Legal Systems Guide

Legal system and
method
Hazel Genn
This module guide was prepared for the University of London by:
uu Professor Dame Hazel Genn, Faculty of Laws, University College London.
The author is grateful to Professor Gary Slapper for his helpful comments on an earlier
draft of the guide. Professor Slapper’s comments have been incorporated.
The 2016 update to the guide was prepared by:
uu Mary McLaughlin LLM (QUB), MA (QUB), LLB (UU), PGCE (OU), PGCHET (QUB),
BA (Reading), DipTrans IoLET, FHEA, Teaching Fellow, University of London.
The 2018 update to the guide was prepared by:
uu Charlotte Crilly LLM, MA (Oxon), Teaching Fellow, University of London.
This is one of a series of module guides published by the University. We regret that
owing to pressure of work the authors are unable to enter into any correspondence
relating to, or arising from, the guide.
This module was previously called Common law reasoning and institutions.
Figure 2.1 contains public sector information licensed under the Open Government
Licence v3.0.
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Legal system and method page i
Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction to Legal system and method . . . . . . . . . . . . . . . . . . . . . . 3
Purpose and content of the module guide . . . . . . . . . . . . . . . . . . . . . . 3
Module aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Learning outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Textbook and other reading material . . . . . . . . . . . . . . . . . . . . . . . . 4
Relevant websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Essential information for the new law student . . . . . . . . . . . . . . . . . . . . 5
Citation of legal cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Law Reports series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Glossary of key judicial offices in the English legal system . . . . . . . . . . . . . . 9
1 Introduction to law and the legal system . . . . . . . . . . . . . . . . 11

1.1 What is law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.2 What is law for? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.3 Sources of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.4 Different types of legal system . . . . . . . . . . . . . . . . . . . . . . . 20
1.5 Classification of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1.6 Constitutional principles and the legal system . . . . . . . . . . . . . . . 25
1.7 Doing justice in legal systems . . . . . . . . . . . . . . . . . . . . . . . . 32
2 The courts and their work . . . . . . . . . . . . . . . . . . . . . . . . 35

2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2.2 Some preliminary distinctions . . . . . . . . . . . . . . . . . . . . . . . 37
2.3 The hierarchy of the courts . . . . . . . . . . . . . . . . . . . . . . . . . 37
2.4 European courts and relationship with English courts . . . . . . . . . . . . 42
3 The doctrine of judicial precedent . . . . . . . . . . . . . . . . . . . 45

3.1 What is the doctrine of judicial precedent? . . . . . . . . . . . . . . . . . 47
3.2 The role of the judiciary in the operation of precedent . . . . . . . . . . . 50
3.3 Precedent in practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
3.4 The European Court of Human Rights and the UK Supreme Court . . . . . . 59
3.5 Judges as law-makers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
3.6 Postscript: the history of law reporting . . . . . . . . . . . . . . . . . . . 64
3.7 Citation of the Law Reports and the Weekly Law Reports . . . . . . . . . . 65
4 Statutory interpretation . . . . . . . . . . . . . . . . . . . . . . . . . 67
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
4.2 Why is the interpretation of statutes so difficult? . . . . . . . . . . . . . . 69
4.3 Why does interpretation matter so much? . . . . . . . . . . . . . . . . . 69
4.4 The basic approaches to interpretation . . . . . . . . . . . . . . . . . . . 70
4.5 Aids to interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
4.6 European influence on statutory interpretation . . . . . . . . . . . . . . . 74
4.7 The impact of the Human Rights Act 1998 on statutory interpretation . . . 76
4.8 Human rights: interpretation or legislation? . . . . . . . . . . . . . . . . 81
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5 The judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
5.2 Independence and constitutional change . . . . . . . . . . . . . . . . . . 85
5.3 Changes introduced by the Constitutional Reform Act 2005 . . . . . . . . . 85
5.4 The judicial hierarchy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
5.5 Measures supporting the independence of the judiciary . . . . . . . . . . 88
5.6 Personal independence . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
5.7 The legitimacy and authority of the judiciary . . . . . . . . . . . . . . . . 93
5.8 Judicial appointments prior to the Constitutional Reform Act 2005 . . . . . 95
5.9 Judicial selection process after the Constitutional Reform Act 2005 . . . . . 98
5.10 Increasing judicial diversity . . . . . . . . . . . . . . . . . . . . . . . . 101
5.11 Judicial power and relations with the executive and legislature . . . . . . 109
5.12 Judicial power and the protection of human rights . . . . . . . . . . . . 111
5.13 Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
6 The civil justice system, access to justice and ADR . . . . . . . . . . . 117

6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
6.2 Distinctions between civil and criminal justice systems . . . . . . . . . . 119
6.3 The scope of the civil justice system . . . . . . . . . . . . . . . . . . . . 120
6.4 What is the civil justice system for? Civil justice as a ‘public good’ . . . . . 121
6.5 The challenge of providing accessible and affordable civil justice . . . . . 130
6.6 Alternative dispute resolution (ADR) processes . . . . . . . . . . . . . . 137
6.7 Disappearing trials, privatisation of justice and the rule of law . . . . . . . . 142
7 The criminal justice system . . . . . . . . . . . . . . . . . . . . . . . 147

7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
7.2 What is the criminal justice ‘system’? . . . . . . . . . . . . . . . . . . . 149
7.3 What is the criminal justice system for? . . . . . . . . . . . . . . . . . . 149
7.4 The investigation of crime: the police and their powers . . . . . . . . . . 155
7.5 The prosecution of crime: the Crown Prosecution Service . . . . . . . . . 158
7.6 The adjudication of crime: courts, judges and juries . . . . . . . . . . . . 164
7.7 Jury decision-making in criminal trials . . . . . . . . . . . . . . . . . . . 167
7.8 Jury decision-making: independence and impartiality . . . . . . . . . . . 171
7.9 Appeals and correcting miscarriages of justice . . . . . . . . . . . . . . . 181
Legal system and method page iii
Module descriptor
GENERAL INFORMATION
Module title
Legal system and method
Module code
LA1031
Module level
4
Contact email
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at: www.
enquiries.londoninternational.ac.uk
Credit value
30
Courses on which this module is offered

CertHE, LLB, EMFSS
Module pre-requisite
None
Notional study time

300 hours
MODULE PURPOSE AND OVERVIEW

Legal system and method is a compulsory module of the Standard Entry LLB and
CertHE Common Law. Students must select it on first registration. The module is
an introduction to the English legal system and describes the distinctiveness of
the common law approach as a legal methodology. The module is vital in initiating
students into the process of legal research and the understanding of legal reasoning.
MODULE AIM
To achieve an overview of the central institutions and processes of the English legal
system and to introduce students to techniques of legal interpretation and legal
research.
LEARNING OUTCOMES: KNOWLEDGE

On successful completion of the module students should be able to:
1. Understand the structure and operation of the central institutions and processes
of the English legal system;
2. Explain the purpose and basic structure of the civil justice system and the place
and value of alternative methods of dispute resolution;
3. Explain the purpose and basic structure of the criminal justice system and the
tension between the objectives of crime control and protection of civil liberties
and human rights;
4. Describe the role and constitutional position of judges and in particular the Law
Lords and the Supreme Court;
page iv University of London
5. Understand judicial approaches to statutory interpretation and the influence of

European law on those approaches;
6. Understand the essential ingredients of the rule of law, and the importance to
fairness and justice in social and legal systems.
LEARNING OUTCOMES: SKILLS

Students completing this module should be able to:
7. Apply the techniques of legal reasoning covering precedent and statutory

interpretation;
8. Identify key issues in a case and summarise points clearly and accurately;
9. Conduct basic legal research tasks using primary and secondary sources;
10. Respond coherently to straightforward questions about the law using legal
referencing appropriately;
11. Locate legal sources;
12. Demonstrate understanding of legal terminology;
13. Understand the principles of good academic practice.
BENCHMARK FOR LEARNING OUTCOMES

Quality Assurance Agency (QAA) benchmark statement for Law (2015).
MODULE SYLLABUS
(a) The nature of the common law tradition, with particular reference to human rights.
(b) Sources of law and principles of legal research, with an emphasis on case noting,
reading cases/statutes and essay writing.
(c) Conduct of legal research and retrieval of legal information, with particular reference to
the use of the London online library and web-based resources in finding cases, statutes
and journal articles.
(d) The doctrine of precedent and the principles of statutory interpretation.
(e) Judicial reasoning in relation to (i) cases, and (ii) statutes.
(f) The judiciary, with particular reference to the role of the judges and the Human Rights Act.
(g) The criminal justice process (in outline) and the role of rights in the process, with
particular attention to the jury and the impact of the Human Rights Act.
(h) The civil justice process (in outline), with particular attention to reform and the role of
rights.
LEARNING AND TEACHING
Module guide
Module guides are the student’s primary learning resource. The module guide covers the
entire syllabus and provides the student with the grounding to complete the module
successfully. The module guide sets out the learning outcomes that must be achieved
as well as providing advice on how to study the module. The guide also includes the
essential reading and a series of self-test activities together with sample examination
questions, designed to enable students to test their understanding. The module guide is
supplemented each year with the pre-exam update, made available on the VLE.
The Laws Virtual Learning Environment

The Laws VLE provides one centralised location where the following resources are
provided:
uu a module page with news and updates, provided by legal academics associated
with the Laws Programme;
Legal system and method page v
uu a complete version of the module guides;
uu online audio presentations;
uu pre-exam updates;
uu past examination papers and reports;
uu discussion forums where students can debate and interact with other students;
uu Computer Marked Assessments – multiple choice questions with feedback

are available for some modules allowing students to test their knowledge and
understanding of the key topics.
The Online Library

The Online Library provides access to:
uu the professional legal databases LexisLibrary and Westlaw;
uu cases and up-to-date statutes;
uu key academic law journals;
uu law reports;
uu links to important websites.
Core reading
Students should refer to the following core text:
Holland, J.A. and J.S. Webb Learning legal rules: a student’s guide to legal method and
reasoning. (Oxford: Oxford University Press, 2016) ninth edition [ISBN 9780198728436].
http://ukcatalogue.oup.com/product/9780198728436.do
ASSESSMENT
There are self-assessment questions at the end of each section of the module guide
designed to test knowledge and understanding. There are additional interactive
online activities in the form of multiple choice questions and other online tasks, which
test skills outcomes 7–13. These activities prepare students to demonstrate learning
outcomes that are formally tested in the summative assessment.
Summative assessment includes:
1. A case note submitted prior to formal examination.
2. A three hour and fifteen minute unseen examination paper divided into three
parts:
uu Part A of the examination is a compulsory set of questions based on the case

note activity;
uu Part B requires students to answer two essay questions out of six;
uu Part C is a set of compulsory questions on a statute that has been previously

made available to students on the VLE.
Permitted materials
None. The statute relating to Part C is provided as part of the examination paper.
page vi University of London
Notes

Introduction
Contents
Introduction to Legal system and method . . . . . . . . . . . . . . . . 3
Purpose and content of the module guide . . . . . . . . . . . . . . . . . 3
Module aim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Learning outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Textbook and other reading material . . . . . . . . . . . . . . . . . . . 4
Relevant websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Essential information for the new law student . . . . . . . . . . . . . . . 5
Citation of legal cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Law Reports series . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Glossary of key judicial offices in the English legal system . . . . . . . . . 9

page 2 University of London
Notes
Legal system and method Introduction page 3
Introduction to Legal system and method

This is a foundational module which provides you with some essential building blocks
for the study of law. Learning about law and legal systems is endlessly fascinating
and the material in this module provides a basis for your understanding of the other
modules you will tackle as part of your University of London programme. This module
will help you to become familiar with some of the special vocabulary of the law; it will
introduce you to the essential skills of the lawyer – such as how to read legal cases
and statutes (Acts of Parliament); and it will provide an overview of some of the key
institutions and processes that make up what we understand as the legal ‘system’.
This module is different from other law subjects

The material in this module is somewhat different from many of your other modules.
While, for example, criminal law and contract law focus on detailed legal rules (what
we refer to as ‘substantive law’), this subject looks more broadly at the machinery
of the legal system which is necessary to make the law work – so that disputes are
resolved peacefully and so that those who have broken the law may be brought to
justice. You will need to have an understanding of what law is and its role in society
as well as the meaning and significance of the concept of the ‘rule of law’. You
need to understand some basic constitutional principles – such as the relationship
between the government, law makers and judges – as well as how various parts of
the legal system work together. You will also need to be familiar with some of the
guiding principles of legal procedure in relation to dealing with civil disputes (such as
disputes over contracts or property) and in relation to the detection, prosecution and
punishment of criminal offences (such as theft or murder).
Purpose and content of the module guide

This guide is designed to help you through the material that you need to learn,
understand and apply. It is not a textbook, but the chapters introduce you to
the factual information, ideas, policy issues and debates that form the subject
matter of the module. It guides your further reading and provides a framework for
understanding. Each chapter starts with an introduction to the topic and summarises
the key issues that you need to know and understand. The sections of the guide direct
you to Essential reading, comprising the set textbook, material in the accompanying
study pack and relevant legal cases which can be found on the virtual learning
environment (VLE) or in the Online Library. At the end of each chapter of the module
guide there is a summary of key points and some questions for reflection, to test how
well you understand the material you have read and to encourage you to undertake
further reading and research, to develop your knowledge and understanding of the
legal system and legal reasoning.
Module aim
The aim of the module is to achieve an overview of the central institutions and
processes of the English legal system and to introduce students to techniques of legal
reasoning and interpretation.
Learning outcomes
On successful completion of the module, you should be able to:
1.1 Understand the structure and operation of the central institutions and processes
of the English legal system and have a basic facility with techniques of legal
interpretation
1.2 Conduct legal research using primary and secondary resources

1.3 Understand techniques of legal reasoning covering precedent and statutory
interpretation
1.4 Describe the role of judges; in particular the Law Lords and the Supreme Court
1.5 Explain the basic structures of civil and criminal justice
1.6 Understand the role of due Process and the importance of Article 6 (ECHR) in Civil
and Criminal Justice
1.7 Explain the key concepts of Legal Aid.
Assessment
Formative assessment is conducted through interactive online activities. Summative
assessment is through a three-hour and fifteen minute unseen examination.
Textbook and other reading material

Each chapter in this module guide contains Essential and suggested Further reading
that is specific to the material in that chapter. In addition, there are textbooks which
you may want to consult. Several of these are available electronically.
Essential reading
¢¢ Holland, J. and J. Webb Learning legal rules. (Oxford: Oxford University Press,
2016) ninth edition [ISBN 9780198728436].
Further reading
Introductory texts which give a concise overview of this subject:
¢¢ Rivlin, G. First steps in the law. (Oxford: Oxford University Press, 2015) seventh
edition [ISBN 9780198735892].
¢¢ Slapper, G. How the law works. (Oxford: Routledge, 2016) fourth edition
[ISBN 9781138914971].
¢¢ Wacks, R. Law: a very short introduction. (Oxford: Oxford University Press, 2015)
second edition [ISBN 9780198745624].
Substantial legal system texts providing detailed material on module topics:
¢¢ Cownie, F., A. Bradney and M. Burton English legal system in context. (Oxford:
Oxford University Press, 2013) sixth edition [ISBN 9780199656561].
¢¢ Partington, M. Introduction to the English legal system 2018–2019. (Oxford: Oxford

University Press, 2018) 13th edition [ISBN 9780198818861].
¢¢ Slapper, G. and D. Kelly The English legal system. (Abingdon: Routledge, 2017) 18th
edition [ISBN 9781138284470].
¢¢ Slorach, S., J. Embley, P. Goodchild and C. Shephard Legal systems and skills.
(Oxford: Oxford University Press, 2017) third edition [ISBN 9780198785903].
¢¢ Stychin, C.F. and L. Mulcahy Legal methods and systems: text and materials.
(London: Sweet & Maxwell, 2010) fourth edition [ISBN 9780414041837].
Relevant websites
Website of the judiciary of England and Wales
This is a very useful site for accessing recent speeches by the senior judiciary, for
information about courts and the judiciary and for news about important changes to
procedure.
www.judiciary.gov.uk
Website of the Ministry of Justice
Useful for research publications, for information about government policy on the
courts and judiciary.
www.gov.uk/government/organisations/ministry-of-justice
Website of the UK Parliament
Useful for accessing legislation, reports of committees, and Hansard – the official
record of debates in Parliament.
www.parliament.uk
Other websites that may be useful

Law Society
Useful for developments on legal aid and access to justice. Also may have information
about the judiciary and important new cases.
www.lawsociety.org.uk
Bar Council
Useful for developments on legal aid and access to justice, judiciary and leading cases.
www.barcouncil.org.uk
You could also look for other resources on the internet; for example, reputable legal
blogs or follow Twitter accounts about the law.
One useful resource is the blog by Martin Partington, the author of Introduction to the
English Legal System at https://martinpartington.com/
If you use Twitter, you could follow the Law Society, the Bar Council, the Ministry of
Justice, the UK Parliament, the UK Supreme Court and many others.
Essential information for the new law student

This module deals with legal system and method principally as applied to the system
of law of England and Wales. The legal system of England and Wales is a ‘common law’
system which means that much of the law is to be found in the decisions of judges in
individual legal cases. In your reading you will constantly be referred to legal cases or
what are sometimes referred to as ‘legal authorities’. These are the reports of cases
heard and decided in different courts within the legal system. You will be expected to
read some of these cases; and to be able to refer to cases as ‘authority’ for various legal
rules and principles. Case reports are published in a number of different series of law
reports and organised according to the year in which they were decided or reported.
The operation of the common law system of precedent depends on lawyers being able
to find out what the courts have said about any particular question. This requires that
we have a record of court decisions in individual cases. These records are referred to as
‘law reports’.
This section introduces you to some important information that will help you to
understand how legal cases and statutes are referred to or ‘cited’ in legal documents
and texts. This is information that you can keep coming back to as you progress with
your studies and find different styles of referencing cases.
Citation of legal cases

Refer to the helpful guides at:
http://ox.libguides.com/c.php?g=422832&p=2887383 or
https://ilrb.cf.ac.uk/citingreferences/oscola/tutorial/index.html
Citation is the accepted way of referring to the ‘primary’ sources of law, cases,
legislation and also books and journal articles. It follows a standard format which
makes it possible for anyone to find the cited item. This is essential information for
being able to locate relevant legal material and for being able accurately to refer to
legal cases or cite them in writing or in legal argument.
Civil cases
Davis v Johnson [1979] 2 WLR 553 (pronounced Davis ‘and’ Johnson, not Davis ‘v’ Johnson
or Davis ‘versus’ Johnson).
‘Davis’ is the name of the person bringing the claim (the claimant). ‘Johnson’ is the
name of the person defending the claim (the defendant). [1979] is the year in which
the case was printed in the law reports. ‘2’ is the volume number of the reports in
which the case appears. ‘WLR’ stands for Weekly Law Reports, which is the law report
series containing all formally reported legal cases. ‘553’ is the page number of volume
2 of the Weekly Law Reports in 1979 where you will find the reported case of Davis v
Johnson.
Davis v Johnson [1979] 2 WLR 553
Name of Name of Volume First page

claimant defendant number of case
(plaintiff) report
Date
reported
Weekly Law
Reports
Figure1: Example of case citation from Weekly Law Reports
Square and round brackets in case citation

Square brackets are used where one needs the year of the case in order to be able to
identify the relevant volume, and round brackets are used where the enclosed date
is just a courtesy because one could identify the relevant book of law reports by its
volume number alone. For example, to find Attorney-General v Associated Newspapers
Ltd [1994] 1 All ER 556, you need to go to the 1994 volumes of the All England Law
Reports, choose volume 1, and turn to page 556. By contrast, to find Montriou v Jeffreys
(1825) 2 C&P 113, you would not need to know the year of judgment, you would just
need to go to the second volume of the Carrington & Payne reports, and turn to page
113. (Explanation from Slapper, 2016, p.124.)
Criminal cases
Criminal case citations usually take one of the following three forms:
R v Smith [1959] 2 QB 35 (R stands for Regina or Rex) (i.e. ‘the Crown and/against Smith’).
AG v Punch [2002] UKHL 50, [2003] 1 All ER 289, [2003] 1 AC 1046, [2003] 2 WLR 49
(‘Attorney General and/against Punch’).
DPP v Camplin [1978] AC 705, [1978] UKHL 2 (‘Director of Public Prosecutions and/against
Camplin’)
Other formulations
Private family case: P v BW [2004] Fam 22.
Public family case: Re B (Refusal to Grant Interim Care Order) [2012] EWCA Civ 1275.
Judicial review: R v Lord Chancellor ex parte John Witham [1997] EWHC Admin 237, [1998]
QB 575.
In re or Re (where there is only one party): Re B (Adult: Refusal of Medical Treatment)
[2002] 2 All ER 449.
Neutral citation
Since the growth of electronic sources unreported transcripts are also available on all
the major legal databases. Since 2002 ‘neutral citations’ have been used. These
citations give each case an individual number so that it can be identified. The neutral
citations comprise the year, the court abbreviation (for example ‘EWCA Civ’) and then
the case number. These look like normal law report citations but they are not. If all
that you have is a neutral citation you will need to access the case through an
electronic database in order to find the full law report citation. You can do this using
Westlaw or Lexis Library, accessible through the VLE, although one of the quickest ways
to access a case is to use BAILII, which is a free site on the internet.
R v James [2006] EWCA Crim 14
R v James
2006 EWCA Crim 14
Stands for: Case number

England and Wales assigned by court
Criminal Division of the
Year the case Court of Appeal Court of Appeal.
was heard Civil decisions
are marked ‘Civ’
Figure 2: Example of neutral citations
The basic formulation is to give the year of the case, the court in which it was decided
and the case number. EW stands for England and Wales, UK for United Kingdom.
[2005] EWCA Civ 101 (this is the 101st case of 2005 in the Court of Appeal Civil Division).
[2006] EWHC 101 (Admin) (101st case of 2006 in the High Court Administrative
Division).
[2003] UKHL 5 (5th case of 2003 in the House of Lords (now the Supreme Court)).
[2010] UKSC 48 (48th case of 2010 in the UK Supreme Court).
House of Lords case: Matthews v Ministry of Justice [2003] UKHL 4.
UK Supreme Court case: R v Maxwell [2010] UKSC 48.
Privy Council cases: Kelly and others v Fraser [2012] UKPC 25.
High Court cases: Salekipour v Parmar [2016] EWHC 1466 (QB).
The Law Reports series

There are many different series of law reports which are discussed in more detail at
the end of Chapter 3 of this module guide. The Incorporated Council of Law Reporting
(ICLR) publishes the Official Law Reports including Appeal Cases (AC), Queen’s Bench
(QB), Family (Fam) and Chancery (Ch). There is a hierarchy of law reports and the
Official Law Reports are considered the most authoritative or ‘best’ reports. The
ICLR also publishes the Weekly Law Reports and All England Law Reports. A full list of
abbreviations can be found at www.legalabbrevs.cardiff.ac.uk/
The Law Reports series are regarded as the ‘official’ law reports. In written or
oral submissions in court a Practice Direction requires that where a judgment is
used as authority and appears in the Law Reports that report must be cited. Their
abbreviations are as follows:
AC Appeal Cases
Ch Law Reports, Chancery Division
QB Law Reports, Queen’s Bench Division
KB Law Reports, King’s Bench Division
Fam Law Reports, Family Division
P Law Reports, Probate Division
Other commercial series
All ER All England Reports
Cr App R Criminal Appeal Reports
Cr App R (S) Criminal Appeal Reports Sentencing
LLoyd’s LR Lloyd’s Law Reports
WLR Weekly Law Reports
EHRR European Human Rights Reports
Free database of cases, statutes and other legal materials

The British and Irish Legal Information Institute (BAILII) www.bailii.org/ provides access
to primary legal materials on one internet site without charge. Around 200,000
documents are available to search including case law, legislation, law reports and other
legal material, alongside links to international law resources and archives. You can search
BAILII by database, legislation, case name or case law. Recent decisions, additions and
new cases of interest are highlighted, as well as leading case law by subject.
Statutes
To cite an Act of Parliament use its short title and date. For example, Human Rights
Act 1998. To refer to a particular section or sections in the Act, use s or ss (section or
sections), Pt (Part) or Sch and para (Schedule and paragraph within a schedule).
Human Rights Act 1998, s 19(1)(b)
Title of Act Paragraph within

including year the subsection
Abbreviation Subsection
for section
Section number
Figure 3: Explanation of statute citation

Glossary of key judicial offices in the English legal system

In order to understand the material in this module you need to become familiar with
the name and function of some of the key judicial officers. The seniority of a judge
determines how important or authoritative their decisions are in cases and, indeed,
the speeches that they make.
For reference visit: www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/

judicial-roles/
President of the United Kingdom Supreme Court (PSC) – Head of the final court of
appeal in the United Kingdom.
Lord Chief Justice (CJ) – Head of the judiciary and President of the Courts of England
and Wales. Head of the Criminal Division of the Court of Appeal. Responsible for
training, guidance and deployment of judges. Represents the views of judiciary to
Ministers.
Master of the Rolls (MR) – Head of the Civil Division of the Court of Appeal and Head of
Civil Justice.
Heads of Divisions
The Chancellor – Head of the Chancery Division of the High Court.
President of the Queen’s Bench Division (PQBD) – Head of Queen’s Bench Division of
the High Court.
President of the Family Division and Head of Family Justice – Head of the Family
Division of the High Court.
Lord Chancellor – Prior to the Constitutional Reform Act 2005 the Lord Chancellor was
both the head of the judiciary and a member of the government. Since 2005 the Lord
Chancellor is the Minister for Justice in the Ministry of Justice. He has no judicial role
and his previous powers have been transferred to the Lord Chief Justice who is now the
head of the judiciary. The Lord Chancellor retains power over judicial appointments,
although the selection of judges is made by the independent Judicial Appointments
Commission.
The Attorney General (AG) – This is a political appointment. The Attorney General is
the legal adviser to the government. He appears in court for the Crown in important
cases. The AG has power to refer points of law to the Court of Appeal in relation to
acquittals in criminal cases and against unduly lenient sentences.
Solicitor General – Deputy to Attorney General.
Director of Public Prosecutions (DPP) – Head of the independent Crown Prosecution

Service.
Self-assessment questions
1. What does ‘R’ stand for in the case of R v Smith?
2. Who is the Head of the Chancery Division of the High Court?
3. What does the Master of the Rolls do? In which court does he sit?
4. Explain this case citation: [2005] EWCA Civ 106.
5. What change did the Constitutional Reform Act 2005 make to the head of the
judiciary of England and Wales?
Notes
1 Introduction to law and the legal system
Contents
1.1 What is law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.2 What is law for? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.3 Sources of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.4 Different types of legal system . . . . . . . . . . . . . . . . . . . . . . 20
1.5 Classification of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1.6 Constitutional principles and the legal system . . . . . . . . . . . . . . 25
1.7 Doing justice in legal systems . . . . . . . . . . . . . . . . . . . . . . . 32

Learning outcomes
By the end of this chapter, and having completed the Essential readings and
activities, you should be able to:
uu describe the characteristics of law
uu outline the broad social purposes of law
uu identify sources of law and law-making processes
uu distinguish different types of legal system
uu outline the fundamental principles of the constitution
uu explain the essential requirements of the rule of law
uu distinguish between procedural and substantive law and adversarial and
inquisitorial procedures.
Legal system and method 1 Introduction to law and the legal system page 13
1.1 What is law?
Essential reading
¢¢ Wacks, Chapter 1 ‘Law’s roots’ (in the Legal system and method study pack).
¢¢ Holland and Webb, Chapter 1 ‘Understanding the law’.
Further reading
¢¢ Rivlin, Chapter 2 ‘The law and its importance’.
You might think this is an easy question to answer, but although our lives and
behaviour are regulated by a complicated system of rules, norms, and conventions,
only some of these are defined as ‘law’.
Our first introduction to rules comes from our parents – don’t talk with your mouth
full, don’t run up and down the stairs, don’t shout; and then at school – don’t speak in
class, don’t eat in class, do your homework on time and so on. Other rules are ‘social
norms’ or conventions – turn taking in conversation, covering your mouth when you
cough.
But the rules that we are concerned with in the study of law are those that can
be enforced by the state. Some rules have the force of law while other rules or
conventions will simply lead to social disapproval. If you break the rule ‘don’t take
someone else’s property’ you may be liable to pay a penalty that will be imposed
by the state. If you drive carelessly and injure someone you may be required to pay
them compensation. On the other hand, if you push to the front of a queue in the
supermarket in England you are likely to be subject to serious social disapproval, but
no formal penalty will be applied. There are significant differences between societies
when it comes to which kinds of behaviour will lead to disapproval and which kinds of
behaviour will lead to a formal penalty being imposed by the state. For example, while
adultery is disapproved of in England and Wales it will not lead to formal punishment
although it may be grounds for divorce. By contrast, in Islamic law adultery will lead to
a criminal penalty being imposed.
There is considerable philosophical debate about the nature of law and why some
rules are enforced by the state and others are not, but for present purposes a practical
answer to the question ‘what is law’ could be given as ‘the rules by which societies
agree to live, which are enforceable by the coercive power of the state’.
1.2 What is law for?
Essential reading
¢¢ Partington, Chapter 2 ‘Law and society: the purposes and functions of law’ (in
the Legal system and method study pack).
Law performs critical social functions. It has a broad important role in helping to
maintain order in society. When we talk of ‘society’ we are referring to humans living
together in relatively peaceful harmony and law is central to the notion of ‘social
order’. Partington argues that the broad or ‘macro’ functions of law are to maintain
public, political, social, economic, international and moral order (Partington, pp.8–18).
So, for example, laws relating to ownership of property, or laws relating to business
transactions support economic activity by ensuring that commercial transactions are
carried out in an orderly way and that rights and duties are respected and enforceable.
Law in this context can also protect weaker parties involved in commercial
transactions to ensure that bargains are fair.
Partington goes on to argue that the ‘micro’ functions of law are to achieve more
specific social objectives. So, for example, one of the micro functions of law is to define
the limits of acceptable behaviour by specifying action that is so morally reprehensible
that it will attract a criminal penalty – like murder or theft of property. This can be
contrasted with behaviour that is deemed morally wrong but not criminally wrong,
such as careless driving that causes damage, and which will attract a civil penalty
rather than a criminal penalty. Another important micro function of law is to ensure
that those in public office do not abuse their power.
Partington points out that one of the problems of the many functions of law is that
sometimes functions can be in conflict. So, for example, the objective of preserving social
order may conflict with the protection of civil liberties or the right to expression. This
conflict occurs when citizens want to take to the streets to demonstrate to express their
dissatisfaction about some issue and the police are concerned that such a demonstration
might lead to violent disorder. Which objective should prevail? Freedom of expression or
social order? Similarly, when governments are facing terrorist threats they must balance
the desire to protect society through enlarging the power of the police and courts
against the danger to civil liberties and infringement of human rights.
1.3 Sources of law
Essential reading
Further reading
¢¢ Partington, Chapter 3 ‘Law-making: authority and process’.
¢¢ Rivlin, Chapter 3 ‘The invisible palace I: common law and equity’.
In studying the operation of the legal system, we need to be able to recognise which
rules are regarded as ‘law’ and how important any particular rule is in relation to other
rules. In the English legal tradition the source of a rule is relevant in determining both its
significance and whether it might take precedence over a rule that comes from another
source. In the English common law system, there are four principal sources of law:
1. Law made by Parliament – referred to as ‘legislation’, ‘statute law’ or ‘Acts of

Parliament’. Written laws that express the will of the legislature.
2. Law decided in the courts – referred to as ‘common law’ or ‘case law’. Decisions
of judges in particular cases applied by other judges in later cases through the
process of precedent (combined common law and equity).
3. European Union law – referred to as ‘EU law’ comprising law emanating from the
European Commission, Council of Ministers and Court of Justice of the European
Union.
4. European Convention on Human Rights – referred to as Human Rights Law or

ECHR, emanating from the European Court of Human Rights (ECtHR) and now
incorporated into UK law through the Human Rights Act 1998.
1. Parliament and statutes

In England and Wales the supreme law-making body is Parliament. Parliament has two
‘chambers’: the House of Commons, comprising democratically elected Members of
Parliament (MPs); and the House of Lords, comprising members who are appointed
and some who have inherited the right to serve in the House (not to be confused with
the Judicial Committee of the House of Lords, which, until 2009, was the final court
of appeal for the UK). A valid ‘Act of Parliament’ is written law and is the end product
of a long process following the introduction of a draft ‘Bill’ in Parliament. Before a
Bill is introduced to Parliament, the government will normally go through a process
of consultation. They will publish what is called a ‘Green Paper’, which sets out the
tentative proposals for changes to the law, and invite comments. Green Papers were
first used in 1967 and are now usually used as part of the legislative process. This will
be followed by a ‘White Paper’, which contains the government’s firm proposals
for new law and may have the draft Bill attached. Following consultation, the draft
Bill is introduced in Parliament and then debated, discussed and amended. Once a
Bill has gone through all of the necessary Parliamentary processes it will be signed
by the Queen (Royal Assent) and then published as an Act. A valid Act of Parliament
takes precedence over common law or case law. Indeed, it takes precedence over
everything except EU law.
The distinction between primary and secondary legislation

In discussion about legislation, or law emanating from Parliament, there is a
distinction between ‘primary legislation’ and ‘secondary legislation’. Primary
legislation refers to Acts of Parliament or statutes. Because it often takes a long time
for primary legislation to get through all of the various stages in the Parliamentary
process, the drafting of Acts may contain only broad provisions or rules and then the
detailed rules are produced later under the authority of the Act. These detailed rules
are known as secondary legislation or ‘statutory instruments’ and take the form of
‘regulations’, ‘rules’ or ‘orders’. They have the force of law, but can be implemented
with less scrutiny than primary legislation.
2. The courts and common law or ‘judge-made law’

In contrast to statute law, when we refer to the ‘common law’ we are referring to
the law contained in decisions of the courts rather than legal rules contained in Acts
of Parliament. England and Wales is a common law system, meaning that many of
our most fundamental legal rules and principles have been established by judges
deciding individual cases, rather than these rules being laid down by Parliament. So,
for example, most of the law relating to the formation of binding contracts is to be
found in the common law rather than in statutes. When a lawyer or judge is looking for
the rules on the formation of contract they will refer to important legal cases which
set out the legal principles. In other words, they will be looking at case law or ‘legal
precedents’ which establish the relevant legal principles.
As we will see later in the chapter, the body of court decisions that comprises the
English common law has developed over many years, dating back to its origins in the
12th century. In the 18th century, a famous judge and legal commentator, Sir William
Blackstone, explained the source of English common law as follows:
The Common Law is to be found in the records of our several courts of justice in books
of reports and judicial decisions, and in treatises of learned sages of the profession,
prescribed and handed down to us from the times of ancient antiquity. They are the laws
which gave rise and origin to that collection of maxims and customs which is now known
by the name of common law.
Sir William Blackstone 1723–1780, Commentaries on the laws of England.
We will look at the development of English common law later in the chapter. In the
meantime, it is important to note that the term ‘common law’ may also be used in
two other contexts. This can be confusing for students new to law, but gradually the
meaning in different contexts will become very familiar and cause no difficulty.
As well as the contrast between common law and statute law, the term ‘common
law’ is also used to distinguish law emanating from common law courts from law
emanating from courts of ‘equity’ (this is discussed in detail later in this chapter).
The third context in which the term common law is used is to distinguish ‘common law’
legal systems or jurisdictions, such as England and Wales, Canada, USA and Australia,
from ‘civil law’ legal systems or jurisdictions, such as Germany or France, where the law is
almost entirely ‘codified’ (i.e. contained within written codes). The differences between
common law and civil law jurisdictions are discussed later in this chapter.
3. European Union law

The European Union (EU) is an economic and political partnership between 28
European countries, created after the Second World War. The initial approach was to
encourage economic cooperation on the assumption that economic interdependence
might avoid future conflict. The EU now encompasses both economic and political
union. It is based on the rule of law and its laws are based on treaties that have been
democratically agreed by all member countries.
One of the EU’s main goals is to promote human rights. Since the Treaty of Lisbon
in 2009, the EU’s Charter of Fundamental Rights has placed all these rights in a
single document. The EU’s institutions are legally bound to uphold them, as are EU
governments whenever they apply EU law.
Since the UK joined the EU in 1973, law emanating from the European Parliament,
European Council and European Commission governs certain activities and practices
in the UK. Since the enactment of the European Communities Act 1972, European Law
takes precedence over domestic law. If there is a conflict between English domestic
law and European law, for example in the field of equal pay, the English courts must
apply European law. Matters concerning the interpretation and implementation of
European law are dealt with by the Court of Justice of the European Union (CJEU) which
sits in Luxembourg (see Chapter 2). Section 2(4) of the European Communities Act 1972
provides that English law is to be interpreted and have effect subject to the principle
that European law takes precedence over all sources of domestic law.
An important case establishing the supremacy of European law over UK law is R v

Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 All ER 70, HL/ECJ and
R v Secretary of State for Transport, ex p Factortame (No 3) [1991] 3 All ER 769, ECJ. A
statute passed by the UK Parliament – the Merchant Shipping Act 1988 – provided
that fishing licences should be granted only to boats whose owners and crews were
predominantly British. Some Spanish fishermen, who could not be granted fishing
licences as a result of these provisions, claimed that the 1988 Act was contrary to EU
law. The case was referred to the CJEU. The Court of Appeal and the House of Lords held
that no national court had the power to suspend the operation of an Act of Parliament,
but the CJEU disagreed, holding that a rule of national (domestic) law which conflicts
with EU law should be set aside. The CJEU also said the 1988 Act breached Article 43 of
the EU Treaty, which guaranteed citizens of any member state the freedom to establish
their businesses anywhere in the Community, and the UK Government was obliged to
amend the legislation accordingly. Another case in which European law was deemed
to take precedence over English domestic law is R v Secretary of State for Employment,
ex p Equal Opportunities Commission [1995] 1 AC 1, which can be accessed online at www.
bailii.org/uk/cases/UKHL/1994/2.html
On 23 June 2016, the UK held a referendum on whether to leave or remain in the

EU. The majority voted to leave the EU. Although the British Prime Minister started
the formal process of leaving the EU at the end of March 2017, at the time of writing,
it is not clear what the timetable or outcome of the process will be. The European
Union (Withdrawal) Bill has started its passage through Parliament. The effect of this
Bill would be to end the authority of EU law by converting all its provisions into UK
law, while at the same time repealing the European Communities Act 1972 and the
sovereignty of EU law. The intention is that Parliament would then be able to decide
whether to retain, amend or repeal aspects of EU law in the future. However, at the
time of writing this module guide, the position of EU law as a source of law in England
and Wales has not changed.
4. European Convention on Human Rights (ECHR)

The European Convention on Human Rights (www.echr.coe.int/Documents/
Convention_ENG.pdf) is an international treaty which was drafted in 1950 and came
into effect in 1953 having been signed by European nations who were members of the
Council of Europe, a body set up in Strasbourg in France after the Second World War.
The UK signed up to the Convention in 1953 and was one of the first countries to do so.
Some 47 countries have now signed up to the Convention, including most of the east
European and former communist countries, and several countries that were once part
of the Soviet Union. The countries that have signed up to the Convention make up the
Council of Europe. The Council of Europe is quite separate from the European Union.
The operation of the European Convention in the UK is therefore not affected by the
referendum decision to leave the European Union.
The ECHR was a reaction to the experience of the horrors of the Second World War
and reflected the hope and belief that if nations joined together to agree to protect
human rights the likelihood of a recurrence would be reduced. The ECHR provides for
individuals to bring proceedings in the European Court of Human Rights in Strasbourg,
France, if they believe that a government is in breach of its obligations under the ECHR.
In 1998 the UK passed the Human Rights Act 1998 (www.legislation.gov.uk/

ukpga/1998/42/contents) which incorporated directly into English law the main
provisions of the ECHR. This means that if a UK citizen believes that the UK Government
is in breach of its human rights obligations, a case can be pursued in the English courts.
This is discussed further in Chapters 2, 3 and 5.
Certain fundamental rights and freedoms have been protected in English common
law since the signing of the Magna Carta (‘Great Charter’) by King John of England in
1215. The Magna Carta sets out many rights that are now referred to as ‘human rights’
or fundamental principles of good government. For example, it established principles
of due process and equality before the law. It contained provisions forbidding bribery
and official misconduct. Despite the provisions of Magna Carta and other rights
protected under English common law, since the passing of the Human Rights Act
1998 a wide range of fundamental rights and freedoms are now positively protected
by the Act, and the jurisprudence of the European Court of Human Rights has had a
significant impact on English substantive law and on legal process. The protection
of human rights is now regarded as fundamental to the rule of law (discussed later
in this chapter). For this reason we will deal with the ECHR in some detail here,
and throughout this module guide we will refer to the influence of human rights
legislation on the institutions and processes of the English legal system, as well as on
some areas of substantive law.
The protected rights and freedoms

The purpose of the ECHR is the protection of fundamental rights and freedoms.
The Convention is divided into ‘articles’. Articles 2 to 14 set out the rights that are
protected by the Convention. Over the years the Convention has been supplemented
by a number of ‘protocols’ that have been agreed by the Council of Europe. Some of
the protocols just deal with procedural issues but some guarantee rights in addition
to those included in the Convention. Some of the most important rights and freedoms
protected under the ECHR are:
uu right to life (Article 2)
uu prohibition of torture (Article 3) (‘No one shall be subjected to torture or to

inhuman or degrading treatment or punishment’)
uu prohibition of slavery and forced labour (Article 4)
uu right to liberty and security (Article 5)
uu right to a fair trial (Article 6) (‘everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal established by
law’)
uu no punishment without law (Article 7)
uu right to respect for family and private life (Article 8)
uu freedom of thought, conscience and religion (Article 9)
uu freedom of expression (Article 10)
uu freedom of assembly and association (Article 11)
uu prohibition of discrimination (Article 14)
uu right not to be subjected to the death penalty (Articles 1 and 2 of Protocol 6)
uu right to free elections (Article 3 of Protocol 1) (free elections at reasonable intervals

by secret ballot ensuring free expression of the opinion of the people in the choice
of the legislature).
The ECHR rights incorporated into English law under the Human Rights Act 1998 appear
as a Schedule to the Act. See www.legislation.gov.uk/ukpga/1998/42/schedule/1
‘Derogation’
These fundamental rights and freedoms are not all seen in the same way. Some are
absolute and inalienable and cannot be interfered with by the state. Others are
merely contingent and are subject to ‘derogation’. That means that a signatory
state can opt out of them in particular circumstances. The absolute rights are
those provided for in Articles 2, 3, 4, 7 and 14. All the others are subject to potential
limitations.
Margin of appreciation
Essential reading
¢¢ The Open Society Brief 2012
www.opensocietyfoundations.org/sites/default/files/echr-reform-margin-of-
appreciation.pdf
¢¢ Greer, S. ‘The Interpretation of the European Convention on Human Rights:

Universal Principle or Margin of Appreciation?’ Available in HeinOnline through
the Online Library.
One of the difficulties in ensuring compliance with the ECHR by the 47 member states
of the Council of Europe is the diverse cultural and legal traditions of the various states.
To accommodate this, the European Court of Human Rights (ECtHR) has developed
the doctrine of a ‘margin of appreciation’ when considering whether a member state
has breached the Convention. It means that a member state is permitted a degree of
discretion, subject to Strasbourg supervision, when it takes legislative, administrative
or judicial action in the area of a Convention right. The doctrine allows the Court
to take into account the fact that the Convention will be interpreted differently in
different member states, given their divergent legal and cultural traditions. The
margin of appreciation gives the ECtHR the necessary flexibility to balance the
sovereignty of member states with their obligations under the Convention. In some
circumstances – for example, national emergency or security issues – member states
may be permitted a ‘wide’ margin of appreciation by the ECtHR. In other cases, for
example in relation to discrimination, the court will permit only the narrowest margin
of appreciation.
A case dealing with the margin of appreciation and one that received much publicity is
Lautsi v Italy (Application no. 30814/06) (http://hudoc.echr.coe.int/eng?i=001-104040)
heard by the Grand Chamber of the ECtHR in 2011. The applicant (an Italian citizen
of Finnish origin) brought a complaint against Italy on behalf of her two children.
She alleged that the display of the crucifix in classrooms of public schools interfered
with her children’s freedom of belief as well as their right to education and teaching
consistent with her philosophical convictions under Article 9 (protection of freedom
of religion and belief). The ECtHR ruled that the presence of crucifixes in Italian public
schools does not infringe states’ obligations in relation to Article 9. Highlighting
the importance of the margin of appreciation principles, the Court confirmed that
religious matters fall within the sovereignty of member states in order to respect the
culture and traditions of each particular country.
Proportionality
Essential reading
¢¢ R v A [2001] UKHL 25, [2001] 3 All ER 1 (www.bailii.org/uk/cases/UKHL/2001/25.html).
¢¢ Lord Justice Laws ‘The common law and Europe’ Hamlyn Lectures 2013
www.judiciary.gov.uk/announcements/speech-lj-laws-hamlyn-lecture-2013/
Closely linked to the concept of the margin of appreciation is the principle of

‘proportionality’. This concept is the means by which state interference with human
rights is to be judged. While it is accepted that sometimes the state may need to
restrict or interfere with a fundamental human right or freedom, the principle of
proportionality requires that such interference should be necessary and that it goes
no further than what is essential to achieve the objective. Thus any measure by a
public authority that affects a basic human right must be: appropriate in order to
achieve the intended objective; necessary in the sense that there is no less severe
means of achieving the objective; and reasonable in the circumstances. In his Hamlyn
Lectures in 2013 Lord Justice Laws referred to the principle of proportionality as one of
‘minimal interference’. He said:
…every intrusion by the State upon the freedom of the individual stands in need of
justification. Accordingly, any interference which is greater than required for the State’s
proper purpose cannot be justified. This is at the core of proportionality; it articulates the
discipline which proportionality imposes on decision makers.
In the case of de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands

and Housing [1999] 1 AC 69 Lord Clyde articulated the criteria that courts should adopt
to decide whether legislative interference with some fundamental right is arbitrary or
excessive. The court should ask itself whether:
i. the legislative objective is sufficiently important to justify limiting a fundamental

right
ii. the measures designed to meet the legislative objective are rationally connected
to it; and
iii. the means used to impair the right or freedom are no more than is necessary to
accomplish the objective.
Summary
uu Laws are enforceable by the state while norms and social conventions are enforced
informally.
uu Law has both broad ‘macro’ functions and more specific ‘micro’ functions.
uu A principal social function of law is the maintenance of different kinds of order

including social, political and economic order.
uu The term ‘common law’ has three different meanings, depending on context:
i. common law jurisdiction as distinct from civil law jurisdiction
ii. common law as distinct from statute law
iii. common law as distinct from equity.
uu The main sources of law are statutes (primary and secondary legislation), common
law, European Union law and the European Convention on Human Rights.
uu The protection of human rights is increasingly important in modern societies and

regarded as an essential element in the rule of law.
uu The Human Rights Act 1998 incorporates the ECHR into English law.
uu The rights and freedoms protected by the Human Rights Act 1998 include those
that are absolute and those from which states may derogate if necessary.
1. What are the different functions of law?
2. How does Partington distinguish between ‘macro’ and ‘micro’ functions of law?
Do you think these cover all of the functions we can identify for law?
3. How important is law in maintaining social order and economic stability as

compared with unwritten rules or behavioural conventions?
4. Think of some important rules of behaviour that are not ‘laws’ as we have
defined them. How are they enforced? How important do you think those non-
legal rules are to social order?
5. What is the difference between primary and secondary legislation?

