in Goode v Martin, [2002] 1 All ER 620, it
was held that R v A authorised the ‘reading in’ of certain rules into the Civil Procedure Rules.
This might suggest that the terms of the test proposed by Lord Lester and adopted by Lord
Steyn are feeding into judicial practice.
The Human Rights Act may allow judges to consider the proportionality of legislation, but
what are the boundaries of the test? This perennial concern lies behind the concerns of the
subsequent case law. In Re S [2002] UKHL 10, the House of Lords considered the compatibil-
ity of care orders with articles 6(1) and 8 of the ECHR. The Court of Appeal had used s3 of the
ECHR and interpreted the Children Act 1989 in order to make it Convention compliant. The
House of Lords held that this use of s3 overstepped the power given to judges by the HRA.
Lord Nicholls pointed out that :
‘In applying section 3, courts must be ever mindful of this outer limit. The Human Rights
Act reserves the amendment of primary legislation to Parliament. By this means the Act
seeks to preserve parliamentary sovereignty. The Act maintains the constitutional bound-
ary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the
amendment of statutes, are matters for Parliament.’ (ibid. paragraph 39)
This is a restatement of a fundamental constitutional principle. It is clear that the HRA is

meant to preserve the distinction between interpretation and enactment of statutes. To
some extent this rather bald distinction does not engage with the difficulty of drawing the
line between the interpretation and the creation of the law. However, Lord Nicholls did
acknowledge the inherent difficulties in the next part of his argument. He pointed out that
the more ‘liberal’ modes of interpretation make it harder to locate the boundary between
the ‘robust’ and the ‘impermissibly creative’. He proposes a rule of thumb test:
‘[f]or present purposes it is sufficient to say that a meaning which departs substantially
from a fundamental feature of an Act of Parliament is likely to have crossed the boundary
between interpretation and amendment.’ (ibid.)
Elaborating this test returns us to themes with which we are familiar from earlier in this
chapter. Particularly creative acts of interpretation depart from fundamental principles
of an Act, and also bring matters to court that are ill suited to the forensic process. The
reinterpretation of the Children’s Act by the Court of Appeal did just this. In a sensitive
area, where Parliament had entrusted powers to local authorities, the courts should not
intervene so as to interfere with this statutory regime.
A good example of a case where a broad interpretation of an Act leads to an acceptable

piece of judicial law making is Ghaidan v Godin-Mendoza [2004] UKHL 30. The case saw the
House of Lords dealing with a question of property law that related to succession to a
tenancy under paragraph 2 of Schedule 1 to the Rent Act 1977. The defendant was contend-
ing that the Rent Act discriminated against him as a homosexual in depriving him of rights
over the flat of his deceased partner. What precisely was the issue in Ghaidan? Paragraph
2(2) makes a distinction between a heterosexual and a homosexual couple who are living
together. For the former, the survivor can take over the tenancy if the property was in the
name of the deceased, whereas for the latter, the survivor cannot. The survivor in a gay
relationship is not deprived of all rights over the property. He is entitled to an assured
tenancy. However, in terms of both rent protection and rights against eviction, the survivor
of the homosexual relationship is clearly not in as beneficial a situation as the survivor of
the heterosexual relationship.
The Court of Appeal had held that the Act amounted to an infringement of the defendant’s
rights under articles 8 and 14 of the Convention. The Court of Appeal had used s3 of the
HRA to read the Act in a broad way, thus allowing the defendant to take over the tenancy
of the flat. The House of Lords dismissed the appeal against this ruling, and confirmed
the approach of the Court of Appeal. It was thus not necessary to issue a declaration of
incompatibility, as the Act could be read in such a way as to make it Convention compliant.
The House of Lords did note, however, that the new meaning of the Act must be ‘consistent
with the fundamental features of the legislative scheme’ (ibid. 558). We need to investigate
this argument in a little more detail.
Lord Nicholls pointed out that there are a number of ways of reading s3 as there is a certain
degree of ambiguity in the word ‘possible’. A narrow reading would hold that s3 only
allowed courts to resolve ambiguities in statutory language in favour of Convention com-
pliant interpretations. A much broader interpretation of the section has been preferred,
that allows the courts to give a different meaning to the language of the statute, in order to
make its meaning consistent with the Convention. This could involve reading in words, as in
R v A. There is no need for the language of the Act to be ambiguous for the Court to take this
course of action (ibid. 570–1). This means that the court can ‘depart from the unambigu-
ous meaning the legislation would otherwise bear.’ Normally, the court would have to
determine the intention of Parliament by using the language in the Act. However, section 3
means that the court may have to ‘depart from the intention of the enacting Parliament.’
We can begin to appreciate how the Human Rights Act makes for a potentially radical
departure from conventional methods of interpretation. However, this does not extend to
the idea that the court is now an equal partner with Parliament when it comes to legisla-
tion. The fundamental requirement is that the courts should follow Parliamentary intention
in interpreting an act. The question becomes, how would a court know that it is legitimate
to depart from Parliamentary intention? The answer to this question depends on the
degree to which Parliament intended that the ‘actual’ words of a statute, as opposed to
the concept that those words express, is to be ‘’determinative’ of the Act’s meaning. What
does this mean? Lord Nicholls argues that the determinative factor cannot be the word of
the Act, since the HRA allows them to be interpreted against their obvious sense. It would
be possible, therefore, for a court to read words into an Act. This would be consistent with
the fact that s3 ‘requires’ that courts read in words to make an Act compliant with the
Convention (ibid. 572). There is a limit to this process. Although the court can read in words,
Parliament could never have intended that ‘the courts should adopt a meaning inconsist-
ent with a fundamental feature of legislation.’ (ibid) This would cross the line, and show the
courts interfering with the sovereign rights of Parliament.’ (ibid.)
The sample of cases that we have been examining suggests that we are at the cutting
edge of a new kind of judicial practice. The proportionality test is a powerful mechanism
that can allow either the broad interpretation of statutory language or the reading in of
words in order to make legislation Convention compliant. However, this test, as shown by
Ghaidan v Godin-Mendoza, must itself be subject to some constraints. Otherwise, the courts
would be moving far beyond the powers given to them by the Human Rights Act, as the
intention of the Act was to preserve Parliamentary sovereignty. The approach in Ghaidan
was legitimate because the interpretation proposed by the House of Lords was consistent
with the fundamental policy objectives of the legislation, which were to provide security
of tenure. Clearly, where a judicial interpretation moved beyond the policy of legislation,
the courts could not effectively legislate in Parliament’s place. It could thus hesitatingly be
suggested that after the Human Rights Act judicial practice is changing to such an extent
that judges now have an acknowledged legislative power. This allows them to make legisla-
tion convention compliant. Compared to the legislative power of Parliament it is limited,
but, the interpretative provisions of the 1998 Act effectively makes judges the legislators of
human rights.
Conclusion
In this chapter we have been attempting to define the parameters of the contemporary
practice of statutory interpretation. This has meant moving on from an approach that
stressed the centrality of the rules of interpretation – and attempting to see how, in im-
portant cases, judges actually interpret the statutory language with which they have been
presented. We have hazarded a general thesis. Alongside the presumptions of interpreta-
tions, which describe the concern with the general structure of the law as meaningful
language, there is a structuring concern with the parameters of the practice. This can only
be described in constitutional terms. Where does the boundary lie between interpreting
a statute, and creating new law? This raises the issue of institutional legitimacy. We have
seen that this question is itself bound up with three important recent developments: the
ruling in Pepper v Hart; the impact of European interpretative methods and the powers of
interpretation created by the Human Rights Act. Analysing these areas in detail, we have
made another general point. Describing judicial practice requires an engagement with spe-
cific legal issues; and the tensions in approach that show an interaction between different
judicial understandings of practice, and the spaces in the law that allow these arguments
to be made. Could we go as far as offering a general conclusion, which might also tell us
something about the nature of practice itself?
Building on the previous chapter, we could say that practices always allow for a degree of
dispute over their central terms and suppositions. Over time, these disputes may become
resolved, or at least less ‘hot’ and the practice assume a conventional form. Given the
impact of so many recent legal developments in statutory interpretation, it would not
be surprising to find some degree of dispute over the precise constitution of legitimate
techniques. However, this can exist alongside a more or less settled understanding of the
fundamental orientation of the practice. We find in recent statutory interpretation this
mixture of coherence and dispute. It will be interesting to see just how the arguments over
the precise form of the practice resolve themselves.
8 ‘The Jury’
Michael Zander

personal use.
Extract from Chapter 5 from Zander, M. Cases and
Programme, 2007.
materials on the English legal system (London: LexisNexis,
2003) ninth edition [ISBN 978-0406963802] pp.463–484. Scanning authorised by Professor Wayne Morrison
You can read the full chapter on the Laws website. (designated person).
Diploma).
9 ‘The Jury Trial (2): A Theatre of Justice’