6. What are ‘Green Papers’ and ‘White Papers’?
7. When was the ECHR concluded, and what was its objective?
8. What is the difference between fundamental rights and absolute rights in the
ECHR?
9. Explain the principle of ‘margin of appreciation’ in the interpretation of ECHR

rights by the European Court of Human Rights.
1.4 Different types of legal system
Further reading
¢¢ Slorach, Chapter 2 ‘Sources of law in England & Wales’.
¢¢ Tetley, W. ‘Mixed jurisdictions: common law vs civil law (codified and

uncodified)’ (Part I) and (Part II) (1999) Uniform Law Review 591–618 and 877–907
www.unidroit.org/english/publications/review/articles/1999-3-tetley1-e.pdf
The legal system comprises the law – produced by law-making bodies (legislatures
and judiciary) – and the institutions, processes and personnel that contribute to
the operation and enforcement of those laws. So, for example, we can say that the
English legal system comprises: legislation and common law; courts; judiciary; legal
professionals; police; prosecutors; juries; and mechanisms for providing access to
justice. In effect, the legal ‘system’ describes the law and the machinery provided for
adjudication and implementation.
1.4.1 Legal traditions or ‘families’ of legal systems

Around the world there are different traditions in legal systems. As Tetley (1999)
explains, a legal tradition reflects deep-rooted, historical attitudes about the nature
of law, about the role of law in society and about the way law should be made, applied
and studied. Two major ‘families’ of legal systems are common law and civil law
systems.
1.4.2 Civil law or continental legal systems

Civil law is the oldest surviving legal tradition in the world. It had its origin in
Roman law and later developed in Continental Europe and around the world. A key
distinguishing feature of civil law is that it is a ‘codified’ system. Jurisdictions with civil
law systems, such as France, Germany and Japan, have comprehensive, continuously
updated legal codes that specify all matters capable of being brought before a
court, the applicable procedure and the appropriate punishment for each offence.
These codes distinguish between different categories of law. In a civil law system,
the judge’s role is to establish the facts of the case and to apply the provisions of the
applicable code. Although the judge often brings the formal charges, investigates the
matter, and decides on the case, he or she works within a framework established by a
comprehensive, codified set of laws. The judge’s decision is consequently less crucial
in shaping civil law than the decisions of legislators and legal scholars who draft and
interpret the codes.
Some key features of civil law systems are:
uu codified system of law (e.g. civil code, codes covering corporate law, administrative
law, tax law)
uu written constitutions based on specific codes
uu only legislative enactments are considered binding for all
uu little scope for judge-made law, although judges generally follow precedent
uu constitutional courts that can nullify laws and the decisions of which are binding.
1.4.3 Common law systems

The common law legal tradition has its roots in developments in England in the 11th
century. In common law systems, legal principles are to be found in the decisions of
judges adjudicating in individual cases. The common law is usually more detailed
than civil law and common law systems operate on the basis of ‘binding precedent’
so that judges in a particular case must follow the decisions of judges in earlier similar
cases (see Chapter 3). These precedents are maintained over time through the records
of the courts as well as historically documented in collections of case law known as
yearbooks and law reports. The precedents to be applied in the decision of each new
case are determined by the presiding judge. The common law tradition of England was
transported around the world to countries that were once part of the British Empire.
There are common law systems in Australia, USA, Canada and New Zealand – all having
connections with England (common law family).
Other countries have a ‘mixed system’ that include some elements of the common law
as well as some elements of civil law – for example parts of Africa, India and parts of
the Far East.
Some of the key features of common law systems are:
uu there is not always a written constitution or codified laws
uu judicial decisions are binding and decisions of the highest court can only be
overturned by the same court or through legislation
uu everything is permitted that is not expressly prohibited by law.
Historical development of the common law

It is possible to date the modern development of the English common law back to
the time of William the Conqueror who invaded England in 1066. Before the Norman
Conquest of England in 1066, there was no unitary, national legal system. The English
legal system involved a mass of oral customary rules, which varied according to region.
Each county or shire had its own local court dispensing its own justice in accordance
with local customs that varied from community to community and were enforced,
sometimes in a rather arbitrary fashion, by local lords or landowners. These local
courts are not what we would recognise as courts today.
William, as King of England, laid the foundations of the legal system. He understood
that in order to exercise real power over citizens he needed a central system of justice
over which the king had control and that had laws that would be obeyed. He did this
by creating what was called the Curia Regis – King’s Court. It was a court of law but
also a royal household comprising the King and his advisers who were a mixture of
powerful militarised landowners and learned clerics (religious men in holy orders).
The King and his court travelled around the country and citizens would bring their
grievances to be considered by the King and his advisers after which judgment would
be given. This activity was the beginning of the common law system.
Probably the most important contributor to the development of the common law was
Henry II who came to the throne in 1154 after a long period of disruption and civil war.
Henry took the throne wanting to regain stability, reform land law and deal with rampant
crime. He focused on creating a single system of justice for the entire country that would
be under the control of the king. At this time there were only 18 judges available to
dispense justice. In 1166 Henry ordered five to remain in Westminster in London to deal
with the cases that he would previously have decided, and the remaining judges were
sent out to travel to different parts of the country. Their responsibility was to decide
grievances, complaints and accusations applying the laws that had been developed by
judges in Westminster. In this way, local laws were replaced by new national laws; laws
that were common to all – in other words, the common law.
In time, the decisions of the judges were written down. As the decisions of these
courts came to be recorded and published, so the practice developed where past
decisions (precedents) would be cited in argument before the courts and would be
regarded as being ‘authority’ for the application of pre-existing legal principles.
Common law courts grew up gradually as offshoots of the authority of the King and, as the
very word ‘court’ indicates, these courts of justice were originally a part of the Royal Court.
They were not created by law in order to administer pre-existing laws. They were created,
or grew up, in order to solve pressing practical questions – to dispose of arguments, to
solve disputes, and to suppress violence and theft. As they developed into what we would
today recognise as courts of law, they actually created the law as they went along.
Eventually their decisions began to fall into regular and predictable patterns, people
began to take notes of what the judges were deciding, and in due course there emerged
the modern ‘law reports’.
(Atiyah, P.S. Law and modern society. (Oxford: Oxford University Press, 1995))
The contribution of common law to social order: the tranquillity of the state
The content of most of the law at the time that the foundations of the common
law were being laid was directed at preventing bloodshed by recognising rights
to property and personal freedom. Until the 12th century, the vendetta had been
an integral part of English life. But the ending of bloody feuds in England roughly
coincided with the establishment of the King’s Courts in the 12th Century. The courts
not only punished criminals, but provided a peaceful means of resolving disputes over
land and other property. The courts offered a service to the public. Instead of solving
disputes by violence, a judge would rule on rights and wrongs and offer a remedy.
In the resolution of disputes over land, contracts and debts, as well as dealing with
criminal offences, the courts were supporting social order and the tranquillity of the
state. The ability to ‘resort’ to law is preferable to the ability to ‘resort to violence’
and this is part of the critical social function of law. As we will see in Chapter 6 and
the discussion about the need for access to justice, some will argue that if citizens
are denied access to the courts they will ‘take the law into their own hands’. Those
concerns are similar to the concerns of Henry II some 800 years ago.
The development of equity

The word ‘equity’ means fair or just in its wider sense, but its legal meaning refers to
legal rules that were developed by the courts to overcome some of the inflexibility of
the rules and procedures of common law courts.
By the 15th century the procedures of the common law courts had become slow,
expensive and very technical. Interestingly, these are problems that people complain
of today as will be discussed in Chapter 6. Despite the development of common law
courts between the 12th and 15th centuries, the King himself continued to be a source
of English law. Citizens petitioned the King to ‘redress their grievances’ which meant
pleading with him directly to hear complaints and provide a remedy. For a time the
King dealt with these petitions himself, but as the work increased he passed them
to his senior legal adviser, the Chancellor (who was always a cleric), as the ‘Keeper of
the King’s Conscience’. The King, through his Chancellor, eventually set up a special
court, the Court of Chancery, to deal with these petitions. The Chancellor dealt with
these petitions on the basis of what was morally right. The Chancellor would give or
withhold relief, not according to any precedent, but according to the effect produced
upon his own individual sense of right and wrong by the merits of the particular case
before him. In 1474 the Chancellor issued the first decree in his own name, which
began the independence of the Court of Chancery from the King’s Council and the
development of a system of legal principles known as ‘equity’ which was different
from the common law.
Equity created new rights, for example by recognising trusts (somebody holding legal
title on behalf of another ‘beneficiary’) and giving beneficiaries rights against trustees.
The common law did not recognise such a device and regarded the trustees as owners.
Equity also created new remedies. If the Chancellor was convinced that a person had
suffered a wrong, the court would grant a remedy (i.e. they would devise some way
to ensure that something was done to put right the wrong that had been done to
the person). In this way, equity created new remedies that were not available in the
common law courts. At common law, the main remedy that a person could obtain
was the remedy of money compensation or damages. However, in equity more
flexible remedies were developed such as specific performance, which is an order
telling a party to perform their part of a contract, or injunction, usually an order to
stop a person doing a particular act, like acting in breach of contract (a prohibitory
injunction).
In time, however, the procedures of the Court of Chancery became expensive and it
took a long time for cases to be dealt with by a judge and for a decision to be given. By
the 19th century the court was the subject of considerable criticism. It was around this
time that the famous English author Charles Dickens wrote his novel Bleak house which
was deeply critical of the procedures of the Court of Chancery.
This is the Court of Chancery, which has its decaying houses and its blighted lands in every
shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard,
which has its ruined suitor with his slipshod heels and threadbare dress borrowing and
begging through the round of every man’s acquaintance, which gives to monied might
the means abundantly of wearying out the right, which so exhausts finances, patience,
courage, hope, so overthrows the brain and breaks the heart, that there is not an
honourable man among its practitioners who would not give – who does not often give –
the warning, ‘Suffer any wrong that can be done you rather than come here!’
(Extract from Chapter 1 of Bleak house by Charles Dickens)
In 1873, the Common Law Courts and Courts of Equity were combined in the
Judicature Acts 1873–75. Although one of the divisions of the High Court is still called
the Chancery Division, all courts now deal with both common law and equitable
principles and remedies. The Chancery Division of the High Court deals with company
law, conveyancing, property, wills and probate, all of which are heavily influenced by
equity. Equity has added new principles to the body of common law and remedies for
those who have suffered an injustice.
1. Name three civil law and three common law jurisdictions.
2. Name three mixed law jurisdictions.
3. What are the most important points of difference between civil and common
law jurisdictions?
4. In what way did the development of the common law support social order?
5. How did the development of equity mitigate some of the problems that had
developed in the common law?
6. Name and explain an equitable remedy.
7. Which areas of law remain heavily influenced by equity?
1.5 Classification of law
Essential reading
Further reading
¢¢ Slorach, Chapter 2 ‘Sources of law in England & Wales’.
Lawyers have generally classified the law into several broad areas, although this is
complicated by the fact that some of the basic terminology has different meanings
depending on the context.
1.5.1 Three different meanings of the term ‘common law’

Common law and statute law: when common law is contrasted with statute law,
common law is referring to the law found in the decisions of the courts rather than the
legal rules contained in Acts of Parliament (statutes).
Common law and equity: in the previous section we described how equity developed
as a body of law reflecting principles of ‘conscience’ and designed to do justice in
situations where the common law was not able to do so. Even though the courts of
equity were combined with the common law courts in the 19th century, there are still
two distinct bodies of case law – common law and equity. Modern courts will refer
to certain principles or remedies as equitable, contrasting them with common law
principles and remedies.
Common law and civil law: in this context, the distinction being drawn is between
the English legal system and the family of common law jurisdictions and civil law
jurisdictions whose systems are derived from Roman law – such as Germany, France
and Japan. Interestingly, while England and Wales is a common law jurisdiction, the
legal system of Scotland is based largely on civil law.
1.5.2 Public law and private law

Private law deals with relations between individuals where the state is not directly
involved – such as the enforcement of contracts or ownership of property. Public law,
by contrast, deals with the relationship between citizens and the state; for example,
where an individual believes that their human rights have been infringed by an
action of the state. Judicial review is the procedure by which citizens can seek to
challenge the decision, action or failure to act of a public body, such as a government
department or a local authority or other body exercising a public law function. In an
action for judicial review, the judiciary will assess the extent to which a public body
or person has acted within their legal powers. This includes actions of government
ministers. See, for example, the case of R v Lord Chancellor ex p Witham [1997] 2 All ER
779 in which the Divisional Court of the High Court (Queen’s Bench Division) held
that the Lord Chancellor had exceeded his powers (acted ultra vires) in removing a
provision that citizens on low incomes would be exempt from paying court fees to
access the courts. It was held that the action denied their right to a fair trial. Mr Justice
Laws gave the leading judgment. He said that access to justice at an affordable price
was a constitutional right. It was a basic or fundamental right which could not be
revoked unless specifically permitted by Parliament.
1.5.3 Civil law and criminal law

There is also another meaning of ‘civil law’. When dealing with the law within the
English legal system, as opposed to contrasting the English legal system with civil law
jurisdictions, civil law can be contrasted with criminal law. In this context, civil law
is a form of private law and involves the resolution of disputes between citizens or
businesses. Criminal law, on the other hand, is an aspect of public law in which the
state will prosecute an individual for behaviour that the state wishes to control and
which is deemed to be morally reprehensible. In criminal law the state prosecutes an
individual in the name of the Crown on behalf of society at large. This is why cases are
reported as ‘Regina v …’ which stands for ‘the Queen against …’
Standard of proof: in the English common law system, an important distinction between
civil and criminal law is in the ‘standard of proof’ required for different types of case.
The standard of proof relates to the requirement for the facts of cases to be proved by
evidence. How sure is the court that the evidence proves the facts? In criminal cases, the
prosecution is required to prove the case in court ‘beyond reasonable doubt’. This is a
demanding standard justified by the fact that the accused is facing the possibility of a
criminal penalty being imposed if found guilty. In civil cases, the standard of proof is on
‘a balance of probabilities’, a less challenging requirement which means that the court
merely has to be of the view that it is more likely than not that the defendant is liable.
Some major subdivisions of civil law

Contract law: this deals with legally binding agreements between parties. Contracts
are used to cover transactions relating to a wide range of issues such as sale of goods,
sale of land, employment relationships, etc. Key areas of court action relate to breach
of contract.
Law of tort: a tort is a civil wrong which causes another person to suffer damage or
loss. The law of tort covers a body of civil obligations, rights and remedies. Where
a person has suffered some sort of personal or financial damage as a result of the
wrongful actions of another person they may be liable under the law of tort to claim
financial compensation. Key areas of court action relate to negligence (careless
behaviour); and defamation (writing or speaking a false statement about someone
which damages their reputation).
Family law: family law deals with matters relating to family and domestic
relationships. Issues dealt with in family courts include distribution of property on the
breakdown of relationships, arrangements relating to children and child support.
Land law: land law is the set of rules that govern the land and anything attached to it,
such as trees or buildings; or anything in it; for example, treasure or oil. Key areas of
court action relate to disputes over rights to land, rights across land, rights in relation
to the use of land and boundaries between neighbouring land.
1. Explain the difference between civil and criminal law.
2. Explain the different ways in which the term ‘common law’ is used in the
following statements:
uu ‘England and Australia are common law countries but Japan and China are not.’
uu ‘At common law even an unfair contract term would be enforced, but under
the Unfair Contract Terms Act such terms may not be enforced.’
uu ‘At common law the only remedy was damages, but equity has specific
remedies such as the injunction.’
3. What is the standard of proof in civil and criminal cases? Why do you think the
standard is different?
4. What is a ‘tort’ and what is the remedy for a tort?
1.6 Constitutional principles and the legal system
Further reading
¢¢ Slapper and Kelly, Chapter 2 ‘The rule of law and human rights’.
¢¢ Rivlin, Chapter 4 ‘The invisible palace II: the constitution’.
¢¢ Partington, Chapter 3 ‘Law-making: authority and process’.
1.6.1 The constitution

When we talk of a country’s ‘constitution’ we are referring to the way a country is
governed and the way that power is organised and distributed. Many countries, such
as the USA, Germany and more recently South Africa, have written constitutions in
which the rules for the governance of the country are laid down in a single document
and are specially protected so that changes to those rules are virtually impossible
to make. In the UK there is no written constitution which explains in one single
document how power is divided and exercised. Instead, constitutional rules and
principles are scattered over a range of written materials. The Human Rights Act 1998,
referred to earlier, is not a written constitution, but is a single set of rules guaranteeing
fundamental freedoms and rights.
The unwritten constitution in the UK has developed over many hundreds of years and
the rules relating to governance can be found in statutes, common law, custom and
what are known as constitutional conventions, which are longstanding practices
that are so widely recognised that essentially they have become unwritten rules. So
when it is said that the UK does not have a written constitution, it is perhaps more
accurate to say that the UK constitution is partly written (in statutes and common law
precedents), but that it is largely ‘uncodified’.
1.6.2 Constitutional principles

In the UK constitutional arrangements, three of the most important principles are:
1. the separation of powers
2. the sovereignty of Parliament
3. the rule of law.
1. The separation of powers
Essential reading
¢¢ Parliamentary briefing on separation of powers (2011)
www.parliament.uk/briefing-papers/sn06053.pdf
Within the modern state there are three main centres of power:
a. the legislature – which is responsible for making new laws (in the UK this is
Parliament)
b. the executive – which is responsible for implementing the law and running the
country
c. the judiciary – which is responsible for determining legal disputes and interpreting
legislation passed by the legislature.
The separation of powers between the three branches of the state rests on the idea
that a division of power prevents the accumulation of too much power in the hands of
one body or person and provides a system of ‘checks and balances’. One of the earliest
statements of the separation of powers was given by the French political thinker
Montesquieu in 1748:
When the legislative and executive powers are united in the same person, or in the same
body of magistrates, there can be no liberty … there is no liberty if the power of judging is
not separated from the legislative and executive … there would be an end to everything, if
the same man or the same body … were to exercise those three powers.
Montesquieu, The spirit of laws. (c.1748)
Thus, for example, the judiciary have responsibility for checking that the executive
governs according to law – that it does not exceed its lawful powers.
The legislature has responsibility for creating new laws; however, the judiciary are
responsible for the interpretation of that law. The judiciary are independent of the
legislature and executive and are not subject to interference by the Government.
Recent changes to the English constitution under the Constitutional Reform Act 2005
(CRA 2005) have been introduced to strengthen the formal separation of powers. The
Act created a separate Supreme Court and the Lord Chief Justice replaced the Lord
Chancellor as head of the judiciary in England and Wales. It placed a statutory duty on
ministers to uphold judicial independence and made provision for the establishment
of an independent Judicial Appointments Commission.
The independence of the judiciary
Essential reading
¢¢ United Nations Basic Principles on the Independence of the Judiciary
www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx
¢¢ Lord Phillips ‘Judicial independence’ lecture at the Commonwealth Law

Conference, Kenya, September 2007
www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/lcj_kenya_
clc_120907.pdf
An essential element in the operation of the rule of law is an independent judiciary.

This means that individual judges and the judiciary as a whole should decide cases
according to law, free from interference by the executive and separate from the
legislature. They should be both impartial and independent of all external pressures
and of each other. This is important for public confidence in the judiciary and for the
proper functioning of the justice system according to law. Improper pressure could
be exerted by the executive, the legislature, litigants, pressure groups, the media or,
indeed, more senior judges. Judges are required to decide cases only on the evidence
presented in court by the parties and in accordance with the law. This is essential for
the delivery of fair and impartial justice.
As will become clear in later chapters of this module guide, the constitutional position
of the judiciary in relation to both the legislature and executive is a live and often
controversial issue. There is considerable scholarly debate about the question of the
extent to which the role of the judiciary in interpreting legislation and developing the
common law overlaps with the responsibility of the legislature. There is also debate
about the extent to which, in exercising their judgment in relation to the Human
Rights Act 1998, the judiciary, and in particular the UK Supreme Court, is involving itself
in what are essentially political rather than legal issues. This raises the question of the
extent to which the judiciary should be accountable as well as independent. These
issues are discussed in detail in Chapters 3 and 5 of the module guide. In recent years
the role of the judiciary in disputes between the citizen and the state has increased
alongside the growth in governmental functions. The responsibility of the judiciary to
protect citizens against unlawful acts of government has thus increased, and with it
the need for the judiciary to be independent of government. As Lord Phillips, the first
President of the UK Supreme Court noted in 2011:
The citizen must be able to challenge the legitimacy of executive action before an
independent judiciary. Because it is the executive that exercises the power of the State
and because it is the executive, in one form or another, that is the most frequent litigator
in the courts, it is from executive pressure or influence that the judiciary are particularly to
be protected.
The importance of an independent judiciary and the need to protect that

independence is reflected in the provisions of the CRA 2005. At a time of change in
constitutional arrangements, the CRA 2005, for the first time, provided statutory
protection for judicial independence. Section 3 states that:
The Lord Chancellor, other ministers of the Crown, and all with responsibility for matters
relating to the judiciary or otherwise to the administration of justice must uphold the
continued independence of the judiciary.
Particular duties imposed under s.3 of CRA 2005 to ensure judicial independence include:
uu the Lord Chancellor and other ministers of the Crown must not seek to influence
particular judicial decisions through any special access to the judiciary
uu the Lord Chancellor must have regard to the need to defend judicial independence
and the need for the judiciary to have the support necessary to enable them to
exercise their functions.
2. The sovereignty of Parliament
Essential reading
¢¢ Parliament website explanation of Parliamentary sovereignty
www.parliament.uk/about/how/sovereignty/
Parliamentary sovereignty is a fundamental principle of the UK constitution. It makes

Parliament the supreme legal authority in the UK, which can create or end any law.
Generally, the courts cannot overrule its legislation and no Parliament can pass laws that
future Parliaments cannot change. Parliamentary sovereignty is the most important part
of the UK constitution. Since the UK joined the EU in 1973, however, EU law takes priority
over UK national laws and in those circumstances the UK Parliament is subordinate to
EU legislators. But for UK domestic law Parliament remains supreme. Any law passed by
Parliament takes precedence over common law and where there is a conflict between
statute and common law, ‘the statute will prevail’. The statute will be deemed to have
overruled the pre-existing common law (see Chapter 4 for a fuller discussion).
3. The rule of law
Essential reading
¢¢ Lord Bingham ‘The rule of law’ 6th Sir David Williams Lecture, November 2006
www.cpl.law.cam.ac.uk/sir-david-williams-lectures/rt-hon-lord-bingham-
cornhill-kg-rule-law
The rule of law is a critical constitutional concept which is used to describe the
factors necessary for a well-functioning or healthy state and, in particular, to constrain
the exercise of arbitrary power. At its most basic, the rule of law dictates: (a) that a
citizen should only be punished if it is proved in court that they breached a law, so
that people cannot be punished arbitrarily; and (b) that no person is above the law,
and everyone is equal before the law. This means that the law applies to everyone
regardless of social, economic or political status or, indeed, wealth.
The idea of the rule of law was known to philosophers such as Aristotle, writing around
300 years BC, but the British constitutional theorist Albert Venn Dicey, writing in the
19th century, popularised the concept of the rule of law. One of the most influential
contemporary formulations of the rule of law was offered in 2006 by Lord Bingham, a
famous English judge. Lord Bingham’s articulation of the fundamental principle of the
rule of law is that:
… all persons and authorities within the state, whether public or private, should be bound
by and entitled to the benefit of laws publicly made, taking effect (generally) in the future
and publicly administered in the courts.
Lord Bingham then set out eight essential ‘ingredients’ of the rule of law.
1. The law must be accessible, intelligible, clear and predictable.
2. Questions of legal right and liability should normally be resolved by the application
of law rather than the exercise of discretion.
3. The laws of the land should apply equally to all, except where objective differences
justify differentiation.
4. The law must give adequate protection to human rights.
5. Some means should be provided for the resolution of civil disputes that do not
involve excessive cost or delay.
6. Ministers and public officers must exercise their powers reasonably, in good faith,
for the purpose for which the powers were conferred and without exceeding the
limits of such powers.
7. The adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law.

Judicial independence and the rule of law
Essential reading
¢¢ ‘Commentary on the Bangalore Principles of Judicial Conduct’ United Nations
Office on Drugs and Crime, 2007
www.unodc.org/documents/corruption/publications_unodc_commentary-e.pdf
An essential element in the rule of law, which is implicit in Lord Bingham’s eight
principles but not spelled out explicitly, is the centrality of the concept of judicial
independence to the rule of law. The Bangalore Principles of Judicial Conduct (adopted
in 2002) set out a code of judicial conduct which has been accepted widely around the
world. The first of the Bangalore Principles states:
Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of

a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its
individual and institutional aspects.
In its commentary on the Bangalore Principles, the United Nations Office on Drugs and
Crime notes that judicial independence is a responsibility imposed on each judge to
enable him or her to adjudicate a dispute honestly and impartially on the basis of the law
and evidence, without external pressure or influence and without fear of interference.
The core of the principle of judicial independence is the complete liberty of the judge to
hear and decide the cases that come before the court; no outsider – be it government,
pressure group, individual or even another judge – should interfere, or attempt to
interfere, with the way in which a judge conducts a case and makes a decision.
Individual and institutional independence

Judicial independence refers to both the individual and the institutional independence
required for decision-making. ‘Individual independence’ refers to the state of mind of
the judge while ‘institutional independence’ relates to the relationship between the
judiciary as an institution and other branches of government.
Why is the rule of law important?
Essential reading
¢¢ World Justice Project http://worldjusticeproject.org/what-rule-law
¢¢ Tamanaha, B.Z. ‘The history and elements of the rule of law’ Washington
University in St. Louis, Legal Studies Research Paper No. 12-02-07.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012845
The World Justice Project (WJP) assesses the extent to which different states around
the world meet the requirements of the rule of law. The WJP argues that the rule of law
matters because:
… it is the underlying framework of rules and rights that make prosperous and fair
societies possible. The rule of law is a system in which no one, including government, is
above the law; where laws protect fundamental rights; and where justice is accessible
to all … Where the rule of law is weak, medicines fail to reach health facilities, criminal
violence goes unchecked, laws are applied unequally across societies, and foreign
investments are held back. Effective rule of law helps reduce corruption, improve public
health, enhance education, alleviate poverty, and protect people from injustices and
dangers large and small. Strengthening the rule of law is a major goal of governments,
donors, businesses, and civil society organizations around the world.
(World Justice Project, Introduction to Rule of Law Index 2014

http://worldjusticeproject.org/sites/default/files/files/introduction_key_findings.pdf)
According to the WJP, rule of law systems are those in which four universal principles
are upheld:
(1) The government and its officials and agents as well as individuals and private entities
are accountable under the law.
(2) The laws are clear, publicized, stable, and just; are applied evenly; and protect
fundamental rights, including the security of persons and property.
(3) The process by which the laws are enacted, administered, and enforced is accessible,
fair, and efficient.
(4) Justice is delivered timely by competent, ethical, and independent representatives

and neutrals who are of sufficient number, have adequate resources, and reflect the
makeup of the communities they serve.
(http://worldjusticeproject.org/what-rule-law)
The WJP goes on to elaborate essential rule of law ‘factors’ which should be evident in
healthy societies. These factors are as follows:
uu Limited government powers: in a society governed by the rule of law, the

government and its officials and agents are subject to and held accountable under
the law.
uu Absence of corruption: the absence of corruption – conventionally defined as the

use of public power for private gain – is one of the hallmarks of a society governed
by the rule of law.
uu Order and security: human security is one of the defining aspects of any rule of
law society. Protecting human security, mainly assuring the security of persons and
property, is a fundamental function of the state.
uu Fundamental rights: under the rule of law, fundamental rights must be effectively
guaranteed. A system of positive law that fails to respect core human rights
established under international law is at best ‘rule by law’.
uu Open government: open government is essential to the rule of law. It involves

engagement, access, participation and collaboration between the government and
its citizens, and plays a crucial role in the promotion of accountability.
uu Civil justice: in a rule of law society, ordinary people should be able to resolve
their grievances and obtain remedies in conformity with fundamental rights
through formal institutions of justice in a peaceful and effective manner, rather
than resorting to violence or self-help. Civil justice requires that the system be
accessible, affordable, effective, impartial and culturally competent. Accessibility
includes general awareness of available remedies, availability and affordability of
legal advice and representation, and absence of excessive or unreasonable fees
and hurdles. Impartiality includes absence of arbitrary distinctions, such as social
and economic status, as well as decisions that are free of improper influence by
public officials or private interests. Effective civil justice also implies that court
proceedings are conducted in a timely manner and judgments are enforced
without unreasonable delay. Finally, in a rule of law society, it is essential that
alternative dispute mechanisms provide effective access to justice, while refraining
from binding persons who have not consented to be bound by the mechanism.
uu Criminal justice: an effective criminal justice system is a key aspect of the rule
of law, as it constitutes the natural mechanism to redress grievances and bring
action against individuals for offences against society. An effective criminal justice
system is capable of investigating and adjudicating criminal offences effectively,
impartially and without improper influence, while ensuring that the rights of
suspects and victims are protected.
It is arguable that in the absence of these rule of law protections, societies may be
vulnerable to the use of arbitrary power, totalitarianism and corruption.
On the other hand, some modern legal scholars have argued that the concept of
the rule of law has become so vague and all-encompassing that it has lost any real
meaning. As Brian Tamanaha (2012) has commented:
It is necessary to maintain a sharp analytical separation between the rule of law,

democracy and human rights, as well as other good things we might want, like health and
security, because mixing all of these together tends to obscure the essential reality that a
society and government may comply with the rule of law, yet still be seriously flawed or
wanting in various respects. Or to put the crucial point another way, the rule of law may
be a necessary element of good governance and a decent society, but it is certainly not
sufficient.
The requirements for the rule of law, as set out by the WJP, are demanding and
wide ranging. In addition to constitutional principles, the WJP argues the need for
well-functioning civil and criminal justice systems and alternative forms of dispute
resolution, which are regarded as evidence of a well-developed legal culture
underpinned by rule of law values.
In Chapters 6 and 7 we examine the English civil and criminal justice systems in light of
the rule of law standards set out by the WJP. Throughout the study of this module, it is
important to consider the extent to which the institutions and processes of the English
legal system, and indeed the institutions and processes of other jurisdictions, meet
the rule of law requirements set out by Lord Bingham and the WJP. For many societies
and justice systems, these requirements are aspirational. But although a society may
not yet meet all of the requirements, striving to achieve rule of law objectives and to
embed rule of law values is likely to guard against arbitrary government and defective
justice systems. As Lord Bingham said in the Epilogue to his book The rule of law:
The concept of the rule of law is not fixed for all time. Some countries do not subscribe to
it fully, and some subscribe only in name, if that. Even those who do subscribe to it find it
difficult to apply all its precepts quite all the time. But in a world divided by differences
of nationality, race, colour, religion and wealth it is one of the greatest unifying factors,
perhaps the greatest, the nearest we are likely to approach to a universal secular religion.
It remains an ideal, but an ideal worth striving for, in the interests of good government and
peace, at home and in the world at large.
Summary
uu The constitution comprises the rules for governance of society and distribution of
power.
uu The English constitution is uncodified and found in common law, statute and
constitutional conventions.
uu Key constitutional principles are the separation of powers, sovereignty of

Parliament, and the rule of law.
uu Rule of law principles evident in fair societies include accessible and intelligible
laws, accountable government, fair legal processes and protection of fundamental
rights.
uu An independent judiciary is an essential element of the rule of law.
uu Access to justice is an essential element in the operation of the rule of law.
1. How would you distinguish between ‘rule of men’ and ‘rule of law’?
2. Why is an independent judiciary essential to the rule of law?
3. Why is access to justice an essential element in the rule of law?
4. How does the rule of law protect societies from tyranny?
5. Does the rule of law guarantee a just society?
6. In what sense might we say that the rule of law is an ‘aspiration’?

1.7 Doing justice in legal systems
Essential reading
¢¢ Holland and Webb, Chapter 5 ‘Law, fact, and language’.
Further reading
¢¢ Genn, H. Judging civil justice (The Hamlyn Lectures). (Cambridge: Cambridge
University Press, 2009) [ISBN 9780521134392] Chapter 1 ‘Introduction: what is
civil justice for?’ (in the Legal system and method study pack).
1.7.1 The essentials of fair justice and fair process

There is no simple, single agreed definition of the nature of ‘justice’ or the
requirements of just process in legal systems. However, in the English common
law system there is agreement that there are certain fundamental matters that are
essential for legal proceedings to be fair. Procedural fairness is concerned with the
procedures used by a decision-maker. It requires that a fair and proper procedure be
used when making a decision. Fairness is important for the ‘legitimacy’ of the justice
system (i.e. that citizens recognise the authority of the law, and respect and obey the
decisions of judges in courts). The essentials of fair process, long recognised within
English common law, are that: laws should be known; that an individual should know
the nature of the case against them; and that they should be given an opportunity
to defend themselves. These principles ensure that a fair decision is reached by an
objective and impartial decision-maker.
The distinction between law and facts

In both civil law and common law legal systems, when people are in dispute over
a legal issue, or where a person is accused of a crime, it is for the courts to decide
the outcome of the case according to the legal merits of the case. The judge gives a
legal determination or ruling which is then enforceable by the state. So if a person is
accused of murder and the court finds them guilty, they will be sent to prison. If a car
driver has injured a pedestrian and the court finds that they have driven carelessly,
they may be ordered to pay compensation to the injured person and they will be
forced to do so by the state. In both of these situations, and in all legal systems, the
job of the court is to determine the facts of the case and apply the relevant law
in order to reach an accurate legal determination. Although there is sometimes a
blurred line between what is a ‘question of fact’ and what is a ‘question of law’, for
practical purposes we can say that questions of fact are those which attempt to
prove what happened in a particular case. Was the driver exceeding the speed limit
when he knocked over the pedestrian? Did the pedestrian run into the road without
looking? These questions of fact will be determined by various types of evidence such
as statements made by witnesses or expert evidence. Questions of law are the legal
principles that may be argued in a case and procedural rules determining how the
case will be dealt with in a court.
In dealing with legal cases and reaching a legal determination of the case, the courts
will follow certain rules about what evidence of the facts needs to be provided, and
how and when the evidence should be provided.
Substantive and procedural law

‘Substantive law’ is law that defines, regulates and creates the obligations and rights of
a particular party. By contrast ‘procedural law’ or ‘adjectival law’ deals with the steps
that have to be taken in order to enforce the substantive rules, both before cases are
brought to court and when they are being heard in court by the judge or, in criminal
cases, by a judge and jury. The system of procedural rules is designed to ensure that
judges in adversarial proceedings (see below) have all of the appropriate evidence
available so that they can determine the essential or ‘material’ facts of the case
and apply the substantive law to those facts. For example, in criminal trials hearsay
evidence is excluded. This is where a witness did not directly see or hear something
important but was informed of it by another person. For evidence to be ‘admissible’
in court, the court must be able to hear a witness who saw or heard something and be
able to observe them being cross-questioned, so that their credibility can be tested.
The significance of procedural law is that it is thought to guarantee fairness in legal

proceedings and to increase the chance that judges will make an accurate decision
on the basis of the facts and the law – a ‘substantively just’ decision. Jeremy Bentham
(a famous 19th-century English legal philosopher) saw the rules of procedure as being
central to the machinery of justice. For Bentham, the power of procedure was in the
link between evidence and correct decisions (what he called ‘rectitude’ of decisions).
Procedural justice
Procedure is also important to litigants – the parties involved in legal cases – and their
perceptions of fairness. Those involved in legal proceedings want an opportunity to
put their case; the opportunity to influence the judge; a judge who is impartial and
even-handed; and to be treated with courtesy and respect. So procedural justice is not
only important in leading to correct legal decisions or substantive justice, but is also
an important influence on citizens’ perceptions of the fairness of legal processes.
1.7.2 Inquisitorial and adversarial procedure
Essential reading
¢¢ Kessler, A.D. ‘Our inquisitorial tradition: equity procedure, due process, and the
search for an alternative to the adversarial’ (2005) 90 Cornell L Rev 1181
http://cornelllawreview.org/files/2013/03/Kesslerfinal.pdf
One of the differences between common law and civil law jurisdictions is in
their approach to legal proceedings. Although the differences can sometimes be
overstated, common law court proceedings are generally based on ‘adversarial’
procedures in which the parties are responsible for preparing their case and collecting
their evidence. At the trial of the case in court the parties’ advocates will present their
clients’ respective arguments in a sort of contest before a judge (or judge and jury).
Witnesses will be called to give evidence and then cross-examined on their evidence.
The role of the judge is to remain relatively passive during proceedings, ensure that
procedures are followed and at the end of the hearing or trial give the decision
based on a view of the legal merits of the parties in relation to the facts presented.
Adversarial processes work best when there is a rough equality between the parties in
terms of representation and resources.
By contrast, in civil law jurisdictions, legal cases are determined on the basis of
‘inquisitorial’ procedures. In inquisitorial proceedings the judge plays a more active
role in the investigation of a case. The judge will decide which witnesses should be
called and will take responsibility for uncovering the facts of the case. In serious
criminal cases in France, judges may be involved as part of the investigation as
examining magistrates. At the trial the judge assumes a direct role, conducting the
examination of witnesses, often basing his or her questions on the material in the pre-
trial dossier. Neither the prosecution nor the defence has the right to cross-examine.
The use of juries in civil law jurisdictions is rare although lay assessors frequently sit
alongside judges in serious criminal cases. The adversarial and inquisitorial models are
distinguished primarily by whether the parties or the court control three key aspects
of the litigation: initiating the action; gathering the evidence; and determining the
sequence and nature of the proceedings (Kessler, 2005).
1. What is the difference between procedural and substantive justice?
2. How do procedural rules contribute to just outcomes?
3. Could a judge reach an accurate decision by an unfair process?
4. Why is it important that citizens perceive court processes to be fair?
5. What are some of the key differences between adversarial and inquisitorial
procedures?
2 The courts and their work
Contents
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2.2 Some preliminary distinctions . . . . . . . . . . . . . . . . . . . . . . 37
2.3 The hierarchy of the courts . . . . . . . . . . . . . . . . . . . . . . . . 37
2.4 European courts and relationship with English courts . . . . . . . . . . 42

Learning outcomes
uu describe the hierarchy of the courts
uu understand in broad terms the composition and jurisdiction of the courts
uu understand the relationship between European and English courts.
Essential reading
Further reading
¢¢ Slorach, Chapter 3 ‘The court system of England & Wales’.
¢¢ Cownie, Bradney and Burton, Chapter 3 ‘Courts in “the English legal system”’.
Legal system and method 2 The courts and their work page 37
2.1 Introduction
This chapter introduces you to the names and work of the main courts in the justice
system. A basic understanding of the hierarchical relationship of the courts and of the
kinds of cases with which different courts deal is necessary before moving on to the
discussion of precedent and statutory interpretation in Chapters 3 and 4. Although
some of the terms used at this stage will be unfamiliar, as you progress through your
reading, and as you begin to read some cases, the terminology will become more
familiar. If you are not sure of the meaning of a term as you read through the chapter
you should check the meaning by researching it on the VLE or internet.
2.2 Some preliminary distinctions
2.2.1 Civil and criminal courts

Civil courts exist in order to resolve disputes between private citizens or between a
citizen and the state. These disputes may involve, for example, breach of contract,
liability for injury in the law of tort, property rights, family disputes or the wrongful
exercise of power by a public authority. The person bringing the claim is the ‘claimant’;
and the person defending the claim is the ‘defendant’. If the defendant is found liable,
the court has the power to order the defendant to pay monetary compensation to the
claimant or to order some other remedy.
Criminal courts exist in order to hear and determine cases in which people are accused
of breaking the criminal law. The case will be brought by the ‘prosecution’ against an
‘accused’ or ‘defendant’. If the defendant is found guilty, the criminal court has the
power to inflict punishment in the form of a fine or imprisonment. The vast majority of
prosecutions are brought by the Crown Prosecution Service or other state agencies.
2.2.2 ‘First instance’ and ‘appeal’ courts

In both civil and criminal cases, once a decision has been given by the court, it may
be possible to appeal against the decision to a higher court. Thus there is a further
distinction between ‘first instance’ or trial courts and ‘appellate courts’.
2.2.3 Unanimous, concurring and dissenting judgments

In some of the courts in the hierarchy, judges sit in panels rather than alone (for
example, the Supreme Court and the Court of Appeal). In these cases, judges normally
sit in panels of 3, 5, 7 or 9 because in the English common law tradition it is permissible
and legitimate for a judge to disagree with others on a judicial panel. In such a case the
judge will deliver a ‘dissenting judgment’ and the case will be decided by the majority.
Where all of the judges agree, the decision will be unanimous. Even when all of the
judges agree, it is quite common for all of the judges hearing a case to write their own
decision. Although the judges agree, they may have a slightly different interpretation
of some of the issues in the cases or wish to express their view slightly differently from
the other judges. Where judges write a decision agreeing with the other members of
the panel it is called a ‘concurring’ judgment.
2.3 The hierarchy of the courts

The courts in the English legal system, shown in the diagram below, are in a
hierarchical relationship. Courts are organised on the basis of seniority. The more
senior the court in the hierarchy, the greater will be the authority of the decisions of
the court. So the decisions of the Supreme Court (formerly the House of Lords) are the
most important and authoritative decisions of all the courts. The Court of Appeal and
High Court are also authoritative, but less so.
UK Supreme Court
Appeal only, on points of law.
Employment Appeal Tribunal
Appeals from the Employment
Tribunals.
Court of Appeal
Appeal only, on points of law to either the Employment Tribunal (England
Criminal or Civil Divisions. & Wales; Scotland)
Claims about matters to do
with employment.
High Court
Chancery, Queen’s Bench and Family Divisions.
Upper Tribunal
All three divisions hear appeals from other courts,
Appeals from the First-tier Tribunal.
as well as ‘first instance’ cases.
Crown Court
Jury trial for all indictable and some either-way criminal First-tier Tribunal
offences. Appeals against conviction and sentence from Appeals from executive
the magistrates’ court. agency decisions.
There are a number of other

tribunals outside of this structure
Magistrates’ Court (for example, School Exclusion
County Court Family Court
Trial for most Panels) – their supporting
Trial for most Trial for most
criminal offences. llegislation explains their individual
civil cases. family cases.
Some civil matters. appeal routes.
Figure 2.1: The court structure (adapted from www.judiciary.gov.uk/wp-content/

uploads/2012/08/courts-structure-0715.pdf)
The courts and tribunals at the lower end of the hierarchy deal with the vast mass of
civil disputes and criminal cases (what are known as ‘inferior’ or ‘subordinate’ courts
and tribunals); while the courts at the top of the hierarchy hear a small number of
the most important cases on appeal in order to ensure that the decision of the trial
court was correct and to clarify points of law (‘superior’ courts). The judges who sit in
the superior courts are the most senior and distinguished members of the judiciary.
Superior courts have unlimited jurisdiction so can hear cases of any value or legal
complexity. Inferior courts have a limited jurisdiction. The Court of Appeal, High Court
and Crown Courts are now known as the ‘senior’ courts.
2.3.1 The United Kingdom Supreme Court (UKSC) (Formerly the

Appellate Committee of the House of Lords)
Essential reading
¢¢ Department for Constitutional Affairs ‘Constitutional reform: a Supreme Court
for the United Kingdom’ Consultation Paper, 2003
http://webarchive.nationalarchives.gov.uk/+/http:/www.dca.gov.uk/consult/
supremecourt/supreme.pdf
¢¢ Thomas, C. ‘Decision-making by the United Kingdom Supreme Court and Judicial

Committee of the Privy Council: 2009–13’ (in the Legal system and method study
pack).
The UK Supreme Court was established by Part 3 of the Constitutional Reform Act 2005
and officially came into being on 1 October 2009. It replaced the Appellate Committee
of the House of Lords (referred to simply as the House of Lords) in its judicial capacity
and assumed the jurisdiction of the House of Lords. The Supreme Court is, with a few
exceptions, the final court of appeal in the United Kingdom, although not for criminal
cases from Scotland. Most of its work involves hearing appeals on points of law of
public importance from the Court of Appeal but it may occasionally hear an appeal
directly from the High Court (‘leapfrog’ procedure). The UKSC comprises the President,
who is the Head of the Court (Lady Hale), a Deputy President (Lord Mance) and 10 other
Justices of the Supreme Court. It is a superior court and a court of record. Its hearings
are filmed, its decisions are regularly reported and all decisions are posted on the
Supreme Court website (www.supremecourt.uk/decided-cases/index.html). It hears
about 70 cases a year.
The creation of a Supreme Court was a major change both to the justice system of
England and Wales and to the constitution. At the time that the change was proposed
in 2003, the 12 judges of the Appellate Committee of the House of Lords (known as
the Law Lords) sat as the final court of appeal and heard cases within a committee
room that was located within Parliament. Although separate from the legislative
function of the House of Lords as the upper chamber of Parliament, the co-location of
both legislative and judicial activity was capable of causing confusion in the mind of
the public. The Government’s intention in creating the Supreme Court was to make
absolutely clear the separation of the judiciary and executive, especially since the
passing of the Human Rights Act 1998. The Government Consultation Paper published
by the Department for Constitutional Affairs in 2003, which preceded the creation of
the new Supreme Court, states that the purpose of the change was to make clearer the
independence of the judiciary:
The intention is that the new Court will put the relationship between the executive,
the legislature and the judiciary on a modern footing, which takes account of people’s
expectations about the independence and transparency of the judicial system … [the
functions of the Court] raise questions about whether there is any longer sufficient
transparency of independence from the executive and the legislature to give people
the assurance to which they are entitled about the independence of the Judiciary. The
considerable growth of judicial review in recent years has inevitably brought the judges
more into the political eye. It is essential that our systems do all that they can to minimise
the danger that judges’ decisions could be perceived to be politically motivated. The
Human Rights Act 1998, itself the product of a changing climate of opinion, has made
people more sensitive to the issues and more aware of the anomaly of the position
whereby the highest court of appeal is situated within one of the chambers of Parliament.
2.3.2 The Judicial Committee of the Privy Council (JCPC)

The Judicial Committee of the Privy Council is the highest court of appeal for a number of
Commonwealth countries, as well as the UK’s overseas territories, crown dependencies
and military sovereign base areas. Although the JCPC is a UK court, the substantive law
which it applies is the law of the country or territory from which an appeal comes. The
JCPC has been co-located with the Supreme Court since October 2009 and the judges
who sit on the JCPC are the Justices of the Supreme Court occasionally sitting together
with judges from constituent jurisdictions. It deals with about 40 cases per year.
2.3.3 The Court of Appeal

Although the Court of Appeal is nominally one court, it is divided into the Criminal
Division and the Civil Division. The main jurisdiction of both Divisions is appellate,
hearing appeals against first instance decisions.
Court of Appeal (Civil Division)

The head of the court is the Master of the Rolls (MR) who is also the Head of Civil
Justice. The judges who sit in the Court of Appeal are known as a Lord or Lady Justice
of Appeal. Most of the work of the court is dealing with appeals from first instance
decisions in the High Court and the County Court.
Court of Appeal (Criminal Division)

The Lord Chief Justice is the head of Court of Appeal (Criminal Division), and is also
the Head of the Judiciary and the President of the Courts of England and Wales. He
sits with Lords Justices of Appeal. The court deals with appeals against conviction or
sentence from the Crown Court and also issues guidance on sentencing for the lower
courts. Under s.1 of the Criminal Appeal Act 1995 ‘permission’ is required for an appeal
from the Crown Court even if it is on a point of law. The principal ground of appeal is
that the conviction is ‘unsafe’. Under s.9 of the Criminal Appeal Act 1995 cases may be
referred to the Criminal Division of the Court of Appeal by the Criminal Cases Review
Commission for the correction of a miscarriage of justice.
2.3.4 The High Court of Judicature

Like the Supreme Court and Court of Appeal, the High Court is a superior court of
record whose decisions are regularly reported. The High Court deals with both civil
and criminal cases at first instance and on appeal. It also has a supervisory function.
Although we refer to the High Court as one court, it has three ‘divisions’: the Queen’s
Bench Division (QBD); the Chancery Division (ChD); and the Family Division (Fam).
The Queen’s Bench Division (QBD)

This is the largest of the three Divisions of the High Court. The Head of the QBD is the
Lord Chief Justice (LCJ). There are about 70 judges who sit in the QBD (known as High
Court judges or puisne judges). The QBD has a wide civil jurisdiction hearing at first
instance cases in tort and contract. There are several specialist courts: the Admiralty
Court which deals with shipping cases; the Commercial Court which deals with
business disputes; and the Technology and Construction Court. The Administrative
Court deals with claims for judicial review of administrative action. It should be noted
that, as of July 2017, the specialist civil jurisdictions comprising the Commercial Court
and the Technology and Construction Court, as well as the specialist courts of the
Chancery Division, became together known as the Business and Property Courts.
The Chancery Division (ChD)

The Head of the ChD is the Chancellor of the High Court (C) and about 18 puisne judges
sit in this Division. Issues dealt with include bankruptcy, ownership of land, trusts and
contentious probate (disputed wills). There is a patents court within the ChD with two
specialist judges.
The Family Division (Fam)

The Head of the Family Division is the President (P) and there are currently around 18
puisne judges in this Division. The court deals with matrimonial matters, issues to do
with adoption and other matters concerning children.
2.3.5 The Crown Court

The Crown Court has both appellate and first instance jurisdiction and sits in about
70 different places around England. The number of places in which the Crown Court
sits will be reduced as part of the government’s reforms of the justice system. The
government has decided to close 86 court and tribunal buildings overall. The Crown
Court largely deals with criminal cases brought on ‘indictment’ (the most serious
criminal offences). It also hears appeals from magistrates’ courts. Any judge of the
High Court can sit to hear cases in the Crown Court and cases are also heard by circuit
judges and recorders (part time circuit judges). For criminal cases heard on indictment
the judge will normally sit with a jury – 12 citizens randomly selected from the register
of voters. The main functions of the Crown Court are: to try cases on indictment
following committal from the magistrates’ court; to hear appeals by way of rehearing
from summary trials conducted before magistrates; and to hear appeals by way of
rehearing from certain civil trials (family proceedings and licensing) heard before
magistrates.
2.3.6 The Family Court

Family cases have traditionally been dealt with in the Family Division of the High Court,
the County Court and magistrates’ courts. Following a review of the family justice
system in 2011 a new single Family Court was established by the Crime and Courts Act
2013 and The Family Procedure (Amendment No. 3) Rules (SI 2013/3204). The Family
Court deals with virtually all family cases previously dealt with in the High Court,
County Court and magistrates’ courts. The change streamlines the system for family
cases. The judiciary of the Family Court includes all levels of judge from High Court,
circuit judges, recorders, district judges and magistrates. There is a single point of
entry for the issue of proceedings and a centralised and unified administration.
2.3.7 The County Court

Traditionally the County Court system model has been based around the geographical
dispersion of physical court buildings where access to civil justice is available on a
local basis around the country. The judges who sit in the county courts are circuit
judges, recorders and district judges. The jurisdiction of the County Court is relatively
broad, dealing with civil cases arising from a variety of matters, such as contract, tort,
insolvency and probate. The County Court is an inferior court and its decisions are not
reported. Whether or not cases are heard by the County Court or by the High Court
usually depends on where the dispute was originally lodged and the subsequent
exercise of gatekeeping powers of the court to transfer a matter to the High Court. As a
general rule, lower value and/or less complex cases are heard by the County Court and
higher value and/or more complex cases are heard by the High Court. Until recently
170 county courts provided local access to civil justice in the County Court system.
In April 2014 the Civil Procedure (Amendment) Rules 2014 (SI 2014/407) implemented
the single County Court, which indicates a move towards the unification of the
courts and a practical attempt to make the civil justice system more effective and
less costly. The County Court is a single model in that it is a central system which is
served nationwide by business units; and the geographically dispersed physical court
buildings are only one aspect of the single model system. The single County Court has
the new operational features of two business centres, the Northampton Bulk Centre
and the County Court Money Claims Centre at Salford. The Bulk Centre relies as far as
possible on a ‘judge free’ approach and electronic, digitalised solutions which are
designed for the paperless resolution of particular types of disputes, such as Money
Claims On Line (MCOL) and Direction Questionnaires; for example, in the resolution
of small claims (under £10,000). The Salford Centre carries out similar work but as a
paper exercise. These new features support the overarching aim of a more efficient
and less costly civil justice system by alleviating individual courthouses from the
burden of the types of claims they perform.
The traditional county courts are incorporated into the single County Court model
as the County Court Hearing Centres. The immediate impact of the introduction of
this new model has been an initial reduction of the original number of court centres
from 170 to 145. Further closures are expected as the improvements which the single
model should deliver will theoretically continue to reduce the workload of the
Hearing Centres. In February 2016, the closure of further County Court premises was
announced as part of the overall reduction in court and tribunal buildings in England
and Wales. This is part of the government’s overall reform of the justice system,
discussed in more detail later in this guide.
2.3.8 Magistrates’ courts

Magistrates’ courts are local courts dealing mainly with criminal matters. Magistrates’
courts are inferior courts. They are not courts of record. The judges who sit in magistrates’
courts are generally not lawyers , but are lay magistrates or Justices of the Peace (JP). They
are unpaid and sit part-time, generally in benches of three, assisted by a legally qualified
justices’ clerk, who advises the magistrates on the law but does not become involved in
decision making. There are around 23,000 magistrates in England and Wales. There are
also around 140 professionally qualified, paid judges who sit in the magistrates’ courts.
These are District Judges (Magistrates’ Courts) or DJ (MC) (formerly known as Stipendiary
Magistrates). Magistrates’ courts try minor offences (summary offences) and conduct
preliminary hearings of indictable offences before a case is sent to the Crown Court to be
tried. Thus all criminal cases begin in the magistrates’ courts and over 90 per cent of cases
end there. Magistrates also deal with a wide range of civil proceedings.
2.3.9 Tribunals
Tribunals are decision-making bodies established by the state, mostly to deal with
disputes between citizens and the state. There were originally around 70 different
tribunals dealing with a wide range of subject-matter ranging across, for example,
immigration, welfare benefits, education, tax and parking. Unlike general courts, most
tribunals have a relatively restricted jurisdiction. Typically, tribunal panels comprise
a legally qualified tribunal judge who will sit together with two non-legally qualified
panel members. Tribunals tend to have less complex procedures than ordinary courts
and are intended to be accessible and user-friendly so that those challenging decisions
of public bodies in tribunals can proceed without legal representation.
Tribunals were reformed in November 2008 by the Tribunals, Courts and Enforcement
Act 2007. The tribunals, which had previously all been separate, became part of one
larger, unified tribunal system. Rather than there being around 70 different small
tribunals, they are now organised within a First-Tier Tribunal and an Upper Tribunal.
These are divided into ‘chambers’ to group together different kinds of tribunal work.
2.3.10 Coroners
Coroners’ courts are inferior courts, the decisions of which are not reported. Their
main function is to inquire into the cause of sudden deaths. Coroners may be lawyers
or medical practitioners and they may sit with a jury of between 7 and 11 members if
that is considered necessary. Unlike courts, the process adopted in coroners’ courts is
inquisitorial.
2.4 European courts and relationship with English courts
2.4.1 The Court of Justice of the European Union (CJEU)

Under the European Communities Act 1972 the UK became a member of the European
Communities on 1 January 1973. The effect of s.2(1) of the 1972 Act is mandatory
incorporation of EU law into English law. The UK is required to give effect to any laws
passed by the EU. Since the accession of the UK, the CJEU has stood above the Supreme
Court as the ultimate court in disputes concerning European law. This may change
in the future following the UK’s vote in 2016 to leave the European Union. In internal,
domestic cases, the Supreme Court remains the final appeal court in the UK.
The CJEU was established in 1954. It consists of one judge from each member state –
together with eight Advocates General – who makes submissions to the court on the
relevant law to assist the court. The CJEU sits in Luxembourg and is usually referred
to as the European Court, but should not be confused with the European Court of
Human Rights, which sits in Strasbourg. The CJEU normally sits in chambers of three
or five judges, but may sit in a grand Chamber of 13 judges. An important point of
procedural difference between this court and UK courts is that the CJEU always delivers
a judgment of the court, without the possibility of dissenting judgments. The CJEU
deals with breaches of obligations under European Treaties and the uniform judicial
interpretation of European Law by member states of the European Union. Cases are
not appealed to the CJEU but instead ‘referred’ to the CJEU under Article 267 of the
Treaty on the Functioning of the European Union. It is thus a ‘Court of Reference’. The
Court makes the final judgment on the interpretation of EU law.
2.4.2 European Court of Human Rights (ECtHR)

The European Court of Human Rights (ECtHR) is an international court based in
Strasbourg and should not be confused with the CJEU in Luxembourg. The ECtHR hears
cases alleging that there has been a breach of the European Convention on Human
Rights. Judges of the ECtHR are full-time, elected for six years by the Council of Europe.
The Court operates a two-stage procedure beginning with preliminary scrutiny by
a panel of three judges who decide if the case is admissible. If a case survives this
process it will proceed to a Chamber of seven judges who will normally determine the
case. In exceptional circumstances a seven-judge Chamber may refer a case to a Grand
Chamber of 17 judges if the case raises a serious question affecting the interpretation
of the Convention. The ECtHR does not sit within the English court hierarchy, but since
the UK has incorporated the European Convention on Human Rights into its domestic
law through the Human Rights Act 1998, the decisions of the ECtHR are highly
influential on English courts dealing with human rights issues and the UK Supreme
Court generally follows the decisions of the ECtHR. See, for example, the Grand
Chamber decision in a case involving the right of prisoners to vote in elections. This
decision was considered by the UK Supreme Court in the case of Chester [2013] UKSC
63. The relationship between the ECtHR and the Supreme Court is discussed further in
Chapter 3 of this module guide.
Summary
uu The structure of the English court system is hierarchical and courts lower down the
court hierarchy are bound to follow decisions of courts higher up the hierarchy.
uu A major distinction is between courts of first instance and those with appellate
jurisdiction.
uu There is no rigid line of demarcation between civil and criminal courts since almost
all the courts exercise both types of jurisdiction (except the County Court).
uu While not formally part of the English court hierarchy the CJEU in Luxembourg is a
Court of Reference and stands above the UK Supreme Court in relation to issues of
European Union Law.
uu The European Court of Human Rights (ECtHR) in Strasbourg, France, deals with
breaches of the European Convention on Human Rights.
uu Since the Human Rights Act 1998, English courts can deal directly with alleged
breaches of human rights, but their decisions are heavily influenced by the
jurisprudence of the ECtHR.
1. Name the superior courts in the English court hierarchy.
2. Name the inferior courts in the English court hierarchy.
3. Explain the difference between first instance and appellate courts.
4. What kind of cases does the Chancery Division of the High Court deal with?
5. What is a tribunal?
6. Which is the final court of appeal for matters concerning European Law?
7. What does the Grand Chamber of the European Court of Human Rights do?
Notes
3 The doctrine of judicial precedent
Contents
3.1 What is the doctrine of judicial precedent? . . . . . . . . . . . . . . . . 47
3.2 The role of the judiciary in the operation of precedent . . . . . . . . . . 50
3.3 Precedent in practice . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
3.4 The European Court of Human Rights and the UK Supreme Court . . . . . 59
3.5 Judges as law-makers . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
3.6 Postscript: the history of law reporting . . . . . . . . . . . . . . . . . . 64
3.7 Citation of the Law Reports and the Weekly Law Reports . . . . . . . . . 65
Learning outcomes
uu understand what is meant by the doctrine of judicial precedent and why it is
important in the common law
uu recognise and distinguish between ratio decidendi and obiter dicta
uu explain and apply the rules of binding precedent in relation to each court
uu explain how the Human Rights Act 1998 affects the operation of binding
precedent
uu explain the extent to which judges can make law within the system of precedent.
Essential reading
¢¢ Holland and Webb, Chapter 6 ‘The doctrine of judicial precedent’ and Chapter 7
‘How precedent operates: ratio decidendi and obiter dictum’.
¢¢ Lord Dyson MR ‘Are the judges too powerful?’ Bentham Presidential Address,
UCL, 12 March 2014
www.judiciary.gov.uk/announcements/mor-speech-are-judges-too-powerful/
¢¢ Lord Justice Etherton ‘Liberty, the archetype and diversity: a philosophy of

judging’ (October 2010) Public Law 727 (available in Westlaw through the Online
Library).
¢¢ Lord Justice Laws ‘The common law and Europe’ Hamlyn Lecture 2013, Lecture III
www.judiciary.gov.uk/announcements/speech-lj-laws-hamlyn-lecture-2013/
Further reading
¢¢ Slapper and Kelly, Chapter 4 ‘Sources of law: case law’.
Legal system and method 3 The doctrine of judicial precedent page 47
3.1 What is the doctrine of judicial precedent?
3.1.1 The basic principles

The doctrine of judicial precedent is fundamental to the operation of common law. In
practice it means that a judge deciding a particular case will look for a ‘precedent’ – a
decision in an earlier similar case – to help them reach their decision in the case before
them. One of the most important justifications for following precedents is related to
the idea of doing justice. Consistency is seen as an essential element in doing justice,
in the sense that similar cases coming before the courts for determination should be
treated in a similar way. Another practical justification for following precedent is that
if judges follow the reasoning and decisions of their judicial colleagues, the common
law becomes certain and predictable. This is desirable so that people can organise
their affairs knowing what the law is, and to avoid continually litigating legal points.
Thus it is regarded as both fair and efficient to follow precedent. Expressed in this way,
the practice of precedent is not particularly unusual and is to be found to a greater
or lesser degree in most developed legal systems. Indeed, in civil law jurisdictions
there is a principle of non-binding precedent, sometimes referred to as the doctrine
of judicial consistency, according to which it would be thought erratic if the courts
significantly varied their approach to similar legal questions.
The concept of binding precedent

However, in the English common law system, we talk of the doctrine of ‘binding’
precedent in which the courts are bound to follow earlier decisions, even though
a judge in a second court might not approve of the earlier precedent. Sometimes
this will be referred to as the rule of stare decisis, which literally means ‘to stand by
decisions already made’. The idea of binding precedent in the common law system is
to ensure fairness through consistency, to provide predictability in the law and thus
to reduce the need for litigation. If people can determine what the law is, there is no
need to litigate the case and indeed no point in doing so. Legal advisers can advise
clients with confidence about what the legal principles are that a judge would apply
in deciding a dispute in court and what the outcome would be. The rule of binding
precedent is that the legal rule established in a precedent will continue to be applied
in subsequent similar cases until either another court decides that the case was
incorrectly decided; or for some other reason cannot be allowed to stand; or until a
court higher in the hierarchy overturns the decision; or until Parliament decides to
change the law by passing a new Act of Parliament that overrules or alters the rule laid
down by the court.
Binding and persuasive precedents

The doctrine of binding precedent represents a constraint on judicial decision-
making and there is a distinction between precedents which a judge may choose to
follow – persuasive precedent – and those which a judge is bound to follow – binding
precedent.
A precedent is persuasive where it is not binding, but will still be taken into account
by a court. The judge will feel that they are under some obligation to explain why they
are not going to follow a persuasive precedent. All serious statements made by judges
of the higher courts are treated with respect and may be cited in any court. However,
certain classes of especially persuasive precedent may be identified:
uu ratio of the Judicial Committee of the Privy Council (JCPC)
uu ratio of superior courts in other common law jurisdictions
uu High Court Judges treat the decisions of other High Court Judges as very persuasive,
especially where the decision was reserved (i.e. given after time for reflection).
See further discussion below.
Vertical and horizontal precedent

In the English common law system, the doctrine of binding precedent means that a
judge in a lower court must apply a decision made in a similar case in a higher court or,
indeed, in a court at the same level. These are the concepts of vertical and horizontal
precedent.
Vertical precedent – refers to the extent to which a court lower down the hierarchy is
bound to follow a decision of a court higher up the hierarchy. For example, is the Court
of Appeal bound to follow the decisions of the UK Supreme Court?
Horizontal precedent – refers to the extent to which a court at the same level is
bound to follow its own earlier decisions. For example, is the Court of Appeal bound to
follow its own earlier decisions?
The distinction between ratio decidendi and obiter dicta

The decisions of judges in reported cases contain a large amount of material. Decisions
normally comprise material about the facts of the case; information about the
arguments made in court; and then there is the decision of the case and the reasons
for the decision – or the reasoning that leads to the decision. The essential pieces of
information in a reported case that will be important for the operation of the system
of binding precedent are: the material facts of the case; and the application of legal
principles to those facts that leads to the decision. What constitutes the precedent
that must be followed in later cases is the ratio decidendi – the ‘reason for deciding’.
The ratio decidendi is often contrasted with other parts of the judgment which are
regarded as obiter dicta – things said by the way, but which were not essential for the
decision in the case. The ratio decidendi is essentially the legal rule that leads to the
decision and it is this legal rule that is binding on a later judge. As Sir Rupert Cross
explained in his book Precedent in English law in 1977:
The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as
a necessary step in reaching his conclusion, having regard to the line of reasoning adopted
by him…
It is interesting to note that very occasionally the obiter dicta parts of the judgment
may be of the most importance for the future development of case law. This happened
with Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. In this case, the claimant, who was a
professional gambler, had used a method of playing cards, known as edge-sorting, to
win large amounts of money at the defendant’s casino. The defendant refused to pay
the claimant his winnings, and the claimant brought a legal claim for recovery of these
sums. The case eventually went to the Supreme Court, where the claimant’s appeal
was dismissed. The Supreme Court found that the claimant had breached an implied
contractual term not to cheat, and found that it was not necessary to consider the test
of dishonesty as part of this test. This is the ratio of the case. However, in comments
that were obiter dicta, the court went on to state that the long-standing test for
criminal dishonesty, found in the case of R v Ghosh [1982] QB 1053, should no longer
represent the law. Lord Hughes took the opportunity to state that ‘the second leg of
the test propounded in R v Ghosh [1982] QB 1053 does not correctly represent the law
and that directions based upon it ought no longer to be given’ (at para.74). Although
Lord Hughes’s statement was obiter, it is widely expected that this change to the
test of dishonesty will have important implications for the development of criminal
common law. A similar point could be made in relation to Hedley Byrne & Co Ltd v
Heller & Partners Ltd [1964] A.C. 465, in which a leading precedent was set in the law of
negligence, despite the fact that the relevant judicial reasoning was almost certainly
obiter dicta.
The ability to read a reported case and to identify its ratio decidendi is an essential
skill of the lawyer. It is a skill that must be developed in order to make sense of the
common law, to understand judicial reasoning and, ultimately, to be in a position to
provide advice on legal disputes and problems.
Material facts
The ‘material’ facts of a case are the facts that are important to the decision. Not all
facts in a case will be relevant to the decision and the judge will generally make fairly
clear which facts are relevant. So, for example, in the famous case of Donoghue v
Stevenson [1932] AC 562 the court dealt with the question of whether a manufacturer
of a food product could be liable for causing injury to the ultimate consumer of the
product as a result of negligent manufacture. In this case Mrs Stevenson was made
ill as a result of consuming ginger beer poured from a brown bottle which contained
a dead snail. The fact that the bottle was brown – and thus the contents could not
be examined – was a material fact, while the fact that the content of the bottle was
ginger beer was not material. The bottle could have contained lemonade or any
other drink. The point was that the contents could not be examined. For an excellent
account of the background to this famous case read Martin R. Taylor, QC, ‘Donoghue v
Stevenson: the legal world’s first glimpse of the most famous litigant of all time’
(www.scottishlawreports.org.uk/resources/dvs/most-famous-litigant.html).
Distinguishing
The doctrine of binding precedent requires that a judge follows the decisions of
earlier cases unless a similar earlier precedent can be ‘distinguished’. Cases can
be distinguished on their material facts or on the point of law involved. This is a
device sometimes resorted to by judges in order to avoid the consequences of an
inconvenient decision which is, in strict practice, binding on them.
How can cases lose their binding authority?

There are three principal ways in which a case can lose its binding force:
i. Express or implied overruling: a case may be expressly overruled by Parliament

if Parliament chooses to do so. Alternatively, if a case has not been expressly
overruled but is inconsistent with a later Act of Parliament it will be deemed to
have been ‘impliedly overruled’.
ii. Reversal: a case is reversed when the loser appeals and the appeal court agrees
with them. Sometimes cases are reversed only on some issue of fact. Where this
happens the ratio does not lose its binding force.
iii. Overruling: a case is overruled when a higher court, dealing with indistinguishable
material facts, either expressly overrules the earlier case, or produces a ratio which
is inconsistent with that of the earlier case.
How do you identify the ratio decidendi of a case?

This is the question that all law students ask. There is no simple way. The ratio does
not appear underlined and in red ink in the judgment. Reported cases may run to 10,
20 or 50 pages and include judgments given by several judges in the case. The only
way to identify the ratio is through a careful process of analysis and comprehension.
Reading through the case, following the analysis of the judge, following the judge’s
identification of the key legal principles and understanding how they have applied
those principles to the facts of the case in order to reach their decision. This is legal
method and you will learn it by reading cases together with the explanation of cases
that you find in your textbooks and study packs.
1. Explain the difference between a binding and a persuasive precedent.
2. Explain the difference between vertical and horizontal precedent.
3. Which part of a binding precedent is a judge bound to follow?
4. In reading a case, how can you distinguish between the ratio decidendi and
obiter dicta?
3.2 The role of the judiciary in the operation of precedent
3.2.1 The doctrine of binding precedent is a judge-made rule

It is worth noting that the doctrine of binding precedent is a limitation which the
judiciary have imposed on themselves. It is not a rule of Parliament but a judicial
discipline and if the judiciary were to agree on a change they would, in theory, be free
to do so. This is exactly what happened in 1966 when the judges in the House of Lords
(what is now the UK Supreme Court) decided to change their practice. They agreed
that in the future although they would normally regard themselves as bound by their
own earlier decisions, in appropriate cases they would be prepared to overrule an
earlier decision. This issue is discussed in detail later in this chapter.
3.2.2 Do judges make or declare the law?

Historically there has been considerable debate about the role of the judiciary in the
English common law system. Constitutionally it is for the legislature to make law and
for the judiciary to give effect to that law. The judiciary are not elected representatives
of the people and therefore lack legitimacy for law-making in a democratic society
governed by the rule of law (what is often referred to as a ‘democratic deficit’). This
strict approach to the role of the judiciary was expounded by William Blackstone and
is known as the ‘declaratory theory’ – that the role of the judge is to declare what the
law is, and not to make it. An example of this approach is given by Lord Simonds in the
case of Midland Silicone Ltd v Scruttons Ltd [1962] AC 446, where he said:
Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore
our first duty which is to administer justice according to law, the law which is established
for us by an Act of Parliament or the binding authority of precedent.
However, there is ample judicial writing and scholarly discussion to conclude that
in the English common law system the judiciary do perform a limited law-making
function in incrementally developing the common law to ensure that it keeps pace
with changes in social and economic conditions and remains sufficiently flexible to
accommodate new situations.
In his memoirs in 1972 after retiring from the House of Lords (what is now the UK
Supreme Court) Lord Reid indicated his view in the title of his book The judge as law
maker. He famously said:
We do not believe in fairy tales any more. So we must accept the fact that for better or
worse judges do make law, and tackle the question how do they approach their task and
how they should approach it.
More recently a number of judges have reflected on their role in developing the common
law. When he was Chairman of the Law Commission of England, Lord Justice Etherton
argued that public law and human rights developments have intensified and highlighted
the law making role of the judge (July 2009, Institute of Advanced Legal Studies lecture).
In the case of National Westminster Bank v Spectrum Plus [2005] 2 AC 680, Lord Nicholls
said at para.32:
The common law is judge-made law. For centuries judges have been charged with the
responsibility of keeping this law abreast of current social conditions and expectations.
That is still the position. Continuing but limited development of the common law in this
fashion is an integral part of the constitutional function of the judiciary. Had the judges
not discharged this responsibility, the common law would be the same now as it was in
the reign of King Henry II. It is because of this that the common law is a living instrument
of law, reacting to new events and new ideas, and so capable of providing the citizens of
this country with a system of practical justice relevant to the times in which they live.
However, in his essay The judge as lawmaker (1997), Lord Bingham identified some
situations where judges would or should be reluctant to make new law. For example:
where citizens have organised their affairs on the basis of their understanding of the
law; where a defective legal rule requires detailed amendments, qualifications and
exceptions; where the issue involves a matter of social policy on which there is no
consensus; or where the issue is in a field outside of ordinary judicial experience.
The extent to which any judge is prepared to innovate will depend on their view of the
balance to be achieved between competing requirements of the common law. These are:
uu the need for stability in the common law
uu the need for certainty in the common law
uu the need for flexibility in the common law
uu the desire to do justice between the parties in the instant case
uu the duty not to usurp (take over) the role of Parliament.
As Lord Dyson concluded in his 2014 speech on the power of the judiciary:
… in deciding whether to develop the common law or to leave any change to Parliament,
the courts do not apply some overarching principle … some judges are more cautious
than their colleagues; others are more adventurous. But despite these differences, the
common law continues to evolve. What is clear is that the judges have great power in
shaping the common law and, therefore, influencing the lives of all of us. The existence
of this power is, of course, always subject to Parliament. If Parliament wishes to change
the common law, it can do so. But, despite some notable exceptions … Parliament rarely
shows any appetite to change the common law. So far as I am aware, the manner in which
the judges develop the common law has not excited much political comment or given
rise to a demand to clip the wings of the judges. I would like to think that this is because,
on the whole, the judges have done a good job in this area and no-one has suggested a
fundamentally different way of doing things that would command popular support.
1. What is the ‘declaratory theory’?
2. Why are judges reluctant to legislate?
3. What approach does Lord Dyson think judges should take to the development of
the common law?
3.3 Precedent in practice
3.3.1 Vertical and horizontal precedent in the court hierarchy
The UK Supreme Court (formerly House of Lords)
Essential reading
¢¢ Lord Justice Laws ‘Our lady of the common law’ ICLR Lecture, 1 March 2012
www.judiciary.gov.uk/announcements/lj-laws-speech-iclr-lecture-01032012/
¢¢ Lee, J. ‘The doctrine of precedent and the Supreme Court’ Inner Temple
Academic Fellow’s Lecture
https://d17g388r7gqnd8.cloudfront.net/2017/08/lecture_james_lee.pdf
¢¢ Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28
(extract in the Legal system and method study pack).
¢¢ Jones v Kaney [2011] UKSC 13.
FURTHER READING
¢¢ Louis Blom-Cooper and Gavin Drewry ‘Correcting wrong turns: the 50th birthday
of the 1966 House of Lords Practice Statement on Precedent’ P.L. 2016, Jul, 381–82
(available in Westlaw through the Online Library).
Vertical precedent
The UK Supreme Court binds all of the courts below it in the court hierarchy. There
have been some occasions in the past when the Court of Appeal has challenged this
principle (see next section).
Horizontal precedent
Until the mid-19th century the House of Lords took the view that it was not bound by
its own decisions, but in 1898 in the case of London Street Tramways Ltd v London County
Council [1898] AC 375 the House confirmed that they would in future be bound by their
own decisions. The reason for this was to bring finality to cases and legal issues so that
they would not be continually re-argued. However, in the period that followed the
London Tramways decision it was felt that the effect of the decision was to constrain
the development of the common law and that rather than ensuring predictability and
certainty in the law, the effect was rather the opposite.
As a result, in 1966, all of the judges in the House of Lords joined together to issue
a Practice Statement (a statement by the court of a procedure that it intends to
introduce) providing that in future the House would no longer regard itself as bound
by its own earlier decisions. The statement was carefully worded to communicate that
this new power to depart from decisions would be used sparingly to avoid creating
uncertainty in the law.
The Practice Statement (Judicial Precedent) [1966] 3 All ER 77

The Practice Statement set out why the House of Lords was going to change its
practice and how it thought it would exercise the new freedom to depart from earlier
decisions of its own. It said:
Their Lordships recognise … that too rigid adherence to precedent may lead to injustice in
a particular case and also unduly restrict the proper development of the law. They propose
therefore to modify their present practice and, while treating former decisions … as
normally binding, to depart from a previous decision when it appears right to do so.
Together with the Practice Statement, the House of Lords published a press release
which gave more explanation about the new practice. The key points that emerged
from the Practice Statement and press release were that:
uu the court would only rarely depart from an earlier decision
uu the court would be most likely to use the new freedom in situations where
there had been significant social change so that a precedent was outdated or
inappropriate to modern social conditions, values and practices
uu the court would be likely to depart from an earlier decision if there was a need to
keep English common law in step with law of other jurisdictions
uu there was a special need for certainty in criminal law and as a result the court
would be very reluctant to depart from an earlier decision in a criminal case.
Horizontal precedent in the UK Supreme Court

Soon after the UK Supreme Court was established in 2009, Lord Hope gave a judgment
in Austin v Southwark London Borough Council [2010] UKSC 28, [2010] 4 All ER 16 in
which he made it clear that the prior jurisprudence of the House of Lords had been
transferred to the UK Supreme Court and that the UKSC would therefore not regard
itself as bound by earlier decisions.
The Supreme Court has not thought it necessary to re-issue the Practice Statement as
a fresh statement of practice in the Court’s own name. This is because it has as much
effect in this Court as it did before the Appellate Committee in the House of Lords. It was
part of the established jurisprudence relating to the conduct of appeals in the House of
Lords which was transferred to this Court by section 40 of the Constitutional Reform Act
2005. So the question which we must consider is not whether the Court has power to
depart from the previous decisions of the House of Lords which have been referred to, but
whether in the circumstances of this case it would be right for it to do so.
The use of the Practice Statement in the House of Lords/UK Supreme Court
The Practice Statement and accompanying press release provide a good example of
how, within the system of binding precedent, the judiciary have developed sufficient
scope for the law to remain flexible and responsive to social change. The freedom of
the House of Lords/UK Supreme Court to be less rigidly bound by precedent is a critical
feature of the English system of precedent. So long as the power is used cautiously,
it provides flexibility while broadly maintaining consistency and predictability in the
common law. However, the power to depart from an earlier decision and, effectively,
transform the law overnight raises issues about the line between a desirable level of
judicial creativity and flexibility on the one hand and crossing a line which trespasses
on the role of Parliament as the legislator within the English constitution on the other.
A cautious approach since 1966

The history since 1966 shows that the House of Lords and UKSC have used the power
very sparingly. In a study of the House of Lords judiciary published in 1982 called The
law lords, Professor Alan Paterson reported that between 1966 and 1980 there were
29 cases where the House of Lords was invited by counsel to overrule their own
precedents. In eight cases the court did overrule one of their own earlier cases. In a
further 10 cases at least one law lord would have been willing to overrule.
Examples of the use of the Practice Statement in criminal cases

Knuller v DPP [1973] AC 435 This case was the first time after the publication of the
Practice Statement of 1966 that the House of Lords was invited to overrule a decision
in a criminal case (i.e. a controversial decision in Shaw v DPP [1962] AC 220). In this case
Shaw had published a directory of the names and addresses of prostitutes called the
Ladies’ Directory. Despite having been advised by the police that this would not be
unlawful, he was subsequently arrested and convicted of the previously unknown
offence of conspiracy to corrupt public morals. The House of Lords referred to an
18th century case which they argued was based on similar principles. Following the
decision there was considerable debate as to whether such an offence existed and
many thought that the case would be overruled if the opportunity arose. But the
House of Lords in Knuller refused to overrule Shaw. Interestingly, even though Lord Reid
had dissented in the case of Shaw, he thought it would be wrong to use the Practice
Statement to upset the decision. Lord Reid said: ‘however wrong or anomalous a
decision may be it must stand … unless or until it is altered by Parliament’.
R v Shivpuri [1986] 2 All ER 334 The first time that the House of Lords overturned one of
its own decisions in criminal law was in the case of Shivpuri in 1986 – some 20 years after
the court issued its Practice Statement of 1966. In the case of Shivpuri the House was
invited to overturn its decision in the case of Anderton v Ryan [1985] 2 All ER 355, perhaps
surprising since Anderton v Ryan had only been decided one year earlier. Ryan had
dishonestly handled a video recorder that she believed was stolen. In fact, it was not
stolen. The House of Lords held that Ryan could not be guilty of attempting to steal the
goods under s.1 of the Criminal Attempts Act 1981. It was impossible because the goods
were not stolen goods. The court’s decision was criticised for having misinterpreted
s.1 of the Criminal Attempts Act 1981. In the case of R v Shivpuri [1986] 2 All ER 334, the
defendant believed that he was dealing with a controlled drug when it was in fact
harmless and on the question of liability the House was invited to overturn Anderton v
Ryan. It did so. This was the first time that the House of Lords overruled its own decision
in a criminal case and it was regarded as a spectacular decision. In Shivpuri Lord Bridge
acknowledged that the earlier decision of the House of Lords had been wrong, that
there was no valid ground on which it could be distinguished and that it should be
overruled notwithstanding the need for certainty in the criminal law. He said:
If a serious error, embodied in a decision of this House has distorted the law, the sooner it
is corrected the better.
Another example involving criminal law in which the House of Lords overturned an
earlier decision is that of R v Howe [1987] 1 All ER 771 concerning duress as a defence to
murder. In Howe the House of Lords overturned its decision in DPP for Northern Ireland v
Lynch [1975] AC 653 and held that duress is never a defence to murder.
Examples of the use of the Practice Statement in civil cases
British Railways Board v Herrington [1972] AC 877 This case involved the duty of care
owed by an occupier of land to people trespassing on the land. The House of Lords
in Herrington overturned the much earlier case of Addie v Dumbreck [1929] AC 358. In
Addie v Dumbreck the House of Lords had held that an occupier of land would only be
liable for harm caused to a trespasser if the harm was caused intentionally. The House
of Lords in Herrington held that social attitudes had changed in the intervening 50
years and occupiers of land, as a matter of common humanity, should take reasonable
steps to deter people from trespassing where they are likely to be injured. The Addie v
Dumbreck case had impeded the proper development of the common law and should
be overruled.
Murphy v Brentwood District Council [1990] 2 All ER 908 This is a decision of major
importance to the tort of negligence. The House of Lords overruled its own decision
in Anns v Merton London Borough [1977] 2 All ER 492. The decision in Anns had been
severely criticised at the time that it was decided and in Murphy the House of Lords
departed from all of the propositions in Anns. Lord Keith of Kinkel said:
I think it must now be recognised that [Anns] did not proceed on any basis of principle at
all, but constituted a remarkable example of judicial legislation. It has engendered a vast
spate of litigation, and each of the cases in the field which have reached this House has
been distinguished … There can be no doubt that to depart from the decision would re-
establish a degree of certainty in this field which it has done a remarkable amount to upset.
Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28
This case demonstrates first, that the 1966 Practice Statement applies to the Supreme
Court; and second, that the UKSC will be cautious about overturning an earlier decision
on statutory interpretation unless there are very strong reasons for doing so. The case
concerned the interpretation of s.82(2) of the Housing Act 1985 which had been dealt
with by the House of Lords in Knowsley Housing Trust v White [2009] 1 AC 636. Lord Hope
in Austin v Southwark felt that s.82(2) was capable of being interpreted in different
ways, but said that the question was whether it would be ‘right’ for the Supreme Court
to depart from a previous decision of the House of Lords. Lord Hope held that he was
not persuaded that the Supreme Court should depart from the decision of the House
in Knowsley since the effect of reversing such a decision which had stood for so long
was incalculable in the circumstances.
Knauer v Ministry of Justice [2016] UKSC 9 In this recent case, the Supreme Court had
to decide whether to depart from previous House of Lords case law concerning the
assessment of damages by the court under the Fatal Accidents Act 1976. The court
noted the importance of precedent, saying that:
… it is important not to undermine the role of precedent in the common law … it is

important that litigants and their advisers know, as surely as possible, what the law is.
Particularly at a time when the cost of litigating can be very substantial, certainty and
consistency are very precious commodities in the law. If it is too easy for lower courts
to depart from the reasoning of more senior courts, then certainty of outcome and
consistency of treatment will be diminished, which would be detrimental to the rule of
law.
The judgment of Lord Neuberger and Lady Hale explained that the Supreme Court
‘should be very circumspect before accepting an invitation to invoke the 1966 Practice
Statement’. However, in the present case, the Supreme Court had no hesitation in
invoking the Practice Statement to depart from the previous decisions of the House
of Lords, given that the application of the reasoning in those cases was illogical and
resulted in unfair outcomes. The fact that there had been a material change in the
relevant legal landscape since the earlier decisions also gave rise to an overwhelming
case for changing the law.
1. Why did the House of Lords issue the Practice Statement in 1966?
2. What were the circumstances in which the House of Lords envisaged being
prepared to overrule earlier decisions?
3. Why has the House of Lords been cautious in using the power to overrule?
4. What was the significance of the Shivpuri case?
5. What is the position in relation to horizontal precedent in the UK Supreme

Court?
Vertical precedent in the Court of Appeal (Civil Division)