Sadakat Kadri

personal use.
Extract from Chapter 8 of Kadri, S. The Trial: A History from
Programme, 2007.
Socrates to OJ Simpson. (Harper Collins, 2005) first edition
[ISBN 978- 0007111213] pp. 286-302. Scanning authorised by Professor Wayne Morrison
You can access the full chapter on the Laws website. (designated person).
Diploma).
10 The Impact of Human Rights on Criminal Investigation

Dennis Clark

personal use.
Extract from Chapter 2 of Clark, D. Bevan and Lidstone’s
Programme, 2007.
Investigation of a Crime – A Guide to the Law of Criminal
Investigation. (London: LexisNexis, 2005) Scanning authorised by Professor Wayne Morrison
[ISBN 978-0406957429] pp. 12-26. (designated person).
Diploma).
11 ‘The Hierarchy’
Marcel Berlins and Clare Dyer

personal use.
Programme, 2007.
Pages 60–65 from Berlins, M. and Dyer, C. The Law Machine.
(London: Penguin Books, 2000) new fifth edition Scanning authorised by Professor Wayne Morrison
Diploma).
12 ‘The Judiciary’
Gary Slapper and David Kelly

personal use.
Programme, 2007.
Chapter 6 from Slapper, G. and Kelly, D. The English Legal
System. (London: Routledge Cavendish, 2006) eighth Scanning authorised by Professor Wayne Morrison
Diploma).
13 ‘Judicial Appointments’
Kate Malleson

personal use.
Programme, 2007.
Chapter 17 from Malleson, K. The Legal System (Core Texts).
(Oxford: Oxford University Press, 2007) third edition Scanning authorised by Professor Wayne Morrison
Diploma).
14 ‘The Effect of the Convention in any Litigation’

John Wadham (ed.)

personal use.
Programme, 2007.
Section 4.4 from Blackstone’s guide to the Human Rights
Act 1998. (Oxford: Oxford University Press, 2003) third Scanning authorised by Professor Wayne Morrison
Diploma).
15 ‘The Civil Justice System’

Catherine Elliott and Frances Quinn

personal use.
Programme, 2007.
Chapter 22 of Elliott, C. and Quinn, F. English Legal System.
(London: Pearson Longman, 2007) eighth edition Scanning authorised by Professor Wayne Morrison
Diploma).
16 ‘Solving Civil Justice Problems: what might be best?’

Professor Hazel Genn

personal use.
‘This paper discusses evidence from England about the Except as provided by copyright law, no further copy-
background, objectives, and impact of the Woolf ing, storage or distribution (including by email) is
reforms on court and ADR dispute resolution processes. permitted without the consent of the copyright holder.
It sets the discussion in the context of the differing The author has moral rights in this work and neither
objectives of parties in litigation and the need for staff nor students may cause or permit the distortion,
dispute resolution processes to be affordable for the mutilation or other modification of the work, or any
parties and the taxpayer. It also considers the role of the other derogatory treatment of it, which would be prej-
profession in shifting attitudes towards litigation.’ udicial to the honour or reputation of the author(s).
Reproduced by kind permission of Professor Hazel Genn. Reproduced by the University of London External
Programme, 2007.
Paper delivered to Scottish Consumer Council Seminar
on Civil Justice, 19 January 2005 by Professor Hazel Genn, Scanning authorised by Professor Wayne Morrison
Faculty of Laws, University College London. (designated person).
Diploma).
‘Solving civil justice problems: what might be best?’
1 Best for whom?

In order to discuss the question of what kind of processes might be best for solving civil jus-
tice problems, one has to begin with a prior question, which is : ‘Best for whom?’. There are
many stakeholders in the civil justice system and a wide variety of civil justice problems.
One of the difficulties besetting discussion of civil justice as opposed to criminal justice is
the sheer complexity of the system. Indeed, I have previously argued† that there is no civil †
Hazel Genn ‘Understanding Civil
justice ‘system’ in the way that we conceive the criminal justice system. In criminal justice, Justice’, in Law and Public Opinion
it is possible to trace a consistent and relatively limited range of processes and decision- in the 20th Century Ed M Freeman
making bodies that inexorably lead toward a prosecution, normally involving the State as (Oxford University Press, 1997).
the Prosecutor and an individual accused as the defender. By contrast with criminal justice,
civil cases involve a wide range of potential pursuers and defenders and the configuration
of parties in civil cases varies considerably. In civil cases, pursuers mobilize the legal system
as a matter of choice and generally when other attempts to settle their dispute with a
defender have failed.
The Paths to Justice studies in Scotland and England† have mapped the landscape of civil †
Hazel Genn and Alan Paterson,
disputes and more recently, the Legal Services Research Centre has added detail to the Paths to Justice Scotland: What
map.† We know from these studies that potentially justiciable civil disputes involving pri- people in Scotland do and think
vate citizens represent the stuff and difficulties of everyday life: disputes with neighbours about going to law (2001), Hart
over behaviour or land; problems with landlords; money problems; employment prob- Publishing; and Hazel Genn Paths
lems; arguments over faulty goods and poor services; claims against insurance companies; to Justice: What people do and
social landlords seeking to evict indigent tenants. This variety of rights claims, grievances, think about going to law (1999)
and quarrels leads to the difficulty of generalising about ‘civil problems’. Within what Hart Publishing.
we think of as the civil justice system, individual citizens may bring actions against other
†
individuals, or against large companies, or against public bodies. Financial institutions and Pascoe Pleasence, Alexy Buck,
public authorities regularly pursue actions against individual citizens. The dynamics of Nigel Balmer, Hazel Genn, Aoife
dispute resolution vary significantly in relation to the distribution of power and resources O’Grady, Marisol Smith, Causes of
within litigation. Who can most easily afford the cost of pursuing or defending? Who can Action: Civil Law and Social Justice,
most easily afford to wait for a resolution? What an individual pursuer suing an insurance London: The Stationery Office,
company might want from the civil justice system is likely to look very different from what 2004
a social tenant seeking to resist possession from his landlord might want.
In considering what kinds of processes might be best for the resolution of civil disputes,
it is also necessary to take into account the interests of business users of the civil justice
system. Economic activity is facilitated by a complex system of legally enforceable rights
and obligations and, as I discuss further below, corporate bodies make heavy use of the
civil courts. In the sphere of business disputes, there is a wide range of matters over which
companies may argue and, again, considerable variation in the configuration of disputing
parties: small companies suing each other; large companies suing each other; large com-
panies suing small enterprises and vice versa. In common with disputes involving private
citizens, the dynamics of commercial disputes are influenced by the distribution of power
and resources.
2 Taking a broad view: The Woolf Approach in England