It ought to be absolutely clear that the Court of Appeal is bound by the decisions of the
House of Lords/UK Supreme Court. Although this is certainly the case, there have been
occasions when the Court of Appeal has sought to argue that it ought not to be bound
by decisions of the House of Lords/UKSC. This was particularly so in the years after
the 1966 Practice Statement and when Lord Denning, a famously creative and rather
unique English judge, was sitting in the Court of Appeal. Lord Denning took the view
that in most situations the Court of Appeal was effectively the final court of appeal
because so few cases ever proceed for consideration in the House of Lords/UKSC. Lord
Denning thought that if the House of Lords could free itself from the constraint of
binding precedent, the Court of Appeal should be allowed the same freedom. A clear
example is to be found in the case of Cassell & Co Ltd v Broome [1972] AC 1027. Lord
Denning awarded £25,000 exemplary damages to Captain Broome. The rules for the
award of damages had been laid down in the House of Lords case of Rookes v Barnard
[1964] AC 1129. But Lord Denning said that these rules were ‘unworkable’ and declined
to follow the guidance of the House of Lords. The case was appealed to the House
of Lords where Lord Hailsham took the opportunity to disapprove of Lord Denning’s
approach. He said:
It is not open to the Court of Appeal to give gratuitous advice to judges of first instance to
ignore decisions of the House of Lords … The fact is, and I hope it will never be necessary
to say so again, that in the hierarchical system of courts which exists in this country, it is
necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions
of the higher tiers.
Thus the position on vertical precedent is that the Court of Appeal is bound by
decisions of the House of Lords/UKSC whether or not the Court of Appeal approves of
those decisions. Decisions of the Court of Appeal bind courts lower down the court
hierarchy.
Horizontal precedent in the Court of Appeal (Civil Division)
Essential reading
¢¢ Davis v Johnson [1978] 1 All ER 841 (CA), [1978] 1 ALL ER 1132 (HL).
The issue of horizontal precedent below the level of the Supreme Court is very
important. The Court of Appeal and the courts below in the hierarchy hear thousands
of cases each year. There will be many courts sitting in the Court of Appeal at the same
time. That means a large number of reported judgments and if the Court of Appeal was
not to follow its own earlier decisions this would inevitably lead to confusion and a
degree of uncertainty in the law.
The basic principle of precedent in the Civil Division of the Court of Appeal is that it
is bound by its own previous decisions. There are, however, several exceptions to
this rule. The exceptions were set out by Lord Green MR in the case of Young v Bristol
Aeroplane Co Ltd [1944] 2 All ER 293 and are as follows:
i. Conflicting decisions: where the material facts of two Court of Appeal cases are
similar but the decisions conflict, then a later Court can choose which case to
follow. Although in practice the Court will often follow the later case, it is not
bound to do so. Although conflicting decisions in this sense ought to not arise if
the system of precedent is observed by judges, in fact there are cases where it has
happened. An example of the use of this rule is National Westminster Bank v Powney
[1990] 2 All ER 416 where the Court was faced with two irreconcilable decisions
both decided in 1948: Lamb v Rider and Lough v Donovan. The Court in Powney
followed Lamb v Rider. See also Tiverton Estates Ltd v Wearwell Ltd [1974] 1 All ER 209,
where the Court of Appeal refused to follow Law v Jones [1973] 2 All ER 437.
ii. Conflict with subsequent House of Lords/UKSC decision: where a previous

decision of the Court of Appeal conflicts with a later decision by the House of Lords/
UKSC, the Court of Appeal must follow the decision of the House of Lords/UKSC
whether or not it approves of that decision. This is sometimes referred to as the
doctrine of ‘implied overruling’.
iii. Decisions ‘per incuriam’: where a previous decision of the Court of Appeal was
given per incuriam, which means, ‘in ignorance’ or ‘without sufficient care’, a later
court is not bound to follow the decision. A decision of the Court of Appeal will lose
its binding force where it was made in ignorance of some rule of law binding upon
the Court and which would have affected its decision. The per incuriam rule was
explained by Sir Raymond Evershed MR in the case of Morelle v Wakeling [1955] 2 QB
379, 406 as follows:
Decisions given in ignorance or forgetfulness of some inconsistent statutory provision

or of some authority binding on the court concerned: so that in such cases some part
of the decision or some step in the reasoning on which it is based is found, on that
account to be demonstrably wrong.
A further possible exception? Conflict with an earlier decision of the House of Lords/
UKSC: a further complication arises when a Court of Appeal decision conflicts with
an earlier decision of the House of Lords/UKSC. This ought not to occur, but there are
instances when it has. The question then for the Court of Appeal is whether to follow
its own decision or that of the House of Lords. This situation arose in the case of
Miliangos v George Frank (Textiles) Ltd [1976] AC 443 where the Court of Appeal was faced
with a conflict between its own previous decision in Schorsch Meier GmbH v Hennin
[1975] QB 416 and an earlier (1960) House of Lords decision in Havanah which held that
judgments in UK courts could only be given in sterling. In Schorsch Lord Denning held
that he was not bound to follow that decision because when the reason for a legal rule
had gone, the law itself should go (‘cessante ratione legis cessat ipsa lex’). In Miliangos,
the conflict between Havanah and Schorsch was considered. At first instance the
judge, Mr Justice Bristow, held that he was obliged to follow the House of Lords in the
Havanah case and not the Court of Appeal in Schorsch. He said that the Havanah rule
could only be changed by statute or by the House of Lords. Miliangos then appealed
to the Court of Appeal and Lord Denning held that Schorsch was binding on the courts
beneath the Court of Appeal and on the Court of Appeal itself, because the exceptions
to Young v Bristol Aeroplane [1946] 1 AC 163 were confined to inconsistent subsequent
decisions of the House of Lords. The case was finally appealed to the House of Lords
in 1976. The House of Lords held first, that the Court of Appeal had acted incorrectly
in Schorsch when it failed to follow Havanah; but second, that Havanah should be
overruled. Lord Cross said that both Bristow J and the Court of Appeal should follow
the House of Lords decision, not the later Court of Appeal decision.
This is an area that remains somewhat uncertain and provides an example of

the extent to which some judges, within the system of binding precedent, may
occasionally depart from the rules when they feel it is right to do so.
Should the Court of Appeal be free to depart from its own earlier decisions?
After the House of Lords Practice Statement in 1966, Lord Denning conducted a
campaign to free the Court of Appeal from having to follow its own earlier decisions.
He argued in the case of Gallie v Lee [1969] 1 All ER 1062 that the Court of Appeal need
not be absolutely bound by its own prior decisions. He said that this was a limitation
self-imposed by the judiciary and that if the House of Lords could free itself from this
constraint there was no principled reason why the Court of Appeal could not do the
same thing. Lord Denning’s main concern was that if the Court of Appeal had made an
error in a case, the rule in Young v Bristol Aeroplane would mean that the Court would
be bound to continue to apply a bad precedent unless and until an opportunity arose
for the precedent to be overruled in the House of Lords. He repeated this view in the
case of Tiverton Estates v Wearwell [1975] Ch 146, but was unable to persuade all of the
Court of Appeal judges to agree with him.
The debate over horizontal precedent in the Court of Appeal was finally settled in the
important case of Davis v Johnson [1978] 1 All ER 841 (CA), [1978] 1 All ER 1132 (HL). The
case concerned the interpretation of s.1 of the then recently passed Domestic Violence
and Matrimonial Proceedings Act 1976. Davis and Johnson lived together with their
baby daughter in a council flat of which they were joint tenants. Johnson was violent
and Davis ran away with her child to a refuge for battered wives. She applied to the
court for an order to reinstall her in the flat and have Johnson excluded from the flat.
The Court of Appeal had considered the same question on two occasions only a few
months earlier in B v B [1978] Fam 26 and Cantliff v Jenkins [1978] Fam 47. They held that
the 1976 Act did not protect a female cohabitee where the parties were joint tenants
or joint owners but only where she was the sole tenant or sole owner of the property.
In Davis v Johnson, Lord Denning called together a ‘full’ court of five judges, describing
it as ‘a court of all the talents’. The court held by a majority of three that the 1976 Act
does protect a female cohabitee even where she is not a tenant at all or only a joint
tenant. They declared B v B and Cantliff v Jenkins wrong and did not follow them. They
granted an injunction to order the man out and reinstall the woman.
Lord Denning was well aware that in doing this he was failing to follow horizontal
precedent. He said however:
On principle, it seems to me that, while this court should regard itself as normally bound
by a previous decision of the court, nevertheless it should be at liberty to depart from
it if it is convinced that the previous decision was wrong. What is the argument to the
contrary? It is said that if an error has been made, this court has no option but to continue
the error and leave it to be corrected by the House of Lords. The answer is this: the
House of Lords may never have an opportunity to correct the error; and thus it may be
perpetuated indefinitely, perhaps forever.
The case was eventually appealed to the House of Lords. The decision of the House
of Lords was that B v B and Cantliff v Jenkins should be overruled. However, it took the
opportunity to make an unequivocal statement about stare decisis in the Court of
Appeal. Lord Diplock said:
The rule as it has been laid down in the Bristol Aeroplane case had never been questioned
thereafter until … Lord Denning conducted what may be described … as a one-man
crusade with the object of freeing the Court of Appeal from the shackles which the
doctrine of stare decisis imposed upon its liberty … In my opinion, this House should take
this occasion to reaffirm expressly, unequivocally and unanimously that the rule laid down
in the Bristol Aeroplane case is still binding on the Court of Appeal.
This was a very explicit disapproval of Lord Denning’s approach. In his memoirs after
retirement Lord Denning referred to Davis v Johnson as his most ‘humiliating defeat’
and a ‘crushing rebuff’.
Horizontal precedent in the Court of Appeal (Criminal Division)

In principle, precedent in the Criminal Division of the Court of Appeal is the same as
in the Civil Division. However, a somewhat more flexible approach to precedent is
taken in the criminal division if the court believes that the law has been misapplied in
a precedent. This is because of the seriousness of cases dealt with, the fact that they
may affect the liberty of citizens, and the serious social consequences of conviction for
criminal offences. Guidance on how this flexibility operates was given by Lord Goddard
CJ in the case of R v Taylor [1950] 2 All ER 170 who said that normally the principles in
Young v Bristol Aeroplane apply, but that the Court also has wider power to depart; if the
Court is to depart from one of its previous decisions then a full Court is essential; and
finally that the power should be exercised in favour of the citizen.
Divisional Courts of the High Court

Since the Divisional Courts have mostly appellate jurisdiction, the rules of precedent
are similar to those in the Court of Appeal.
Vertical precedent Divisional Courts of the High Court are bound by decisions of the
Supreme Court, previous decisions of the House of Lords and the Court of Appeal.
Decisions of the Divisional Courts are binding on inferior courts.
Horizontal precedent The Divisional Courts are normally bound by their own previous
decisions subject to the exceptions in Young v Bristol Aeroplane. When the courts are
not exercising appellate powers they are in the same position as the High Court.
The High Court The High Court is bound by the Supreme Court, previous decisions
of the House of Lords, the Court of Appeal and Divisional Courts. Its decisions bind all
inferior courts and tribunals. However, the High Court does not regard itself as bound
by its own previous decisions, although they are regarded as highly persuasive.
Crown Court The Crown Court is bound by decisions of the superior courts and its own
decisions are binding on the courts below it in the hierarchy. Decisions on points of
law are persuasive but not binding precedents, although inconsistent decisions can
lead to uncertainty. An obvious example is the issue of marital rape. Before the case of
R v R was finally decided in the House of Lords in 1991, cases dealing with marital rape
had come before the Crown Court sitting in different parts of England. The courts had
reached different decisions. The question for the courts was whether a man could be
criminally liable for raping his wife. The law until this point was based on an historic
principle set out in Hale’s History of the pleas of the Crown (1736) that on marriage a
woman gave irrevocable consent to sexual intercourse with her husband. In the case
of R v R [1991] 1 All ER 747 the Crown Court sitting in Leicester accepted that consent
to intercourse was implied from the fact of marriage. Some three months later in the
case of R v C [1991] 1 All ER 755 the Crown Court sitting in Sheffield declined to follow
that decision and held that a husband could be guilty of raping his wife. In a third case
in the same year R v J [1991] 1 All ER 759 the Crown Court sitting in Teesside refused to
follow R v C.
The case of R v R was appealed to the House of Lords [1991] 2 All ER 481 (www.bailii.org/
uk/cases/UKHL/1991/12.html) where the House of Lords held that it was unlawful for
a man to have sexual intercourse with any woman without her consent. The original
proposition no longer reflected the status of wives in modern society where marriage
was viewed as a partnership of equals. This case is an interesting example of the
judiciary appearing to legislate. (See the discussion of this case in Lord Dyson’s 2014
speech on the power of the judiciary.)
The Judicial Committee of the Privy Council (‘Privy Council’ or ‘JCPC’)

Under normal rules of precedent, decisions of the Privy Council do not bind English
courts, although the decisions have strong persuasive authority because of the
seniority of the judges who sit in the Privy Council. However, a recent case casts a new
light on this established principle. In the case of Willers v Joyce [2016] UKSC 44, the
Supreme Court gave an important clarification on the precedent value of decisions of
the Privy Council. In this case the judge at first instance had had to consider a House of
Lords case which would lead her to strike out the claim in question, and also a more
recent Privy Council case which would lead to a different legal result.
The Supreme Court made it clear in its judgment that the courts should normally
follow the usual rules of precedent, and therefore not follow a decision of the Privy
Council if it conflicted with the decision of a court that did set precedents (e.g. the
Supreme Court). However, as the Privy Council is in practice often made up of Justices
of the Supreme Court, it is open to them to say that decisions of other courts (e.g. the
Court of Appeal or the Supreme Court) are wrong, and that the Privy Council decision
should be treated as representing the law of England and Wales.
If the Privy Council has made this statement that a decision is to be treated as being
the law, then its decision would be binding as a matter of precedent.
The Supreme Court sat in a panel of nine Justices, rather than the more usual five,
recognising that this was an important case. Although the judgment to a large extent
set out the accepted rules of precedent, the decision that the Privy Council could
in some circumstances overrule the Supreme Court or Court of Appeal was seen as
controversial by some.
1. How many exceptions are there to the rule in Young v Bristol Aeroplane?
2. Why did Lord Denning think that the Court of Appeal should be allowed to
overrule its own earlier decisions?
3. What principle did the House of Lords in Davis v Johnson confirm?
3.4 The European Court of Human Rights and the UK Supreme

Court
Essential reading
¢¢ Lord Irvine of Lairg ‘A British interpretation of Convention rights’ speech
December 2011 P.L. 2012, Apr, 237–52 (available in Westlaw through the Online
Library).
¢¢ Lord Mance ‘Destruction or metamorphosis of the legal order?’ speech at the

World Policy Conference, Monaco, December 2013
www.supremecourt.uk/docs/speech-131214.pdf
¢¢ Lord Sumption ‘The limits of law’ 27th Sultan Azlan Shah Lecture, Kuala Lumpur,
November 2013
The ECtHR is an international court sitting in Strasbourg and does not fit neatly into
the system of precedent. The relationship between the ECtHR and the House of Lords/
Supreme Court has been the subject of some debate in England in recent years and the
subject of a number of judicial speeches. In several Supreme Court cases the judiciary
have commented on the extent to which the UK Supreme Court is, or is not, bound by
decisions of the ECtHR.
The basic relationship between the English courts and the ECtHR is set out in s.2
of the Human Rights Act (HRA) 1998. Section 2(1) provides that a court or tribunal
determining a question which has arisen in connection with a convention right must
‘take into account’ any judgment, decision, declaration or advisory opinion of the
ECtHR. This suggests that the decisions of the ECtHR are not completely binding on UK
courts. It is clear, however, that there are different views among commentators and
the senior judiciary as to the extent to which English courts are bound to follow the
jurisprudence of the ECtHR. While some feel that to ‘take into account’ requires due
consideration of ECtHR jurisprudence, rather than being bound by it, other judges feel
that it would require very exceptional circumstances for the English courts to depart
from a ECtHR decision. In a lecture in December 2011 Lord Irvine, the Lord Chancellor
responsible for introducing the HRA 1998, argued that Supreme Court judges have a
‘constitutional duty’ to reject ECtHR decisions they consider flawed and ‘should not
abstain from deciding the case for themselves’.
Case law provides examples of different standpoints. In R (on the application of
Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the
Regions [2001] UKHL 23, the House of Lords held that in the absence of some special
circumstances ‘the court should follow any clear and constant jurisprudence of the
European Court of Human Rights’. This decision was followed in Ullah [2004] UKHL 26
in which Lord Bingham said that the duty of national courts is ‘to keep pace with the
Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’.
A rather different approach was taken by the UKSC in the leading case of R v Horncastle
[2009] UKSC 14 in which the question was whether the English common law rule on
the use of hearsay evidence in criminal trials breached Article 6 of the ECHR (right to
a fair trial). In this case the court declined to follow a decision of the Grand Chamber
in the case of Al-Khawaja v UK [2009] 49 EHRR 1 which held that Article 6 requires as an
absolute rule that no conviction can be based solely or to a decisive extent on hearsay
evidence. Lord Phillips said that a domestic court would normally apply the principles
established by the ECtHR, but where there was a failure of the Strasbourg court to
appreciate and accommodate ‘our domestic process’, then the UKSC could decline to
follow a ruling of the ECtHR. Interestingly, following the Horncastle decision, the ECtHR
reconsidered the case of Al Khawaja v UK (2011). They made some concession to the
reasoning of the UKSC and accepted that hearsay evidence could be relied upon under
certain circumstances. The ECtHR held that the use of hearsay was not inevitably a
breach of Article 6. This is an example of the way in which there can be a constructive
dialogue between the ECtHR and domestic courts. It suggests that there is some
flexibility in the approach to precedent between the UKSC and ECtHR although the
UKSC continues to hold to the view that it normally follows the ECtHR unless there is a
very strong reason for departing from a Strasbourg decision.
This flexible approach was again articulated in the case of Manchester City Council v
Pinnock [2010] 3 WLR 1441. Lord Neuberger said that:
This court is not bound to follow every decision of the European court. Not only would
it be impractical to do so: it would sometimes be inappropriate, as it would destroy the
ability of the court to engage in the constructive dialogue with the European court which
is of value to the development of Convention law … Of course, we should usually follow
a clear and constant line of decisions by the European court (Ullah) … But we are not
actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber.
As Lord Mance pointed out in Doherty … section 2 of the 1998 Act requires our courts
to ‘take into account’ European court decisions, not necessarily to follow them. Where,
however, there is a clear and constant line of decisions whose effect is not inconsistent
with some fundamental substantive or procedural aspect of our law, and whose reasoning
does not appear to overlook or misunderstand some argument or point of principle, we
consider that it would be wrong for this court not to follow that line.
More recently, in the controversial case of Chester [2013] UKSC 63 the UK Supreme
Court was faced with a decision of the Grand Chamber of the ECtHR that UK domestic
legislation which provided for an automatic ban on convicted prisoners’ voting in UK
elections was incompatible with Article 3 of Protocol 1 of the ECHR which guarantees ‘free
elections … under conditions which will ensure the free expression of the opinion of the
people in the choice of the legislature’. Prisoners serving a custodial sentence in the UK
do not have the right to vote. This ban was enshrined in s.3 of the Representation of the
People Act 1983 as amended by the Representation of the People Act 1985.
In 2004 the ECtHR gave a ruling in the case of Hirst v UK on the question of whether this
legislation was in breach of the ECHR. Seven judges at the ECtHR ruled that the UK’s ban
on prisoners’ voting breached Article 3 of Protocol 1 of the ECHR. The UK Government
subsequently appealed the decision and in October 2005 the Grand Chamber of the
ECtHR held, by a majority of 12 to five, that the UK ban on prisoners’ voting rights was
a violation of Article 3 Protocol 1 (right to free elections) – Hirst v UK (No 2) Application
no. 74025/01 [2005] ECHR 681 (www.bailii.org/eu/cases/ECHR/2005/681.html). The
decision in Hirst was followed by Greens v UK and Scoppola v Italy in which the ECtHR
confirmed its decision that a blanket prohibition of this nature is an indiscriminate
restriction on a vitally important right and, as such, incompatible with Article 3 of
Protocol 1. This issue was politically very controversial and the Government undertook
two consultations in order to consider how it might modify legislation to ensure
that the UK was not in breach of the ECHR. Most recently, the Council of Europe has
accepted a compromise offered by the Government to allow a very small number of
prisoners, who are on temporary release and at home under curfew, to vote.
When the issue was raised again before the Supreme Court in Chester in 2013 the
Court held that the HRA 1998 requires the Court to ‘take into account’ decisions of the
ECtHR, not necessarily to follow them. This enables the national courts to engage in
a constructive dialogue with the ECtHR. However, the UKSC held that the prohibition
on prisoner voting in the UK had twice been considered by the Grand Chamber of the
ECtHR and each time it was found to be incompatible with the ECHR. Lord Mance held
that in these circumstances:
It would have then to involve some truly fundamental principle of our law or some most
egregious oversight or misunderstanding before it could be appropriate for this Court to
contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.
In the same case Lord Sumption seemed to echo Lord Mance’s view saying that:
A decision of the European Court of Human Rights … is an adjudication by the tribunal

which the United Kingdom has by treaty agreed should give definitive rulings on the
subject. The courts are therefore bound to treat them as the authoritative expositions of
the Convention …
The case of Chester confirms that the current dominant approach of the UKSC is that it
normally expects to follow the jurisprudence of the ECtHR unless the matter in issue
involves some fundamental principle of English law.
3.4.1 Possible changes to the HRA?

In October 2014 the Conservative Party published controversial proposals for reform
of the relationship between the UK courts and the ECtHR: Protecting Human Rights in
the UK, October 2014 www.conservatives.com/~/media/Files/Downloadable%20Files/
HUMAN_RIGHTS.pdf
This brief document stated that if re-elected the Conservative Party proposed to break
the formal link between British courts and the ECtHR and that in future Britain’s courts
would no longer be required to take into account rulings from the Court in Strasbourg:
‘The UK Courts, not Strasbourg, will have the final say in interpreting Convention
Rights, as clarified by Parliament.’ They also proposed to change the effect of a
declaration of incompatibility (see Chapter 4) so that such a ruling by the UK Supreme
Court would be advisory only. It was also suggested that the Government might leave
the ECHR if it were not possible to achieve a ‘looser’ relationship with Strasbourg.
This was followed by a statement in 2015 by the then Conservative Prime Minister
David Cameron that he intended to repeal the Human Rights Act 1998 and replace
it with a British Bill of Rights. More recently, it has been suggested by the current
Conservative Government that any attempt to repeal the Human Rights Act will not
take place until negotiations to leave the European Union have been concluded.
An attempt to change the application of the Human Rights Act is likely to face
considerable opposition from politicians, the legal profession and human rights
organisations. Whether or not any changes are introduced, the Conservative
Government’s proposals highlight the inherent tensions and political interest in the
relationship between the UK courts and the ECtHR.
In a speech at UCL in December 2014 entitled ‘Why it matters that Conservatives

should support the European Convention on Human Rights’, the former
Conservative Attorney General, Dominic Grieve QC, argued that opting out of the
ECHR would undermine respect for international human rights law and would have
‘potentially devastating’ consequences for the UK: www.ucl.ac.uk/constitution-unit/
constitution-unit-news/031214a
On 20 October 2015 the EU Justice Sub-Committee announced the commencement on
the Potential impact of repealing the Human Rights Act on EU Law Inquiry. The Inquiry
Report was published on 9 May 2016:
www.parliament.uk/business/committees/committees-a-z/
lords-select/eu-justice-subcommittee/inquiries/parliament-2015/
potential-impact-of-repealing-the-human-rights-act-on-eu-law/
The report raised serious concerns in connection with the idea of replacing the Human
Rights Act 1998 with a British Bill of Rights, stating that this could have an impact
on, for example, the UK’s international reputation in Europe and more widely, as
well as causing possible constitutional disruption in respect of the devolved nations
(Scotland, Wales and Northern Ireland).
1. To what extent is the UK Supreme Court bound by the jurisprudence of the
ECtHR under the provisions of the HRA 1998?
2. How does Lord Irvine’s view of the meaning of s.2 of the HRA 1998 differ from
the view of Lord Slynn as expressed in the Alconbury case and Lord Bingham as
expressed in the Ullah case?
3. Did Lord Neuberger take a different view in the Pinnock case?
4. What view did Lord Mance and Lord Sumption take in the Chester case to the
question of following the jurisprudence of the ECtHR?
3.5 Judges as law-makers
Essential reading
¢¢ McLeod, I. Legal method. (Basingstoke: Palgrave Macmillan, 2013) ninth edition
[ISBN 9781137027689] Chapter 14 ‘Arguments for and against judicial law-making’
(in the Legal system and method study pack).
¢¢ R v R (Marital Exemption) [1992] 1 AC 599.
¢¢ Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961.
Further reading
¢¢ Slorach, S. et al., Chapter 5 ‘Case law’.
As we have seen, the principle of stare decisis or binding precedent serves the
objectives of predictability, consistency and fairness within a common law system.
Without binding precedent, there is a risk of conflicting decisions and uncertainty.
On the other hand, too rigid adherence to precedent can lead to rigidity in the
law. The English common law approach to precedent provides a balance between
predictability and flexibility. While most judges see themselves constrained by
binding precedent, there is scope within the rules for the development of common
law principles, for correction of errors and for the making of new law – albeit in a
measured and incremental way (Etherton, 2010; Dyson, 2014). The UK Supreme Court,
while largely free from the constraint of precedent, nonetheless adopts a cautious
approach to the making of new law. The Supreme Court does not have the democratic
legitimacy to introduce major changes to English law and it is mindful of its proper
constitutional position and relationship with the legislature.
The main argument in favour of some degree of judicial law-making (called judicial
‘activism’ in the USA) is that of speed. Courts can rapidly develop or change the law
(by overruling) if it is necessary. Parliamentary processes are lengthy and with a heavy
legislative agenda Parliament may not give priority to dealing with areas of law that
require updating or correction. Thus within the constraints of precedent the judiciary
are able rapidly to correct mistakes or to keep the law up to date.
The principal argument against the judiciary making new law is that of the ‘democratic
deficit’. The judiciary are appointed not elected. Thus in a Parliamentary democracy
under the rule of law, it is not for the judiciary to legislate but for Parliament. In his
speech on law making by the ECtHR Lord Sumption argues that the HRA gives the
judiciary power to make new law in politically controversial areas and that this is
essentially undemocratic. He argues that ‘law made in Europe by unelected judges is
changing the law in the UK in a way that is democratically unaccountable’.
The case law provides examples of the House of Lords/Supreme Court being willing to
develop or change the law and also refraining from making decisions where there was
a need for Parliament to legislate.
A case in which the House of Lords was prepared to introduce a major change to
the law was that of R v R (Marital Exemption) [1992] 1 AC 599 discussed earlier in this
chapter. The House of Lords justified the abolition of a 250-year-old rule that a man
could not be criminally liable for raping his wife on the ground that it was not creating
a new offence. It was, instead, removing an assumption that was no longer acceptable
in current social conditions (i.e. that on marriage a woman irrevocably consents to
intercourse). As Lord Dyson commented in a speech in March 2014, this was a change
to the law that the judiciary felt confident in making:
This change did not require any difficult policy choices to be made. It was uncontroversial,
widely welcomed and long overdue … It is and was inconceivable that Parliament
would reverse this decision. Parliament had had plenty of opportunity to legislate for
an amendment of the law. It seems that the political call for change was not sufficiently
compelling. The judges were surely right to step in.
Another case where the House of Lords appeared to create new law was the case of
R v Brown [1993] 2 All ER 75. Here the House held that homosexual sado-masochists
who inflicted harm on others with their consent could be convicted of assault
occasioning actual bodily harm contrary to the Offences Against the Person Act 1861,
despite the fact that this sort of situation had not previously come before the courts.
However, there have been other recent cases where the judiciary have refused
to step in, even though they perceived the argument for a change in the law. An
important example is that concerning the legal ban on voluntary euthanasia in the
case of Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961 (www.bailii.org/
ew/cases/EWCA/Civ/2013/961.html). The appellants, both suffering from permanent
and catastrophic disabilities, wanted to be helped to die at a time of their choosing.
Neither was physically capable of ending their own lives without help and both argued
that as a matter of common law and the ECHR anyone helping them to end their life
should not be subject to criminal consequences. However, the current law is that
those providing such assistance will be committing the offence of assisted suicide
contrary to s.2(1) of the Suicide Act 1961 (‘the 1961 Act’) if they merely assist a person
to take their own life, and murder if they actually terminate life themselves. The case
was heard in the Court of Appeal by the Lord Chief Justice, the Master of the Rolls and
Elias LJ. The Court declined to rule in the appellants’ favour. The Lord Chief Justice made
clear that he felt this was an issue on which the courts should not be legislating.
The short answer must be, and always has been, that the law relating to assisting
suicide cannot be changed by judicial decision. The repeated mantra that, if the law
is to be changed, it must be changed by Parliament, does not demonstrate judicial
abnegation of our responsibilities, but rather highlights fundamental constitutional
principles … The circumstances in which life may be deliberately ended before it has
completed its natural course, and if so in what circumstances, and by whom, raises
profoundly sensitive questions about the nature of our society, and its values and
standards, on which passionate but contradictory opinions are held … For these purposes
Parliament represents the conscience of the nation. Judges, however eminent, do not:
our responsibility is to discover the relevant legal principles, and apply the law as we
find it. We cannot suspend or dispense with primary legislation. In our constitutional
arrangements such powers do not exist.
(paras 154–55)
This case was then considered by the Supreme Court in Nicklinson [2014] UKSC 38. The
UKSC unanimously held that the question whether the current law on assisted suicide
is incompatible with Article 8 of the ECHR lies within the UK’s margin of appreciation.
The majority held that the UKSC has the constitutional authority to make a declaration
that the general prohibition in s.2 is incompatible with Article 8. But four Justices
held that the question whether the current law on assisting suicide is compatible
with Article 8 involves a consideration of issues which Parliament is inherently better
qualified than the courts to assess, and that under present circumstances the courts
should respect Parliament’s assessment.
The case clearly demonstrates differing views among the most senior judiciary about
whether and when to intervene in an area that requires a significant change in the law.
1. In the English common law system is it inevitable that judges will be making
law?
2. Why are judges cautious about changing the law dramatically?
3. Are there areas of law where they are especially cautious about changing the
law?
4. Did the House of Lords in R v R create a new law?
5. Does Lord Dyson believe that judges should always refrain from creating new
law?
3.6 Postscript: the history of law reporting

The doctrine of precedent is of great antiquity, but only became truly binding in the
19th century when the system of law reporting had become comprehensive.
There have been three periods of law reporting:
1. The Year Books These were the first available law reports compiled during the 13th
century. Year Book reports were not intended for use by the judges as precedents,
but were probably simply notes compiled by students and junior advocates for use
by advocates.
2. The Private Reports The compilation of Year Books ceased in about 1535 after
which private sets of reports were produced, printed and published under the
name of the law reporter (e.g. Coke’s Reports (Co Rep) which are so well known
that they are sometimes cited merely as ‘reports’ (Rep)). Published between 1600
and 1658.
The private reports are cited by the name of the reporter (usually abbreviated)
and a volume and page number. The date of the report is not part of the reference
but is usually inserted in ordinary round (not square) brackets. Ashford v Thornton
(1818) 1 B&Ald 405 (i.e. volume 1 of Barnewall and Alderson’s Reports at page 405);
Pillans v Van Mierop (1765) 3 Burr 1664 (i.e. the third volume of Burrow’s Reports at
page 1664).
In practice most law libraries have the reports of the private reporters in the
reprinted edition known as ‘the English Reports’ (ER or Eng Rep). These are
published in 176 volumes and contain all the available reports of the private
reporters. With the English Reports is published a reference chart showing in which
volume the reports of any individual reporter are contained.
3. The Law Reports This is the current system of published law reports which began
towards the end of the 19th century. In 1865 private reporting ended. A Council was
established to publish reports of decisions of senior courts. The Council was under
professional control with a representative from the Bar and the Law Society. In 1870
it became the Incorporated Council of Law Reporting for England and Wales. The
Council produces the Law Reports, the Weekly Law Reports (WLR), the Industrial
Cases Reports (IC) and the Law Reports Statutes.
The Weekly Law Reports include a report of every decision which will appear in
the Law Reports and others which are not intended to be included later in the Law
Reports. The cases are reported in full. Volume 1 of the Weekly Law Reports contains
cases not intended to be included in the Law Reports. Volumes 2 and 3 of the Weekly
Law Reports contain cases which will eventually be included in the Law Reports.
3.7 Citation of the Law Reports and the Weekly Law Reports
Prior to 1875
Irving v Askew (1870) LR 5 QB 208
Fifth volume of Reports of cases in the Court of Queen’s Bench at page 208 (the date is
not part of the reference).
1875–90
Symons v Rees (1876) 1 Ex D 416.
Citation by abbreviation of the division of the High Court (e.g. Ch D, QBD or App Cas for
an appeal case). Date still not part of the reference and prefix LR was dropped.
1891
Date made part of the reference and letter D for division dropped. Date now included
in square brackets. Separate volume of Reports for each division of the High Court (QB,
Ch, Fam) and a separate volume for House of Lords and Privy Council cases (AC).
Court of Appeal decisions are reported in the volume for the division of the High Court
from which the appeal came. There is thus nothing in the reference to show that a
case is an appeal case.
Weekly Law Reports

1 WLR, 2 WLR or 3 WLR
The All England Law Reports are commercially published law reports published weekly
and abbreviated as All ER.
Notes
4 Statutory interpretation
Contents
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
4.2 Why is the interpretation of statutes so difficult? . . . . . . . . . . . . . 69
4.3 Why does interpretation matter so much? . . . . . . . . . . . . . . . . 69
4.4 The basic approaches to interpretation . . . . . . . . . . . . . . . . . . 70
4.5 Aids to interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 72
4.6 European influence on statutory interpretation . . . . . . . . . . . . . 74
4.7 The impact of the Human Rights Act 1998 on statutory interpretation . . 76
4.8 Human rights: interpretation or legislation? . . . . . . . . . . . . . . . 81

Learning outcomes
uu understand why statutory interpretation presents challenges to the judiciary
uu understand the constitutional responsibility of the judiciary in relation to
statutory interpretation
uu understand the difficulty of determining the ‘legislative intent’ of Parliament
uu explain historic and modern judicial ‘approaches’ to statutory interpretation
uu understand how different approaches may lead to different outcomes
uu appreciate the influence of EU law and the Human Rights Act 1998 on statutory
interpretation.
Essential reading
¢¢ Holland and Webb, Chapters 8 ‘Making sense of statutes’, 9 ‘Interpreting
statutes’ and 10 ‘“Bringing rights home”: legal method and Convention rights’.
¢¢ Bennion, F. Statute law. (London: Longman, 1990) [ISBN 9780851215808] Chapter

13 ‘Difficulties of the statute user’, available at:
www.francisbennion.com/pdfs/fb/1990/1990-002-209-statute-law-pt3-ch13.pdf
¢¢ R v Maginnis [1987] 1 All ER 907 (HL).
¢¢ Davis v Johnson [1978] 1 All ER 841 (CA), [1978] 1 ALL ER 1132 (HL).
Further reading
¢¢ McLeod, I. Legal method. (Basingstoke: Palgrave Macmillan, 2013) ninth edition
[ISBN 9781137027689] Chapter 18 ‘Plain meanings, mischiefs, purposes and
legislative intentions’.
¢¢ Stychin and Mulcahy, Chapters 5 ‘Statutory interpretation: introduction to

legislation’, 6 ‘Statutory interpretation: the search for legislative intention’ and
7 ‘Statutory interpretation: the impact of the law of the European Union and
European human rights law’.
¢¢ Dworkin, R. Law’s empire. (Oxford: Hart Publishing, 1998) [ISBN 9781841130415]

Chapter 1 ‘What is law?’.
¢¢ Lord Justice Sales ‘Modern Statutory Interpretation’, article based on the text of
a lecture delivered at the Society of Legal Scholars conference in 2016
www.statutelawsociety.co.uk/wp-content/uploads/2016/12/Modern-Statutory-
Interpretation.-P.Sales_.pdf
Legal system and method 4 Statutory interpretation page 69
4.1 Introduction
Once Parliament has passed legislation it is for the judiciary to make sense of the
provisions in statutes – to interpret or construe the meaning of the words used. The
interpretation of statutes is, in fact, a critical function of the judiciary. Despite England
and Wales being a common law jurisdiction, in the modern legal system there is a
large and growing volume of legislation as government seeks greater regulation of
social and economic activity.
As we saw in Chapter 1, the role of the judiciary in relation to the legislature is to ‘give
effect’ to Parliament’s intention. This means that in dealing with statutory provisions
the judiciary must interpret or construe the meaning of words in a statute in a way
that is consistent with what Parliament intended. As Tindal CJ in the Sussex Peerage
Claim (1844) expressed the approach:
The only rule for the construction of Acts of Parliament is that they should be construed
according to the intent of the Parliament which passed the Act.
However, there are two fundamental complexities in this simple statement. First, the
natural limitations of language mean that interpreting the meaning of words can
sometimes be fraught. Words may have several different meanings depending on the
context, and the meaning of words changes over time. Different judges in the same
case may interpret words differently and it is necessary to understand the approach
that the judiciary take to this difficult task.
The second challenge for the judiciary in giving effect to Parliament’s intention is that
it is not always clear precisely what Parliament did intend when they used a particular
word or phrase in an Act of Parliament.
4.2 Why is the interpretation of statutes so difficult?

Interpretation is an essential step in human communication. We all interpret the
meaning of spoken and written words to ‘make sense’ of what is being read or heard.
However, there are special challenges in interpreting statutes. As explained by Francis
Bennion in his famous book Statute law (1990) there are a number of features of
statutes that make interpretation difficult. These include:
uu Ellipsis – when the draftsperson refrains from using certain words that they regard
as implied automatically.
uu Use of broad terms (wide meaning); for example, ‘vehicle’ clearly includes motor cars,
buses – but what else does it include? Also the meaning of broad terms may change
over time, for example does the word ‘family’ include a common-law spouse?
uu Unforeseeable developments – when there have been social or economic changes

that influence the meaning of words.
uu Inadequate use of words – printing errors, drafting errors.
4.3 Why does interpretation matter so much?

The way in which a judge interprets the meaning of a particular word may make the
difference between a defendant in a criminal trial being found innocent or guilty.
The judge must decide the meaning, scope and applicability of legislation to a
particular fact situation. The distinguished jurist A.V. Dicey noted how important the
interpretative work of the judges is:
Statutes themselves, though manifestly the work of Parliament, often receive more than
half their meaning from judicial decisions.
(Lectures on the relation between law and public opinion in England during the nineteenth
century. (1905, 2001 edn) p.486)
Some of the cases included in this chapter demonstrate clearly the practical impact of
differing judicial interpretations of statutory provisions.
4.4 The basic approaches to interpretation

Francis Bennion (1990) explains that the duty of the interpreter is to arrive at what
he calls the ‘legal meaning’ of the enactment, which is not necessarily the same as its
grammatical (or literal) meaning. He says,
There is a clear conceptual difference between grammatical meaning apart from legal
considerations and the overall meaning taking those considerations into account. While
it may sometimes be difficult to draw in practice, this distinction is basic in statutory
interpretation.
So in seeking to find the ‘legal meaning’ of a statutory provision, there is no rule of

law that dictates which approach a judge must take. It is largely up to the discretion
of the individual judge. Historically, judges have tended to adopt one of a number of
approaches, sometimes referred to as ‘three rules of interpretation’. These so called
‘rules’ are not rules at all, but it is worth briefly noting the differences between the
approaches and the impact that a different approach to interpretation might have on
the outcome of a case.
4.4.1 The literal rule or ‘literalism’

This approach requires the court to apply the ordinary English meaning of words used
by Parliament. The approach was explained by Lord Esher MR in the case of R v The
Judge of the City of London Court [1892] 1 QB 273,
If the words of an Act are clear, you must follow them, even though they lead to a manifest
absurdity. The court has nothing to do with the question whether the legislature has
committed an absurdity.
An ancient example of the use of the literal rule is the case of R v Harris (1836) 7 Car & P
446, 173 ER 198 which involved interpreting an offence to ‘unlawfully and maliciously stab,
cut or wound any person’. The court decided that a defendant who bit off the end of the
victim’s nose had not committed the offence. The court held that the words in the statute
indicated that for the offence to be committed some form of instrument had to be used.
A more modern case demonstrates how different judges in the same case can
interpret the meaning of a single word differently, thus leading to different outcomes.
The case of R v Maginnis [1987] 1 All ER 907 (HL) concerned the interpretation of s.5(3) of
the Misuse of Drugs Act 1971 which provides that:
It is an offence for a person to have a controlled drug in his possession, whether lawfully or
not, with intent to supply it to another …
The police found a package of cannabis resin in the defendant’s car. The defendant said
that the package did not belong to him, but that it had been left in his car by a friend
for collection later. The defendant was convicted at first instance and appealed against
conviction on the ground that an intention to return the drug to its owner did not
amount to an intention to ‘supply’ the drug within the meaning of the statute. In the
House of Lords the majority, adopting a ‘literal’ approach, held that a person left with
drugs intending to return them did have the necessary intent to ‘supply’. However,
a dissenting judgment was given by Lord Goff. He held that the offence was aimed at
drug pushers. The defendant was not a pusher and should have been charged with a
lesser offence of unlawful possession.
… I do not feel able to say that either the delivery of goods by a depositor to a depositee,
or the redelivery of goods by a depositee to a depositor, can sensibly be described as an
act of supplying goods to another. I certainly cannot conceive of myself using the word
‘supply’ in this context in ordinary speech. In ordinary language the cloakroom attendant,
the left luggage officer, the warehouseman and the shoe mender do not ‘supply’ to their
customers the articles which those customers have left with them.
Another case which led to a difference of view between judges on the interpretation
of the statute is that of R v Brown [1996] 1 All ER 545 (HL). This case concerned s.5(2)(b)
of the Data Protection Act 1984 which provides that:
It is an offence knowingly or recklessly to use personal data other than for the purpose
described in the relevant entry in the register of data users …
A police officer twice used the police national computer to check the registration
numbers of vehicles owned by debtors of clients of his friend’s debt collection
company. There was no evidence that he passed on the data to his friend, merely
that he had accessed the data. A majority of the House of Lords, adopting a literal
approach held that the offence was not committed by a person who merely accesses
information. Data are only ‘used’, and the offence committed if the defendant goes
on to make unauthorised use of it, for example by passing it on to someone else. The
court held that they had reached this conclusion by giving the word ‘use’ its ordinary
meaning. However, the dissenting minority adopting a more ‘purposive’ approach (i.e.
looking behind the words to the intention of the legislation) held that the word ‘use’
should be given a broad construction in order to achieve the purpose of Act, which
was the protection of citizens against invasions of privacy.
4.4.2 The golden rule

This is a modification of the literal rule. The judge begins by adopting a literal
interpretation but if this leads to an ‘absurd’ result the judge may modify the words to
some extent. This approach was explained by Lord Wensleydale in the case of Grey v
Pearson (1857) 6 HL Cas 106:
… the grammatical and ordinary sense of words is to be adhered to, unless that would lead
to some absurdity, or some repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the words may be modified so as to
avoid the absurdity and inconsistency, but no further.
An example of the use of the rule is the case of Adler v George [1964] 2 QB 7. Under s.3
of the Official Secrets Act 1920, it was an offence to obstruct Her Majesty’s Forces in
the vicinity of a prohibited place. Adler was arrested for obstructing forces within a
prohibited place. He argued that he was not in the vicinity of a prohibited place since
he was actually in a prohibited place (an air base). The court applied the golden rule
to extend the literal wording of the statute to cover the action committed by the
defendant. Had the literal rule been applied, it would have produced absurdity, since
someone protesting near the base would be committing an offence whereas someone
protesting in the base would not. See also the case of Re Sigsworth [1935] Ch 89.
4.4.3 The mischief rule

This is the oldest approach to statutory interpretation. As set out in Heydon’s Case
(1584) 3 Co Rep 7a, 76 ER 637 the approach involves the judge taking several steps in
order to reach an interpretation. The first step is to consider the state of the common
law before the Act was passed. The second is to consider the ‘mischief’ or shortcoming
that the Act was intended to cover. The judge then interprets the Act in a way that
achieves the intended purpose. To this extent the approach of the mischief rule is
very similar to the modern purposive approach discussed below. A classic example of
the use of the mischief rule is the case of Smith v Hughes [1960] 2 All ER 859. This case
involved interpretation of s.1 of the Street Offences Act 1959. The provision provided:
(1) It shall be an offence for a common prostitute to loiter or solicit in a street or public
place for the purposes of prostitution.
The accused was in a house, tapping on the window to attract the attention of passers-
by. She argued that she was not ‘in the street’. Instead of adopting a literal approach, the
court considered what ‘mischief’ the Act was aimed at. Lord Parker CJ said:
For my part I approach the matter by considering what is the mischief aimed at by this Act.
Everybody knows that it was an Act intended to clean up the streets, to enable people to
walk along the streets without being molested by common prostitutes.
Lord Parker found a secondary meaning in the words. It was the ‘solicitation’ which
must take place in the street, not the person who does the soliciting.
4.4.4 Purposive interpretation

Although similar to the mischief rule, judges adopting a purposive approach to
interpretation are taking a wider view and essentially trying to decide what Parliament
intended to achieve in passing an Act. This approach encourages the judge to look for
the ‘spirit of the Act’, and to read words into or out of the Act when this is necessary. A
clear statement of this approach comes from the judgment of Denning LJ in Magor & St
Mellons RDC v Newport Corporation [1950] 2 All ER 1226 (CA); [1952] AC 189 (HL). He said:
We do not sit here to pull the language of Parliament to pieces and to make nonsense of
it. That is an easy thing to do and a thing to which lawyers are too often prone. We sit here
to find out the intention of Parliament and of ministers and carry it out, and we do this
better by filling in the gaps and making sense of the enactment than by opening it up to
destructive analysis.
This view was somewhat ahead of the interpretive curve and the approach of Denning
LJ was severely criticised when the case was appealed to the House of Lords on the
ground that Lord Denning had gone beyond the proper role of the judge. The concern
is that the further judges move away from the language of the Act, the more likely
they are to be engaging in a legislative or quasi-legislative function. As Lord Simonds
commented in the Magor case in the House of Lords, ‘[Denning LJ’s views are] a naked
usurpation of the legislative function.’
In recent years the judiciary appear to be more comfortable using a purposive

approach to interpretation. To some extent this may reflect the effect of dealing with
European legislation, considered later in this chapter. In the case of Pepper v Hart
[1993] 1 All ER 42 the House of Lords accepted that the courts are now ready to adopt
an approach that seeks to give effect to the ‘true purpose’ of legislation and as a
result will consider extraneous material that has a bearing on the background to the
legislation (see below on the use of Hansard). Another important case in which the
court adopted a purposive interpretation was R (on the application of Quintavalle) v
Secretary of State for Health [2003] 2 AC 687 concerning research on human embryos.
4.4.5 Giving effect to Parliament’s intention