Recognition of the inherent complexity of the landscape of civil disputes, therefore, must
be fundamental in discussions about the need for change and the nature of any changes to
be made to the civil justice system in Scotland. A civil justice system that offers state-spon-
sored dispute resolution processes for civil disputes must be responsive to this range of
problems, objectives, and varying needs. In order to achieve this aim, a broad view needs
to be taken. The experience in England prior to the fundamental review conducted by the
Woolf Inquiry 1994-1996 was of the limited impact of piecemeal changes to civil justice.
The history of English policy – in what Sir Jack Jacob has referred to as the ‘wretched waters
of civil justice’ – had been characterised by repeated efforts at reform in order to better
achieve the objectives of justice. The cost and torpor of the civil courts has been a persist-
ent complaint in England throughout the 19th and 20th ��
century��
. The major court reforms
in the 19th century��
��
were to make law more affordable, accessible, and available to rich
and poor alike. The Common Law Procedure Amendment Act of 1838 simplified procedure,
reduced legal fees, and cut the length of proceedings. Despite these reforms, business
litigants turned in increasing numbers to arbitration as a means of resolving disputes. The
establishment of the County Courts in 1846 provided a means by which tradesmen could
recover credit without an excessive investment of time and money. Reforms continued
throughout the latter part of the last Century, and the effect, apparently, was to increase
the work of both the superior courts and the county courts. In 1854 the Law Times informed
its readers that court reforms promote the pecuniary interest of Lawyers.
At the turn of the 20th century there was evidence of continuing complaint about delays
in the civil courts and the cost of litigation. In 1930, the London Chamber of Commerce
reported that although English legal procedure was the most perfect of its kind in the
world, it had become an expensive luxury and beyond the means of the majority of people.
The Report recommended simplification of procedure, fixed trial dates, and acceptance
of documents unless challenged. Further Commissions and Committees of Inquiry met,
considered, and reported on a fairly regular basis.
In his wide-ranging Inquiry into the civil justice system (1994-1996) Lord Woolf estimated
that in the 20th century alone there had been approximately 60 different reports dealing
with attempts to reform various aspects of the civil justice system. His argument for a root
and branch review that would lead to fundamental change in the civil justice system was
based on the evident failure of previous piecemeal adjustments to produce any noticeable
overall improvement in cost and delay within the system.
3 The Reforms
Lord Woolf’s 1995 Interim Report on Access to Justice described the problems endemic
in the civil justice system. It offered a diagnosis that broadly asserted three ‘interrelated’
problems of cost, delay, and complexity.† He saw these as flowing from the uncontrolled †
Lord Woolf, Inquiry into Access
nature of litigation, the lack of effective control of the ‘worst excesses’ of litigants, and to Justice, Interim Report, Lord
procedural rules that facilitated aggressive adversarialism. The expense of litigation was Chancellor’s Department, 1995,
identified as a fundamental problem confronting the civil justice system and Lord Woolf Chapter 3.
argued that:
‘Excessive cost deters people from making or defending claims. A number of businesses
have told me that it is often cheaper to pay up, irrespective of the merits, than to defend
an action. For individual litigants the unaffordable cost of litigation constitutes a denial of
access to justice.’
Lord Woolf’s basic approach to reform of the civil justice system was:
 Settlement at the earliest stage through pre-action protocols, information and encourage-
ment to use ADR processes
 Court management of cases with strict timetables and penalties for unreasonable
behaviour
 Unified procedures between the county courts and High Court
 Court allocation of cases to one of three ‘tracks’, depending on the value and complexity of
the case
 Small claims track (cases up to £5,000 excluding personal injury where the limit is £1,000
and housing cases which are excluded from the small claims track†). Simple procedure, †
These exceptions were made
heard in chambers by District Judge, no strict rules of evidence, no legal costs, no legal aid in light of concerns about
 Fast track (cases £5,000 to £15,000) 30 weeks to trial, trial length limited to half a day, the complexity of personal
simplified procedure, expert opinion on paper, fixed costs for barristers injury cases and the need for
representation in housing cases.
 Multi-track (cases more than £15,000) active case management by a procedural judge.
The overriding objective of the new Civil Procedure Rules placed a responsibility on the
judiciary to deal with cases justly. This obligation, together with the principles of ‘appropri-
ate’ and ‘proportionate’ procedures enshrined in the Woolf reforms, recognised the inher-
ent complexity of the civil justice landscape, and the need for flexibility and responsiveness
†
to the differing situation and objectives of disputing parties. e.g. David Gladwell, Civil Justice
Quarterly, 2000.
4 The impact of the Woolf reforms on dispute resolution ††
e.g. District Judge Wyn Rees;
(a) Court actions Mr Justice Burton, Law Society
Although there has been no comprehensive evaluation of the impact of the reforms Gazette February 2000; Richard
to date, various assessments of the reforms have been offered in speeches and articles Burns (Recorder) NLJ 2000 8
written by civil servants,† judges ,† †� and academics † †��†. City solicitors firms who regularly December 1829-30.
carry out surveys of their clients have also published a number of reports that summarise †††
Michael Zander (2000) The
solicitors’ experiences of the new regime and their views on how the reforms are working
State of Justice, Hamlyn Lectures,
Sweet and Maxwell.
on the ground.† The Department for Constitutional Affairs has published two evaluations †
Eversheds access to justice
based on a mixture of statistical data drawn from court samplers and anecdotal evidence survey 2000 (cases quicker but
offered by practitioners.† The general conclusions being drawn from various research not cheaper).
evaluations are that the reforms are working reasonably well on the ground in relation to
†
the promotion of earlier settlement and greater co-operation between parties. Insurance Emerging Findings: Evaluation
companies argue that they are settling claims earlier and statistics presented by the DCA of the Civil Justice Reforms, Lord
evaluations showing a continuation of the pre-Woolf decline in the number of proceedings Chancellor’s Department,
being issued, supports the inference that a higher proportion of cases are settling prior to March 2001. Further Findings: A
the commencement of legal proceedings. The evaluation published by the DCA in August Continuing Evaluation of the Civil
2002 reports that: Justice Reforms, Lord Chancellor’s
 there has been a continuing drop in the number of claims issued Department, August 2002.
 that pre-action protocols are promoting settlement

 that settlements at the door of the court are now fewer
 the number of trials on fast and multi-track has decreased
 the time between issue and hearing has decreased on the fast-track and multi-track
 the time between issue and hearing on small claims track has increased
 after an initial apparent increase, the number of civil cases resolved by mediation remains
modest (see further discussion below).
One area, however, in which all of these assessments appear to agree, is that the problem of
legal costs in civil cases continues. The weight of opinion is that costs have increased or at
least been front-loaded. Moreover there is growing evidence that disputes about costs may
have increased as a result of the reforms. The most recent evaluation by the DCA states that:
It is still too early to provide a definitive view on costs. The picture remains relatively un-
clear with statistics difficult to obtain and conflicting anecdotal evidence. Where there is
evidence of increased costs, the causes are difficult to isolate.
The Civil Justice Council (established to oversee the implementation of the CPR and the
progress of civil justice reform) has been sufficiently concerned about costs to establish
a costs working party. The working party has produced a number of papers considering
alternatives for holding down costs. One paper concludes that:† †
Civil Justice Council Working
It is generally agreed that costs are now forward loaded and that the costs of pre-trial ap- Group on Costs, Research and
plications have increased. Conclusions by Professor John
Peysner, 2003.
Recent work on costs in road traffic accident claims conducted for the Civil Justice Council
confirms that costs are now front-loaded and have risen:
The trends in costs reported appear consistent with the effect of Lord Woolf’s reforms on
the ‘front-loading’ of casework.† †
See for example, Costs of Low
Value RTA Claims 1997-2002, Paul
(b) Pre-court action
Fenn and Neil Rickman, Report
Goriely, Moorhead, and Abrams study of the impact of the Woolf’s reforms on pre-action
Prepared for Civil Justice Council,
behaviour† confirms suggestions from the DCA evaluations that the reforms have led to
January 31 2003.
later issue of court proceedings (once pre-action protocol deadlines have elapsed) and
†
that more cases are now being resolved without court involvement, particularly among T Goriely, R Moorhead, P Abrams
personal injury cases. (2002), More Civil Justice? The
Impact of the Woolf Reforms on
(c) ADR/Mediation
Pre-Action Behaviour, Law Society
The history of mediation in England since the implementation of the Woolf reforms is fasci-
and Civil Justice Council.
nating and worth extended discussion, if only to raise questions about its potential role in
any future policy change to civil dispute resolution processes in Scotland.
Government and judicial policy on mediation in England

Since the 1980s mediation providers in the fields of civil and family disputes have cam-
paigned to promote the advantages of mediation over traditional litigation. Despite their
efforts, interest in mediation in England remained at a low ebb until the early 1990s when
the attention of Government and the judiciary was captured by the claimed benefits of
mediation. In the field of civil disputes the attraction of mediation lay in the possibility of
diverting cases from litigation, thereby reducing the cost and delay suffered by parties, and
offering an acceptable alternative to trial. In family cases, the attraction for Government lay
in a potential reduction in the legal aid bill.
The publication of the Woolf Report in 1996 was a watershed in the development of media-
tion in civil and commercial cases. Lord Woolf believed that ADR had the ‘obvious’ advan-
tage of saving scarce judicial resources, and that it offered benefits to litigants or potential
litigants, principally speed and reduced costs. Lord Woolf did not propose that ADR should
be compulsory, either as an alternative or as a preliminary to litigation, but he felt that the
courts should play an important part in providing information about ADR and encouraging
its use in ‘appropriate cases’. This encouragement was to be underpinned by the court’s
power to ‘punish’ unreasonable behaviour in litigation by denying parties their legal costs
or other financial penalties:
[T]he court will encourage the use of ADR at case management conferences and pre-trial
reviews, and will take into account whether the parties have unreasonably refused to try
ADR or behaved unreasonably in the course of ADR.
When the new Civil Procedure Rules were implemented in April 1999, the courts were given
substantial case‑management powers, including the power to order parties to attempt
mediation or another form of ADR and to stay proceedings for this to occur. Active case
management under the CPR included ‘encouraging the parties to use an alternative dispute
resolution procedure if the court considers that appropriate, and facilitating the use of
such procedure’. Failure to co‑operate with a judge’s suggestion regarding ADR can result
in cost penalties being imposed on the recalcitrant party.† †
CPR R1.4 (2) and CPR R26.4: stay of
proceedings for settlement at the
The emphasis on ADR in court rules has been strengthened by the publication of six pre-ac-
court’s instigation. Factors to be
tion protocols, each of which encourage attempts at settlement, including consideration
taken into account when deciding
of ADR, before beginning court proceedings.
costs issues include ‘the efforts
The Government’s commitment to supporting the growth of ADR was demonstrated made, if any before and during
among the fundamental changes made to the legal aid system in 2000. Under the Access the proceedings in order to try
to Justice Act 1999, the Community Legal Service Fund (administered by the Legal Services and resolve the dispute.’ (Parts 1
Commission) replaced the old legal aid scheme and introduced a new set of rules by which and 44 Civil Procedure Rules)
Legal Aid would be payable. The rules include the cost of mediation within the legal aid
system and a condition that an application for legal aid for representation may be refused if
there are ADR options which ought to be tried first. In essence this means that citizens hop-
ing for public funding for representation in legal actions must have attempted mediation,
or be able to show why it was not possible to do so.
Since 2001, the Government has reinforced its commitment to mediation by stating that
it would attempt to resolve all disputes involving government departments through ADR
wherever possible, and all Government contracts now include a mediation option in the
procedure for resolving disputes.
More recently, the Department for Constitutional Affairs has established a target for reduc-
ing the proportion of disputes which are resolved by resort to the courts. A key element in
the strategy for achieving this target is the encouragement, both in and outside the court
structure, of the use of ADR. The DCA has supported the establishment of a number of
court-based mediation schemes in various parts of the country, and has been experiment-
ing with other initiatives to encourage the use of mediation.† Most importantly, the DCA †
For example, Birmingham, Exeter,
has established an ‘Automatic Referral’ to mediation pilot which is the first of its kind in the Guildford, South and West Wales;
UK. Early evidence about this initiative is discussed in detail below. Manchester mediation advice
service.
Judicial rulings on mediation
Perhaps the most important development in terms of interest in mediation for civil and com-
mercial disputes has been the strategy of the senior judiciary in seeking to create pressure
to mediate through decisions in high profile court cases. There have been a number of land-
mark cases which have made clear the approach taken by the courts to the role of mediation
and other ADR techniques in dispute resolution. Recent decided cases indicate that:
There is now a duty on the parties to a dispute to consider ADR before entering the judicial
process (Cowl 2002†) ‘Today sufficient should be known about ADR to make the failure to †
Cowl and Others v Plymouth
adopt it, in particular when public money was involved, indefensible’. (Lord Woolf) City Council, Time Law Reports,
January 8 2002.
There is a duty on the parties to a dispute to consider seriously the possibility of trying to
resolve the dispute by means of ADR (Dunnett v Railtrack PLC 2002) ‘The parties …have a
duty to consider seriously the possibility of ADR procedures being utilised for the purpose
of resolving their claim...’
†
The Judge will decide whether a refusal to mediate was justified (Hurst v Leeming 2002). Leicester Circuits Ltd v Coates
‘.. mediation is not in law compulsory, but alternative dispute resolution is at the heart Brothers PLC – withdrawal from
of today’s civil justice system, and any unjustified failure to give proper attention to the mediation is contrary to the
opportunities afforded by mediation, there must be anticipated as a real possibility that spirit of the Civil Procedure
adverse consequences may be attracted.’ (Mr Justice Lightman). Judges will accept valid Rules (March 2003); Royal Bank
reasons for not wanting to proceed with ADR, but such reasons must be fully justifiable if of Canada Trust Corporation v SS
the party wishes to avoid being penalised by the court. for Defence – refusal to use ADR
even where need to establish
Two further cases in 2003 that confirmed the risks for parties if they unreasonably refused
point of law may be deemed
to try ADR or withdrew unreasonably from an ADR process.†
unreasonable by court (May
Court-Annexed mediation schemes 2003).
Following the publication of the Woolf Report and subsequent debate about mediation,
several court-based ADR initiatives for civil and commercial disputes have been estab-
lished. The earliest was the adoption in the Commercial Court† in 1994 of the practice of †
A court with special jurisdiction
issuing ‘ADR Orders’ directing parties to attempt to settle commercial disputes by means in the Queen’s Bench Division of
of some ADR process (normally mediation or early neutral evaluation). A second important the High Court.
initiative was a voluntary mediation scheme set up in 1996 in the Central London County
†
Court (CLCC) for the resolution of non-family civil disputes. This scheme began as a two- H. Genn, Central London County
year pilot and following a comprehensive evaluation of the scheme published in 1998,† Court Pilot Mediation Scheme:
the Lord Chancellor decided it should continue to operate. A third court-based initiative is Evaluation Report, 1998, Lord
the voluntary mediation scheme established in the Court of Appeal (Civil Division) in 1997. Chancellor’s Department,
There are also a number of smaller court-based mediations schemes throughout England Research Series, 5/98.
and Wales which offer applicants to local civil courts an opportunity to try mediation
before continuing with the litigation process.† †
Birmingham Pilot Mediation
Scheme launched in 2001;
Evaluations have been conducted of three court-based schemes – the Central London
Leeds Pilot Scheme launched
County Court mediation scheme, the Court of Appeal mediation scheme, and the issuing
in July 2000; Manchester Pilot
of ADR Orders in the Commercial Court† – from which the following conclusions have been
Mediation Scheme launched in
drawn:
2000. Several of these schemes
ADR generally results in a high level of customer satisfaction. Mediators with excellent skills are in the process of being
and familiarity with the subject-area of the dispute produce the highest levels of satisfac- evaluated for the DCA.
tion. The approach of mediators needs to be matched with the expectations of parties and
†
their solicitors. H. Genn, Central London
County Court Mediation Scheme
Voluntary take-up of invitations to enter ADR schemes remains at a modest level, even
Evaluation, op cit; H Genn, Court
when the mediator’s services are provided free or at a nominal cost.
Linked Mediation in Non-Family
Outside of commercial practice, the legal profession remains very cautious about the use Civil Disputes, London: Lord
of ADR. Positive experience of ADR does not appear to be producing armies of converts. Chancellor’s Department,
Explanations may lie in the amount of work involved in preparing for mediation, the incen- Research Series 1/02, 2002.
tives and economics of mediation in low value cases, and the impact of the Woolf reforms,
in that more pre-issue settlements and swifter post-issue settlements may diminish the
perceived need for ADR in run-of-the mill civil cases.
Subjective perceptions of the profession support the view that successful ADR saves the
likely cost of proceeding to trial and may save expenditure by promoting earlier settlement
than might otherwise have occurred. However, unsuccessful ADR can increase the costs for
parties.
An individualised approach to the direction of cases toward ADR is likely to be more effec-
tive than general invitations at an early stage in the litigation process. This would require
the development of clearly articulated selection principles.
The timing of invitations or directions to mediate is crucial. The early stages of proceedings
may not be the best time, and should not be the only opportunity, to consider using ADR.
Lack of demand
The most important experience of English contemporary ADR experiments is a consistent
lack of demand. Even when mediation is provided at very low or no cost (as in the schemes
in the CLCC and the Court of Appeal) all voluntary schemes have suffered from slight take-
up. The evaluation of the CLCC scheme, which provided mediation at a minimal cost to par-
ties, demonstrated similar problems with no more than a 4% take up rate during the two
years of the pilot: ‘Even within the current climate of dissatisfaction with the cost and delay
of the civil courts, the proportion of cases in which both parties volunteered to mediate
was pitifully small’.† This was despite a relatively high level of satisfaction with the process †
H. Genn, Central London County
among those who had used the scheme. The scheme at the Court of Appeal – providing Court Pilot Mediation Scheme