Whatever approach judges take to statutory interpretation they are always seeking to
give effect to Parliament’s intention. That is their constitutional role and judges take
that responsibility seriously. However, as this discussion has shown, different judges
approach the task in various ways. Some may think that the best way to give effect to
Parliament’s intention is to stay very close to the words that Parliament actually used
via a literal approach to interpretation. Other judges might feel that they are better
able to give effect to Parliament’s intention by seeking to understand the purpose of
the legislation and then reading words in or out in order to achieve that aim.
1. Why is it necessary to interpret statutes?
2. What are the special challenges in dealing with statutory material?
3. What are judges seeking to do in interpreting statutes?
4. What practical difference might it make if judges differ in their approach to

interpretation?
4.5 Aids to interpretation
4.5.1 Presumptions of interpretation

Presumptions are a sort of judicial bias, a preference which a judge has for coming to
one conclusion rather than another. Many of them are used in order to save Parliament
the trouble of saying what it is not trying to achieve. All presumptions can be displaced
if Parliament so wishes. Parliament’s wish to displace a presumption can be shown
explicitly or implicitly.
Examples of presumptions
Statutes do not have retrospective effect Statutes are presumed to be prospective
(i.e. to operate only in relation to events which take place after the act comes into
force). This presumption is especially strong in the area of criminal law. An exception
to this presumption is s.58(8) of the Criminal Justice Act 2003 which allows the
prosecution in a criminal case to appeal against acquittal.
Changes to basic rules of common law must be clear If Parliament means to alter
some principle which the common law considers to be important, it must make its
intention to do so clear, or else the common law principle will survive. An example is
the case of Leach v R [1912] AC 305.
4.5.2 Rules of language

These language rules are similar to presumptions, and like presumptions they can
always be displaced expressly or by implication. They are different from presumptions
in that they are not exclusively legal in nature. Any sort of text can be subjected to
these rules.
Ejusdem generis rule

General words which follow specific words must be read in the light of those specific
words, provided that the specific words are examples of some particular class
(‘genus’). An example is the
Sunday Observance Act 1677 which provides that:
… no tradesman, artificer, workman, labourer or other person whatsoever, [shall work on

Sundays].
Many cases exist on the question of what occupations are ejusdem generis with the list.
Parliament cannot have intended all occupations to be covered by the Act, because it
would have been easier to say, ‘No person whatsoever shall work on a Sunday.’ This is
the justification for the ejusdem generis rule.
Noscitur a sociis (a word is known by the company it keeps)

This rule is similar to ejusdem generis. It states that all words derive their meaning
from their immediate context. The rule is very useful when dealing with ambiguities
in individual words where the ambiguous word is used in close proximity to other
similar words. An example is the case of Pengelly v Bell Punch Co Ltd [1964] 2 All ER 945
concerning s.28 of the Factories Act 1961 which provided that: ‘Floors, steps, stairs
passageways and gangways [must be kept free from obstruction].’ The court held that
‘floors’ did not include areas designed and used for the storage of goods.
4.5.3 Intrinsic material

All of the components of an Act of Parliament can be used to assist in the process of
interpretation. These include: the long title of the Act (containing a brief description
of the purposes of the Act); the short title (a short name given by Parliament so that
the Act can be easily cited, e.g. The Theft Act 1968); a preamble if it exists (rare in
modern Acts). They are used to set out in detail the reasons for the existence of an Act.
They always begin with the word ‘WHEREAS …’; the enacting sections which are the
substance of the Act with their subdivisions into sections and subsections; marginal
notes which give a brief explanation of the contents of a section; and headings which
give clues as to the contents.
4.5.4 Extrinsic material

While the internal context is concerned simply with other parts of the Act under
consideration, the wider context is concerned with all other matters which a court
might wish to take into account in interpreting an Act.
Reports of debates in Parliament (Hansard)

Until 1992 courts were not permitted to look at reports of parliamentary debates
to help with statutory interpretation, either for the purposes of understanding the
mischief or of construing the words in question. The reason for this prohibition was set
out by Lord Reid in the case of Beswick v Beswick [1968] AC 58,
For purely practical reasons we do not permit debates in either House to be cited. It
would add greatly to the time and expense involved in preparing cases … moreover, in a
very large proportion of cases [Hansard] would throw no light on the question before the
court.
Despite the prohibition on the use of Hansard, in the case of Davis v Johnson [1978] 1 All
ER 841 (CA) Lord Denning confessed that he had reached his view on the interpretation
of the relevant statute by reading what had been said in Parliament when the Act was
being debated.
However, in the case of Pepper v Hart [1993] 1 All ER 42, the House of Lords ruled that
having regard to the purposive approach to construction of legislation the courts
had adopted in order to give effect to the true intention of the legislature, the rule
prohibiting courts from referring to parliamentary material as an aid to statutory
construction should be relaxed so as to permit reference to parliamentary materials
where:
1. the legislation was ambiguous or obscure or the literal meaning led to an absurdity
2. the material relied on or consisted of statements by a minister or other promoter

of the Bill, and
3. the statements relied on were clear.
Reports of Royal Commissions and similar bodies

These may be used to understand the nature of any problem that Parliament may
have intended to solve by its legislation, but not so as to understand the nature of the
solution to the problem that Parliament has adopted.
Other materials
The court may look at international treaties, and other Acts of Parliament. Judges also
regularly refer to dictionaries to establish the ordinary meanings of English words,
either at the present day or at the time when the Act was passed.
1. Why might reports of debates in Parliament (Hansard) be useful to judges in
interpreting statutes?
2. What might the limitations of Hansard be?
3. Why did Lord Denning look at Hansard in the case of Davis v Johnson?
4. What was the significance of Pepper v Hart in terms of modern approaches to

statutory interpretation?
4.6 European influence on statutory interpretation
4.6.1 The continental approach to interpretation
Essential reading
¢¢ Holland and Webb, Chapters 9 ‘Interpreting statutes’ and 11 ‘European legal
method’.
In Chapter 1 we discussed some of the differences between common law systems and
civil law systems. One of the key differences is in the way that legislation is drafted
and the role of the judiciary in the different systems in giving effect to that legislation.
Within the continental legal tradition there are often different constitutional structures
involving written constitutions and constitutional courts. The substantive law is to be
found in comprehensive written codes and the role of the judiciary in these systems is
‘quasi-legislative’ in interpreting codes that are drafted in broad general language. By
comparison, English statutes tend to be detailed and relatively precise in their language.
Moreover, because judges in states with written constitutions are regarded as guardians
of the constitutions they generally feel relatively free to depart from the wording of
the code to ensure that it accords with constitutional principles. Judges in civil law
jurisdictions are used to ‘filling in gaps’ in the codes or elaborating on the use of general
words. They tend to adopt an approach to interpretation that focuses on the underlying
objectives of provisions rather than seeking the meaning of particular words.
The Court of Justice of the European Union (CJEU) draws on a different legal tradition from
the common law. Judges within the continental tradition tend to use what is referred
to as the ‘teleological’ approach. This involves the court attempting to give a legislative
provision an interpretation that fits in with the general scheme of the legislation rather
than seeking to establish the subjective intention of the drafters of the text.
4.6.2 Interpreting the law of the European Union
Essential reading
¢¢ Fennelly, N. ‘Legal interpretation at the European Court of Justice’ (1996) 20(3)
Fordham International Law Journal
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1526&context=ilj
As we saw in Chapter 1, s.2(4) of the European Communities Act 1972 (unless and until
it is repealed as a result of the UK’s referendum decision to leave the EU) provides
that English law should be interpreted and have effect subject to the principle that
European law is supreme. Where an English statute cannot be interpreted in a way that
is consistent with EU law, the inconsistent law should not be applied (R v Secretary of
State for Transport, ex p Factortame (No 2) [1991] 1 All ER 70, HL/ECJ).
The CJEU has shown that in its approach to legislative interpretation, it is more likely
to be influenced by the context and purposes of a legislative provision than its precise
wording. In the case of Van Gend en Loos [1963] the CJEU stated:
To ascertain whether the provisions of an international treaty extend so far in their effects it
is necessary to consider the spirit, the general scheme and the wording of those provisions.
In interpreting EU legislation, the English courts have to take a somewhat different

approach to the traditional approach used in domestic legislation. As Fennelly (1996)
points out, while all judges are seeking to give effect to legislation, judges from
different legal traditions vary in their approach:
The object of all interpretation lies in the true intention of the lawmakers, whether they
be framers of a constitution or a treaty, legislators, or drafters of secondary legislation. Its
pursuit at the Court [CJEU] demands of the common lawyer a readiness to set sail from the
secure anchorage and protected haven of ‘plain words’ and to explore the wider seas of
purpose and context.
Lord Denning signalled this change in the case of H P Bulmer Ltd v J Bollinger SA [1974]
Ch 401 (CA). The case involved an action which had been brought over use of the word
‘champagne’ in champagne cider and champagne perry. There was a request for the
case to be transferred to the European Court for a ruling as to whether such use of the
word infringed Community regulations. The court refused to make a reference and this
point was then appealed. In the course of refusing the appeal, Lord Denning spoke of
the nature of Community law:
uu All courts must attempt to interpret EC law in the same way and all apply the same
principles.
uu English statutes are drafted quite precisely and the courts have been used to giving
a literal interpretation to the words.
uu The EC Treaty is very different. It lays down general principles and expresses its aims
and purposes. However, it lacks precision and uses words and phrases without
defining what they mean. There are numerous gaps which have to be filled in by
the judges.
uu Given these differences, when English courts are faced with a problem of
interpretation they must follow the European pattern and look for the purpose or
intent rather than examining the words in meticulous detail. They must deduce
from the wording and the spirit of the Treaty the meaning of the Community rules.
If they find a gap they must fill it as best they can.
In a case a few years later, Lord Denning provided further explanations of the
differences between English and European approaches to interpretation. In Buchanan
and Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1977] 2 WLR 107 (CA) Lord Denning
argued that it was necessary to move away from traditional rules of interpretation
that stress the literal meaning of words and adopt the European method (i.e. look
for the design or purpose that lies behind the words). He said that when European
judges come upon a situation which is to their minds within the spirit, but not the
letter, of the legislation, they solve the problem by looking at the design and purpose
of the legislature – at the effect which it sought to achieve. They then interpret the
legislation so as to produce the desired effect. This means that they fill in gaps, quite
unashamedly, without hesitation. They are giving effect to what the legislature
intended, or may be presumed to have intended.
I see nothing wrong in this. Quite the contrary. It is a method of interpretation which I
advocated long ago …
Lord Denning’s view, while ahead of its time in the 1970s, has largely been accepted by
the English judiciary in interpreting European legislation.
Although some suggest that the approach of the CJEU is completely different from
the English common law approaches to interpretation, it is clear that the more
modern ‘purposive’ approach adopted by English courts has much in common with
the European approach. Moreover, it has been argued that the influence of the EU
has begun to affect the way that judges interpret domestic legislation. It is arguable
that the greater willingness of the English judiciary to adopt a purposive approach
– for example in cases like Pepper v Hart – is a manifestation of greater experience of
interpreting EU legislation.
1. In what ways is the continental approach to the interpretation of legislation
different from that in England?
2. What is it about the drafting of EU legislation that requires English judges to

adopt a different approach when interpreting EU legislation?
3. In what way is it thought that experience in interpreting EU legislation has affected

the approach of the English judiciary to the interpretation of domestic legislation?
4.7 The impact of the Human Rights Act 1998 on statutory

interpretation
Essential reading
¢¢ Holland and Webb, Chapters 9 ‘Interpreting statutes’ and 11 ‘European legal
method’.
¢¢ R v Lord Chancellor, ex p Witham [1998] 2 WLR 849, [1998] QB 575.
4.7.1 Background
As discussed in Chapter 1, English common law has provided protection for human
rights since the 12th century, although the approach has been one of negative rather
than positive protection. This is what is referred to as the ‘negative theory of rights’
which says that citizens can do whatever they like unless it is specifically prohibited by
non-retrospective laws which are clear and accessible to the governed. The common
law also constrained the power of government, ensuring that it acted according to
law and not in excess of its powers. An example of protection of human rights prior
to the implementation of the HRA 1998 is the case of R v Lord Chancellor ex p Witham
[1998] QB 575. In this case the Lord Chancellor had significantly increased the fees that
litigants were required to pay in order to issue proceedings in the civil courts to have
a dispute decided by a judge. Previously, there had been an exemption for people on
low incomes to ensure that all people would be able to have access to the courts. The
new rules issued by the Lord Chancellor removed this exemption for people suffering
financial hardship and on an action for judicial review brought by Mr Witham the
High Court granted a declaration that the Lord Chancellor had exceeded his statutory
powers, because the effect of the increase would be to exclude many people from
access to the courts. In his decision Laws J said that the right of access to the courts is a
‘constitutional right’ that cannot be displaced except by Parliament:
It seems to me, from all the authorities to which I have referred, that the common law
has clearly given special weight to the citizen’s right of access to the courts. It has been
described as a constitutional right, though the cases do not explain what that means. In
this whole argument, nothing to my mind has been shown to displace the proposition
that the executive cannot in law abrogate the right of access to justice, unless it is
specifically so permitted by Parliament; and this is the meaning of the constitutional right.
4.7.2 The interpretation of domestic legislation after the Human Rights

Act 1998
Essential reading
¢¢ Holland and Webb, Chapter 10 ‘“Bringing rights home”: legal method and
Convention rights’.
¢¢ Rights Brought Home: The Human Rights Bill, October 1997 www.gov.uk/
government/uploads/system/uploads/attachment_data/file/263526/rights.pdf
¢¢ R v A (No 2) [2001] UKHL 25, [2002] AC 45.
¢¢ Feldman, D. The impact of the Human Rights Act 1998 on English Public Law (2005)
http://resources.law.cam.ac.uk/documents/the_impact_of_the_human_rights_
act_david_feldman.pdf
When the Government introduced the HRA 1998 it intended that both Acts of Parliament
and secondary legislation should be interpreted, so far as possible, to be compatible
with the Convention. Previously, the English courts were merely required to take the
Convention into account in resolving any ambiguity in a legislative provision. Under the
HRA 1998 the English courts must interpret legislation so as to uphold the Convention
rights unless the legislation itself is so clearly incompatible with the Convention that
it is impossible to do so. This ‘rule of construction’ applies to past as well as to future
legislation. To the extent that it affects the meaning of a legislative provision, the courts
are not bound by previous interpretations. This approach to interpretation is contained
within s.3(1) of the HRA 1998 (known as the interpretive obligation) which provides that:
So far as it is possible to do so, primary legislation and subordinate legislation must be

read and given effect in a way which is compatible with the Convention rights.
Section 3(2) provides that s.3(1) does not affect the validity, continuing operation or
enforcement of any incompatible primary or delegated legislation.
Two strong promoters of the HRA, Lord Lester and Lord Pannick, writing about the
responsibility of the courts under s.3, have said that:
the role of the court is not (as in traditional statutory interpretation) to find the true
meaning of the provision, but to find (if possible) the meaning which best accords with
Convention rights.
4.7.3 Declarations of incompatibility

So the court must seek to read and give effect to domestic legislation in a way which
is compatible with the ECHR. If that proves to be impossible, the court can issue a
declaration of incompatibility. Section 4(2) of the HRA 1998 provides that:
If the court is satisfied that the provision is incompatible with a Convention right, it may
make a declaration of that incompatibility.
Declarations of incompatibility are intended to be used as a last resort. Declarations

of incompatibility have no effect on the cases in which they are made, nor do they
affect the validity or continuing operation of the legislation. Thus, although the HRA
1998 gives the English courts the power to declare Acts of Parliament incompatible
with the ECHR, they do not have the power of, for example, the US Supreme Court
or continental constitutional courts to rule that legislation is unconstitutional and
therefore invalid. But under s.10 of the Act, a declaration of incompatibility may lead to
the provision being amended or repealed by Parliament.
In Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2015] NIQB
102, the court considered arguments related to the law on abortion. Northern Ireland
has a devolved government and, in contrast to England and Wales, the Abortion Act 1967
does not extend to Northern Irish territory. Abortion falls within the devolved area of
Criminal Justice and Policing and is only permitted under very strict guidelines, which
are governed by the Offences against the Persons Act 1861. The applicant Commission
applied for a declaration that the law on termination of pregnancy in Northern Ireland was
incompatible with the ECHR, with particular regard to (1) the criminalisation of abortion
in the circumstances of serious malformation of the foetus and (2) the termination of
pregnancies which have resulted as the consequence of serious sexual crime, and the
failure to provide exceptions to the law in such circumstances.
Following consideration of the interpretative obligation of s.3 HRA 1998 and the discussions
in Ghaidan (2004), Anderson (2002) and Bellinger (2003), Horner J concluded that ‘there
is near unanimity among the parties in this judicial review, and that includes the
Commission, that for this court to try and read the impugned provisions in a Convention-
compliant way would be a step too far.’ A declaration of incompatibility was granted.
The provisions of the HRA 1998 on the interpretation of statutes show that when
Parliament incorporated the ECHR into UK domestic law, it did so in a way that
preserved Parliamentary sovereignty. It was agreed that the courts should not be able
to strike down primary legislation passed by Parliament because that would give the
judiciary a power over legislation which under UK constitutional arrangements they
did not possess and which would not be acceptable.
On this issue, when the Human Rights Bill was introduced to Parliament in 1997 the
Government made clear its intentions:
The Government has considered very carefully whether it would be right for the Bill
to go further, and give to courts in the United Kingdom the power to set aside an Act
of Parliament which they believe is incompatible with the Convention rights … The
Government has reached the conclusion that courts should not have the power to
set aside primary legislation, past or future, on the ground of incompatibility with the
Convention. This conclusion arises from the importance which the Government attaches
to Parliamentary sovereignty. In this context, Parliamentary sovereignty means that
Parliament is competent to make any law on any matter of its choosing and no court
may question the validity of any Act that it passes. In enacting legislation, Parliament
is making decisions about important matters of public policy. The authority to make
those decisions derives from a democratic mandate. Members of Parliament in the
House of Commons possess such a mandate because they are elected, accountable and
representative. To make provision in the Bill for the courts to set aside Acts of Parliament
would confer on the judiciary a general power over the decisions of Parliament which
under our present constitutional arrangements they do not possess, and would be likely
on occasions to draw the judiciary into serious conflict with Parliament. There is no
evidence to suggest that they desire this power, nor that the public wish them to have it.
Certainly, this Government has no mandate for any such change.
(Rights Brought Home, 1997)

4.7.4 The approach of the courts to interpretation and HRA 1998

compatibility
Initially, in dealing with legislation the judiciary will seek to interpret a provision in
the normal way using one of the traditional approaches to interpretation. It is only
if this does not achieve an interpretation that is compatible with the ECHR that the
courts will adopt a different approach. Aside from the traditional approaches to
interpretation, the judiciary have three other general techniques. These are known as
reading ‘down’ or ‘in’ or ‘out’.
uu Reading down involves limiting the meaning of words in the legislation so as to

achieve an outcome compatible with Convention rights.
uu Reading in allows the judge to introduce words or meanings which create

safeguards to ensure compatibility.
uu Reading out allows the court to remove or refuse to enforce provisions which
would otherwise make the legislation incompatible.
The approach to interpretation of English law was illustrated in the case of R v A,

decided by the House of Lords in 2001.
4.7.5 R v A (No 2) [2001] UKHL 25

This was an appeal by a defendant to a criminal charge of rape and concerned
the question of whether certain evidence concerning the sexual behaviour of the
complainant would be admissible at trial. The defendant wanted to adduce evidence
of the complainant’s sexual behaviour in the three weeks prior to the alleged rape.
However, s.41 of the Youth Justice and Criminal Evidence Act 1999 prohibits the
admission of evidence as to the complainant’s sexual behaviour unless certain
conditions were fulfilled. The House of Lords held that an accused’s Convention
right to a fair trial might be violated if relevant evidence of the kind sought to be
addressed by the appellant was excluded. The question then arose whether s.41 could
be construed so as to prevent any violation of the defendant’s rights. Lord Steyn’s
discussion of the approach to interpretation under s.3 of the HRA 1998 indicates the
extent to which the judiciary are prepared to strain the meaning of words in order to
construe provisions in legislation as compatible with the ECHR. He said:
[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies
even if there is no ambiguity in the language in the sense of the language being capable of
two different meanings … Section 3 places a duty on the court to strive to find a possible
interpretation compatible with Convention rights. Under ordinary methods of interpretation
a court may depart from the language of the statute to avoid absurd consequences: section 3
goes much further … 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 techniques 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 … In my view section
3 requires the court to subordinate the niceties of the language of section 41(3)(c), and in
particular the touchstone of coincidence, to broader considerations of relevance judged
by logical and common sense criteria of time and circumstances. After all, it is realistic to
proceed on the basis that the legislature would not, if alerted to the problem, have wished
to deny the right to an accused to put forward a full and complete defence by advancing
truly probative material. It is therefore possible under section 3 to read section 41, and in
particular section 41(3)(c) as subject to the implied provision that evidence or questioning
which is required to ensure a fair trial under article 6 of the Convention should not be treated
as inadmissible. The result of such a reading would be that sometimes logically relevant
sexual experiences between a complainant and an accused may be admitted under section
41(3)(c). On the other hand, there will be cases where previous sexual experience between
a complainant and an accused will be irrelevant, e.g. an isolated episode distant in time and
circumstances. Where the line is to be drawn must be left to the judgment of trial judges. On
this basis a declaration of incompatibility can be avoided. If this approach is adopted, section
41 will have achieved a major part of its objective but its excessive reach will have been
attenuated in accordance with the will of Parliament as reflected in section 3 of the 1998 Act.
That is the approach which I would adopt.
In Ghaidan v Mendoza [2004] UKHL 30, [2004] 3 All ER 41 the House of Lords was faced
with the issue of whether a surviving homosexual partner could be the spouse of
a deceased tenant, for the purposes of succeeding to a statutory tenancy under
the provisions of the Rent Act 1977. In Fitzpatrick v Sterling Housing Association Ltd
[2001] 1 AC 27 the House of Lords had recognised the rights of such individuals to
inherit an assured tenancy by including them within the deceased person’s family. But
it declined to allow them to inherit statutory tenancies on the grounds that they could
not be considered to be the wife or husband of the deceased as the Act required.
When the Ghaidan case was heard in the Court of Appeal the court held that the Rent
Act, as it had been construed by the House of Lords in Fitzpatrick, was incompatible
with Article 14 of the ECHR on the grounds of its discriminatory treatment of surviving
same-sex partners. The House of Lords in Ghaidan held that it was possible to ‘read
down’ the 1977 Rent Act under the HRA 1998 s.3 so that it was compliant with the rights
in the Convention. The court decided that the failing could be remedied by reading
the words ‘as his or her wife or husband’ in the Act as meaning ‘as if they were his or
her wife or husband’. Given that there was no objective and reasonable justification for
the discrimination, the relevant passages in the Rent Act 1977 should be construed (in
accordance with the HRA 1998) so as to give equal succession rights to a homosexual
couple living ‘as if’ they were husband and wife.
4.7.6 Declarations of incompatibility and the Government response
Essential reading
¢¢ Ministry of Justice ‘Responding to human rights judgments: Report to the Joint
Committee on Human Rights on the Government response to human rights
judgments 2016–17’
www.gov.uk/government/uploads/system/uploads/attachment_data/
file/669445/responding__to_human_rights_judgments_2016-17.pdf
Where the courts are unable to interpret domestic legislation in a way that is compatible
with the ECHR, the senior courts may make a declaration that the legislation in question
is not compatible with the rights provided by the ECHR. Between the coming into force of
the HRA 1998 on 2 October 2000 and the end of July 2017, there have been 37 declarations
of incompatibility, of which 25 have become final (in whole or in part). As previously
mentioned, a declaration of incompatibility neither affects the continuing operation
or enforcement of the Act it relates to, nor binds the parties to the case in which the
declaration is made. This respects the supremacy of Parliament in the making of the law.
Although there is no legal obligation on the Government to take remedial action

following a declaration of incompatibility, or upon Parliament to accept any remedial
measures the Government may propose, such a declaration creates pressure for action
to be taken. In most cases where there has been a declaration of incompatibility, the
Government has brought forward amending legislation by way of a remedial order
under s.10 of the HRA 1998 or through ordinary legislation.
The first declaration of incompatibility was issued in R v (1) Mental Health Review
Tribunal, North & East London Region (2) Secretary of State for Health ex p H in March
2001. In that case, the Court of Appeal held that ss.72 and 73 of the Mental Health Act
1983 were incompatible with Articles 5(1) and (4) of the ECHR because they reversed
the normal burden of proof, by requiring a detained person to show that they should
not be detained rather than the authorities to show that they should be detained.
The legislation was amended by the Mental Health Act 1983 (Remedial) Order 2001
(SI 2001/3712), which came into force on 26 November 2001.
In the case of Bellinger v Bellinger [2003] UKHL 21 a post-operative male to female

transsexual appealed against a decision that she was not validly married to her husband,
by virtue of the fact that at law she was a man. Section 11(c) of the Matrimonial Causes Act
1973 was declared incompatible with Articles 8 and 12 in so far as it made no provision for
the recognition of gender reassignment. In Goodwin v UK (Application no. 28957/95; 11 July
2002) the ECtHR had already identified the absence of any system for legal recognition
of gender change as a breach of Articles 8 and 12. This was remedied by the Gender
Recognition Act 2004, which came into force on 4 April 2005.
The leading case of A v Secretary of State for the Home Department [2004] UKHL 56
(discussed in detail in Chapter 5) concerned the detention under the Anti-terrorism,
Crime and Security Act 2001 of foreign nationals who had been certified by the
Secretary of State as suspected international terrorists, and who could not be
deported without breaching Article 3. They were detained without charge or trial
in accordance with a derogation from Article 5(1) provided by the HRA 1998. The
Derogation Order was quashed because it was not a proportionate means of achieving
the aim sought and could not therefore fall within Article 15. Section 23 of the Anti-
terrorism, Crime and Security Act 2001 was declared incompatible with Articles 5 and
14, as it was disproportionate and permitted the detention of suspected international
terrorists in a way that discriminated on the ground of nationality or immigration
status. The provisions were repealed by the Prevention of Terrorism Act 2005, which
put in place a new regime of control orders; it came into force on 11 March 2005.
4.8 Human rights: interpretation or legislation?
Essential reading
¢¢ Kavanagh, A. ‘The elusive divide between interpretation and legislation under
the Human Rights Act 1998’ (2004) 24(2) Oxford J Legal Studies 259–85 (available
in LexisNexis through the Online Library).
It appears from the decided cases that the courts will strain to achieve compatibility
with the ECHR using s.3 of the HRA 1998. There is, however, a fine line between straining
to achieve compatibility and crossing the line between interpretation and legislation.
It is arguable that in reading down, in and out, the judiciary are taken very close to that
line. While it is now commonly accepted that the judiciary are involved in a limited
law-making function in operating the doctrine of precedent and developing common
law principles, there is, perhaps, another question about the extent to which they
are involved in law-making when interpreting statutes. As Kavanagh (2004) argues,
interpretation is regarded as an activity that goes beyond the mechanical task of
discovering and then declaring legal meaning. It is a limited, but important, form of
law-making.
1. What is the effect of s.3 of the HRA 1998 on the approach of English judges to the
interpretation of English law?
2. What techniques can judges use in meeting the requirements to interpret

domestic legislation in a way that is compatible with the ECHR?
3. In what way is s.4 of the HRA 1998 seen as a ‘last resort’?
4. What is the effect of a declaration of incompatibility under s.4 of the HRA 1998
on the immediate case and on the legislation?
5. Is the UK Government required to respond to declarations of incompatibility

under s.4 of the HRA 1998?
6. To what extent did the decision in Ghaidan make new law?
Sample examination question

‘The Human Rights Act 1998 has fundamentally changed the rules of statutory
interpretation.’
Do you agree with this statement?
Advice on answering the question

There are three key elements to the question that should be addressed:
1. What are the rules (approaches) of statutory interpretation?
2. How does the Human Rights Act 1998 affect these approaches to the interpretation
of statutes?
3. Does this constitute a fundamental change to the rules/approaches?
1. The fundamental purpose of interpretation is to give effect to Parliament’s

intention. There are no strict rules that judges must follow. Historically the
judiciary have adopted a variety of approaches. Briefly describe with examples.
Discuss development of the purposive approach with examples.
2. How does the Human Rights Act affect interpretation?
Describe the operation of s.3(1) and s.4 of the HRA 1998.
Describe the approach taken by the judiciary to s.3 and s.4 using examples.
A s.4 declaration of incompatibility is viewed as last resort.
Straining interpretation (e.g. R v A, Lord Steyn).
Reading down (e.g. Ghaidan v Mendoza).
Reluctance where it is a controversial area of law (e.g. Nicklinson).
Examples of declarations of incompatibility (e.g. A v Secretary of State for the Home

Department).
3. Is this a fundamental change?
Judges continue to adopt a literal and purposive approach to interpretation.

They also continue to use traditional aids in seeking to give effect to Parliament’s
intention. The HRA does not radically change that, but there are ways in which the
ECHR changes the approach and the balance between judiciary and legislature.
Straining to avoid a declaration of incompatibility means judges going further in

reading in and out words in statutory provisions. Does this occasionally mean that
they are, in fact, doing violence to the intention of Parliament?
While this doesn’t produce a fundamental change to the rules of statutory

interpretation, the emphasis on finding a way of reading provisions as compatible
with the ECHR has led to a difference in approach (e.g. Feldman, 2005) and a subtle
shift in the relations between judiciary, legislature and executive.
5 The judiciary
Contents
5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
5.2 Independence and constitutional change . . . . . . . . . . . . . . . . 85
5.3 Changes introduced by the Constitutional Reform Act 2005 . . . . . . . 85
5.4 The judicial hierarchy . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
5.5 Measures supporting the independence of the judiciary . . . . . . . . . 88
5.6 Personal independence . . . . . . . . . . . . . . . . . . . . . . . . . 91
5.7 The legitimacy and authority of the judiciary . . . . . . . . . . . . . . . 93
5.8 Judicial appointments prior to the Constitutional Reform Act 2005 . . . . 95
5.9 Judicial selection process after the Constitutional Reform Act 2005 . . . . 98
5.10 Increasing judicial diversity . . . . . . . . . . . . . . . . . . . . . . . 101
5.11 Judicial power and relations with the executive and legislature . . . . . 109
5.12 Judicial power and the protection of human rights . . . . . . . . . . . 111
5.13 Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Learning outcomes
uu understand the key changes to judicial leadership made by the Constitutional
Reform Act 2005 and the reasons for the changes
uu identify different judicial roles and responsibilities
uu explain the importance of judicial independence and the practical measures
supporting it
uu distinguish between individual and institutional judicial independence
uu explain how judicial selection and appointment can influence the legitimacy of
the judiciary
uu explain the pre- and post-2006 judicial appointment process
uu explain why judicial diversity is regarded as important
uu explain how the power of the judiciary has increased in recent years and how
this has affected the relationship with the executive.
Essential reading
¢¢ Slapper and Kelly, Chapter 12 ‘The judiciary’.
¢¢ Judiciary of England and Wales ‘Independence’

www.judiciary.gov.uk/about-the-judiciary/
the-judiciary-the-government-and-the-constitution/jud-acc-ind/independence/
¢¢ Ewing, K.D. ‘A theory of democratic adjudication: towards a representative,

accountable and independent judiciary’ (2000–01) 38 Alta L Rev 708 (available in
LexisNexis and HeinOnline through the Online Library).
Further reading
¢¢ Sir Henry Brooke ‘Judicial independence – its history in England and Wales’
https://sirhenrybrooke.me/2015/11/03/the-history-of-judicial-independence-in-
england-and-wales/
¢¢ Lord Phillips ‘Judicial independence and accountability: a view from the

Supreme Court’ Speech at UCL February 2011
www.ucl.ac.uk/constitution-unit/events/judicial-independence-events/launch
¢¢ Lady Hale ‘Judges, Power and Accountability: Constitutional Implications of

Judicial Selection’ Speech at the Constitutional Law Summer School, Belfast, 11
August 2017 www.supremecourt.uk/docs/speech-170811.pdf
Legal system and method 5 The judiciary page 85
5.1 Introduction
Judges are the very personification of the law. The judicial function embodies the
dispassionate application of evenhandedness, integrity, and the rule of law. Judges resolve
disputes, punish offenders and, where there is no jury, determine guilt. In the more
grandiloquent accounts of law and the legal system, judges are its custodians, guardians
of its values: sentinels of justice and fair play … The role of judges is fundamental to the
common law; the centrifugal force of the judicial function drives the legal system both
in theory and in practice. And though it may be less significant in the codified systems of
Continental Europe, the influence of judges cannot be overstated.
(Wacks, 2015)
In this chapter we will review the constitutional position of the judiciary and the
significance of judicial independence for the operation of the rule of law. We will
consider recent changes to the leadership of the judiciary and the process of judicial
appointment. Important themes which run through our consideration of the role and
function of the judiciary in the English common law system are: the perceived increase
in the power of the judiciary in recent years, the sources of that increase in power, and
whether increased judicial power raises questions about the constitutional balance
between judicial independence and the requirement of due accountability.
5.2 Independence and constitutional change

Judicial independence is sometimes mistakenly perceived as a privilege enjoyed by
judges, whereas it is in fact a cornerstone of our system of government in a democratic
society and a safeguard of the freedom and rights of the citizen under the rule of law.
The judiciary, whether viewed as an entity or by its individual membership, is and must
be seen to be, independent of the legislative and executive arms of government. The
relationship between the judiciary and the other arms should be one of mutual respect,
each recognising the proper role of the others. Judges should always take care that
their conduct, official or private, does not undermine their institutional or individual
independence, or the public appearance of independence.
(Guide to Judicial Conduct, Judiciary of England and Wales)
As we discussed in Chapter 1, the role of an independent judiciary is central to the

operation of the rule of law. Judges are expected to be personally independent in
the sense that they must decide cases purely on the strict application of the law to
the evidence presented, irrespective of personal preference or any interest in the
outcome. They must be fearless in their judgment, demonstrating moral courage
as well as legal accuracy. Judicial independence also refers to the institutional
independence of the judiciary so that the judiciary are separate from the influence
of the executive and the legislature. The formal institutional independence of the
judiciary in England dates back only as far as the 18th century, prior to which judges
could be dismissed by the monarch if the monarch did not like their judgments.
Before the 18th century judges held office at the good pleasure of the Crown (durante
bene placito) and during the 17th century kings were liable to dismiss judges if they
disapproved of their judgments. However, after the turbulence of the English civil
war (1642–46) and changes to the role of Parliament, the formal independence of the
judiciary was confirmed in the Act of Settlement in 1701 which effectively gave judges
tenure for life after appointment unless they committed some sort of ‘misbehaviour’.
5.3 Changes introduced by the Constitutional Reform Act 2005
Essential reading
¢¢ McGonnell v UK [2000] ECHR 62 (Application no. 28488/95).
¢¢ Justice Wildhaber (President of the ECtHR from 1998–2007) ‘Judicial impartiality

under the European Convention on Human Rights’
www.concourt.am/armenian/con_right/2.12-2001/wildhaber-eng.htm
¢¢ The Lord Chief Justice Lord Thomas, ‘The judiciary, the executive
and parliament: relationships and the rule of law’ 1 December 2014,
Institute For Government: www.judiciary.gov.uk/announcements/
speech-by-lord-chief-justice-institute-for-government/
¢¢ Lord Falconer, ‘The role of the Lord Chancellor after the 2005 reforms’, Bentham
Presidential Address 2015, UCL, March 2015, available to watch at www.youtube.
com/watch?list=PLu5fzN_S4dA0ED4Lq30qJ1szMmM3wfb4f&v=3_FnLMHaDzA
The Constitutional Reform Act (CRA) 2005 introduced profound changes to the
leadership of the judiciary, to the position of the final court of appeal and to the
appointment of judges. Prior to 2005 the historic head of the judiciary was the Lord
Chancellor who was also responsible for appointing judges. The final court of appeal
was the Judicial Committee of the House of Lords (generally referred to simply as the
House of Lords).
The Lord Chancellor is an ancient position established around 1,400 years ago.
Originally the Lord Chancellor was secretary to the medieval Monarchs of England,
with responsibility for dealing with the King’s letters and using the Sovereign’s seal,
the Great Seal of the Realm, which came to symbolise the office. Gradually, the Lord
Chancellor took on further functions, for example, presiding over Parliament when the
Monarch was not available. By the 13th century, the Lord Chancellor had become the
most senior judge in the country apart from the King himself.
The modern position, prior to the constitutional changes in 2005, was that the Lord
Chancellor was the head of the judiciary and the most senior judge in the English
court structure. But the Lord Chancellor was a political appointment made by the
current serving Prime Minister and once appointed the Lord Chancellor had a seat in
the Cabinet, with responsibility for running the government department that deals
with the operation of the justice system – the Lord Chancellor’s Department (renamed
the Department for Constitutional Affairs in 2003 and renamed again in 2007 the
Ministry of Justice). In addition to being the head of the judiciary and a member of the
government, the Lord Chancellor also had a ceremonial role in the legislature being
the ‘Speaker of the House of Lords’, the upper chamber of Parliament. Through these
various historic and executive roles the Lord Chancellor was involved in all three arms
of the state – the judiciary, the legislature and the executive. Although the historic
peculiarity of these overlapping roles within what ought to be separate sources
of power was well-recognised, the position of the Lord Chancellor did not raise
significant constitutional concerns until after the passing of the HRA 1998. Article 6
of the ECHR requires that for a fair trial, a case must be decided by an independent
and impartial tribunal. In this light, for example, would it be appropriate for the Lord
Chancellor, as a member of the executive, to hear a case in which decisions of the
executive were being challenged in an action for judicial review? As Lord Steyn, a Law
Lord, wrote in 2002:
The 1998 Human Rights Act has, of course, invigorated the process of constitutionalisation
of public law. The Lord Chancellor is a Cabinet minister. Nevertheless from time to time
he sits in the Appellate Committee … His right to do so is now controversial. Appellate
Committees which include the Lord Chancellor may not fulfil the requirement of
independence required by Article 6 of the European Convention on Human Rights.
This sort of issue was considered by the ECtHR in the case of McGonnell v UK [2000].
The case concerned the question of the independence of the Bailiff of the island of
Guernsey when performing his judicial function. The Bailiff is a role that combines
both executive and judicial functions. The ECtHR held that there had been a breach
of Article 6 of the ECHR because the Bailiff had acted as the judge in a case in which
he had also undertaken an administrative role. The ECtHR held that it is incompatible
with the required appearance of independence and impartiality for a judge to have
legislative and executive functions as substantial as those carried out by the Bailiff of
Jersey. At paras 55–57 they said:
the Court considers that any direct involvement in the passage of legislation, or of
executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a
person subsequently called on to determine a dispute … The Court thus considers that
the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6
was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently
determined, as the sole judge of the law in the case, the applicant’s planning appeal …
The test of impartiality and independence is not a ‘subjective’ test (i.e. whether
the Bailiff believes himself to be able to decide the case impartially). The test is an
‘objective test’ (i.e. whether it would appear to a reasonable person that in deciding
the case in his judicial capacity the Bailiff might be influenced by his involvement in
the issue as a member of the executive). The approach that has been taken by the
ECtHR to the issue of impartiality is not to inquire whether or not a court is actually
impartial, but whether the court can be seen to be impartial. In order to do this, the
ECtHR has introduced the idea of appearances. Since in a democratic society courts
must inspire confidence, they look at the question of whether it appears, objectively,
that the court is impartial.
For these reasons the CRA 2005 removed the Lord Chancellor as head of the judiciary
and replaced him with the Lord Chief Justice. The purpose of the change was to make
explicit the separation of powers between the judiciary and the executive. This was
further reinforced by the establishment of an independent Judicial Appointments
Commission (JAC) under the CRA 2005 which limited the Lord Chancellor’s
involvement in judicial appointments (see the discussion later in this chapter).
The relationship between the executive and the judiciary after the CRA 2005
The Lord Chief Justice, Lord Thomas, gave a speech in 2014 focusing on the relationship
between the executive, Parliament and the judiciary. Lord Thomas underlined the
critical importance of judicial independence to the rule of law, but pointed out that
since the constitutional changes in the CRA 2005 there is a need for the judiciary to
work constructively with the executive on issues relating to justice policy.
In March 2015 Lord Falconer, the Lord Chancellor responsible for overseeing the
changes to the CRA in 2005, gave an important speech in which he set out the
background to the changes introduced in the CRA 2005 and articulated some
concerns about the change to the role of Lord Chancellor. He argued that the role
should protect the independence and interests of the judiciary within Government. He
questioned, on reflection, whether the CRA 2005 should have included a more explicit
requirement for the Lord Chancellor to have a deep understanding of the rule of law
and commitment to its protection.
1. How would you distinguish between individual and institutional independence
of the judiciary?
2. How did the Act of Settlement of 1701 support judicial independence?
3. What change was made to the position of the Lord Chancellor under the CRA
2005?
4. Why might it be thought that the change to the position of the Lord Chancellor
under the CRA 2005 has reduced the influence of the judiciary with politicians?
5. According to the decision in McGonnell what is the appropriate test for judicial
independence?
5.4 The judicial hierarchy

Supreme Court Justices (12)
Heads of Division (5)
Lords and Lady Justices of Appeal (39)
High Court judges (96)
Circuit judges (County Court and Crown Court) (654)
Recorder (part-time circuit judges) (1196)
District judges (County Court and magistrates’ courts)
Deputy district judges (part-time district judges)
[The tribunals judiciary hold positions equivalent to court judiciary, depending on

seniority]
5.5 Measures supporting the independence of the judiciary

The constitutional independence of the judiciary has historically been reinforced by
three significant measures:
uu protection against dismissal
uu immunity from suit, and
uu reasonably generous pay and conditions of service.
Although the foundation of judicial independence as we now think of it was laid in the
provision of the Act of Settlement 1701 which protected judges from dismissal without
good cause, most recently judicial independence was codified in the CRA 2005.
Section 3(1) provides that:
The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters
relating to the judiciary or otherwise to the administration of justice must uphold the
continued independence of the judiciary.
Section 3(5) specifically prohibits interference with judicial decisions by the executive.
It provides that:
The Lord Chancellor and other Ministers of the Crown must not seek to influence
particular judicial decisions through any special access to the judiciary.
Statutory responsibility is placed on the Lord Chancellor to defend judicial

independence, and he is required to swear an oath to defend it.
The Lord Chancellor has recently been criticised for failing to uphold the duty to
defend judicial independence. When the case of R (Miller) v Secretary of State for
Exiting the European Union [2016] EWHC 2768 (Admin) was decided by the High Court,
many media organisations and individuals were unhappy about the decision. The
decision was admittedly a controversial one, in which the High Court decided that
the government had to obtain parliamentary authorisation before it could start the
process of the UK leaving the European Union. Many discontented media organisations
criticised the judges in very strong terms, which included making personal remarks
about them and claiming the ruling and the judges themselves were undemocratic.
Although the Lord Chancellor did eventually issue a statement defending the
independence of the judiciary, some argued that this was too little, too late,
and that she had breached her duty under s.3 of the Constitutional Reform
Act 2005. The Bar Council was among those criticising the Lord Chancellor
for not defending the independence of the judiciary (see http://www.
barcouncil.org.uk/media-centre/news-and-press-releases/2016/november/
bar-council-calls-on-lord-chancellor-to-condemn-attacks-on-judiciary/).
When the case was heard on appeal by the Supreme Court, the Lord Chancellor
issued a statement immediately following the decision, reaffirming the
independence of the judiciary (see https://www.gov.uk/government/news/
lord-chancellor-response-to-supreme-court-judgment).
5.5.1 Security of tenure

One of the most important ways in which judicial independence is protected is
through the principle of ‘security of tenure during good behaviour’. This means
that the Heads of Division, Supreme Court Justices, Lords Justices of Appeal and High
Court judges can only be removed from office by the monarch after a vote to that
effect by both Houses of Parliament. This security of tenure derives from the Act of
Settlement 1701, but is now governed by the Senior Courts Act 1981 and the CRA 2005.
No English judge has ever been removed in this way. Judges below the level of the
High Court may be dismissed on the grounds of incapacity or misbehaviour (generally
offences involving moral turpitude) by the Lord Chief Justice and he does not need
approval from Parliament. This power was used in 1983 against a circuit judge who
was found guilty of smuggling tobacco and alcohol into England on his yacht. It is
the only instance of a judge at that level being dismissed. However, there has been
a case of misbehaviour concerning a recorder (part-time circuit judge), Constance
Briscoe, who was suspended from the judiciary in October 2012 pending the outcome
of a police investigation into allegations that she perverted the course of justice. On
1 May 2014 Ms Briscoe was found guilty at the Central Criminal Court (the Old Bailey)
of the offences and sentenced to 16 months in prison. In August 2014 the Judicial
Conduct and Investigations Office (http://judicialconduct.judiciary.gov.uk/), which
has responsibility for the conduct of the judiciary, issued a statement saying that Ms
Briscoe had been removed from judicial office.
Although convictions for drunk-driving are considered to amount to misbehaviour, a

single conviction will not necessarily lead to immediate dismissal. Several judges have
been convicted of drunk driving but continued in office. Judge MacArthur in 1997 was
told to resign by the Lord Chancellor after his third charge for drunk-driving.
On the other hand, a record of driving offences may prevent appointment as a judge.
In 2014, a solicitor who was denied appointment as a district judge because he had one
too many penalty points on his driving licence lost a legal challenge to the decision.
Graham Stuart Jones held an appointment as a deputy district judge and applied for an
appointment as a district judge in June 2013. Despite being assessed as an ‘outstanding
candidate’ for the post with a recommendation for ‘immediate appointment’, the
selection and character committee of the Judicial Appointments Commission (JAC) (see
later discussion) rejected his application because he was not ‘of good character’. Jones
challenged the decision by way of judicial review. Finding against him in the High Court,
Sir Brian Leveson said the JAC’s guidelines stating that having more than six points will
‘normally prevent’ selection were lawful and the JAC had exercised its discretion (Law
Society Gazette, 29 May 2014).
To deal with concerns about the independence of part-time judiciary appointed

on renewable contracts (such as recorders and deputy district judges) the Lord
Chancellor in 2000 announced new terms of service. The new terms provide that
the only grounds for non-renewal of such contracts are: misbehaviour; incapacity;
persistent failure to comply with sitting requirements (without good reason); failure
to comply with training requirements; sustained failure to observe the standards
reasonably expected from a holder of such office; or the need to reduce numbers
because of changes in operational arrangements.
5.5.2 Immunity from suit

Another measure designed to support judicial independence is the rule that judges
cannot be sued in relation to things said or acts done in their judicial capacity in good
faith. In the case of Sirros v Moore [1974] 3 All ER 776 Lord Denning explained that the
principle of immunity for the exercise of judicial functions must be upheld even in
extreme circumstances. He said:
Ever since the year 1613, if not before, it has been accepted in our law that no action
is maintainable against a judge for anything said or done by him in the exercise of a
jurisdiction which belongs to him. The words which he speaks are protected by an
absolute privilege. The orders which he gives, and the sentences which he imposes,
cannot be made the subject of civil proceedings against him. No matter that the judge
was under some gross error or ignorance, or was actuated by envy, hatred and malice, and
all uncharitableness, he is not liable to an action … Of course if the judge has accepted
bribes or been in the least degree corrupt, or has perverted the course of justice, he can
be punished in the criminal courts. That apart, however, a judge is not liable to an action
for damages. The reason is not because the judge has any privilege to make mistakes or to
do wrong. It is so that he should be able to do his duty with complete independence and
free from fear.
This principle applies to judges both of the superior and inferior courts and tribunals.
In Begraj v Secretary of State for Justice [2015] EWHC 250 (QB), the scope of judicial
immunity under s.9(3) HRA 1998 and the concept of judicial act was examined in the
context of whether the Secretary of State was immune from suit for damages which
the claimants had incurred when an employment judge recused herself for bias during
the proceedings. Following Sirros v Moore [1975] QB 118, it was held that where a judge
would benefit from judicial immunity, the state could not be liable by virtue of s.9(3).
5.5.3 Salary protection

Appropriate remuneration is also generally seen as essential to protect judicial
independence. It is widely accepted that judicial salaries should not be reduced while
judges are serving. Although the principle of judicial independence was established in
the Act of Settlement 1701, it did not provide for security of judicial salaries. That was
established by s.3 of the Commissions and Salaries of Judges Act 1760. That Act was
repealed in 1879 and salary protection is now provided for in a number of statutes. Salary
protection exists in two forms: (a) salaries, which encompasses pensions, cannot be
decreased for judicial office holders; and (b) in respect of senior judicial office-holders
salary is paid out of a ‘consolidated fund’ rather than being paid by the executive.
The question of whether judicial salaries can properly be reduced notwithstanding the
statutory protections has not been tested yet in England. There is, in principle, nothing
to stop Parliament through an Act of Parliament reducing judicial salaries, or as recently
in Ireland via a Constitutional amendment. In 2011 the Government of Ireland amended
the Irish Constitution in order to be able to reduce the salaries of judges in line with
reductions in pay in other areas of the public sector. Article 35.5 of the Constitution had
provided that ‘The remuneration of a judge shall not be reduced during his continuance
in office.’ The Twenty-Ninth Amendment of the Constitutions (Judges Remuneration) Bill
2011 was passed in October 2011 after a referendum and considerable public debate. The
Canadian Supreme Court has also considered the issue of whether it is unconstitutional
to reduce the salary of judges. It held that it would not be unconstitutional to do so
and would not breach the principle of judicial independence or the rule of law if it was
pursued for a legitimate purpose as part of a general reduction in salaries of public
servants (in the broadest sense of the term) as part of an overall plan of action in a
national economic crisis: see R v Valente [1985] 2 SCR 673.
Judicial salaries in England and Wales are reviewed annually by an independent

body – the Senior Salaries Review Body (SSRB) – which makes recommendations to
the Prime Minister and Lord Chancellor about judicial remuneration. In reaching
its recommendations, the SSRB must have regard to the need to recruit, retain and
motivate suitably able and qualified people to exercise their different responsibilities.
The SSRB’s 38th annual report in 2016 noted that it had been informed of recruitment
and retention problems in relation to the judiciary, especially in the High Court. This
was thought to be for reasons other than judicial pay; for example, changes to judicial
pensions could be a factor (https://www.gov.uk/government/uploads/system/uploads/
attachment_data/file/518130/1027-WL-38th_Annual_Rpt_Sen_Sal_2016_Accessible_.
pdf). The SSRB has also recently announced a major review of judicial salaries, and this
is to be completed by June 2018. The SSRB has stated that ‘a longer-term solution to
the issue of judges’ pay needs to look ... at the changing expectations for judicial roles
and the need to recruit and retain sufficient numbers of high quality judges at all levels’
(see the SSRB’s 39th Annual Report, www.gov.uk/government/uploads/system/uploads/
attachment_data/file/629680/SSRB_2017_report_Web.pdf at p.105).
5.6 Personal independence
5.6.1 Judicial impartiality and conflicts of interest
Essential reading
¢¢ R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2)
[1999] 2 WLR 272.
¢¢ Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004.
¢¢ Porter v Magill [2001] UKHL 67.
¢¢ Sir Stephen Sedley ‘When should a judge not be a judge?’ (January 2011) 33(1)(6)
London Review of Books 9–12 (in the Legal system and method study pack).
¢¢ Judiciary of England and Wales ‘Guide to judicial conduct’ March 2013

www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/judicial_
conduct_2013.pdf
The judiciary shall decide matters before them impartially, on the basis of facts and in
accordance with the law, without any restrictions, improper influences, inducements,
pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
(United Nations Congress ‘Basic principles on the independence of the judiciary’ 1985)
Judicial impartiality is a fundamental component of justice and essential to due

process. In deciding legal cases judges are expected to reach their decisions free from
the influence of bias or prejudice or political pressure. This requires that judges should
be disqualified from presiding over any proceeding in which the judge’s impartiality
might reasonably be questioned. Judges are therefore disqualified from presiding
over cases not only when they are in fact partial to one side or the other, but also
when there is an appearance of partiality to the reasonable observer. The appearance
of a judge who is not impartial diminishes public confidence in the judiciary and
undermines the justice system. In deciding whether or not it is appropriate to hear
a case the judge must consider whether there might appear to be bias or ‘apparent
bias’. The test for apparent bias is objective (i.e. would a fair-minded and informed
observer, having considered the facts, conclude that there was a real possibility that
the judge was biased? If so, then the judge must recuse (excuse) themselves). The
test is to be applied having regard to all the circumstances of the case (Magill v Porter
[2001] UKHL 67).
5.6.2 The Pinochet case

This case is an important illustration of the requirement for judges to both be
impartial and appear to be impartial. Following a coup in Chile in 1973 led by General
Augusto Pinochet, horrific acts of violence were perpetrated against citizens. It was
alleged that General Pinochet was aware of this and encouraged or facilitated the
violence. In 1998, Pinochet came to England for medical treatment and while he was
in England an extradition warrant was issued in Spain for Pinochet to be tried for
torture, murder and conspiracy to murder. Pinochet was arrested in England under
the provisions of the Extradition Act 1989. Pinochet claimed diplomatic immunity in
order to try and quash the proceedings, but in November 1998, a panel of five judges
of the House of Lords, including Lord Hoffmann, rejected Pinochet’s claim. During the
proceedings the international anti-torture campaigning group Amnesty International
made representations to the court through its legal representative. But after the
House of Lords had given their decision it was revealed that Lord Hoffmann was an
unpaid director of Amnesty International and that his wife also worked for Amnesty.
Pinochet’s lawyers then petitioned the House of Lords to review its own decision with
a differently constituted court on the ground that Lord Hoffmann’s involvement with
Amnesty International meant that he had a conflict of interest that could have affected
his impartiality. Lord Hoffmann had not declared his involvement with Amnesty nor
recused himself from the case. In January 1999, another panel of Law Lords set aside
the earlier House of Lords decision on the ground that Lord Hoffmann’s involvement
had invalidated the previous hearing and held that the substantive issue would have
to be heard by a new and differently constituted panel of Law Lords. The reasoning
was that the mere possibility of a conflict of interest is enough to undermine the
impartiality of the decision.
There is a long established common law principle that no one may judge a case in
which they have an interest (nemo judex in causa sua). A judge with an interest must
decline to hear a case (recuse themselves). It was therefore very surprising that
Lord Hoffmann did not withdraw from the case or declare his interest in Amnesty
International when the group became involved in the proceedings. On the review of
the case, the House of Lords held that Lord Hoffmann had an interest in the subject
matter of the proceedings and was therefore automatically disqualified since he
had made no disclosure about his interest. There did not need to be any inquiry
into whether there was, in reality, any bias. The House of Lords then reconstituted
the original hearing with an enlarged committee of seven Law Lords. The outcome
of the second House of Lords hearing was the same as the first, but the reasoning
of the decision was different. Lord Hoffmann’s behaviour in the Pinochet case led to
considerable debate in the media. Reports of his private life were published in the
newspapers and for a time there was speculation as to whether he would have to
resign. He did not, and continued in his judicial role until retirement. However, the
furore over the Pinochet case establishes two things. First, the importance of judges
both being impartial and appearing to be impartial when deciding legal cases; and
second, the extent to which judges are very difficult to remove even when they may
have demonstrated a serious error of judgment.
5.6.3 Guidance on recusal from the Court of Appeal pre-HRA 1998
Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004
In this case the Court of Appeal provided guidance on the issue of potential judicial
bias as a result of social or financial interest in a case. The Court of Appeal held that the
relevant test was that set out by the House of Lords in R v Gough (Robert) [1993] UKHL 1,
whether there was in relation to any given judge a real danger or possibility of bias.
It was for the reviewing court, not the judge concerned, to assess the risk that some
illegitimate extraneous consideration might have influenced his decision. However,
where a judge was shown to have an interest in the outcome of the case, there would
be an automatic disqualification.
In any case giving rise to automatic disqualification … the judge should recuse himself
from the case before any objection is raised. The same course should be followed if, for
solid reasons, the judge feels personally embarrassed in hearing the case. In either event it
is highly desirable, if extra cost, delay and inconvenience are to be avoided, that the judge
should stand down at the earliest possible stage, not waiting until the day of the hearing
… If, in any case not giving rise to automatic disqualification and not causing personal
embarrassment to the judge, he or she is or becomes aware of any matter which could
arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure
should be made to the parties in advance of the hearing. If objection is then made, it will
be the duty of the judge to consider the objection and exercise his judgment upon it.
(para.21)
5.6.4 Guidance on recusal from the House of Lords post-HRA 1998
Essential reading
¢¢ Porter v Magill [2001] UKHL 67.
Locabail was decided before the HRA 1998 came into force. In the case of Director
General of Fair Trading v Proprietary Association of Great Britain [2001] 1 WLR 700 the
Court of Appeal modified the test for potential bias. Following the jurisprudence of the
ECtHR the Court held that the appropriate test was whether a fair-minded observer
would conclude that there was a real possibility of bias. This approach was later
approved by the House of Lords in Porter v Magill [2001]. Lord Hope said the test for
bias is ‘whether the fair-minded and informed observer, having considered the facts,
would conclude that there was a real possibility that the tribunal was biased’.
1. Explain the concept of judicial impartiality.
2. What is the meaning of recusal? When should a judge recuse themselves?
3. Why was it thought that Lord Hoffmann should have recused himself in the
Pinochet case?
4. Did it matter that he was not in fact biased against General Pinochet? If not, why
not?
5. What is the difference between the test for judicial bias set out in Gough and
that in Porter v Magill?
5.7 The legitimacy and authority of the judiciary
5.7.1 Appointment process and outcome
Essential reading
¢¢ Ministry of Justice ‘The Governance of Britain: Judicial Appointments’ 2007
file/228725/7210.pdf
¢¢ Judicial Appointments Commission website: http://jac.judiciary.gov.uk/
The England and Wales justice system, like most other common law jurisdictions,
selects candidates for judicial office from among experienced legal practitioners who
have demonstrated excellent legal skill and high standards of integrity in practice.
By contrast, in civil law jurisdictions most judges are recruited from among recent
law graduates and selection is based on performance in examinations, rather than
practice. The pattern of judicial careers is therefore rather different between common
law and civil law jurisdictions. Because of the requirement for distinction in practice in
common law jurisdictions, appointments to judicial office rarely occur before the age
of 40 for positions in the inferior courts and rarely before the age of 50 for the High
Court Bench and above. On the other hand, in civil law jurisdictions it is common to
find junior judges in their 20s and 30s.
Concerns have been expressed about the current levels of recruitment to the judiciary
in England and Wales. The previous Lord Chief Justice, Lord Thomas, noted in his report
to Parliament in 2016 that there are serious difficulties in attracting well-qualified
candidates for positions in the higher levels of the judiciary, and that this is now
‘extremely urgent’. Lord Thomas does not cite any one reason for these difficulties, but
does discuss problems of morale among the judiciary, and the issue of pay restraint. He
therefore supports the judicial salary review being undertaken by the SSRB (discussed
earlier in this chapter), and suggests that the Government’s court modernisation
programme could provide opportunities to improve judges’ working conditions. (The
report can be found at www.scribd.com/document/329865918/LC#fullscreen&from_
embed) This concern about judicial recruitment was echoed by the House of Lords
Constitution Committee in November 2017. After hearing evidence from the Judicial
Appointments Commission and other experts, the Committee concluded that ‘We
are seriously concerned about recruitment to the bench.’ (See https://publications.
parliament.uk/pa/ld201719/ldselect/ldconst/32/3202.htm)
In England and Wales judges are ‘the Queen’s judges’, appointed by the Queen on
the advice of her Ministers or by them on her behalf. Prior to the CRA 2005 the Lord
Chancellor had a decisive role in the process of appointments, making recommendations
for appointment to the Queen or on her behalf, or in the case of the most senior
appointments to the Prime Minister who in turn advised the Queen. The Lord Chancellor
had a high level of autonomy over the recommendations, selecting those to be
recommended following confidential, informal discussions with the senior judiciary.
5.7.2 The public importance of judicial selection

Although the public may not be very familiar with the detail of judicial selection
processes, there is considerable interest among some sections of the public, academics
and the media in who the judges are, the decisions that they take and their behaviour
both in and out of court. The public and media are well aware of the significant power
wielded by the judiciary. They are also aware that although the judiciary is one arm
of the state, unlike the executive or legislature, judges in England and Wales are not
elected to office. The judiciary does not, therefore, possess the ‘democratic legitimacy’
of government or Parliament. Indeed it suffers from what is referred to as a ‘democratic
deficit’. The legitimacy that the judiciary enjoys must derive from their authority as
experts and the status of the post. It is important for this legitimacy that the public has
confidence in the competence of the judiciary and respect for their personal qualities
and the way in which they exercise the considerable power that has been entrusted to
them by virtue of their office. As Aharon Barak has remarked:
An essential condition for realizing the judicial role is public confidence in the judge …
[T]he judge has neither sword nor purse. All he has is the public’s confidence in him.
(The judge in a democracy (Princeton: Princeton University Press, 2006)

[ISBN 9780691136158] p.109)
Given their power, independence and security of tenure, the selection of judges is a matter
of great importance. The English judiciary, at least since the 19th century, has enjoyed a
global reputation for high standards of legal skill and propriety. Corruption is virtually
unknown within the judiciary and the English courts are trusted by overseas litigants,
especially international businesses, who choose English law and the English courts to deal
with legal arrangements and the resolution of disputes. However, in rule of law terms,
selection and appointment of judges is a critical issue. As Brian Tamanaha has argued:
Whenever rules of law have authority, and judges have the final say over the interpretation
and application of the law, judges will determine the implications of those rules of
law … [J]udges must be selected with the utmost care, not just focusing on their legal
knowledge and acumen, but with at least as much attention to … their willingness to
defer to the proper authority for the making of law (accepting legislative decisions
even when the judge disagrees), to their social background (to insure that judges are
not unrepresentative of the community), to their qualities of honesty and integrity (to
remain unbiased and not succumb to corruption), to their good temper and reasonable
demeanour (to insure civility), and to their demonstrated capacity for wisdom. Judges
must be individuals who possess judgment, wisdom, and character … It was Aristotle who
first insisted that the character and orientation of the judge is the essential component of
the rule of law.
(On the rule of law. (Cambridge: Cambridge University Press, 2004) [ISBN 9780521604659] p.125)
5.7.3 How diversity contributes to legitimacy

The objective of selecting well-qualified lawyers to sit on the bench is to maintain the
quality and reputation of successive generations of judges. Quality is not, however,
the only factor that influences public confidence in the judiciary. In recent years there
has been growing concern that although the quality of the judiciary has remained
high, its composition does not reflect either society at large or the characteristics of
the modern legal profession. Ewing (2001) has argued that ‘the first requirement of
any institution which exercises legislative power is that it should be representative
of those on behalf of whom it exercises that power.’ Although normally this would
be by election Ewing goes on to argue that while it may not be desirable for judges
to directly represent the community, ‘there is no reason why they cannot be
representative of the community, in terms of obvious considerations such as race and
gender, and in terms also of social background, so that a judicial career is open, in
principle and in practice, to all who are suitably qualified.’ Thus the purpose of judicial
selection processes is not only to ensure that well-qualified candidates are appointed
to office, but also that the judiciary as an institution is reflective of the society that it
serves. It is therefore necessary to look in some detail at appointment processes, and
the pressing issue of lack of diversity within the judiciary, particularly at senior levels.
In 2006, as part of the broader constitutional changes and the reform of the role of
the Lord Chancellor introduced by the Labour Government, the system of judicial
appointments was fundamentally transformed. The CRA 2005 established a new
independent Judicial Appointments Commission (JAC) which began its work in April
2006. We will evaluate the objectives, achievements and shortcomings of the new JAC,
but before doing so it is necessary first to be aware of the system that the JAC replaced
and the reasons why, by 2005, many people felt that there was a need for a change to
the appointments system.
5.8 Judicial appointments prior to the Constitutional Reform

Act 2005
Essential reading
¢¢ Department for Constitutional Affairs ‘Constitutional reform: a new way of
appointing judges’ Consultation Paper, July 2003
http://webarchive.nationalarchives.gov.uk/20100512160448/dca.gov.uk/consult/
jacommission/judges.pdf
5.8.1 Eligibility for judicial office

Until 1990, with the passing of the Courts and Legal Services Act (CLSA) 1990, eligibility
for most judicial appointments was limited to qualified barristers who had been in
practice for a number of years. A key justification for limiting judicial appointment
to the Bar was the belief that experience as an advocate was the best preparation
for judicial appointment, and because the Bar was a relatively small community of
professionals, potential candidates for judicial appointment would be well-known
by serving judiciary, who were thought to be the best people to assess legal skill and
general suitability for judicial office.
Appointment of the judiciary prior to the CLSA 1990
Lords of Appeal in Ordinary (Law Lords) 15 years as barrister

Lords Justices of Appeal 15 years as barrister
High Court judges 10 years as barrister
Circuit judges 10 years as barrister or 7 years as recorder
Recorders 10 years as barrister or solicitor
District judges 7 years as barrister or solicitor
After the CLSA 1990 the basic eligibility criterion was changed to rights of audience
defined in s.119 of the Act as:
the rights to exercise any of the functions of appearing before and addressing a court
including the calling and examining of witnesses.
The result of this change was to break the Bar’s monopoly of eligibility for higher
judicial office and to open up the Bench to solicitors and potentially other groups of
legally qualified professionals and ultimately academics.
Qualifications for judicial office under s.71 CLSA 1990
Lord of Appeal in Ordinary (Law Lords) 15 year Supreme Court Qualification under CLSA
or holding of high judicial office for 2 years
Lord Justice of Appeal 10 year High Court qualification under CLSA or
holding of a post as a High Court judge
High Court judge 10 year High Court qualification under CLSA or
holding of a post as a circuit judge for 2 years
Circuit judge 10 year Crown Court/County Court qualification
under CLSA or holding of a post as recorder,
district judge, tribunal chairman for 3 years
Recorders Crown or County Court qualification for 10 years
District judge General qualification for 7 years
Despite the change in the rules, the pre- and post-1990 eligibility criteria reflect the
prevailing historic view that experience as an advocate is the most important preparation
for judicial office. The concentration on senior members of the Bar prior to the CLSA
1990 and the emphasis on rights of audience in the CLSA 1990 illustrates the strength of
the belief that life and experience as an advocate is essential to the performance of the
judicial role. As will be discussed later in this chapter, the modern view is that good judges
need to be able to demonstrate a wide range of skills and qualities and that advocacy
experience equips candidates with some but not all of these skills.
The Tribunals, Courts and Enforcement Act (TCE Act) 2007 widened eligibility further.
It extended the range of people who could qualify for judicial appointment. It
also introduced the judicial-appointment eligibility condition. Where this applies,
eligibility for judicial office is no longer based on possession of rights of audience for a
specified period. It is based on:
uu possession of a relevant legal qualification
uu for the requisite period, and
uu gaining legal experience while holding that qualification.
1. Why do judges not have ‘democratic legitimacy’? What is the source of their
legitimacy?
2. In what ways is appointment to the judiciary different in common law and civil
law jurisdictions?
3. How did the Courts and Legal Services Act 1990 change eligibility for judicial
office?
5.8.2 Selection process

Traditionally judicial appointments were the responsibility of the Lord Chancellor
and the judicial appointments group in the Lord Chancellor’s Department (now
Ministry of Justice). Until the mid-1990s, most appointments to the bench were
made ‘by invitation’ rather than application. This means that prospective judges
were not able to apply for appointment, but would be invited by the Lord Chancellor
to take up appointment. The Lord Chancellor’s view on who to appoint to judicial
posts was formed on the basis of confidential consultation or what was known as
‘secret soundings’ with the serving judiciary about senior members of the Bar. The
process largely lacked transparency and the features that one associates with modern
recruitment processes. There was no advertising, no clear articulation of selection
criteria, no job descriptions or formal interviews. Toward the end of the 1980s and
early 1990s there was increasing criticism of the lack of transparency of judicial
selection processes. The campaigning organisation ‘JUSTICE’ argued as far back as
1972 for a judicial commission to play a role in the appointment of the judiciary and
20 years later, in 1992, JUSTICE published an influential report entitled ‘The judiciary
in England and Wales’ which discussed, among other things, judicial appointments
and the consultation process, the independence of the judiciary and professional and
public confidence in it. The report made a number of relatively bold recommendations
on judicial appointments including:
uu that the qualities and skills required of judges should be established and
articulated
uu those from whom appointments are made should be broadened
uu a reduction in the mandatory retirement age
uu restructuring judicial work to allow the appointment of permanent part-time

appointments
uu the option of embarking on a judicial career at an early stage
uu the introduction of term appointments at all levels for those who would prefer
them.
As far as selection procedures were concerned, JUSTICE argued for the introduction
of modern appointment procedures and measures to support increased diversity
that were controversial and far ahead of their time. As we shall see in the following
sections, some of the proposals made by JUSTICE in 1992 are still being discussed but
yet to be implemented. Their recommendations included:
uu the introduction of formal, generally accepted appointment procedures
uu formal arrangements for developing the careers of the junior judiciary
uu machinery for assessing the performance of those holding full- and part-time
judicial posts
uu in developing a list of skills necessary for the bench, advocacy be considered as one
among many qualities and by no means a decisive one
uu positive action to widen opportunities to qualified women and members of ethnic

minorities.
During the 1990s the Judicial Appointments Group in the Lord Chancellor’s
Department made many improvements to the process of judicial appointments.
Posts were advertised before selection processes began. In 1994 recorder, district
judge, circuit judge and magistrates posts were advertised. In 1998 the first ever
advertisement for applications to the High Court Bench appeared. Although it
was now possible for candidates to apply for posts, the Lord Chancellor could still
make appointments ‘by invitation’. It was still not an essential requirement of the
appointment process that a candidate had actually completed an application for
appointment or even written an expression of interest.
5.8.3 Peach Report on Judicial Appointments 1999

In 1999 an independent report on the judicial appointments process was conducted
by Sir Leonard Peach, a retired civil servant. His conclusions were that the work of
the Judicial Appointments Group was thorough, competent and professional and
that the procedures used were as good as any in the public sector. He noted that the
process had been modernised in recent years. His main recommendation was for the
establishment of a Commission for Judicial Appointments with responsibility for
monitoring appointment procedures and acting as an Ombudsman for complaints.
However, this proposed Commission was to have no role in actually making judicial
appointments.
5.8.4 Commission for Judicial Appointments 2001–05

In 2001 a Commission for Judicial Appointments was established for England and Wales
with a remit limited to considering complaints about the appointments system; and
to carrying out audits of its operations; but not to appoint judges. Sir Colin Campbell
was appointed the first Commissioner for Judicial Appointments in March 2001 along
with seven commissioners who were neither lawyers nor judges. The Commission
was given access to departmental and interview papers. In annual reports the
Commissioners identified serious and chronic problems in the judicial appointments
system. The Commission eventually recommended that the Commission itself should
be abandoned and that an independent Judicial Appointments Commission should
be established to make judicial appointments. This is what happened as a result of the
CRA 2005.
5.8.5 Outcome of judicial appointment process prior to 2006
Essential reading
¢¢ Thomas, C. ‘Judicial diversity and the appointment of deputy district judges:
initial research findings’ Commission for Judicial Appointments, May 2006
www.ucl.ac.uk/drupal/judicial-institute/sites/judicial-institute/files/judicial_
diversity_and_the_appointment_of_deputy_district_judges.pdf
Although there were criticisms of lack of transparency of the judicial appointments

process prior to 2006, there was no criticism of the quality of those being appointed.
The main concern was whether those being appointed were too homogenous –
lacking the gender, ethnic, social and cultural diversity of the general population
of England and Wales and, very importantly, the diversity of the eligible pool of
practising barristers and solicitors. It was argued that the serving judiciary, especially
at the senior levels, were overwhelmingly white males, from relatively privileged
backgrounds who had been privately educated and attended university at either
Oxford or Cambridge. Some pejoratively referred to the senior judiciary as ‘male, pale
and stale’. All of the members of the House of Lords were male until 2004 when the
first ever woman member was appointed, Baroness Hale of Richmond. All members
were white and in 2004 virtually all (including Baroness Hale) had attended either
Oxford or Cambridge. The issue of the diversity of the judiciary of England and Wales
has been a matter of debate and some concern since the early 1990s. It is discussed in
detail in the next section.
1. What role did the Lord Chancellor have in judicial appointments prior to the
Constitutional Reform Act 2005?
2. Prior to 2006, what were the procedures for appointment to senior judicial
roles?
3. What were the long-standing criticisms of the appointments process prior to

2006?
4. Why was the Commission for Judicial Appointments established, and what was
its role?
5.9 Judicial selection process after the Constitutional Reform

Act 2005
Essential reading
¢¢ Department for Constitutional Affairs ‘Constitutional reform: a new way of
appointing judges’ July 2003
http://webarchive.nationalarchives.gov.uk/20100512160448/dca.gov.uk/consult/
jacommission/judges.pdf
¢¢ Judicial Appointments Commission website: http://jac.judiciary.gov.uk/
As will be clear from the preceding discussion, throughout the 1980s and 1990s there
was growing demand for a change to judicial appointments and for the establishment
of an independent appointment process. The Government’s proposal in 2003 to set
up a Judicial Appointments Commission, independent of Government with significant
input from non-lawyer members, was regarded by many commentators as an
important and beneficial constitutional change. This is not to suggest that the change
was welcomed by all. Certainly, some members of the judiciary were apprehensive
about whether such a Commission would be well placed to select the best candidates
for judicial office, while some members of the executive were concerned at the
reduction in their input to the process.
5.9.1 The Government’s argument for change

The change began in 2003 when the Secretary of State for Constitutional Affairs at the
time, Lord Falconer, issued a Consultation Paper setting out the Government’s reasons
for establishing a new independent Judicial Appointments Commission. There were two
principal reasons: first, to reinforce the constitutional separation of powers between the
executive and judiciary; and second, to increase the diversity of the judiciary.
The consultation paper expressed the objectives as follows:

In a modern democratic society it is no longer acceptable for judicial appointments to be
entirely in the hands of a Government Minister. For example the judiciary is often involved
in adjudicating on the lawfulness of actions of the Executive. And so the appointments
system must be, and must be seen to be, independent of Government. It must be
transparent. It must be accountable. And it must inspire public confidence.
There is a second point … the current judiciary is overwhelmingly white, male, and from a
narrow social and educational background. To an extent, this reflects the pool of qualified
candidates from which judicial appointments are made: intake to the legal professions
has, until recently, been dominated by precisely these social groups.
Of course the fundamental principle in appointing judges is and must remain selection
on merit. However, the Government is committed to opening up the system of
appointments, to attract suitably qualified candidates both from a wider range of social
backgrounds and from a wider range of legal practice. To do so, and, to create a system
which commands the confidence of professionals and the public, and is seen as affording
equal opportunities to all suitably qualified applicants, will require fresh approaches and
a major re-engineering of the processes for appointment … Accordingly the Government
intends to establish an independent Judicial Appointments Commission to recommend
candidates for appointment as judges on a more transparent basis.
The CRA 2005 established the Judicial Appointments Commission. Although

the title includes the word ‘appointments’ in fact the Commission only makes
recommendations after selection processes have been completed. The 2005 Act
required that the Government Minister (Minister for Justice/Lord Chancellor) had to
approve appointments and, under the Act, has a power of veto. The influence of the
senior judiciary was also retained through a statutory consultation process. Following
a review of the appointments process in 2011/12 (see the discussion later in this
chapter) the Crime and Courts Act 2013 introduced a change to the final responsibility
for appointment decisions.
Following the Crime and Courts Act 2013:
uu appointments to the High Court and above continue to be made by the Minister/
Lord Chancellor
uu appointments below the level of the High Court are now made directly by the Lord
Chief Justice rather than the Lord Chancellor
uu appointments to tribunals are now made by the Senior President of Tribunals.
5.9.2 The Judicial Appointments Commission

The Judicial Appointments Commission (JAC) is responsible for the selection of
candidates for judicial office to the High Court and all courts and tribunals below
the High Court. The JAC is involved in appointments to the Court of Appeal, Heads of
Division and Supreme Court but does not control the process of those appointments.
The JAC comprises a lay Chair and 14 members: five judicial members; two professional
members; five lay people; one tribunal judge; one lay magistrate (https://jac.judiciary.
gov.uk/commissioners).
The JAC has three statutory obligations:
uu select solely on merit
uu appoint only people of good character, and
uu have regard to the need to encourage diversity in the range of persons available
for selection for appointments.
The drafting of the CRA 2005 carefully avoided fixing the Commission with a statutory
responsibility to increase the diversity of the judiciary. Instead the Commission’s
responsibility is to widen the pool of candidates available for appointment.
5.9.3 Appointment solely on ‘merit’

The concept of merit as a selection criterion requires broadly that the best qualified
person for a role is selected on the basis of their skill and experience. In practice
this requires that the knowledge, experience, abilities and personal suitability of
candidates is evaluated against the requirements of the position. The process of
selection is designed to provide evidence of which candidate is the best qualified for
any particular position. There are five main selection criteria:
uu intellectual capacity
uu personal qualities
uu an ability to understand and deal fairly
uu authority and communication skills
uu leadership and management skills.
5.9.4 The selection process
Essential reading
¢¢ Judicial Appointments Commission: Selection process
https://jac.judiciary.gov.uk/overview-selection-process
The JAC has established a transparent selection process which is published on its
website. It explains how selections are made and provides material for potential
candidates to understand the skills and qualities that they need to develop in order
to be appointed to a wide range of judicial appointments in courts and tribunals. The
selection process as set out on the Commission’s website includes:
uu application forms
uu references
uu shortlisting (which may include a qualifying test)
uu interviews
uu role plays
uu statutory consultation
uu character checks.
After all of these processes have been completed, a report is made to the Lord
Chancellor if the appointment is to the High Court or above, to the Lord Chief Justice
for court appointments below the High Court and to the Senior President of Tribunals
for tribunal appointments.
After its establishment the key objectives of the JAC were to modernise and make fully
transparent its selection processes and to take steps to widen the pool of candidates
making applications for judicial appointments. In order to widen the pool, the JAC
established a programme of education and outreach work designed to raise the profile
of the JAC, to dispel myths about judicial appointment and to encourage qualified
people from groups underrepresented within the judiciary to apply for appointment.
The groups initially identified as ‘underrepresented’ within the judiciary were women;
black, Asian, and minority ethnic (BAME) candidates; solicitors; and candidates with
disabilities. The JAC believed that if it operated completely transparent and fair
processes, removed barriers to application and encouraged the widest possible range
of people to apply for appointment that its selection processes would inevitably
lead to a more diverse judiciary. Its success in this respect, however, has been the
subject of considerable criticism almost from the moment it began its work. The next
section evaluates the importance of increasing diversity, the expectations of what
the JAC would be able to achieve, and the suggested reasons for its failure to meet
expectations – especially in relation to senior appointments to the judiciary.
1. Why was the JAC established?
2. What were its statutory objectives?
3. What is the meaning of ‘merit’?
4. How is merit assessed by the JAC?
5.10 Increasing judicial diversity
Essential reading
¢¢ Lady Hale ‘Making a difference – why we need a more diverse judiciary’ (2005) 56
N Ir Legal Q 281 (available in HeinOnline through the Online Library).
¢¢ Lord Justice Etherton ‘Liberty, the archetype and diversity: a philosophy of

judging’ (2010) Public Law 727 (available in Westlaw through the Online Library).
¢¢ House of Lords Constitution Committee on Judicial Appointments, Report, 2012,

Chapter 3, Diversity
www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/272/27206.htm
¢¢ House of Lords Constitution Committee on Judicial Appointments, Follow-up

Report, 2017, Chapter 4, Diversity
https://publications.parliament.uk/pa/ld201719/ldselect/ldconst/32/3207.
htm#_idTextAnchor042
Further reading
¢¢ Baroness Neuberger ‘Report of the Advisory Panel on Judicial Diversity’ 2010. See
especially timeline of judicial initiatives to promote diversity at p.58 onwards.
www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/advisory-
panel-judicial-diversity-2010.pdf
¢¢ Paterson, A. and C. Paterson ‘Guarding the guardians? Towards an independent,

accountable and diverse senior judiciary’ Centreforum, 2012
www.centreforum.org/assets/pubs/guarding-the-guardians.pdf
¢¢ Lord Sumption ’Home truths about judicial diversity’ 15 November 2012,

Bar Council Law Reform Lecture
www.supremecourt.uk/docs/speech-121115-lord-sumption.pdf
¢¢ Lady Hale, Deputy President of the UK Supreme Court ‘Appointments to the

Supreme Court’ 6 November 2015 (Speech at the Conference to mark the
10th Anniversary of the Judicial Appointments Commission, University of
Birmingham) www.supremecourt.uk/docs/speech-151106.pdf
¢¢ Justice report ‘Increasing judicial diversity’ April 2017

https://2bquk8cdew6192tsu41lay8t-wpengine.netdna-ssl.com/wp-content/
uploads/2017/04/JUSTICE-Increasing-judicial-diversity-report-2017-web.pdf
5.10.1 What is the diversity issue?

The judiciary of England and Wales has historically reflected the demographic
composition of the Bar, drawing its membership from well-educated middle-class
white male barristers. As we have seen, over the last two decades eligibility for judicial
office has been broadened so that most members of the legal profession are now
eligible for appointment. During this period, the legal profession has diversified so
that it reflects more closely the gender and ethnic composition of the population.
Since the early 1990s, there has been a growing recognition that although eligibility
for judicial office has been widened and the legal profession has become increasingly
diverse, these changes have been reflected slowly in appointments to the entry levels
of the judiciary and very little at the highest levels. Concern about lack of diversity is
not a recent phenomenon. In 1992 the Lord Chief Justice, Lord Taylor, commented that:
The present imbalance between male and female, white and black in the judiciary is
obvious … I have no doubt that the balance will be redressed in the next few years …
Within five years I would expect to see a substantial number of appointments from both
these groups.
(‘The judiciary in the nineties’ The Richard Dimbleby Lecture 1992 (available in HeinOnline))
Almost a quarter of a century later, commentators are still discussing the issue of
judicial diversity and the progress that Lord Chief Justice Taylor had confidently
predicted in 1992 has yet to materialise, especially at the highest levels of the judiciary.
Although 2017 saw some positive high-level judicial appointments – for example, the
appointment of Mr Justice Singh as the first BAME judge in the Court of Appeal; the
appointment of Lady Hale as the first female President of the Supreme Court; and Lady
Black as the second female justice of the Supreme Court – the statistics reveal that
progress towards increasing diversity remains very slow.
5.10.2 Why does judicial diversity matter?

In 2004 the Department for Constitutional Affairs issued a paper entitled ‘Increasing
diversity in the judiciary’. The paper set out some of the Government’s view on why
judicial diversity is important.
Society must have confidence that the judiciary has a real understanding of the problems
facing people from all sectors of society … If the make-up of the judiciary is not reflective
of the diversity of the nation, people may question whether judges are able fully to
appreciate the circumstances in which people of different backgrounds find themselves …
We must ensure that our judicial system benefits from the talents of the widest possible
range of individuals in fairness to all potential applicants and to ensure that talent,
wherever it is, is able to be appointed.
More recently, it has been suggested that there are three important arguments for
ensuring that the judiciary is diverse: equal opportunities, the legitimacy of the
judiciary and the quality of judicial decision making.
First, as a matter of equal opportunities all properly qualified people should have
an equal opportunity to apply and to be selected for judicial office. Well-qualified
candidates for judicial office should be selected on their merits and should not be
discriminated against, either directly or indirectly on grounds of their gender, skin
colour, ethnic origin, class, sexuality, disability, etc. Failure to appoint candidates from
underrepresented groups raises the suspicion that direct or indirect discrimination
is influencing appointment. The concept of human equality implies that talent is
randomly and widely distributed in society, rather than being concentrated, for
example, within particular racial groups. The more widely one searches, the more
likely it is that the best candidates will be identified. The current under-representation
of certain well-qualified groups within the judiciary suggests that factors other than
pure talent may be influencing willingness to apply and the selection process.
Second, lack of diversity undermines the legitimacy of the judiciary as an institution.

In a democratic society it is unacceptable for an unelected institution that wields
the power of the judiciary to be drawn from a narrow and homogenous group that
reflects neither the diversity of society nor the legal profession. We have noted that
although the judiciary perform a law-making function, they lack democratic legitimacy
because they are unelected. Being representative, or at least reflective, of broader
society contributes to legitimacy and public confidence, while failure to appoint well-
qualified diverse candidates to judicial office represents exclusion from participation
in power and undermines judicial legitimacy. As Paterson and Paterson (2012) argue:
diversity in senior judicial appointments is not simply a desirable goal, but a fundamental
constitutional principle. At the very heart of the legitimacy of an independent judiciary are
its claims to be able to deliver ‘fairness’. A senior judiciary whose composition reflects an
apparent lack of fairness runs the real risk of undermining its own authority.
(p.5)
Giving the Fiona Woolf Annual Lecture in June 2014, ‘Women in the judiciary’, Lady Hale
argued that lack of judicial diversity affects the democratic legitimacy of the judiciary:
In a democracy governed by the people and not by an absolute monarch or even an

aristocratic ruling class, the judiciary should reflect the whole community, not just a small
section of it.
(www.supremecourt.uk/docs/speech-140627.pdf)
Third, it is argued that judges drawn from a wide range of backgrounds and life
experiences will bring varying perspectives to bear on critical legal issues. This is
regarded as important where there is scope for the exercise of judicial discretion
and where considerations of policy influence judicial decisions in the public interest
(see Lady Hale’s views on this issue, 2005). It is thought that having a range of
perspectives and values (core beliefs about what is good and right, and what is bad
and wrong) within the judiciary will lead to better debate and decision-making. As
President Obama commented in 2009 during the nomination process of Justice Sonia
Sotomayor – the first Hispanic to be appointed to the US Supreme Court:
It is proper for justices to resort to their deepest values and the depth and breadth of their
empathy in deciding the truly difficult cases. Indeed, in such cases the critical ingredient is
supplied by what is in the judge’s heart.
Sir Terence Etherton, who is Master of the Rolls and one of the few senior judges who
speaks openly about his sexual orientation, has written about why he thinks that it is
important for the judiciary to include people with a wide range of backgrounds, values
and life experiences. He argues that when eminent judges disagree about hard cases
in areas which are ‘policy laden, or concern human rights or constitutional rights’,
it is because their personal outlook, based on personal experience, influences their
decision. He quotes the famous judge and writer Benjamin Cardozo who served on the
US Supreme Court from 1932–38 who wrote:
Every one of us has in truth an underlying philosophy of life. There is in each of us a stream
of tendency, whether you choose to call it philosophy or not, which gives coherence and
direction to thought and action.
(The nature of the judicial process (1921), p.12)
5.10.3 Judicial diversity statistics for 2017

Key findings:
uu The percentage of female judges in courts was 28 per cent in 2016; in tribunals it
was 45 per cent. This is consistent with figures from 2016.
uu Around half of all court judges (49 per cent) and just under two-thirds of tribunal
judges (62 per cent) aged under 40 are female.
uu The percentage of court judges that identify as BAME is 7 per cent, and 10 per cent
in the tribunals. For judges aged under 40, this rises to 10 per cent for courts, and 14
per cent for tribunals.
uu A third of court judges (34 per cent) are from non-barrister backgrounds, as are
two-thirds of tribunal judges (66 per cent). However, this varies by jurisdiction for
both courts and tribunals, with judges in lower courts being more likely to come
from a non-barrister background. Virtually all declaring their background as non-
barristers were formerly solicitors.
Source: www.judiciary.gov.uk/wp-content/uploads/2017/07/judicial-diversity-
statistics-2017-1.pdf
5.10.4 Progress on judicial diversity – too little, too slow?
Essential reading
¢¢ Judicial Appointments Commission: Diversity strategy
https://jac.judiciary.gov.uk/equality-and-diversity
Since its inception the JAC has developed a strategy to increase the diversity of those
making applications for judicial appointment and those appointed to judicial posts.
The JAC strategy involves three elements:
1. fair and non-discriminatory processes
2. advertising and outreach
3. working with others to break down barriers.
Although it is clear that there has been an increase in the number of women appointed
to judicial posts since the establishment of the JAC, particularly in tribunals and lower
courts, the JAC’s record on selecting candidates from BAME backgrounds, solicitors,
academics and legal executives seems to have fallen below expectations. This is
particularly the case for senior appointments. Although the JAC does not control
appointments to the Supreme Court nor Heads of Divisions, it is involved in all of those
appointments. Since the JAC was established, only one woman has been appointed to
the Supreme Court. This is Lady Black, who was appointed in October 2017. Lady Hale,
who is the current President of the Supreme Court, joined the House of Lords in 2004,
which was before the establishment of the JAC in 2006. No woman has been appointed
as a Head of Division since the JAC was established. At the beginning of 2013 there were
still only four Lady Justices of Appeal, although later in that year an unprecedented
number were appointed (a further three). There are currently nine Lady Justices of
Appeal.
Some three years after the establishment of the JAC, frustrated at what he saw as slow
progress in increasing judicial diversity, the Lord Chancellor announced the setting up
of an Advisory Panel on Judicial Diversity in April 2009. Chaired by Baroness Neuberger,
the key objectives of the panel were:
to identify the barriers to progress on judicial diversity and to make recommendations to

the Lord Chancellor on how to make speedier and sustained progress to a more diverse
judiciary at every level and in all courts in England and Wales.
The panel reported its findings in 2010 and put forward 53 key measures which it
thought necessary to increase diversity within the judiciary. Although the panel
did not think that there was a single measure that would solve the problem of
increasing judicial diversity they felt that a coordinated approach would lead to
progress (www.judiciary.gov.uk/publications/advisory-panel-recommendations). The
recommendations were accepted by the Government and the Lord Chief Justice.
In May 2011 the House of Lords Constitution Committee announced a further inquiry
into judicial appointments. The focus of the inquiry was broader than the issue of
judicial diversity and included key questions such as:
uu Is the judicial appointments system fair, independent, transparent and open?
uu Does the process secure an independent judiciary?
uu Are candidates appointed on merit?
uu Is the judiciary sufficiently diverse?