mediation at no cost to the parties – has also experienced a take-up rate of only 4%. Evaluation Report, op cit, p.153.
The experience has been similar in the field of family disputes. In a three-year study of the
Legal Services Commission’s family mediation pilot scheme, it was found that the advent
of public funding for family mediation did not have an immediate impact upon the volume
of mediation activity. The subsequent introduction of Section 29 of the Family Law Act
1996, which required potential legal aid applicants to explore the possibility of mediating
their dispute prior to involvement in legal proceedings, led to a significant increase in the
number of cases referred to mediation providers, but did not lead to a substantial increase
in the number of cases in which mediation was actually undertaken.† †
Gwynn Davis etc al, 2000,
Monitoring Publicly Funded Family
Modest demand for court-based voluntary mediation schemes is consistent with pilot
Mediation: Report to the Legal
mediation schemes in other areas. For example, the Department of Health launched a pilot
Services Commission, Summary,
mediation scheme for medical negligence cases in 1995, in response to criticisms of the
p.iv and Chapter 2, p.24.
increased incidence of medical negligence claims, and claims management practice. At the
scheme’s inception it was anticipated that about 40 cases would be mediated over a two-
year period. The scheme was extended for an additional year when the number of referrals
remained low. By the end of the third year a total of twelve cases had been mediated,
although settlement had been reached in eleven of them.† †
L Mulcahy et al 1999, Mediation
Medical Negligence Claims: An
Although the largest providers of commercial mediation consistently talk of substantial
Option for the Future?, TSO,
increases in the number of cases coming forward for mediation, what is not always made
London, Chapter 7 and p.xvi.
clear is the very low base from which increases are starting. The evidence suggests that
although commercial lawyers in the City of London are encouraging their clients to experi-
ment with mediation this is, at the moment, an elite activity which is failing to establish a
foothold among the vast bulk of civil claims. The Paths to Justice studies found use of ADR
in civil and family disputes to be very limited. On the whole, respondents to the survey had
not tried to use ADR to deal with disputes and, equally importantly, lawyers and advice
agencies had not suggested it.
A number of explanations can be offered for the prevalent lack of demand for mediation.
First a dearth of knowledge about, and familiarity with, mediation and other ADR processes.
Enthusiasm for new ways of dealing with disputes cannot be created overnight and the
public, legal profession and other providers of advice about disputes are only just begin-
ning to hear about ADR.
There is, however, also a degree of client resistance to the idea of mediation and this is to
some extent linked to issues about the point at which court-annexed mediation schemes
and family mediation schemes kick-in. At the early stages of disputes – the point at which
mediation is likely to yield the greatest benefits in savings of conflict, time and cost – par-
ties are often unwilling themselves to consider the possibility of compromise. In both civil
and family cases, the desire for vindication and an opportunity for public acknowledge-
ment of a wrong suffered can be very strong. Only when a long process of attrition has
occurred, and when the reality of protracted litigation has begun to bite, are some people
prepared to compromise.
More recent evidence from a review of the Central London voluntary mediation scheme
†
between 1999 and 2003 raises other questions. Although there has been some increase in Hazel Genn and Marc Mason,
take-up of the scheme (around 200 cases mediated per year since 1999), the settlement Review of Central London County
rate has dropped dramatically. Rates have fallen from the steady 62% between 1996 and Court Voluntary Mediation
1998 to around 40% overall between 1999 and 2003.† A tentative, but important, explana- Scheme 1999-2003, forthcoming,
tion for this is the context within which parties have been mediating during this period. Department for Constitutional
As mentioned earlier, since 1999, the Civil Procedure Rules permit judges to order a stay of Affairs, Research Series.
proceedings for the parties to attempt to settle their dispute by mediation or some other †
CPR R1.4 (2) and CPR R26.4: stay of
form of dispute resolution process. Failure to co‑operate with a judge’s suggestion regard-
proceedings for settlement at the
ing ADR can result in cost penalties being imposed on the recalcitrant party.†
court’s instigation. Factors to be
It is arguable that the increasing pressure from the judiciary to consider mediation, and taken into account when deciding
the fear of being judged unreasonably to have refused to mediate if it is suggested by an costs issues include ‘the efforts
opponent, has led some parties at least to mediate in a half-hearted way and that this to made, if any before and during
some extent explains the falling settlement rate in the mediations. This hypothesis gains the proceedings in order to try
some support from lawyers and parties surveyed as part of the most recent review of the and resolve the dispute.’ (Parts 1
scheme. Among the reasons given by respondents for mediating in the CLCC voluntary and 44 Civil Procedure Rules)
scheme since 1999, advice or pressure from the courts and the judiciary was mentioned in
over a quarter of cases.
Compulsion
An issue, which flows directly from the evidence of meagre demand for mediation, is the
question of whether or not a mandatory mediation stage should be introduced for certain
kinds of disputes. This could be achieved by making it compulsory to attempt some form
of ADR process for certain classes of cases deemed suitable, or for all cases, unless they
had been deemed unsuitable. The chief advantage of such a step would be to remove the
possibility of parties appearing weak, by opting for mediation schemes and ensuring that
greater numbers of litigants were compelled to experience ADR processes, thus, possibly,
speeding up the process of public and practitioner education about ADR.
In this context, concerns have been raised about forcing litigants in the course of court
proceedings to attempt a private resolution process over which the court has no control.
There is also the possibility that such a step would increase costs for those who fail to
reach a settlement by means of ADR. It is also argued that compulsion is antithetical to the
philosophy of mediation as a consensual process. Perhaps surprisingly, however, mediation
providers have supported and even pushed for experimentation with compulsion.
Despite concerns from some quarters about compulsion in mediation, in April 2004, the
DCA introduced a pilot Automatic Referral to Mediation scheme (ARMS pilot) in the Central
London County Court to run alongside the Court’s voluntary scheme. Under the ARMS
pilot 100 cases per month have been automatically referred to mediation with a chance
to opt-out. In setting-up this scheme, the DCA had been encouraged by the results of a
compulsory mediation programme in Ontario,† and the ARMS pilot at CLCC was to be close †
Evaluation of the Ontario
to a compulsory mediation programme. Mandatory Mediation Program
(Rule 24.1): Final Report -- The
However, almost simultaneously with the launching of the ARMS pilot, a powerful decision
First 23 Months, March 12, 2001,
on the role of the courts in encouraging mediation was given by the Court of Appeal in
Robert G. Hann and Carl Baar
Halsey v Milton Keynes General NHS Trust (2004) EWCA Civ 576. In that case, Lord Justice Dyson
with Lee Axon, Susan Binnie and
held that the courts have jurisdiction to impose a costs sanction on successful parties who
Fred Zemans.
unreasonably decline to mediate. In deciding whether or not to do so, factors to consider
include whether the successful party reasonably believed they would win, cost benefit
ratio, and whether the unsuccessful party can show that mediation had a reasonable pros-
pect of success. The case indicates that there continues to be a considerable risk of a costs
sanction where a judge’s recommendation to mediate is ignored. However, the case also
established that the Court has no power to order mediation and obiter raised the question
of whether a court order to mediate might infringe Article 6 of the Human Rights Act 1998:
…it seems to us likely that compulsion of ADR would be regarded as an unacceptable
constraint on the right of access to the court and, therefore, a violation of article 6. Even if
(contrary to our view) the court does have jurisdiction to order unwilling parties to refer
their disputes to mediation, we find it difficult to conceive of circumstances in which it
would be appropriate to exercise it. We would adopt what the editors of Volume 1 of the
White Book (2003) say at para 1.4.11: The hallmark of ADR procedures, and perhaps the key
to their effectiveness in individual cases, is that they are processes voluntarily entered
into by the parties in dispute with outcomes, if the parties so wish, which are non-binding.
Consequently the court cannot direct that such methods be used but may merely encour-
age and facilitate.
It is difficult to say for certain what impact this case had on the course of the ARMS pilot.
However, the consistent evidence to date from the evaluation of the pilot† is that since the †
Hazel Genn, Marc Mason and
inception of the pilot, around 80% of cases have sought to opt-out of mediation. Of 689 Paul Fenn, Evaluation of Automatic
cases automatically referred to mediation between May and October 2004, only 53 media- Referral to Mediation Scheme at
tions have taken place, with a success rate to date of 66%. It was originally hoped that the Central London Civil Justice Centre,
evaluation of the ARMS pilot would provide important evidence about settlement rates un- forthcoming, Department for
der conditions of compulsion, as well as indications as to which cases were most appropri- Constitutional Affairs, 2005.
ate for mediation. The overwhelming rate of opting-out, however, has somewhat defeated
these objectives, although we are in a position to obtain considerable information about
objections. It is clear that in the majority of cases, parties are guided by their legal advisers
as to the desirability of mediating their case and in the main they are being advised against
it. As noted in the evaluations of voluntary court-based schemes, the legal profession has
an important role as gatekeeper to clients’ choice of dispute resolution process.
Cost of mediation
Most of the mediation currently being provided through court-annexed schemes for civil
cases is provided at very low cost. Newly qualified mediators, keen to try out their skills,
have, to date, been reasonably happy to operate on this basis. Although this approach can
probably continue so long as the take-up of court-annexed schemes remains low, in the
long term the issue of cost will have to be addressed. If commercial rates are charged, it is
unlikely that voluntary demand for mediation will pick-up. Additional problems will arise
if an increasing proportion of litigants are compelled to attempt mediation at commercial
rates, thus possibly increasing further the cost of litigation.
Legal advice and just outcomes

There is also the tricky question of whether litigants should be encouraged to seek legal
advice before becoming involved in a mediation or other ADR process and whether they
should be advised during a mediation session. The answer to this question raises funda-
mental issues about the objectives of mediation and other ADR processes. Is the purpose
to offer outcomes that are just, or merely outcomes that are acceptable to the parties? If
there is a role for justice in ADR processes, how is a just outcome to be determined and are
lawyers necessary to the protection of parties’ rights and interests?
The potential of ADR

The potential value of various ADR processes as a supplement to traditional settlement
processes ought to be recognised and clearly expressed, particularly in regard to the way in
which they can add-value to solicitor negotiations. Debate in England has been somewhat
hampered by the evangelical enthusiasm of mediation providers, generating suspicion on
the part of more measured observers and inhibiting sensible discussion of the downsides
of ADR. To suggest that mediation and other ADR processes can provide a panacea for the
ills of the civil justice system and the problems of costly litigation in family proceedings
is unrealistic, even if anyone might think it desirable. In any case, to argue that mediation
always saves costs is largely unsubstantiated and plainly wrong in situations when ADR fails
to achieve settlement.
Many litigants who feel a sense of injustice are not keen to compromise. They want vindica-
tion, compensation, and retribution. Whether the State should be prepared to offer the
opportunity for full vindication and retribution is a matter of policy and the use of scarce
resources.
The stage has been reached in England where attention needs to be directed toward
articulating the objectives of different ADR processes; matching ADR processes to different
dispute types and party configurations – which cases are most appropriate and where is the
benefit is likely to be greatest; further experimenting with compulsion at different stages in
the litigation process; debating the problem of how the cost of mediation ought to be met
and addressing questions of quality control and whether court-annexed schemes should
be offering the services of a court-appointed mediator.
5 What are the lessons for Scotland?

The need for an evidence base
There are logically at least three questions that need to be addressed in order to deliver an
optimal civil justice system:
 What is it that people involved in civil disputes want by way of dispute resolution?
 What is the system currently delivering by way of dispute resolution?
 How to change the system to bring (b) better into line with (a)?
These three questions must be set in the context of what society wants from its civil justice
system, what resources can reasonably be allocated to the resolution of civil disputes, and
what social costs might be saved by an efficient and responsive civil justice system.
What do people want?

At its most simple and basic, recent studies of citizens involved in civil disputes tell us that
what people want is to have an end to the dispute and to get on with their lives.† On the †
Paths to Justice Scotland (2001);
other hand, motivating factors for taking action in relation to justiciable civil disputes most Paths to Justice England (1999);
often involve claims over modest sums of money (e.g. personal injury, consumer disputes Causes of Action (2004).
over goods and services), protection of personal rights or family members (e.g. employ-
ment, housing, children) and attempts to achieve a change in the behaviour of others (e.g.
neighbours, partners). Less often, citizens are seeking explanations, apologies, and changes
in procedure that will avoid misfortunes from occurring in the future (e.g. clinical negli-
gence, discrimination) or improve systems for others (e.g. professional negligence).
However, what people want from the civil justice system also depends on whether they
are a pursuer or a defender in a civil dispute. Pursuers generally want quick, cheap, and fair
dispute resolution processes. When pursuers take legal action it is because they believe
they have a justified cause of action. They believe they are right and resent the cost and
time that it inevitably takes to be vindicated. The evidence that we have from the Paths to
Justice studies makes clear that people do not take formal steps toward dispute resolu-
tion lightly. Most people only involve themselves in a legal action because there is a sum
of money at stake that is significant to them, or because there is an issue at stake that is
threatening their well-being or that of their family. The issue has to be sufficiently serious
to warrant the unpleasantness of becoming involved in legal proceedings. Most people
regard the legal system as alien and dangerous. They do not want to be caught up in it and
they submit to it reluctantly because they believe that there is no other way to achieve the
most common objectives of compensation, explanation, or behavioural change. Citizens
and corporate bodies alike want procedures that offer the opportunity to get in and out
quickly and with least pain. Also, and crucially, they want remedies that are enforceable.
But what of the defenders? Defenders fall broadly into two categories:
 defenders who refuse to pay or refuse to change
 defenders who cannot pay.
The first group covers individuals, corporate and public bodies. For defenders who have the
means to meet the demands of a pursuer, but refuse to do so – because they do not believe
they should have to pay or change their behaviour, or, they prefer not to pay if they can
avoid it – the ideal system is one that is slow, complicated and expensive. In a system char-
acterised by cost and delay, the recalcitrant defendant benefits from postponing the time
when he has to pay or change. He also benefits from the possibility that the pursuer will be
deterred from commencing legal proceedings, or will abandon a claim once commenced.
In this context it is noticeable that among those voicing complaints about the crisis in civil
justice in England prior to the Woolf Inquiry, the voices of institutional defendants, such as
insurance companies, were silent.
The second group of defenders, those who cannot pay, are also assisted by dispute resolu-
tion processes that are slow and expensive. They may be indigent, disadvantaged people.
They may want a process that is slow and difficult for the pursuer, so that their fate is
postponed or even better that a pursuer decides it isn’t worth the struggle and abandons
the claim.
Any change to dispute resolution processes in Scotland that increases access and usage by
pursuers will have consequences for others. Changes inevitably have a differential impact
on pursuers and defenders, and consideration must be given to the implications of change
from the different perspectives of individual pursuers, individual defenders, corporate and
public pursuers, and corporate and public defenders. For example, although the increase
in the jurisdiction of the small claims track in England and Wales, made in the name of ac-
cess to justice, has led to a growth in the volume of small claims, small claims hearings are
dominated by business pursuers rather than individual citizens.
It is therefore important that discussion about any changes to the civil justice system
should take a broad view of the system as a whole and be rooted in an empirical under-
standing of the current caseload of dispute resolution processes and of potential future
demand in light of any change.
What is the system currently delivering?