The Committee reported in 2012 and made a number of recommendations (www.
publications.parliament.uk/pa/ld201012/ldselect/ldconst/272/27202.htm). These
included that the senior judiciary should not sit on panels to select their successor,
and that the power to appoint judges below the High Court should be transferred
from the Lord Chancellor to the Lord Chief Justice. The Committee also said that it
was important to increase judicial diversity in order to increase public trust and
confidence in the judiciary. To achieve this they recommended that:
uu the recommendations of the Neuberger Panel should be implemented more

rapidly
uu selection panels for judicial appointments must include lay persons
uu selection panels should be gender and – wherever possible – ethnically diverse
uu the duty on the JAC to widen the pool should be extended to the Lord Chancellor
and the Lord Chief Justice
uu the ‘tipping provision’ contained in s.159 of the Equality Act 2010 should be used as
part of the appointments process
uu if there is no significant increase in the number of women and BAME appointments

to the judiciary in five years’ time, the Government should consider setting non-
mandatory targets for the JAC.
Several of the recommended changes to judicial appointments made by the House

of Lords Constitution Committee were introduced in the Crime and Courts Act 2013.
These are:
uu appointments below the level of the High Court are now made directly by the Lord
Chief Justice rather than the Lord Chancellor and appointments to tribunals are
now made by the Senior President of Tribunals
uu senior judges are no longer permitted to participate in the process to select their
successors
uu more flexible working patterns have been introduced for the High Court and
above.
In a follow-up report in November 2017, the House of Lords Constitution Committee

noted the lack of progress since their previous report. They quoted the words of
one expert questioned by the Committee, who said that he was ‘appalled at the lack
of progress we have made towards a really diverse judiciary’, and that there was ‘a
potential crisis of legitimacy of the judiciary unless this is addressed. We cannot go
forward in a diverse Britain without a diverse judiciary. We really cannot. It is noticed.
It is significant. It is increasingly important. We really have to address it.’ (See para.117
of the report.) They noted that a recent report by Justice had said that ‘a senior
judiciary that so markedly does not reflect the ethnic, gender or social composition
of the nation is a serious constitutional issue. Much more must be done to strengthen
diversity for reasons of legitimacy, quality and fairness.’ (See para.118.)
Although welcoming some recent initiatives, the House of Lords Constitution

Committee came to the overall conclusion in its 2017 report that ‘While there has been
some improvement in the diversity of the judiciary since our last report, it has been
limited.’ (See para.147.)
The Lammy review in September 2017 also criticised the lack of BAME judges in the
criminal justice system (see www.gov.uk/government/uploads/system/uploads/
attachment_data/file/643001/lammy-review-final-report.pdf). This was an independent
review into the treatment of, and outcomes for, BAME individuals in the criminal
justice system. Interestingly, the review noted that there is a gulf between the
backgrounds of defendants and judges. Twenty per cent of defendants who appeared
in court in 2017 were from BAME backgrounds, compared with 11 per cent of around
16,000 magistrates, and 7 per cent of around 3,000 court judges. The Lammy review
suggested that the JAC should examine the way it carries out its recruitment process,
to avoid the possibility that ‘one generation does not simply recruit the next in its own
image’ (discussed later in this chapter). As much as possible should be done to make
sure that BAME applicants are prepared for the recruitment and judicial selection
process. To achieve greater judicial diversity, the review recommends that:
The government should set a clear, national target to achieve a representative judiciary
and magistracy by 2025. It should then report to Parliament with progress against this
target biennially.
The response from the current government is that it does not consider targets to be the
right approach to improving judicial diversity (see www.gov.uk/government/uploads/
system/uploads/attachment_data/file/669206/Response_to_David_Lammy_Review.pdf).
The most recent statistics published by the JAC in 2017 show that, in all judicial
selection exercises between 1 April 2016 and 31 March 2017, 42 per cent of all applicants
were women, and women made up 39 per cent of recommended candidates. Overall,
21 per cent of all applicants, and 20 per cent of recommended candidates, declared
they were from a BAME background. These figures cover all applications, both for
legal and non-legal posts. When only legal posts are taken into account, the figures
for BAME applications are not as high. In relation to legal posts, although 20 per
cent of applicants were BAME, just 6 per cent of recommended candidates were
BAME. (Judicial Appointments Commission, Official Statistics, Judicial selection and
recommendations for appointment statistics, published 1 June 2017, available at
https://jac.judiciary.gov.uk/sites/default/files/sync/about_the_jac/official_statistics/
statisticsbulletin-jac-2016-17.pdf)
5.10.5 Equal merit provision – Crime and Courts Act 2013

Most importantly the Crime and Courts Act 2013 amended the CRA 2005 so that, where
there are two or more candidates of equal merit for selection to judicial office, a
candidate may be selected for a post by the JAC for the purpose of increasing judicial
diversity. This is known as the equal merit provision (or ‘tipping point’ provision). In
April 2014 the JAC published its equal merit policy which started in July 2014 (https://
jac.judiciary.gov.uk/equal-merit-provision). The JAC policy is that where two or more
candidates are judged to be of equal merit the equal merit procedure will be used
where there is ‘clear under-representation on the basis of race or gender’, determined
by reference to National Census data and diversity data published by the Judicial
Office. The provision will be applied at the final selection decision-making stage
and only in respect of gender and race. The first statistics published by the JAC since
the introduction of the equal merit provision appeared on 4 June 2015 (https://jac.
judiciary.gov.uk/sites/default/files/sync/news/jac-official-statistics-june2015-revised.
pdf). Seven out of 305 recommendations for appointment were made following the
application of the equal merit provision. In the most recent set of statistics in 2017, 12
recommendations were made following the application of the equal merit provision.
This is a controversial policy which many people disagree with – including women and
minorities who feel that being appointed under the ‘equal merit’ procedure would be
undermining to their position as a judge. Even those who agree with the policy doubt
that its use will make a significant change to diversity. This is because there are likely
to be few cases where candidates are judged to be of exactly ‘equal merit’ by selection
panels.
5.10.6 Why has there not been more progress in increasing judicial
diversity?
Essential reading
¢¢ Lord Sumption ‘Home truths about judicial diversity’ Bar Council Law Reform
Lecture, 15 November 2012
www.supremecourt.uk/docs/speech-121115-lord-sumption.pdf
¢¢ Lady Hale ‘Equality in the judiciary’ Kuttan Menon Memorial Lecture,
21 February 2013
¢¢ Genn, H. ‘The attractiveness of senior judicial appointment to highly qualified

practitioners’ Report to the Judicial Executive Board, Judiciary of England and
Wales, December 2008
www.ucl.ac.uk/drupal/judicial-institute/sites/judicial-institute/files/the_
attractiveness_of_senior_judicial_appointment_research_report.pdf
¢¢ Thomas, C. ‘2014 UK Judicial attitude survey: report of findings covering salaried

judges in England & Wales courts and UK tribunals’
www.judiciary.gov.uk/wp-content/uploads/2015/02/jac-2014-results.pdf
¢¢ Hunter, R. ’More than just a different face? Judicial diversity and decision-
making’ (2015) Current Legal Problems 1.
Experience deficit?
The problem of lack of diversity is not limited to the judiciary. A shortage of women
and minorities has been noted in Government, in senior management in industry
and among senior management of universities. However, the underrepresentation
of women and minorities among the judiciary, as well as the underrepresentation of
lawyers from low income backgrounds, has a different significance in constitutional
terms and seems to present an intractable problem in senior judicial appointments.
The suggested reasons for lack of judicial diversity include the possibility that there
are insufficient women and minorities appropriately qualified to be appointed to
senior judicial roles. In a lecture to the Bar Council in 2013 the UK Supreme Court
Justice Lord Sumption put forward this explanation for lack of diversity and argued
that without positive discrimination it would take a very long time for the English
judiciary to become more diverse. In his view while the JAC had been broadly
successful, the expectations that it would be able to achieve significant change
quickly was unrealistic. He argued that the assumption had been that previous
selection procedures discriminated against women and minorities whereas, in Lord
Sumption’s view, the problem is lack of appropriately qualified talent. He said that
it is just a matter of time. Lord Sumption was strongly opposed to what he called
‘positive discrimination’ because he felt that it would deter people from applying to
the judiciary. His solution was simply to wait until women and minorities in the legal
profession became more experienced and thus appointable (what is known as the
‘trickle up’ effect). He thought that patience was needed.
In a speech on equality in the judiciary in 2013 Lady Hale challenged some of Lord
Sumption’s views and suggested that because of the slow progress towards diversity
she would be in favour of some sort of action that would seek to redress the lack of
representation of women and minorities within the judiciary. She said:
So do we need to revive the argument for some special provision … to enable the
appointing commissions to take racial or gender balance into account when making their
appointments? Would that really be such a bad thing?
Self-exclusion
Another explanation for lack of judicial diversity is that underrepresented groups are
not attracted by the prospect of judicial appointment and therefore self-exclude, or
that they lack the confidence to apply. Research by Genn in 2008, involving interviews
with well-qualified practitioners, revealed that some practitioners do not apply for
judicial appointment because they do not feel that they have the temperament to
be a judge; some think that they would not enjoy life on the Bench and fear losing
the flexibility and autonomy that they enjoy in practice. For some women, the male
dominated environment of the senior judiciary felt unwelcoming and off-putting.
Selection bias
Another explanation for lack of diversity is that selectors are appointing ‘in their own
image’. This is the phenomenon of self-replication. It is a common phenomenon in
recruitment that selectors may tend to identify with and value characteristics that
they recognise as similar to themselves. Given the importance of the role and the
security of tenure that judges enjoy – including the absence of any probationary
period – selectors are rightly anxious about the appointments that they make. There
may be a tendency to overvalue certain types of experience and skills and undervalue
or be more cautious about the potential of candidates from non-traditional
backgrounds or experience. As Lord Neuberger put it in his evidence to the Lords
Constitution Committee:
The main problem is the cast of mind. Most of us think of a judge as a white, probably
public school, man. We have all got that problem.
(Evidence to Lords Constitution Committee Inquiry into Judicial Appointments, 2011)
The concept of ‘merit’ in action

The definition of merit used by the JAC – what is known as the ‘maximalist’ conception
of merit – is that there is always one person who is best suited to a particular post. This
concept may, however, be illusory. For many appointments, particularly the more senior
judicial appointments, selectors have to make fine distinctions between the experience,
skills and potential of very able people. These are difficult judgements to make. Since
the decisions about senior appointments are often made disproportionately by serving
senior judiciary, who are themselves privately educated white males, it is possible that
there is some unconscious over-valuing of familiar traits in defining who is the most
meritorious candidate. As Lord McNally expressed the difficulty in his evidence to the
Lords Constitution Committee Inquiry on Judicial Appointments:
I have only one problem about the merit criterion. It is often deployed by people who,
when you scratch the surface, are really talking about ‘chaps like us.’ That is the danger of
merit. Who defines it?
Paterson and Paterson (2012, p.48) have argued that there needs to be a fundamental
reconsideration of the manner in which ‘merit’ is determined in relation to judicial
appointments, particularly at a senior level.
The relentless focus on one (flawed) construction of perceived individual merit must
move towards a process in which the needs of the judiciary as a collective institution are
central. It is in relation to this that the consideration of the constitutional rationale for a
diverse judiciary becomes crucial.
In 2014 the then Labour Shadow Secretary of State for Justice, Sadiq Khan,
commissioned Sir Geoffrey Bindman QC and Karon Monaghan QC to report on how
to increase judicial diversity. In November 2014 they published their report, Judicial
diversity: accelerating change (http://ukscblog.com/wp-content/uploads/2014/11/
Judicial-Diversity-Accelerating-Change.pdf). The report recommends the introduction
of diversity quotas:
We are persuaded that a quota system is now necessary to ensure the fair and
proportionate representation of women and other minorities at senior level in the
judiciary.
This is a highly controversial proposal, and there is as yet no sign that it will be
implemented. Given its response to the Lammy review’s recommendations for targets
for BAME judges (see above), it seems unlikely that the current Government will
implement any kind of quota system.
1. In what ways does the English judiciary lack diversity?
2. What are the arguments for having a diverse judiciary?
3. How has the Judicial Appointments Commission sought to increase diversity

within the judiciary?
4. What were the key recommendations of the Neuberger Panel on Judicial
Diversity?
5. What did the first Lords Constitution Committee report recommend to increase
judicial diversity?
6. Why does Lord Sumption think it will take 100 years to increase judicial
diversity?
7. What are the criticisms of the concept of ‘merit’ in judicial appointments?
8. What is the ‘equal merit’ provision introduced by the Crime and Courts Act 2013?
Is it likely to make a radical difference to judicial diversity?
9. What is the ‘democratic deficit’ in the legitimacy of the judiciary and how would
a more diverse judiciary overcome this?
5.11 Judicial power and relations with the executive and

legislature
Essential reading
¢¢ Re A (Children) [2000] EWCA Civ 254, [2001] Fam 147.
¢¢ Bogdanor, V. ‘Parliament and the judiciary: the problem of accountability’ UK

Public Administration Consortium, Third Sunningdale Accountability Lecture, 9
February 2006
http://ukpac.wordpress.com/bogdanor-speech/

¢¢ Friedman Goldstein, L. ‘Review essay: From democracy to juristocracy’ (2004)

38 Law and Society Review 611–29 (available in HeinOnline through the Online
Library).
¢¢ Lord Sumption ‘The limits of law’ 27th Sultan Azlan Shah Lecture, Kuala Lumpur,
November 2013
http://supremecourt.uk/docs/speech-131120.pdf
Legal writers and political scientists are in agreement that, since the end of the
Second World War, there has been an increase in the power of the judiciary in both the
common law world and some civilian jurisdictions. The increasing legalisation of the
social world has been referred to as a shift from democracy to ‘juristocracy’ (Friedman
Goldstein, 2004). In the UK it is argued that this has led to an alteration in the power
balance within the constitution. The leading political scientist Professor Vernon
Bogdanor argued in a keynote speech in 2006 that the noticeable increase in judicial
power is the result of several factors:
uu public discontent with democratic process and a lack of trust in politicians
uu a belief in the value of judicial review and the growth in the number of judicial
review cases
uu a greater emphasis on human rights as a result of the UK becoming a more multi-

cultural society and also a multi-denominational society. This makes it more difficult
and necessary to protect the rights of minorities ‘who would not normally be heard
in the electoral process, and to whom electoral majorities might prove hostile’
uu citizens now have a more developed sense of their rights and they look to the
courts to defend their rights
uu membership of the EU has been a factor. The House of Lords in Factortame and
other later cases declared domestic legislation to be in violation of EU directives,
operating almost as a constitutional court
uu devolution in the UK which has the potential to increase the role of the courts.
Bogdanor points out that a striking feature of the shift in power is the speed of the
process by which judges have acquired authority and influence in Britain. He suggests
that it has happened more quickly than the growth in power of the Supreme Court in
the USA. He remarks that only six years after the introduction of the HRA 1998, judges
had stepped in to protect unpopular minorities such as suspected terrorists, prisoners
and asylum seekers (see next section). He argues that while previously the public
assumed that rights were guaranteed by Parliament things have changed:
We are now however looking increasingly to judges and not to Parliament to

guarantee our rights. We are looking increasingly to judges and not to Parliament to
check the executive. We are looking increasingly to judges and not to Parliament to
determine the division of power between Parliament and the European Union, and
between Parliament and the devolved bodies. The judiciary therefore is becoming a
more important part of our constitution. We are engaged, it seems to me, in a quiet but
nevertheless profound constitutional revolution.
He goes on to argue that judges are increasingly making decisions that used to be made
by politicians. These are decisions that are more political than legal. These views are
similar to the concerns raised by Lord Sumption in his speech on the limits of law in 2013.
In one of the most important constitutional cases to be decided by the Supreme Court,
the court was asked to decide whether an Act of Parliament was needed for the UK to
start the process of leaving the European Union (R (Miller) v Secretary of State for Exiting
the European Union [2017] UKSC 5, also discussed earlier in this guide). Although it was
not argued in court that the Supreme Court should not hear the case, there was some
criticism in the press that the decision was too political for the courts to decide. The
Supreme Court clarified the position about the scope of the court’s jurisdiction at the
start of its judgment:
It is worth emphasising that nobody has suggested that this is an inappropriate issue for
the courts to determine. It is also worth emphasising that this case has nothing to do
with issues such as the wisdom of the decision to withdraw from the European Union,
the terms of withdrawal, the timetable or arrangements for withdrawal, or the details of
any future relationship with the European Union. Those are all political issues which are
matters for ministers and Parliament to resolve. They are not issues which are appropriate
for resolution by judges, whose duty is to decide issues of law which are brought
before them by individuals and entities exercising their rights of access to the courts
in a democratic society. Some of the most important issues of law which judges have
to decide concern questions relating to the constitutional arrangements of the United
Kingdom. These proceedings raise such issues. (para 3)
Modern developments have also increased the reach of the judiciary into areas far
removed from traditional legal fields. An example, cited less frequently than judicial
review, is the field of medical decision-making. Advances in medicine and medical
technology have raised ethical challenges not previously contemplated. In the realms
of life and death, and leaving aside the issue of abortion, matters of extreme ethical
seriousness are left to be decided by the judiciary in situations where there are deep
and strongly held divisions in public opinion arising from differing fundamental
religious, cultural and social values. A classic example was the Court of Appeal
decision, in September 2000, in Re A (Children) [2000] EWCA Civ 254 in which the Court
had to decide whether to allow conjoined twins to be separated when it would cause
the certain death of one. The difficulty of the decision and the conflicting ethical
positions were reflected in Lord Justice Ward’s introduction to his judgment:
In the past decade an increasing number of cases have come before the courts where
the decision whether or not to permit or to refuse medical treatment can be a matter of
life and death for the patient. I have been involved in a number of them. They are always
anxious decisions to make but they are invariably eventually made with the conviction
that there is only one right answer and that the court has given it.
5.12 Judicial power and the protection of human rights
Essential reading
¢¢ Feldman, D. ‘The impact of the Human Rights Act 1998 on English public law’
http://resources.law.cam.ac.uk/documents/the_impact_of_the_human_rights_
act_david_feldman.pdf
¢¢ House of Lords Select Committee on the Constitution ‘Relations between the

executive, the judiciary and Parliament’ Sixth Report of 2006–07
www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/151.pdf
¢¢ Bradley, A. ‘The new constitutional relationship between the judiciary,

government and Parliament’, Paper for House of Lords Select Committee on the
Constitution, Sixth Report, 2007
www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15111.htm
¢¢ R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63.
¢¢ A v Secretary of State for the Home Department [2004] UKHL 56.
¢¢ Al Rawi v The Security Service [2011] UKSC 34.
¢¢ A and X v Secretary of State for the Home Department [2004] UKHL 56 (known as
the Belmarsh case).
Further reading
¢¢ Slapper and Kelly, Chapter 2 ‘The rule of law and human rights’.
In 1998 the Labour Government implemented the HRA 1998 with the object of
‘bringing rights home’ to Britain. The HRA 1998 provided that all courts and tribunals
must, when relevant, take account of the case law of the European Court of Human
Rights (ECtHR) (s.2). All legislation in the UK must where it is ‘possible’ be interpreted
consistently with the Convention rights (s.3). Where this is not possible in the case
of primary legislation, the higher courts may declare that the legislative provision is
incompatible with the Convention (s.4). All public authorities, including the courts
but not Parliament, are under a duty to exercise their functions consistently with
Convention rights, except where this is excluded by mandatory provision in primary
legislation (s.6). As we have seen in previous chapters, the impact of the HRA 1998
and the approach of the English courts to the HRA 1998 has been the subject of
considerable debate. There seems to be general agreement that there has been a shift
in the constitutional relationship between Parliament, the executive and the judiciary
and that the HRA 1998 has heightened tensions between the judiciary and both the
executive and Parliament. In recent years there have been particular areas of tension
in relation to terrorism and prisoners’ voting rights.
5.13 Terrorism
5.13.1 Anti-Terrorism, Crime and Security Act 2001

A and X v Secretary of State for the Home Department [2004] UKHL 56 (known as the
Belmarsh case)
In the wake of the 11 September 2001 attacks on the USA and international concern about
terrorism the UK Government passed the Anti-Terrorism, Crime and Security Act 2001
(ACSA). The Act gave the Government power to detain without charge non-UK citizens
suspected of terrorist activities, but who could not be repatriated to their own countries
because of fear for their wellbeing. This measure was in breach of their right to freedom
of movement which is guaranteed under Article 5 of the ECHR. The UK Government
therefore sought permission from the European Council not to comply with this article
(derogation) on the ground that the prospect of terrorism after 9/11 threatened the life of
the nation and that there was a national emergency under Article 15.
Under this legislation, nine foreign nationals were certified as suspected terrorists
and detained without trial. The legality of the detention was challenged. Some of the
applicants had been detained in a high security prison for three years, with no prospect
of release or a trial. The case was heard by a panel of nine judges of the Appellate
Committee of the House of Lords (prior to the establishment of the UK Supreme Court).
The House of Lords held that the detentions were unlawful. It accepted that there was a
national emergency justifying derogation but that the response to the perceived threat
was disproportionate and therefore incompatible with the ECHR. The Court held that
s.23 of the ACSA was incompatible with Article 5 and Article 14 of the ECHR and quashed
Derogation Order 2001 which was secondary legislation. This was a significant and
controversial judgment by the House of Lords against the ACSA. On the question of the
role of the judiciary in making a declaration of incompatibility, Lord Bingham said:
It is of course true that the judges in this country are not elected and are not answerable
to Parliament … But the function of independent judges charged to interpret and apply
the law is universally recognised as a cardinal feature of the modern democratic state, a
cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the
proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making
as in some way undemocratic.
The decision in this case was criticised in the popular press. While the judiciary were
seeking to apply the HRA 1998 and fundamental rule of law principles, critics thought
that the judiciary were thwarting a legitimate Government response to the threat
of terrorism and overriding legislation that had been implemented through the
democratic process.
As a result of this case the Government repealed the ACSA and replaced it with the
Prevention of Terrorism Act 2005 (which was itself later repealed).
5.13.2 Closed material proceedings and the principle of open justice
Al Rawi v The Security Service [2011] UKSC 34

This is a case heard by the UK Supreme Court that dealt with the fundamental right to
a fair trial. The question in this case arose in relation to claims for compensation for
mistreatment by suspected terrorists who had been detained by foreign authorities
in various places including Guantanamo Bay. The specific question for the Supreme
Court was whether a court has the power to order a ‘closed material procedure’ (CMP)
for the whole or part of the trial of a civil claim for damages. A CMP was defined as a
procedure whereby a party can withhold certain material from the other side where
its disclosure would be contrary to the public interest. The closed material would be
available to special advocates, who act in the interests of the excluded party but who
cannot take instructions from them, and the court. The Security Service in the Al Rawi
case claimed that they had security sensitive material within their possession which
they wished the court to consider in their defence, but which could not be disclosed
to the respondents.
Previously courts could grant a public interest immunity (PII) certificate, allowing one
litigant to refrain from disclosing evidence to the others where this would be deemed
damaging to the public interest – an exception to the normal rule that all parties are
obliged to disclose any relevant evidence. In issuing such an order, the court must
balance the public interest and the open administration of justice with security
concerns about disclosure of sensitive materials.
At first instance in the High Court, the judge granted a declaration that it could be
lawful and proper for a court to order a CMP in a civil claim for damages. The Court
of Appeal disagreed, denying that a court had such a power. The Supreme Court,
by a majority, dismissed the appeal, holding that there is no power at common law
for a court to use a CMP. Such a change could only be for Parliament to make. Lords
Dyson, Hope, Brown and Kerr further held that there is no power at common law to
introduce a CMP following the conclusion of the normal PII process. A CMP, unlike the
law relating to PII, involves a departure from the principles of open and natural justice,
which are essential features of a common law trial. Lord Dyson said:
There are certain features of a common law trial which are fundamental to our system
of justice (both criminal and civil) … trials should be conducted and judgments given
in public … The open justice principle is not a mere procedural rule. It is a fundamental
common law principle.
The case was followed by the controversial Justice and Security Act (JSA) 2013. The
main purpose of the Act is to permit CMPs in relation to certain civil proceedings.
There was much opposition to the Act. The Law Society argued that the JSA infringed
open justice and jeopardised the right to a fair trial based on equality of arms as an
essential element of the rule of law. Barrister Michael Fordham said that: ‘Secret trials
undermine the principles of open justice and natural justice on which the rule of law
is built.’ Again this case demonstrates that where the Government is determined to
introduce legislation to achieve certain objectives, Parliament can act through the
democratic process to override a decision of the Supreme Court.
5.13.3 Prisoners’ voting rights
Essential reading
¢¢ Parliamentary briefing note on Prisoners’ voting rights, Parliament and
Constitution Centre, 2014
www.parliament.uk/business/publications/research/briefing-papers/SN01764/
prisoners-voting-rights
¢¢ European Court of Human Rights Factsheet on Prisoners’ right to vote, December

2013 www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf
¢¢ House of Commons Library briefing paper, Prisoners’ Voting Rights:

Developments since May 2015, February 2016
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/
CBP-7461#fullreport
¢¢ R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63;
Moohan v Lord Advocate [2014] UKSC 67.
This is another highly controversial area of public policy on which the Government
has been until very recently utterly opposed to a change in the law. UK law
currently contains a general prohibition on voting by prisoners. Section 3(1) of the
Representation of the People Act 1983 as amended by the Representation of the
People Act 1985 provides that:
A convicted person during the time that he is detained in a penal institution in pursuance
of his sentence [or unlawfully at large when he would otherwise be so detained] is legally
incapable of voting at any parliamentary or local government election.
In a series of cases (Hirst (No 2) v UK (2005), Greens v UK (2010) and Scoppola v Italy
(2012)) the ECtHR held that a blanket prohibition of this nature is an indiscriminate
restriction on a vitally important right and is therefore incompatible with Article 3 of
Protocol No 1 (‘A3P1’, the duty to hold free and fair elections) of the ECHR. The decision
in Hirst (No 2) required the UK Government to bring forward legislation to ensure
that it complied with the ECHR. The Government undertook to introduce a two-
stage public consultation process. In the Greens and Scoppola cases the ECtHR raised
concerns about the failure of the UK to comply with the judgments of the Court. The
then UK Prime Minister David Cameron, in response to ECtHR decisions on the subject,
was reported as saying that prisoners ‘damn well shouldn’t’ be given the right to vote.
He also called for the powers of the ECtHR to be restricted.
In the case of Chester, which came before the UK Supreme Court in 2013, the appellant
was a prisoner serving a sentence of life imprisonment for murder who claimed
that his rights were being infringed because he was not entitled to vote. The claim
had been dismissed by the courts below. The High Court and Court of Appeal held
in Chester that it was not their role to sanction the Government for the delay in
implementing the decision in Hirst (No 2) or to advise as to how the Government might
implement a voting system that would be compatible with A3P1.
Key issues before the UKSC were: whether the Court should apply the principles
established in Hirst (No 2); and whether, if such principles were applied, the current
blanket ban on voting is incompatible with Chester’s rights under A3P1. The Court also
had to consider whether it should make a further declaration of incompatibility under
the HRA 1998. The UKSC unanimously dismissed the appeal. With regard to claims
under the Convention, the Court applied the principles in Hirst (No 2) and Scoppola
regarding the blanket ban on voting, but declined to make any further declaration of
incompatibility in respect of Chester.
Giving the lead judgment, Lord Mance said that under the HRA 1998 the UKSC is
required to ‘take into account’ decisions of the ECtHR, not necessarily to follow them.
This enables the national courts to engage in a constructive dialogue with the ECtHR.
But Lord Mance said that prohibition on prisoner voting in the UK had now been
considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to
be incompatible with A3P1. In these circumstances, it would have to involve some truly
fundamental principle of law or the most egregious oversight or misunderstanding
before it could be appropriate for the UKSC to refuse to follow Grand Chamber
decisions of the ECtHR. The ban on prisoner voting is not a fundamental principle of law
in the UK, and the circumstances do not justify a departure from the ECtHR’s case law.
On the question of whether there should be a declaration of incompatibility, Lord

Mance held that the incompatibility of the prohibition on prisoner voting in the UK
with the Convention is already the subject of a declaration of incompatibility and
is currently under review by Parliament. In these circumstances there is no point in
making a further declaration of incompatibility.
In the Chester case, Lady Hale pointed out that despite the fact that the judiciary
are appointed and not elected (the ‘democratic deficit’), they perform a vital role
in protecting the rights of minority interests in societies where the majority view
prevails. She argued:
[I]n any modern democracy, the views of the public and Parliamentarians cannot be the end
of the story. Democracy is about more than respecting the views of the majority. It is also
about safeguarding the rights of minorities, including unpopular minorities … It follows that
one of the essential roles of the courts in a democracy is to protect those rights.
In November 2012 the Government brought forward the Voting Eligibility (Prisoners)
Draft Bill which was designed to comply with the ECtHR’s judgments by giving some
prisoners voting rights. Following the recommendations of the Government Joint
Committee another Draft Bill was introduced. The Convicted Prisoners Voting Bill
2015–16 was designed to exclude prisoners serving a custodial sentence from voting at
a parliamentary or local government stage. This Bill will not make any further progress
or become law as it failed to pass through the necessary legislative stages by the end
of the 2015–16 parliamentary session. However, the Council of Europe has recently
accepted a compromise offered by the Government to allow a very small number of
prisoners, who are on temporary release and at home under curfew, to vote.
In Moohan v Lord Advocate [2014] UKSC 67 the Supreme Court held by a majority of five
to two that the statutory disenfranchisement of convicted prisoners, which made
them ineligible to vote in the 2014 Scottish Independence Referendum, was lawful.
Section (v) of the judgment, ‘The common law right to vote’, reiterates the established
position that the common law recognises ‘a right of universal and equal suffrage from
which any derogation must be provided for by law and must be proportionate.’ [34].
5.13.4 Has the Human Rights Act given judges too much power?
In a speech in 2013 Lord Mance pointed out that the effect of the ECHR and Strasbourg
case law has led to the removal of sentencing discretion from the executive, the lifting
of the ban on homosexuals in the armed forces, the ending of detention without trial
of aliens suspected of terrorist involvement, prevention of deportation of aliens who
would if deported face a real risk of torture or inhuman treatment or of a flagrantly
unfair trial and the state being held responsible for complicity in illegal rendition and
torture abroad.
The domestic effects of decisions reached in some of these areas may sometimes pinch,
but it is difficult to regard it as unforeseeable that a court, established by consent of
European states to give effect to the Convention, should reach them.
1. What are the factors that have led to the perceived increase in the power of the
judiciary in recent years?
2. Why did the House of Lords think that the Government’s action in the Belmarsh
case was disproportionate?
3. What was the fundamental rule of law principle at stake in the Al Rawi case and
how does a closed material procedure interfere with that principle?
4. In the Chester case, what precisely was the aspect of the ban on prisoners’ voting
rights that was regarded by the Supreme Court to be an infringement of Article 5
of the ECHR?

Why is the independence of the judiciary regarded as important to the rule of law
and what measures are in place to protect that independence?

Relevant material can be found in Chapters 1 and 5 of the module guide.
An answer should deal with the concept of the rule of law and some of the
essential features of it; and the concept of judicial independence, distinguishing
between institutional independence and individual independence. You could refer
to a number of judicial review and human rights cases to illustrate the importance
of judicial independence in practice.
1. What is the rule of law?
The rule of law is a critical constitutional concept which is used to describe the
factors necessary for a well-functioning or healthy state and, in particular, to
constrain the exercise of arbitrary power (Bingham’s eight principles/WJP).
2. Judicial independence and the rule of law
An essential element in the rule of law, which is implicit in Lord Bingham’s eight
principles but not spelled out explicitly, is the centrality of the concept of judicial
independence to the rule of law (see The Bangalore Principles of Judicial Conduct).
3. What do we mean by judicial independence?
Institutional independence – essential for the rule of law – refers to the

constitutional separation of powers between the three arms of the state:
legislature, executive and judiciary. The executive is responsible for governing the
country and the judiciary is responsible for ensuring that the executive governs
according to law (cite e.g. judicial review cases) and judiciary and legislature (role
in statutory interpretation).
Personal independence is essential for fairness.
4. What measures are in place to protect that independence?
Statutory protection for institutional independence – Act of Settlement 1701; s.3(1)

Constitutional Reform Act 2005.
Other measures protecting judicial independence
Security of tenure – outline measures and give examples.
Immunity from suit – outline measures.
Salary protection – but see changes to judicial pensions and changes to salary in
Ireland.
Issues for conclusion

The constitutional independence of the judiciary from the executive and legislature is
regarded by many societies around the world as an essential element in the operation
of the rule of law. Evidence of recent high profile cases (examples); and judicial
speeches (examples); suggests that the judiciary are institutionally independent.
While they are cautious about issuing declarations of incompatibility and see it as
a measure of last resort, they will not shrink from doing so if legislation is clearly
inconsistent with the Human Rights Act 1998. Similarly, on actions for judicial review
the judiciary in recent years have been prepared to rule that the executive has acted
beyond its powers, even when those decisions have been unwelcome to government
and unpopular with large sections of the public (examples).
6 The civil justice system, access to justice and ADR
Contents
6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
6.2 Distinctions between civil and criminal justice systems . . . . . . . . . 119
6.3 The scope of the civil justice system . . . . . . . . . . . . . . . . . . . 120
6.4 What is the civil justice system for? Civil justice as a ‘public good’ . . . . 121
6.5 The challenge of providing accessible and affordable civil justice . . . . 130
6.6 Alternative dispute resolution (ADR) processes . . . . . . . . . . . . . 137
6.7 Disappearing trials, privatisation of justice and the rule of law . . . . . 142
Learning outcomes
uu distinguish between civil and criminal justice
uu explain what the civil justice system is for; and the range of disputes dealt with
uu explain how the civil justice system contributes to the rule of law
uu describe the historic challenges of providing affordable and timely dispute
resolution through the civil courts
uu explain why access to justice is essential to the operation of the rule of law
uu explain the ways in which Lord Woolf attempted to reform civil justice
uu explain the costs reforms recommended by Lord Justice Jackson
uu appreciate the challenge of unrepresented parties in civil and family courts
uu explain the benefits and disadvantages of private dispute resolution processes.
Essential reading
¢¢ Wilson, S., H. Rutherford, T. Storey and N. Wortley English legal system. (Oxford:
Oxford University Press, 2016) 2nd edition [ISBN 9780198747949] Chapter 11
‘Access to justice’ (in the Legal system and method study pack).
FURTHER READING
¢¢ Lord Neuberger ‘Access to Justice: Welcome address to Australian Bar
Association Biennial Conference’ 3 July 2017 at www.supremecourt.uk/docs/
speech-170703.pdf
Legal system and method 6 The civil justice system, access to justice and ADR page 119
6.1 Introduction
The civil justice system is the means provided by the state for citizens and businesses
to peacefully resolve legal disputes and enforce their rights. As pointed out in
Chapter 1, when people refer to the justice ‘system’ they are thinking not only about
legal rules, but about the institutional means for enforcing those rules and providing
redress or punishment. The machinery of the state justice system comprises the courts
and their procedures, the judiciary and any other institutions or processes involved in
the delivery of justice.
This chapter focuses on the objectives, procedures and outcomes of the civil justice
system and the way in which the civil courts contribute to the rule of law and the
‘tranquillity of the state’. We will consider the requirements for public courts that are
accessible to citizens and discuss the difficulties that common law systems seem to
share in providing public dispute resolution processes that are accessible, affordable
and timely. The role of private dispute resolution processes as ‘alternatives’ to public
courts (alternative dispute resolution or ‘ADR’) will be considered and the extent to
which such processes contribute to access to justice.
6.2 Distinctions between civil and criminal justice systems

When we distinguish between civil and criminal justice ‘systems’ and processes, we
are referring to different bodies of legal rules, different courts and procedures and
different agencies and legal professionals involved in the enforcement of the law and
the delivery of justice. Although a detailed analysis of the boundaries between civil
and criminal law and process is beyond the scope of this module, it is worth stressing
some basic distinguishing features of the two justice systems which help to explain
why the system for dealing with civil disputes is rather different from the system that
deals with the processing and punishment of criminal offences discussed in the next
chapter. Key differences between the civil and criminal system include the following:
Objectives
While both the civil justice and criminal justice systems have some deterrent effect,
the main purpose in the case of civil justice is redress, whereas in criminal justice the
main purpose is punishment.
Who initiates court proceeding?

In civil cases proceedings will be started by the person who has suffered the wrong –
‘the claimant’ – who brings the case against the ‘defendant’. Claimants can be citizens,
businesses or public bodies. Criminal cases are started by ‘the prosecutor’ (generally
the state) who brings the case against the ‘defendant’ or ‘accused’.
The burden and standard of proof

In both civil and criminal proceedings the burden of proof (i.e. responsibility for
proving the case) is on the person who initiates the action. In civil proceedings the
claimant must prove the case. In criminal proceedings the prosecution must prove
the case. The standard of proof (i.e. how sure the decision maker has to be about the
responsibility of the defendant) is different in civil and criminal cases. In civil cases
the claimant must prove the case on ‘a balance of probabilities’, which means that
the evidence proves it is more likely than not that the defendant is liable. In criminal
trials the prosecution must prove the case against the defendant ‘beyond reasonable
doubt’. The standard of proof is more demanding in criminal cases because of the
seriousness of the penalty and because of the stigma involved in a criminal conviction.
The decision maker

In most civil cases decisions will be made by judges or magistrates and only rarely by a
jury (actions for defamation or wrongful arrest). In criminal cases decisions about guilt
will be made by magistrates (summary offences) or by juries (indictable offences) (see
Chapter 7).
The type of penalty imposed

In a civil case if the defendant is found ‘liable’ (i.e. responsible for the civil wrong) the
remedy awarded by the court to a successful claimant may be financial compensation,
an injunction or declaration. In a criminal case, the court gives a ‘verdict’, by which
the defendant will be found guilty or not guilty. If guilty, the judge will decide the
appropriate penalty, which could be a custodial sentence (time spent in prison), a
community sentence, a fine or a discharge.
6.3 The scope of the civil justice system
Essential reading
¢¢ Genn, H. ‘Understanding civil justice’ (1997) 50(1) Current Legal Problems 155–87
(in the Legal system and method study pack).
By comparison with the criminal justice system, the scope of the civil justice system
is very broad and complex. The range of claimants is enormously diverse and the
range of potential defendants equally varied – including the state itself. Citizens and
businesses make use of the civil justice system when they are in dispute over legal
rights which they cannot solve by direct discussions or negotiation with the party
with which they are in dispute. Areas of law that come within the broad category
of ‘civil’ are contract law, the law of tort, land law, landlord and tenant, family law,
administrative law, company law and employment law. The range of issues that are
dealt with in the civil justice system has been described as follows:
The parts of the legal system that are not concerned with criminal law comprise a
rag-bag of matters and participants. There are disputes relating to the performance
or non-performance of contracts involving businessmen suing each other, individuals
suing businesses, and businesses suing individuals. There are claims for compensation
resulting from accidental injury in which individuals sue institutions. There is the use of
the courts by lenders who realize their security by evicting individual mortgage defaulters.
Civil justice also involves attempts by citizens to challenge decisions of central and local
government bureaucrats, a rapidly growing field that includes immigration, housing,
mental health, child welfare, and the like. In these situations individuals and groups
confront agencies of the state which can bring to bear apparently unlimited resources
to ward off claims. Finally, there are the acrimonious and often heart-breaking struggles
between men and women following the breakdown of family relationships as property
and children become the subject of legal dispute. All of these matters come within the
ambit of the civil justice system.
(Genn, 1997, p.160)
Genn notes that the variety of cases and configurations of parties makes generalisation
difficult and presents major challenges for reform programmes. Practitioners and
government habitually distinguish between broad areas of activity in the civil justice
system differentiating between civil and commercial cases (contract, tort, property,
insolvency), family cases (separation and divorce, child protection) and administrative
law (judicial review, actions against public bodies). As we will see in the following
sections, while the ambitions of accessibility, affordability, efficiency, fairness and justice
are the same in all areas of the civil justice system, achieving those ambitions presents
different challenges depending on both the nature of the dispute (civil, commercial,
family, administrative) and the types of parties involved (citizens, businesses, state).
The public courts are the backbone of civil justice. The courts are provided by the state
to determine civil disputes by applying the common law or statute and developing
legal principles. There is also a range of private dispute resolution processes (ADR)
which are available for citizens and business to use as a supplement or as an
alternative to formal court proceedings. Some of these processes, such as arbitration,
have been used for a long time to determine or resolve commercial and other
disputes. Other ADR processes, such as mediation, are of more recent origin. These
processes are confidential and the decisions are not made public. ADR processes and
their relationship to the public justice system are discussed later in this chapter.
6.4 What is the civil justice system for? Civil justice as a ‘public
good’
Essential reading
¢¢ Genn, H. ‘What is civil justice for? Reform, ADR, and access to justice’ (2012) 24
Yale JL & Human 397 (available in HeinOnline through the Online Library).
Civil justice serves a number of purposes. It has a ‘dispute resolution’ function which
benefits individuals by providing peaceful, authoritative and coercive termination of
disputes between citizens, companies and public bodies. But the civil justice system
also has a broader public benefit that reaches beyond individual dispute resolution.
The civil justice system supports social order and facilitates economic activity by
providing a legal framework in which business can be done. It also offers citizens the
means to enforce the duties of government and to check the exercise of power.
In societies governed by the rule of law, the courts provide the community’s defence
against arbitrary government action; they promote social order and facilitate the
peaceful resolution of disputes. In publishing their decisions, the courts communicate
and reinforce civic values and norms. Most importantly, the civil courts support
economic activity. Law is pivotal to the functioning of markets. Contracts between
strangers are possible because rights are fairly allocated within a known legal framework
and are enforceable through the courts if they are breached. Thriving economies
depend on a strong State that will secure property rights and investment.
(Genn, 2012)
An essential element in the courts performing these social functions is publicity
of proceedings and adjudication. Adjudication by judges in court is the public
determination of legal rights. The public function of the civil courts is to provide
authoritative statements of what the law is, who has rights and how those rights are
to be vindicated. The norms and behaviours contained within the law radiate out from
public statements in court and influence the behaviour of citizens in daily interactions.
Court procedure and judicial decisions are governed by well-developed due process
values. Public judgment is reached at the end of hearings in which an impartial
decision maker determines rights and responsibilities, fairly and effectively, after
hearing evidence and argument from both sides. These due process features are not
present in confidential, private dispute resolution processes. It has been argued that
the ability of disputing parties to make reasoned arguments in public to an impartial
judge is a manifestation of the rule of law. As the legal philosopher Jeremy Bentham
argued in the 19th century:
Where there is no publicity there is no justice. Publicity is the very soul of justice. It is
the keenest spur to exertion, and the surest of all guards against improbity. It keeps the
judge himself, while trying, under trial.
This argument was recalled in the recent case, R (on the application of C) v Secretary of
State for Justice [2016] UKSC 2 which considered the issue of whether there should be a
presumption of anonymity in civil proceedings, or in certain kinds of proceedings, or
anonymity orders on the facts of particular cases. Lady Hale reminded of the role and
function of the principle of open justice (at [1]):
The principle of open justice is one of the most precious in our law. It is there to reassure
the public and the parties that our courts are indeed doing justice according to law. In
fact, there are two aspects to this principle. The first is that justice should be done in
open court, so that the people interested in the case, the wider public and the media
can know what is going on. The court should not hear and take into account evidence
and arguments that they have not heard or seen. The second is that the names of the
people whose cases are being decided, and others involved in the hearing, should
be public knowledge. The rationale for the second rule is not quite the same as the
rationale for the first …
6.4.1 How does the civil court process work?