Discussion about changes to the Scottish civil justice system should ideally be informed by
evidence about how the system currently operates and an understanding of the problems
and dynamics within the system. The reforms in England and Wales proceeded without
the benefit of detailed research and this has had made it difficult to assess the impact of
the reforms in relation to their objectives. There has been an historic lack of basic factual
information about the characteristics of litigated cases in the civil courts. Although courts
in England and Wales collect a considerable quantity of information for administration
purposes, this database information generally misses vital descriptive elements, such as
case type, value, and outcome.† As a result, what might be regarded as simple questions †
A notable exception is the RECAP
about the nature and operation of the civil justice system could not be answered easily at database used in the England
the time of the Woolf Inquiry, and the situation is little better now. For example: and Wales Court of Appeal. This
 Who sues in the civil courts, about what kinds of disputes, and in relation to what sums of database contains a considerable
money? mount of descriptive information
that is missing from CASEMAN
 What is the outcome of cases commenced in the courts? What proportion settle, go to
and is therefore extremely useful
trial, lapse, or are withdrawn? What sums are awarded?
for researching appeal cases.
 How long, on average, do cases take to conclude and are there differences depending on
the type of case?
 How much does it cost the parties to litigate civil claims and are there differences depend-
ing on the type of case?
I would suggest that the answers to these questions are necessary in order properly to
understand the processes that one is seeking to improve and to judge the extent to which
modifications may have achieved their objectives.
The Pre-Woolf litigation landscape in England

The Woolf Inquiry was not allocated a budget for research, and in any case, the timescale
set for the Inquiry effectively precluded the possibility that the team could collect large-
scale data about the operation of the civil justice system. This was not seen as a particular
weakness in the approach of the Inquiry, since there was a shared or common understand-
ing of what the problems were and many of the assertions and arguments in the Report
resonated at least with the worst experiences of litigants, practitioners, and the judiciary.
The Woolf road shows, held at different locations around the country as part of the Inquiry
process, were replete with horror stories about the nightmare of litigation. Litigants who
had been worn down by their experiences of years embroiled in civil actions would take
the floor and graphically explain how their lives had been ruined by litigation. Persuasive
though these personal stories were, what was lacking from the Woolf discourse was any
sense of the average, the usual, or the wider context of litigation in the courts.
One small study of High Court cases, commissioned for the Inquiry, certainly supported
arguments about delay and disproportionate costs at that level.† Although data were †
Hazel Genn (1996) Survey
only available for a sample of taxed cases, which was not a representative sample of all of Litigation Costs: Research
cases, the analysis nonetheless exposed significant variation in case length and legal costs conducted for Lord Woolf’s
between different case types. Inquiry on Access to Justice,
Lord Chancellor’s Department,
Despite the absence information about court caseloads at the time of the Woolf Inquiry,
London.
we now have retrospective information about the pre-Woolf litigation landscape from a re-
cently completed study of county court litigated cases concluded between 1996 and 1998,
prior to the introduction of the 1999 reforms.† This study provides baseline information for †
Hazel Genn, The Pre-Woolf
assessing the impact of the Woolf reforms on the course and outcome of civil litigation. It Litigation Landscape in the
also offers a basis for detecting changes to the volume, character, and dynamics of litiga- County Courts, Department for
tion in the post-Woolf world of civil justice, for example, by identifying whether certain Constitutional Affairs, Research
kinds of litigants or cases are more prevalent following the reforms. Series, (forthcoming 2005).
The study was based on information collected from seven different county courts in
England and provides information at a level of detail not available at the time of the Woolf
Inquiry in 1995/6. The following as yet unpublished findings are presented here to indicate
some of the features of the English pre-Woolf defended litigation landscape and to illus-
trate the kind of information that could usefully inform debate about potential changes to
the Scottish civil justice system.
What kinds of cases? Before the Woolf reforms, defended cases in the county courts in
England were dominated by personal injury claims (between one-half and 83% of defended
cases in the county courts).† Among non-personal injury cases, the most common catego- †
Ongoing research for the DCA
ries of claim were breach of contract, goods and services, and debt. into mediation schemes in
Central London and a number of
Who sued whom? In personal injury, claimants were almost always individuals suing
provincial courts has produced
insurance companies, or public bodies. Among non-personal injury cases, the pattern was
data indicating that personal
different and more varied. About one-third of claims were brought by individuals against
injury work continues to
companies or public bodies, some 15% were brought by individuals against other individu-
dominate fast- and multi-track
als, a little over one-quarter were cases in which companies or public bodies were suing
caseloads in the civil courts.
each other, and a similar proportion involved companies or public bodies suing individuals.
How much money was being argued about? In all courts, at least three in four defended
cases with a liquidated value fell within the current small claims track or fast track limit,
and in most courts the figure was 85% or more. The median claim value for liquidated non-
personal injury claims was £5,534 and the mode was £5,000. The vast majority of defended
claims in the county court were for relatively modest sums.
Who had legal representation? In virtually all personal injury cases, both sides in the
action had legal representation. Among non-personal injury cases there were significant
differences between case types in levels of representation. Debt cases were most likely
to be defended without representation on either side. Cases involving a legally repre-
sented claimant against an unrepresented defendant most often involved debt, breach of
covenant and goods and services. In well over one-third of cases in which companies were
suing individuals, only the claimant company had legal representation. Representation was
related to claim value. The higher the value of the claim, the more likely both sides were to
have legal representation.
How did cases end? There was a significant difference in the outcome profile between
personal injury and non-personal injury cases. Personal injury cases had high settlement
rates and very small numbers of trials (about nine in ten ended in settlement). Among non-
personal injury cases, the settlement rate was generally lower, with a higher proportion of
trials and a much higher proportion of cases being withdrawn. Debt cases were the most
likely of all case types to end in trial (38%) and in all of those cases the claimant succeeded.
The highest proportion of cases going to trial occurred where individuals were being sued
by corporate or public bodies, thus confirming evidence from the Paths to Justice studies
that, within the civil justice system, private individuals are more likely to be involved in
court hearings as defendants than as claimants. In the overwhelming majority of cases
going to trial (96%), the claimant was successful. Thus in all cases where corporate or public
bodies sued individuals, the claimant won. In no case did an individual defendant succeed
at trial.
How much was awarded in settlement or trial? In both personal injury and non- personal
injury cases, about half of the awards or settlements were for sums between £1,000 and
£5000, with around a further quarter to one-third falling between £5,000 and £10,000.
How long did cases take? Personal injury cases, on average, lasted longer than non-personal
injury cases. Among concluded personal injury cases, case length to settlement was con-
siderably shorter than to trial. There were no significant differences in length of concluded
cases depending on claim value. There was, however, significant variation in case length
in non-personal injury cases in relation to legal representation. Where neither party had
legal representation, cases tended to conclude more quickly than when one side or both
had representation. Case length did not seem to be affected in personal injury cases by the
presence or absence of legal aid.
How much were the legal costs?

In almost all cases where information was available about legal costs, the agreement or
order was for the defendant to pay the claimant’s legal costs. The absolute level of costs
was generally relatively modest in non-personal injury cases. In personal injury cases the
figures were higher, with about half the cases having costs of around £2000 or less and
one-quarter having costs of over £4000.
Although there was variation in the picture between different courts included in the
study, some of the most striking differences found were between personal injury litigation
and non-personal injury litigation – underlining the difficulty of generalising about ‘civil
litigation’ as a whole. The baseline study shows that personal injury actions dominated the
defended caseloads of most courts, that they overwhelmingly ended in out of court set-
tlement rather than trial, and tended to take longer to conclude than non-personal injury
cases. The analysis of settlements and awards in personal injury cases shows that the value
of the majority of claims was relatively modest.
Non-personal injury cases were more varied in terms of party configuration and use of legal
representation. In non-personal injury cases, actions were much more likely to be started
by corporate or public bodies and defendants were much more likely than in personal
injury cases to be private individuals. Legal representation was patchier and there was a
substantial minority of cases in which either the defendant or both sides had no legal rep-
resentation. Only one-quarter of non-personal injury cases proceeding to trial were actions
commenced by individuals and in seven out of ten non-personal injury trials, the defendant
was an individual rather than a corporate or public body. Non-personal injury cases tended
to end more quickly than personal injury cases, but a larger proportion is withdrawn and a
larger proportion goes to trial. The average value of claims in terms of amounts of money
awarded in settlement or at trial in non-personal injury cases is remarkably similar to that
in personal injury claims.
To an extent the data produced in the baseline study conflict with some of the more apoca-
lyptic claims and predictions that characterised the discourse of the Woolf debate. On the
other hand it supported Lord Woolf’s allegation that individuals at the time were deterred
from using the courts.
What changes are needed to meet the needs of users and potential users?
A broad ranging review of the current civil justice system in Scotland will provide a solid
evidence-base from which to consider alternatives. The English experience of reform indi-
cates the areas in which significant gains can be made: in changing the traditional culture of
adversarialism and increasing co-operation between disputing parties. A significant achieve-
ment has been the pre-action protocols which, for the first time, have made it possible to
influence pre-issue dispute resolution behaviour. Those cases that cannot be settled pre-is-
sue are now moving more rapidly through court procedures and the approach of the Court
of Appeal has underpinned the power of the judiciary to enforce timetables and to penalise
parties seeking to gain expensive tactical advantage through manipulation of court rules.
The English experience of promoting mediation for civil disputes has demonstrated its
value as a supplement to court procedures, as part of a flexible range of dispute resolution
processes. The experience also illustrates the difficulty of changing attitudes overnight, the
role of the legal profession in influencing those attitudes, and the limitation of ADR as a ‘fix’
for the problems of civil justice. If ADR is to be encouraged, it should be part of what is on
offer in a flexible appropriate and proportionate dispute resolution landscape.
There are also negative lessons to be learned from the English hopes of reducing costs.
Speeding cases and front-loading work may not lead to a reduction in costs, although
there are two issues that must be taken into account here. First, Lord Woolf anticipated
that there would be fixed costs on the fast track. In the end this was not deemed possible,
but had there been fixed costs, some of the resulting problems and arguments over
costs might have been reduced. It is also the case that almost simultaneously with the
Woolf reforms there was a fundamental change to the legal aid system which included a
wholesale shift to conditional fee arrangements (CFA). The implications of CFAs for costs in
personal injury cases, with defendants now responsible for success fees as well as the cost
of the claimant’s insurance against losing, are difficult to unravel but it is likely that they
have contributed to satellite costs litigation. It has also been argued by some that CFAs are
making mediation of personal injury cases unattractive.
In considering changes in Scotland, therefore, it is necessary not only to take a broad view
of civil justice, but also to take a joined-up approach to policy which ensures that policy in
one area of the legal system does not conflict with the objectives of policy in another area.
There also needs to be some clarity about the purpose of change. Is change desirable in
order to increase the number of cases being resolved through formal† resolution processes †
For this purpose I use the term
(whether within or outwith the courts)? Is change desirable to increase levels of satisfac- ‘formal’ to mean any dispute
tion with formal dispute resolution processes? Is change desirable in order to reduce the resolution process that goes
cost and delay of formal dispute resolution processes? If a principal driver for change is to beyond the disputing parties
reduce the cost of dispute resolution processes, whose costs are to be saved? Those of the reaching a settlement by
parties or those of the taxpayer? themselves i.e. formal legal
procedures and ADR processes
Finally, if a fundamental objective of change to the Scottish civil justice system is to
involving the assistance or
improve access to justice, it must be recognised that the reach of any review must go
intervention of a third party.
beyond improving dispute resolution procedures. The hardest-to-help groups in society
do not shun formal dispute resolution procedures because of the anticipated cost or delay.
Their inaction in the face of justiciable problems and disputes flows from a general sense
of powerlessness and lack of knowledge or understanding about the possibility of redress,
let alone any knowledge of precise procedures for redress. To increase access to justice
for such groups requires the broadest of policy approaches, which includes the range and
method of free advice provision, public education, and a proactive approach which might
help to avoid justiciable disputes from occurring or escalating.
17 ‘Civil Justice’
Michael Zander

personal use.
Programme, 2007.
Chapter 2 of Zander, M. The State of Justice.
(London: Sweet & Maxwell, 2000) first edition Scanning authorised by Professor Wayne Morrison
Diploma).
18 ‘Paying for Legal Services’

Catherine Elliott

personal use.
Programme, 2007.
Chapter 17 of Elliott, C. English Legal System Sourcebook.
(London: Pearson Longman, 2006) first edition Scanning authorised by Professor Wayne Morrison
Diploma).
19 ‘The legal profession and legal services’

John Adams and Roger Broadsword

personal use.
Programme, 2007.
Chapter 9 from Adams, J. E. and R. Broadsword
Understanding law. (London: Sweet and Maxwell, 2005) Scanning authorised by Professor Wayne Morrison
third edition [ISBN 978-0421787308]. (designated person).
Diploma).

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Common law reasoning and institutions

Published by the University of London Press

1 ‘Law and Society: the Purposes and Functions of Law’

Staff and students of the University of London External

2 ‘The significance of Courts’

Staff and students of the University of London External

3 ‘Finding Cases and Statutes’

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4 ‘Finding Books, Journals, and Official Publications’

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5 ‘Reading Research Materials’

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Reading research materials

As part of your study, you must be able to effectively:

What are documents?

Read the article and answer the following questions:

Who killed Sally Clark?

So who killed Sally Clark?

Who killed Sally Clark?

Who killed Sally Clark?

Who killed Sally Clark?

Who killed Sally Clark?

© Trinity Mirror Newspapers

Prosecution in the dock

Reading research materials – bibliography

6 ‘The Judicial Practice of Precedent’

Staff and students of the University of London External

The judicial practice of precedent

1 Precedent as a judicial practice

Hierarchy and flexibility

This suggests the development of an alternative practice of interpretation that departs

3 Judicial Law Making

4 Judicial Law Making and Human Rights

judges considered this to be an unjustifiable intervention into an area of judicial compe-

7 ‘The Judicial Practice of Statutory Interpretation’

Staff and students of the University of London External

The Judicial Practice of Statutory Interpretation

1 Statutory interpretation and institutional legitimacy

Twining is describing modern judicial practice. It is largely determined by pragmatism,

To what extent did Pepper v Hart revolutionise methods of interpretation by allowing

The impact of European methods of interpretation is undoubtedly having an important

4 The Politics of Interpretation Under the Human Rights Act

This is essentially an act of interpretation. Section 41 may be subject to certain exceptions,

It may be that Parliament expresses a ‘clear limitation on Convention rights’ (see R v

This is a restatement of a fundamental constitutional principle. It is clear that the HRA is

A good example of a case where a broad interpretation of an Act leads to an acceptable

Staff and students of the University of London External

9 ‘The Jury Trial (2): A Theatre of Justice’

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10 The Impact of Human Rights on Criminal Investigation

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Staff and students of the University of London External

Staff and students of the University of London External

Staff and students of the University of London External

14 ‘The Effect of the Convention in any Litigation’

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15 ‘The Civil Justice System’

Staff and students of the University of London External

16 ‘Solving Civil Justice Problems: what might be best?’

Staff and students of the University of London External

‘Solving civil justice problems: what might be best?’

1 Best for whom?

2 Taking a broad view: The Woolf Approach in England