As we have seen, the civil justice system comprises a complex network of adjudicative
and dispute resolution processes which offer the means for peaceful resolution
of disputes around legal rights, entitlements and responsibilities. Most disputes
concerning legal rights – for example, over contracts or consumer transactions – are
generally resolved by direct negotiation between the parties to reach a settlement.
However, disputes that cannot be resolved directly between the parties can be
dealt with by legal determination on the merits in public by a judge or by some
private dispute resolution process such as arbitration or mediation, or even by an
ombudsman (see later in this chapter). What the courts can do that private dispute
resolution cannot do, is compel an unwilling defendant to engage with the dispute
and order them, if they are liable for breaching their legal obligation, to provide
compensation or redress to the claimant.
The public court system for dealing with civil disputes has a clear structure and
defined processes. Civil cases are generally dealt with in the county courts and High
Court. There are many steps that must be taken in English adversarial proceedings
before a dispute that has been notified to the court for determination by a judge is
ready to be dealt with at trial (the formal hearing of the case by a judge in court).
The process of dealing with a civil dispute through the civil courts is referred to
as ‘litigation’ and the parties involved in the litigation are referred to as ‘litigants’.
The formal beginning of a civil court case is the ‘issue of proceedings’ in which
the person bringing the claim (the claimant) sets out their case and what it is they
are claiming from the court, generally monetary compensation. This is sent to the
person against whom the claim is being brought (the defendant) who must respond
with their ‘defence’ (i.e. saying why they do not believe that they are liable to pay
compensation). Once a defence has been received the case will be managed by the
court and assigned to an appropriate procedure (one of three case management
‘tracks’ discussed later). Following allocation, the parties will collect their evidence
and prepare the case for trial. This process involves identifying the key facts that the
litigant wants to assert at trial and ensuring that there is documentary evidence,
and sometimes oral evidence, supporting those facts. When all of the evidence has
been collected the case is ready to be heard by a judge at a trial or hearing. If the case
proceeds to trial the litigants and their representatives will attend court. Each side will
present evidence to the judge and, after hearing the evidence, the judge will give their
decision and specify the remedy, which will normally be monetary compensation or
‘damages’.
6.4.2 ‘Out of court’ settlement
Essential reading
¢¢ Galanter, M. ‘Worlds of deals: using negotiation to teach about legal process’
(1984) 34 J Legal Education 268 (available in HeinOnline Law Journal Library
through the Online Library).
A critical feature of English adversarial civil court proceedings is that despite the
fact that court proceedings have been issued, it is perfectly normal for the parties
to continue to negotiate in order to try and reach a settlement of the dispute. In
the vast majority of civil disputes a settlement between the parties (often through
their lawyers) will be reached before the case ever reaches the stage of a trial before
a judge. So as the diagram below shows, litigation and settlement negotiations
generally continue side by side (what has been referred to as ‘litigotiation’ by Galanter
(1984)), and a trial will only take place if an ‘out of court settlement’ cannot be
reached.
One might ask why court proceedings are issued if people continue to negotiate and
then settle their cases without legal determination by a judge. The answer is that the
issue of court proceedings forces defendants, who might not otherwise be prepared
to negotiate, to take the case seriously and enter into negotiations with the claimant.
Dispute arises
Settle Attempt to resolve through negotiation
Informal resolution not possible Negotiations

to settle the
dispute can
Settle Advice from advice agency or lawyer continue up
to the
Court proceedings issued moment of
trial
including
Settle Defence entered using
mediation
or other
Court allocates to procedural track
ADR process
Settle Case management conference
Settle Collect evidence and prepare for trial
Trial
Figure 6.1: Diagram of civil justice process
6.4.3 Civil justice and the rule of law
Essential reading
¢¢ World Justice Project Rule of Law Index 2016
http://worldjusticeproject.org/sites/default/files/media/wjp_rule_of_law_
index_2016.pdf
The ability of people to make use of the law to protect their legal rights and hold
others to their legal responsibilities underpins the rule of law. In Chapter 1 we saw that
one of Lord Bingham’s ‘essential ingredients’ for the rule of law is a well-functioning
civil justice system. He said that in enabling citizens to assert their substantive civil
rights against the state itself, the civil justice system plays a ‘truly essential role’ in
furthering the rule of law. In Lord Bingham’s definition a well-functioning civil justice
system is one that provides the means for resolving civil disputes ‘that do not involve
excessive cost or delay.’
The World Justice Project (WJP), which assesses the extent to which countries
around the world have systems that meet the criteria for the rule of law, explains the
importance of a well-functioning civil justice system in a rule of law society as follows:
In a rule of law society, ordinary people should be able to resolve their grievances and
obtain remedies in conformity with fundamental rights through formal institutions of
justice in a peaceful and effective manner, rather than resorting to violence or self-help.
According to the WJP, the factors regarded as fundamental to a well-functioning civil

justice system are that:
uu People can access and afford civil justice;
uu Civil justice is free of discrimination;
uu Civil justice is free of corruption;
uu Civil justice is free of improper government influence;
uu Civil justice is not subject to unreasonable delay;
uu Civil justice is effectively enforced;
uu Alternative dispute resolution mechanisms are accessible, impartial and effective.

These are ambitious expectations and there are few countries around the world
whose civil justice systems meet those criteria. The 2016 WJP country index shows
that the UK ranks 16th in the world for the quality of its civil justice system. The 2014
WJP report noted that although many countries around the world face challenges in
meeting rule of law principles in general, problems with civil justice was one of the
greatest rule of law challenges for Western Europe and the USA. The WJP argued that
generalised delays in the delivery of civil justice constitute the greatest weakness in
the region. Equal access to justice for marginalised populations is also problematic.
They commented that:
All around the world, people’s ability to use legal channels to resolve their disputes is
often impeded by obstacles in judicial decision making, or simply lack of knowledge,
disempowerment, and exclusion. These problems, which are not restricted to developing
countries, call for more work to ensure that all people have the opportunity to resolve
their grievances effectively, impartially and efficiently through the civil justice system.
6.4.4 Accessibility
In order for citizens and businesses to protect their legal rights they must be able to
access the justice system. Effective access to justice requires:
uu awareness of rights, entitlements, obligations and responsibilities
uu awareness of the procedures that are available for the resolution of disputes about
legal rights, entitlements and responsibilities
uu ability to access redress systems and participate effectively in the process so that
the legal merits of cases are properly presented and understood by the decision
maker.
However, there can be many barriers that deter or frustrate parties attempting to
resolve their legal disputes, including not being aware of rights, not knowing where
to go for advice and help, not being able to pay for expert advice and representation
and not being in a position to understand and navigate the complexities of the legal
system. There is a strong consensus that civil justice process is difficult for ordinary
people to understand. The law itself can be complicated and generally citizens have no
experience of courts and their processes and find them bewildering. The result is that
for most citizens, some sort of advice and legal representation is not only helpful but
necessary in order for them effectively to bring or defend a case in court.
6.4.5 Access to civil justice and legal aid
Essential reading
¢¢ Smith, R. ‘After the Act: what future for legal aid?’ Tom Sargant Memorial Annual
Lecture 2012, London, Tuesday 16 October 2012
http://2bquk8cdew6192tsu41lay8t.wpengine.netdna-cdn.com/wp-content/
uploads/2015/02/After-the-Act-what-future-for-legal-aid-Roger-Smith.pdf
¢¢ Wilmot-Smith, F. ‘Necessity or ideology?’ London Review of Books (November

2014): www.lrb.co.uk/v36/n21/frederick-wilmot-smith/necessity-or-ideology
¢¢ ‘Tackling the advice deficit: a strategy for access to advice and legal support on
social welfare law in England and Wales’ Low Commission Final Report
www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-
VERSION.pdf
¢¢ R v Lord Chancellor, ex p Witham [1998] 2 WLR 849, [1998] QB 575.
Further reading
¢¢ Genn, H. Paths to justice: what people do and think about going to law. (Oxford:
Hart Publishing, 1999) [ISBN 9781841130392] Chapter 8 ‘Paths to justice: which
way now?’ (in the Legal system and method study pack).
¢¢ Pleasence, P. et al. ‘Causes of action: civil law and social justice’ Final Report of
the First LSRC Survey of Justiciable Problems, 2004
www.researchgate.net/profile/Pascoe_Pleasence/publication/32894969_Causes_
of_action_civil_law_and_social_justice/links/54ad0d0d0cf2213c5fe065c2.pdf
¢¢ Balmer, N. ‘Summary findings of Wave 2 of the English and Welsh Civil and Social
Justice Panel Survey’ Legal Services Commission, 2013, Section 3, p.33
http://doc.ukdataservice.ac.uk/doc/7643/mrdoc/pdf/7643_csjps_wave_two_
summary_findings.pdf
¢¢ ‘The right to justice’ The Bach Commission on Access to Justice final report,
September 2017
www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-
Justice-Report-WEB.pdf
Substantive legal rights are of little value to citizens if they do not know their rights
and feel unable to use the justice system. Governments committed to the rule of law
accept that it is necessary to provide help for people who need access to the courts
to enforce or defend their rights, but who cannot afford to pay for legal advice and
representation. The provision of legal services at public expense, generally referred
to as ‘legal aid’, is an acknowledgement of the difficulties that the public often face
in using the legal system without advice and advocacy. The provision of legal aid is an
expression of government commitment to the rule of law, which promises equality
before the law and equal access to justice.
England and Wales has had a legal aid system since the end of the Second World
War. It was established by the Legal Aid and Advice Act 1949 and was designed to
provide ‘legal advice for those of slender means and resources, so that no one will
be financially unable to prosecute a just and reasonable claim or defend a legal
right.’ Between its establishment in 1949 and the beginning of its decline in the
mid-1980s, the legal aid system in England and Wales developed into one of the most
comprehensive schemes in the world, covering advice and representation for most
civil and criminal cases in all courts up to the House of Lords/Supreme Court. By the
mid-1980s most of the population could benefit from legal aid and many lawyers in
private practice provided legal aid services. In the 1990s the scheme expanded to
include not-for-profit advice agencies and Law Centres. These new providers of legal
and quasi-legal services tended to provide specialist advice and representation for
social welfare issues – what Smith (2012) refers to as ‘poverty law’.
By the mid-1990s, however, the cost of the English legal aid system had reached
around £2 billion. Much of that expenditure was for criminal cases, but a significant
proportion provided advice and representation for citizens involved in civil disputes,
family disputes and those wishing to challenge decisions of government and public
bodies. Since that time successive governments have modified and reduced the scope
of the legal aid system, particularly in relation to civil and family cases. The most
recent and dramatic change to legal aid was made by the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 (LASPO), which came into effect in April 2013. To
save money on the justice system budget the Government removed from the scope
of the legal aid system most civil and family cases including many cases that affect the
most vulnerable groups in society. Around 623,000 people each year involved in legal
problems and disputes who had previously been helped through the legal aid system
are no longer able to access this assistance. These are people with common, everyday
legal problems such as debt, issues with the benefits system, poor treatment by
employers or experiencing family breakdown and related difficulties.
The effect of LASPO 2012 on the providers of legal advice for civil and family law issues,
particularly not-for-profit advice agencies, has been very significant. The LASPO 2012
changes have led to a cutting back of services and the closure of advice centres. It is
thought that the reduction in the availability of advice and representation will lead
to two different outcomes. The first is that many people will not attempt to enforce
their rights or pursue remedies or entitlements. They will simply ‘lump it’ and live with
whatever the consequences might be. This is the most basic barrier to access to justice.
It is known from legal needs studies (Genn, 1999; Pleasence, 2004; Balmer, 2013) that
a significant proportion of the population faced with everyday civil justice problems
and disputes either do nothing at all or abandon attempts to seek redress. We also
know that those on low or no incomes are disproportionately likely to do nothing to
enforce or defend their rights, often feeling powerless and helpless. Research has also
shown that there is also a link between unresolved legal problems, poor health and
increased criminality (Balmer, 2013). The second consequence is that those people
who wish to pursue their legal rights in court will have to do so without legal advice
or representation (as litigants in person or ‘LIPs’) unless they are able to pay for legal
services. The increase in LIPs in civil and family courts is discussed further below.
Evaluation of LASPO 2012
National Audit Office report

In November 2014 the National Audit Office published a report ‘Implementing reforms
to civil legal aid’ (www.nao.org.uk/wp-content/uploads/2014/11/Implementing-reforms-
to-civil-legal-aid1.pdf) which concluded that the Ministry of Justice was on track to
meet their objective of significantly reducing spending on civil legal aid in a short
timeframe. However, they also concluded that in implementing the reforms, the
Ministry did not think through the impact of the changes on the wider system and the
impact of the reforms on providers of free legal advice.
House of Commons Justice Committee inquiry

Following the implementation of LASPO in 2013, the House of Commons Justice
Committee (an all-party Committee responsible for scrutinising the work of the
Ministry of Justice) set up an Inquiry to assess the broad effect of the changes to civil
legal aid introduced by LASPO. The Committee took written and oral evidence from
practitioners, advice workers, and the judiciary and published its final report in March
2015 (https://publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/311.pdf).
Referring to the importance of access to justice as an essential element in the rule of

law, the Committee stated that it had undertaken the Inquiry to examine the success of
the legal aid reforms in protecting access to justice while addressing issues of cost, and
to make recommendations where it believed access to justice had been compromised.
The terms of reference were to investigate:
uu the overall effects of the LASPO changes on access to justice
uu particular areas of law or categories of potential litigants which have been

especially impacted by the changes
uu identifiable trends in overall numbers of legally-aided civil law cases being brought
since April 2013 in comparison with previous periods
uu whether LASPO changes led to the predicted reductions in the legal aid budget
uu effects of LASPO changes on: (a) legal practitioners; and (b) not-for-profit providers
of legal advice and assistance
uu effects of LASPO changes on the number of cases involving litigants-in-person, and

therefore on the operation of the courts.
The conclusions of the Justice Committee are highly critical of LASPO, finding that it has
failed to meet three of its four key objectives and finding that it has had the effect of
harming access to justice.
The Ministry of Justice’s four objectives for the reforms were to:
uu discourage unnecessary and adversarial litigation at public expense
uu target legal aid to those who need it most
uu make significant savings in the cost of the scheme, and
uu deliver better overall value for money for the taxpayer.

The Committee’s overall conclusion was that, while it had made significant savings in
the cost of the scheme, the Ministry had harmed access to justice for some litigants and
had not achieved the other three out of four of its stated objectives for the reforms.
The Ministry had failed to anticipate the impact of the reforms because it did not carry
out sufficient research before implementing the reforms. The Committee’s conclusions
were as follows.
uu Since the reforms came into effect there has been an underspend in the civil legal
aid budget because the Ministry has not ensured that everyone eligible for legal aid
is able to access it.
uu LASPO has had a harmful effect on the legal aid market and providers of publicly-
funded legal services, leading to the cutting and significant downsizing of
departments and centres dealing with such work. There are now concerns about
the sustainability of legal aid practice in future.
uu There has been a substantial increase in litigants in person as a result of the

Government’s reforms. Litigants in person are increasingly people with no choice
other than to represent themselves and who may therefore have some difficulty in
effectively presenting their cases. The result is that the courts are having to expend
more resources to assist litigants in person and require more funding to cope, and
the Ministry is having to fund more direct assistance for litigants in person.
uu Also indicative of the lack of evidence on the effects of the reforms has been the
sharp reduction in the use of mediation, despite the Ministry’s estimates that it
would increase. The Committee found that this was because the Ministry did not
appreciate what makes people seek mediation.
The Report is highly critical of the lack of research undertaken prior to the
implementation of the reforms and the failure of the Ministry to anticipate the
consequences of the changes or the extent to which failure to provide legal aid has led
to costs being shifted on to other public services:
The Ministry’s significant savings are potentially undermined by its inability to show that it
has achieved value for money for the taxpayer. The Ministry’s efforts to target legal aid at
those who most need it have suffered from the weakness that they have often been aimed
at the point after a crisis has already developed, such as in housing repossession cases,
rather than being preventive. There have therefore been a number of knock-on costs, with
costs potentially merely being shifted from the legal aid budget to other public services,
such as the courts or local authorities. This is another aspect of the reforms about which
there is insufficient information; the Ministry must assess and quantify these knock-on
costs if it is to be able to demonstrate it has met its objective of better value for the
taxpayer.
House of Commons Public Accounts Committee inquiry

In February 2015, the effects of LASPO were also assessed by the House of Commons
Public Accounts Committee, an all-party committee responsible for scrutinising the
value for money of public spending and the delivery of public services (http://www.
publications.parliament.uk/pa/cm201415/cmselect/cmpubacc/808/80802.htm). The
Public Accounts Committee’s conclusions were that:
uu The Ministry of Justice did not have robust evidence for the changes made. It still
has little understanding of why people go to court and how and why people access
legal aid.
uu The Ministry’s approach to implementing the reforms has inhibited access to

mediation for family law cases. Mediations in family law cases fell by 38 per cent in
the year after the reforms as the Ministry did not understand that removing legal
aid would mean that this would reduce the referrals by solicitors to mediation.
uu The Ministry does not know whether people who are eligible for legal aid are able
to get it.
uu The complexity of the justice system may be preventing people who are no longer
eligible for legal aid from securing access to justice. The system is complex and
many people will not be able to represent themselves in court.
uu The Ministry cannot manage the impact of the increase in litigants in person,
because it still does not understand the impact that they have on the courts
service. Litigants in person may be placing additional pressure on the courts.
uu The quality of face-to-face legal aid is unacceptably low, and the Legal Aid Agency
does not understand the link between the price it pays providers and the quality of
the advice.
uu The Ministry does not know whether the reduction in spending on civil legal aid is
outweighed by additional costs in other parts of the public sector as a result of the
reforms. The cuts made to legal aid may simply have been shifted to other areas of
the public sector.
There have been a considerable number of other reports which have evaluated the
effects of the legal aid reforms in LASPO 2012. The Low Commission concluded that the
reductions in legal aid have ‘destabilised and reduced the advice and legal support
sector at a time of increased need. As a result, instead of saving money, the cutbacks
are very likely to end up costing more elsewhere in the system.’ Similarly, the Bach
Commission report argued that there is a crisis in the justice system as a result of
LASPO, and recommended a new Right to Justice Act to secure effective access to
justice. The Law Society (the professional body for solicitors) carried out a review
of LASPO four years after its measures came into force (see www.lawsociety.org.uk/
support-services/research-trends/laspo-4-years-on/). The Law Society’s main findings
were that:
uu legal aid is no longer available for many of those who need it
uu those eligible for legal aid find it hard to access
uu wide gaps in provision are not being addressed
uu LASPO has had a wider and detrimental impact on the state and society.
There have long been calls for the government to review the operation of LASPO,
especially as it was felt by many that the Ministry of Justice did not carry out sufficient
research on its likely effects before the Act was passed. In October 2017, the then Lord
Chancellor, David Lidington, announced that work had started on a government review
of the legal aid changes made by the Act. This is due to conclude in summer 2018.
6.4.6 Is there a right to legal aid in civil cases?
Essential reading
¢¢ Joint Committee on Human Rights ‘The implications for access to justice of the
Government’s proposals to reform legal aid’ Seventh Report of Session 2013–14
https://publications.parliament.uk/pa/jt201314/jtselect/jtrights/100/100.pdf
The right of effective access to court has been recognised as a fundamental human
right by the common law, for example Witham [1998] 2 WLR 849. In the Witham case Sir
John Laws held:
It seems to me, from all the authorities to which I have referred, that the common law
has clearly given special weight to the citizen’s right of access to the courts. It has been
described as a constitutional right, though the cases do not explain what that means. In
this whole argument, nothing to my mind has been shown to displace the proposition
that the executive cannot in law abrogate the right of access to justice, unless it is
specifically so permitted by Parliament; and this is the meaning of the constitutional right.
(p.585)
In the case of R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 Lord
Bingham said that the common law right of effective access to justice comprises three
distinct rights:
1. the right of access to a court
2. the right of access to legal advice
3. the right to communicate confidentially with a legal adviser.

The right of access to legal advice has also been recognised as a fundamental
right under the common law. These rights are regarded by the judiciary as having a
common law, constitutional position, inherent in the rule of law. The common law also
recognises as a fundamental value the principle of equal treatment.
While Article 6 of the HRA 1998 guarantees the provision of legal aid for citizens
accused of criminal offences (Article 6(3)(c)), there is no equivalent provision in
Article 6(1) so there is no general ECHR right to legal aid in civil proceedings. As far
back as 1979 the ECtHR considered the question of whether legal representation was
a fundamental prerequisite of access to the court in the case of Airey (Airey v Ireland
32 Eur Ct HR Ser A (1979): [1979] 2 EHRR 305). The question was whether Mrs Airey had
been denied access to the court because she could not afford representation and was
not able to secure legal aid. The Irish Government argued that because she was free to
represent herself, she did have access to the court. The ECtHR held that the purpose of
the Convention was to guarantee rights that are ‘practical and effective’ rather than
‘theoretical or illusory’, particularly in relation to access to the courts and the right to a
fair trial. The Court held, however, that legal aid in civil proceedings was not generally
a requirement of access to justice. While there might be circumstances where it
was necessary because of the complexity of court procedures or of the case, a state
might afford access either through providing legal representation or, alternatively,
simplifying procedure. The Court held:
[W]hilst Article 6 para. 1 (art. 6-1) guarantees to litigants an effective right of access to the
courts for the determination of their ‘civil rights and obligations’; it leaves to the State
a free choice of the means to be used towards this end. The institution of a legal aid
scheme … constitutes one of those means but there are others such as, for example, a
simplification of procedure.
(para.26)
As a result of the changes to legal aid under LASPO 2012, and subsequent further
proposed changes, it has been argued that there is a common law right to legal aid.
The view of the Government, however, is that while it accepts that there is a common
law right of access to the court, this is not the same as a common law right to legal aid.
The Government said in 2013 that:
We do not consider that there is any basis at common law that a litigant is in general
entitled to a state subsidy in respect of lawyers’ fees. The legal aid reforms do not involve
any fundamental right of access to the courts, rather the question of whether a person
should receive legal aid funding.
In the recent landmark case of R (Unison) v Lord Chancellor [2017] UKSC 51, the Supreme
Court held that there is a constitutional right to access to justice, and that this right
is inherent in the rule of law. This case was not about LASPO or legal aid, but about a
similar issue: namely, fees that the government had introduced for claimants in the
Employment Tribunals. The Lord Chancellor had, by secondary legislation, required
most people who wanted to use these tribunals to bring a claim in employment law to
pay considerable fees, where no fees had been payable before. It was argued that this
was unlawful and hindered access to justice. In giving the judgment of the court, Lord
Reed said (at paras 66 and 68):
The constitutional right of access to the courts is inherent in the rule of law … At
the heart of the concept of the rule of law is the idea that society is governed by law.
Parliament exists primarily in order to make laws for society in this country. Democratic
procedures exist primarily in order to ensure that the Parliament which makes those laws
includes Members of Parliament who are chosen by the people of this country and are
accountable to them. Courts exist in order to ensure that the laws made by Parliament,
and the common law created by the courts themselves, are applied and enforced. That
role includes ensuring that the executive branch of government carries out its functions
in accordance with the law. In order for the courts to perform that role, people must in
principle have unimpeded access to them. Without such access, laws are liable to become
a dead letter, the work done by Parliament may be rendered nugatory, and the democratic
election of Members of Parliament may become a meaningless charade. That is why the
courts do not merely provide a public service like any other.
Lord Reed went on to state that the right of access to justice, administered promptly
and fairly, had long been recognised in case law. The limitation of this right by
secondary legislation could only be effected by clear statutory words, and the clear
authorisation of Parliament. In the present case, the charging of fees in Employment
Tribunals was found to impede access to justice, as many people could not reasonably
afford to pay them. The secondary legislation was therefore unlawful, as the enabling
Act contained no words authorising the prevention of access to the tribunals. The
practical effect of this case was the abolition of Employment Tribunal fees. The Ministry
of Justice made a statement after the decision saying it would take ‘immediate steps
to stop charging fees in employment tribunals and put in place arrangements to
refund those who have paid.’
1. What are the public functions of the civil justice system?
2. In what way might access to justice be seen as essential to the rule of law?
3. What are the requirements of effective access to justice?
4. Who initiates proceedings in civil cases?
5. Why might citizens find it difficult to access the civil courts?
6. What are the main changes to legal aid introduced by LASPO 2012?
7. What is the difference between a common law right to access to the courts and
a common law right to legal aid?
6.5 The challenge of providing accessible and affordable civil

justice
Essential reading
¢¢ Lord Woolf ‘Access to justice’ Interim Report, June 1995, Chapter 3 ‘The problems
and their causes’
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/
interim/chap3.htm
¢¢ Action Committee on Access to Justice in Civil and Family Matters ‘Access to civil
& family justice: a roadmap for change’ Ottawa, Canada, October 2013
www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf
Further reading
¢¢ Australian Productivity Commission ‘Access to justice arrangements: inquiry
report’ December 2014
www.pc.gov.au/inquiries/completed/access-justice/report
In England there have been longstanding concerns about the expense, delay and
complexity of the civil justice process. These concerns go back at least to the time of
Dickens who satirised the courts in his novel Bleak house in 1852. Expense represents a
major barrier to access to justice and it arises principally from the cost of paying fees
for legal advisers. Lawyers help litigants to understand their legal rights and assist
in commencing and advancing court proceedings in order to prepare for judicial
determination at a trial.
Slow and expensive procedures seem to affect common law civil justice systems
around the world. This is reflected in the WJP rule of law index which shows that many
jurisdictions struggle to meet the basic standards of accessibility and affordability. The
time and cost involved in collecting evidence, and then preparing a case for trial are
linked to common law adversarial procedures. But why are the procedural rules so
important? As discussed in Chapter 1, the rules of court are bound up with the idea of
procedural fairness – that a person has notice of the case against them and a proper
opportunity to answer the case; and that a court’s decision will be based on ‘truth’
because the information relevant to the decision has been provided to the court. In
this way, procedural rules are directly linked to the concept of due process and reflect
a sense of justice.
However, it is necessary to find a balance between fair procedures and affordable

processing of cases. There seems to be general agreement that a critical challenge
in solving the problems of cost and delay in civil justice is the need to simplify
procedures. Many of the recent civil justice reforms in England and other common
law countries have been directed at this objective in order to increase efficiency and
reduce the length and cost of court proceedings.
6.5.1 Reforming the civil justice system: Lord Woolf and the access to
justice reforms
Further reading
¢¢ Wilson, S., H. Rutherford, T. Storey and N. Wortley English legal system. (Oxford:
Oxford University Press, 2016) 2nd edition [ISBN 9780198747949] Chapter 15 ‘The
civil process’.
During the course of the 20th century, there were numerous reviews and reforms
aimed at making civil justice quicker and cheaper for litigants. The most significant
reforms followed a fundamental review of civil justice entitled ‘Access to justice’
conducted between 1994 and 1996 by a senior judge, Lord Woolf, in the context
of debate about the increasing cost of litigation and declining availability of legal
aid. Following a relatively rapid review, Lord Woolf published an ‘Interim report’
in June 1995 and a ‘Final report’ in July 1996, accompanied by new Civil Procedure
Rules. Lord Woolf believed that the problems of cost, complexity and delay were
linked, and that they were largely the result of excessively adversarial behaviour by
lawyers in the course of litigation. In his view such tactics subverted the intention of
procedural rules creating unnecessary cost for litigants. Lord Woolf’s solution was to
shift responsibility for the management of civil cases from the parties to the court
and to allocate cases to procedural ‘tracks’ so that simple cases would be dealt with
by swift and straightforward procedures, and more complex procedures would be
reserved for the most legally difficult or most expensive cases. This was the concept
of proportionality which characterised Lord Woolf’s reforms. Another important
objective of Lord Woolf’s reforms was to promote early settlement of cases. He argued
that disputing parties should only use the courts as a last resort and should use private
ADR processes, in particular mediation, to settle disputes at the earliest opportunity.
6.5.2 The new Civil Procedure Rules (CPR)

Lord Woolf’s final report was accompanied by a new procedural code that applied to
both the county courts and the High Court. The new Civil Procedure Rules (CPR) came
into force in April 1999. The rules were designed to be accessible. Latin terms were
removed. The rules are divided into ‘Parts’ and accompanied by practice directions.
Practice directions are sets of rules and procedures which tell parties what the court
expects of them and what might happen if they do not comply with various rules
or court orders. The procedures that are to be followed by disputing parties before
proceedings are issued in court are contained in ‘pre-action protocols’. The CPR and
practice directions are constantly being updated and are published on the Ministry of
Justice website: www.justice.gov.uk/courts/procedure-rules/civil/rules
The CPR has an ‘overriding objective’. In the original version of the CPR the overriding
objective was to ‘deal with cases justly’. This was amended in April 2013 to emphasise
the importance of controlling the expense of litigation. The text of CPR Part 1.1 explains
that the new procedural code has the overriding objective of ‘enabling the court to
deal with cases justly and at proportionate cost.’ Dealing with a case justly and at
proportionate cost includes saving expense and dealing with the case in ways that
are proportionate to the amount of money involved, the importance of the case, the
complexity of the issues and the financial position of each party.
Under the CPR judges are responsible for actively managing cases. This involves
encouraging co-operation, identifying key issues that need to be investigated,
encouraging disputing parties to use ADR and helping the parties to settle. There is an
emphasis on efficiency and settlement.
The three procedural tracks for cases are:
1. The small claims track (CPR Part 27) – for cases with a claim value not exceeding
£10,000 (£1,000 for personal injury and housing cases). This is the most informal
procedure designed to be speedy and inexpensive. Under the CPR the court may
adopt any method of proceeding at a hearing that it considers to be fair. Strict rules
of evidence do not apply and the court can limit cross-examination. Despite the
informality the court must give reasons for its decision.
2. The fast track (CPR Part 28) – for cases with a claim value of £10,000 to £25,000.
Fast track cases have a strict timetable. The trial lasts for no longer than one day
and oral expert evidence is limited.
3. The multi-track (CPR Part 29) – for all other cases. These are the most complex and
high value cases. They are subject to active case management and pre-trial review
by the court.
6.5.3 The continuing problem of legal costs
Essential reading
¢¢ Department for Constitutional Affairs ‘Further findings: a continuing evaluation
of the civil justice reforms’ August 2002
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/
reform/ffreform.htm
¢¢ Sorabji, J. ‘Prospects for proportionality: Jackson implementation’ (2013) 32(2)

CJQ 213–30 (available in Westlaw through the Online Library).
In the almost 20 years since the implementation of the Woolf reforms, evaluations
suggest that the reforms have been partially successful in promoting co-operation and
settlement and reducing delay. However, the critical failure has been in the impact
on costs. Only three years after the implementation of the reforms, the Government’s
own evaluation reported anecdotal evidence that costs had increased following the
reforms (Department for Constitutional Affairs, 2002). By 2008 there was so much
concern about rising litigation costs that the then Master of the Rolls, Lord Clarke,
commissioned a thorough review of litigation costs to be conducted by a Court of
Appeal judge, Lord Justice Jackson.
The Jackson costs review analysed large amounts of litigation costs data and
concluded in 2010 that although there were several causes of rising costs, one of
the causes had been the Woolf reforms. Lord Justice Jackson said that the additional
work required by the Woolf reforms, particularly pre-action protocols, had increased
procedural complexity. He said that the more work the rules require to be done,
the more it will cost. There was now more work for lawyers to do at an early stage in
preparing cases and this had caused a ‘front-loading’ of legal costs.
Lord Justice Jackson made a number of significant recommendations designed to reduce

the costs of litigation. His recommendations were implemented in April 2013. There has
been considerable controversy over the reforms and it remains unclear whether the
reforms will achieve the objective of controlling litigation costs. The Law Society has
argued that the changes have proved inconsistent, time-consuming and costly and that
they are likely to decrease rather than increase access to justice:
The sheer tidal wave of reforms designed to reduce solicitors’ costs has also had the effect
of reducing access to justice, increasing the number of litigants in person and swelling the
already overburdened court waiting lists …
In 2016 Lord Justice Jackson indicated that the next step in the implementation of costs
reform would be the introduction of an extensive regime of fixed costs for civil litigation,
and he was then commissioned by the Lord Chief Justice and the Master of the Rolls
to undertake a review of fixed recoverable costs. The report of this review, which was
published in July 2017 (see www.judiciary.gov.uk/wp-content/uploads/2017/07/fixed-
recoverable-costs-supplemental-report-online-2-1.pdf), concluded that:
The only effective way to control the costs of civil litigation is to do so in advance. ... In my
view, the time has now come to expand the scope of fixed recoverable costs. This is the
major piece of unfinished business left over from my previous review. At the same time,
work must be done to streamline the litigation process and to control the amount of work
which litigants and their lawyers are required to do.
Lord Justice Jackson argues that fixed recoverable costs are necessary because parties
to litigation need certainty. They need to know at the outset what costs they will
recover if they win and what costs they will pay out if they lose. Controlling the costs
of litigation and providing clarity as to each party’s financial commitment are vital
elements in achieving access to justice.
6.5.4 Access to justice and the rise of litigants in person (LIPs)
Essential reading
¢¢ Genn, H. ‘Do-it-yourself law: access to justice and the challenge of self-
representation’ (2013) 32(4) CJQ 411 available in Westlaw through the Online
Library.
¢¢ House of Commons Library briefing paper ‘Litigants in person: the rise of the self-
represented litigant in civil and family cases in England and Wales’ January 2016
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/
SN07113#fullreport
¢¢ Re R (A Child) [2014] EWCA Civ 597.
¢¢ Re D (A Child) [2014] EWCA Civ 315.
Further reading
¢¢ Civil Justice Council ‘Access to justice for litigants in person’ 2011
www.judiciary.gov.uk/wp-content/uploads/2014/05/report-on-access-to-justice-
for-litigants-in-person-nov2011.pdf
¢¢ ‘The Judicial Working Group on Litigants in Person: Report’ Judicial Office, July 2013
www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/lip_2013.pdf
¢¢ The Civil Justice Council , Fourth Forum on Litigants in Person, December 2015:
www.judiciary.gov.uk/wp-content/uploads/2011/03/cjc-national-forum-on-
access-to-justice-for-lip-summary.pdf
¢¢ Lord Thomas CJ ‘Reshaping justice’ (JUSTICE Lecture) 3 March 2014

www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/lcj-speech-
reshaping-justice.pdf
Although most people need and prefer to have the benefit of legal advice before making
or defending a claim in court, there is a right in all English civil and criminal proceedings
for an individual to appear in court without representation. This right exists in most
common law jurisdictions although it is not true in many civil law jurisdictions where
litigants are required to have legal representation in court proceedings.
Self-representation (or what is known as pro se litigation) in court has recently been
increasing in common law jurisdictions around the world from England to Hong Kong,
Australia, the USA and Canada. In England concern about the increase in litigants in
person (LIPs) has significantly intensified with the implementation of LASPO 2012 since
it is now impossible for many people involved in civil and family disputes to obtain legal
aid support. In a speech in 2013 the Lord Chief Justice, Lord Thomas, said that the growth
in the number of LIPs is one of the 10 most significant justice system issues, and that the
increase was caused by the loss of legal aid and the rise in litigation costs. He said that
LIPs were having a serious impact on courts, and that this was a global phenomenon.
6.5.5 LIPs and adversarial procedure

The problem for LIPs is that it is difficult for people without legal or specialist training
to understand the law and court processes. Adversarial court proceedings, with the
emphasis on presentation and challenge of evidence through cross-examination,
operate with the expectation that litigants will be represented and that their cases will
be advocated to an impartial and largely passive judge who listens and then gives their
decision based on the evidence.
Research evidence suggests that LIPs have difficulty understanding the law, difficulty in
collecting relevant evidence, difficulty complying with procedural rules, and difficulty
in expressing themselves and advocating their case in court. This presents challenges
for judges in court and may mean that LIPs are less likely to succeed with their case
than if they had been represented. In the context of family courts Lord Justice Ryder
has explained the challenge of the increasing numbers of LIPs:
[LIPs] will not have had the benefit of legal advice to identify the merits and demerits
of their proposals … they will not have had identified to them the issues the court can
address before arrival at the court door … they will arrive without professionally advised
applications seeking permission to file evidence … Many will have no idea what a
conventional court process entails and some will have difficulty in understanding its rules.
(‘Judicial proposals for the modernisation of family Justice’, 2012)
In a recent case Re R (A Child) [2014] EWCA Civ 597 Lady Justice Black explained the
additional burden placed on the court when unrepresented parties appear with
disorganised documents and without a clear understanding of the issues to be decided.
The National Audit Office report ‘Implementing reforms to civil legal aid’, November
2014 (www.nao.org.uk/wp-content/uploads/2014/11/Implementing-reforms-to-civil-
legal-aid1.pdf), sets out the challenges that LIPs face. According to this report, LIPs:
uu are less likely to settle cases outside of court hearings
uu are likely to have more court orders and interventions in their cases
uu are less likely to have the knowledge and skills required to conduct their cases
efficiently
uu create additional work for judges and court staff, which can make court-listing
processes less efficient.
A number of official reports have made recommendations for how to provide

assistance to the increasing number of LIPs. The Civil Justice Council report in 2011
recommended a holistic approach, focusing on early information and advice,
demystification of the law, simplification of the court process, case management by
judges and more public legal education for citizens. A Judicial Working Group on LIPs
reported in 2013 and concluded that it was necessary for courts to modify adversarial
procedures and adopt a more ‘inquisitorial’ approach when dealing with LIPs. They
also recommended allowing lay advocates to address the court, and making greater
use of what are known as McKenzie friends – someone who is not a lawyer, but who
accompanies a LIP to a court hearing in order to help by taking notes, helping to
organise the documents and quietly making suggestions about what to do.
On 25 February 2016, the Judicial Executive Board (JEB) issued a consultation paper
proposing reforms to the existing guidance for McKenzie friends. The activity at
present is largely unregulated and there are growing concerns for the risks to litigants
in person who use such support. The Consultation proposes new civil procedural rules
to govern the conduct of a ‘court supporter [who] may assist a litigant’ (see www.
judiciary.gov.uk/wp-content/uploads/2016/02/mf-consultation-paper-feb2016-1.pdf).
The Civil Justice Council’s Third Forum on Litigants in Person in November 2014 (www.
judiciary.gov.uk/wp-content/uploads/2011/03/web-summary-of-lip-forum-2014.pdf) and
Fourth Forum in December 2015 (www.judiciary.gov.uk/wp-content/uploads/2011/03/
cjc-national-forum-on-access-to-justice-for-lip-summary.pdf) made recommendations
which included a call for coordinated action among voluntary groups to provide early
advice and assistance. The Forum has commented on:
uu the need to build a coherent support strategy for LIPs
uu the need for collaboration between organisations
uu the important role that paralegals and students have to play
uu how LIPs need and value some very basic assistance – help with completion of
forms, writing letters, and so on
uu the need to simplify court procedure
uu the need for training of the judiciary
uu the role of digitalisation and online access to justice
uu the issue of ‘unbundling’, whereby solicitors only have a narrow duty of care to
advise on limited aspects of a given case (as discussed in Sharon Minkin v Lesley
Landsberg (trading as Barnet Family Law) [2015] EWCA Civ 1152).
6.5.6 Moving from adversarial to more inquisitorial procedures?

A number of senior judges have recently argued that in order for courts to deal with
increasing numbers of LIPs they will have to adopt a more inquisitorial or quasi-
inquisitorial approach. This is reflected in recent cases that set out the approach that
courts must adopt. In Mole v Hunter [2014] EWHC 658 (QB) it was held that courts have
sufficient flexibility to adapt proceedings so that justice is done for LIPs. In the cases of
Re C (A Child) [2013] EWCA Civ 1412, Re W (A Child) [2013] EWCA Civ 1227 and Re D (A Child)
[2014] EWCA Civ 315 Lord Justice Ryder has explained that when dealing with LIPs it
is the responsibility of the judge to adopt an inquisitorial approach so that they can
identify the relevant issues in the case. He said:
… the process of fact finding in family proceedings is quasi-inquisitorial. The welfare

of a child may sometimes require a judge to make decisions about facts and/or value
judgments that are not asked for by either party. A judge cannot shrink from doing so. That
is his function. He must identify such questions and where necessary decide them …
In February 2014 the President of the Family Division, Sir James Munby, said that the
current system is based on the assumption that parties are represented. However,
in his view, the system will have to be ‘radically redesigned to reflect the reality that
parties will not be represented.’ In his lecture in March 2014 the then Lord Chief Justice
Lord Thomas signalled that the shift to more inquisitorial processes already taking
place within the family justice system might have to be extended to the other parts of
the civil justice system.
6.5.7 Future reform of the civil justice system
Essential reading
¢¢ Civil courts structure review: interim report, December 2015 www.judiciary.gov.
uk/wp-content/uploads/2016/01/CCSR-interim-report-dec-15-final-31.pdf
¢¢ Civil courts structure review: final report, July 2016 www.judiciary.gov.uk/wp-

content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf
¢¢ Transforming our justice system: summary of reforms and consultation,

September 2016
https://consult.justice.gov.uk/digital-communications/transforming-our-courts-
and-tribunals/supporting_documents/consultationpaper.pdf
Further reading
¢¢ The Rt Hon Sir Ernest Ryder, Senior President of Tribunals ‘The modernisation
of access to justice in times of austerity’ 3 March 2016 (5th Annual Ryder
Lecture: the University of Bolton) www.judiciary.gov.uk/wp-content/
uploads/2016/03/20160303-ryder-lecture2.pdf
There have recently been a number of reports and reform proposals relating to the
civil justice system. This will potentially bring about a considerable amount of change
over time to the way the system operates.
In July 2016, Lord Justice Briggs published his final report into the review of the
structure of civil courts. An interim report had already been published in December
2015. The review was commissioned by the Lord Chief Justice and the Master of the
Rolls and its main terms of reference were:
uu To carry out a review of the structure by which the Civil Courts (namely the County
Court, the High Court and the Court of Appeal) provide the State’s service for the
resolution of civil disputes in England and Wales.
uu To review the boundaries between the Civil Courts and: (i) the Family Court; (ii)
the Tribunals Service; and (iii) other private providers of civil dispute resolution
services, but not the internal structures of those other entities.
uu To make recommendations for structural change including, in particular, the

structures by which the fruits of the Reform Programme may best be integrated
into the present structure of the Civil Courts.
uu To make recommendations for the deployment of judges and delegated judicial

officers to particular classes of case.
One of the most important recommendations of the Review was that there should
be an Online Court. This would be a new court, designed to be used by people with
minimum assistance from lawyers, with its own set of user-friendly rules. The report
noted that feedback from the interim report consultation was supportive of a new
Online Court which litigants could use without lawyers. However, there had been
several criticisms of the idea, among them concerns that the Online Court would
provide second class justice to those wrongly viewed as having less important claims,
a large number of people would be denied access to justice by the requirement to
use online technology, the exclusion of lawyers would be a cause of injustice in many
cases, and that online justice threatens a loss of open justice and transparency.
The final report recommended that the Online Court should eventually be made
compulsory as the forum for cases within its jurisdiction, save where otherwise
recommended and subject to the power of the court to transfer cases to a higher
court on grounds of complexity or public importance.
There were further important reform proposals in the Review, including the
creation of Case Officers, to be trained and supervised by judges, to do some of the
administrative work currently performed by judges.
‘Transforming our justice system’ summary of reforms

In September 2016 the Ministry of Justice published a summary of reforms and a
consultation paper entitled ‘Transforming our justice system’. This set out details of
reforms to civil, criminal and family courts, and to tribunals, with the aim of ensuring a
modern justice system.
The aims of the reforms were that the justice system should be:
uu Just: decisions and outcomes are fair, the judiciary are supported by processes that
are modern, transparent and consistent, and like cases are treated alike. A strong
judiciary and meritocratic legal professions draw on the widest available pool of
talents, to maintain public confidence and strengthen the rule of law.
uu Proportionate: the cost, speed, complexity, and degree of adversarial protection

make sense and are appropriate to the nature and value of the dispute at issue. An
effective system will save people time and money, and shrink the impact of legal
proceedings on their lives.
uu Accessible: the system is affordable, intelligible and available for use by all,
convenient for those who cannot easily attend in person, and supportive of those
not comfortable with the law or technology.
The summary document contains many reforms to the ways courts and tribunals
work. Some of the main reforms to the justice system as a whole are:
uu Case officers, working under judicial supervision, will be used for routine tasks,
instead of these being carried out by judges.
uu More decisions will be made on the papers, that is, without an oral hearing.
uu There will be more ‘virtual’ hearings, using telephone or video conferencing,

instead of all hearings taking place in a court building.
uu More cases should be settled out of court, by the parties settling disputes
themselves.
More processes will take place online, for example probate applications and managing
divorce proceedings.
Particular reforms are suggested for the civil justice system. These include a new
process for resolving many disputes entirely online, building on the Civil Courts
Structure Review carried out by Lord Justice Briggs, discussed above. Fixed recoverable
costs (see discussion earlier in this chapter) will be extended to as many civil cases as
possible, and there will be a limited level of legal costs recoverable.
The government has said that it will bring forward legislation where necessary to
enable these reforms.
As part of its overall reform programme, the government has also closed many
of the buildings previously used for court and tribunal hearings. In February 2016,
the Ministry of Justice announced that, on the basis that many court buildings are
underused and expensive to maintain, a decision had been made to close 86 court and
tribunal buildings. (https://consult.justice.gov.uk/digital-communications/proposal-on-
the-provision-of-court-and-tribunal-es/results/national-consultation-document.pdf)
1. What is the overriding objective of the new Civil Procedure Rules?
2. What are the characteristics of proceedings on the small claims track?
3. What is the concept of ‘proportionality’ in the new Civil Procedure Rules?
4. Did the Woolf reforms succeed in reducing the cost of litigation?
5. Why has there been an increase in litigants in person in the courts?
6. What are the challenges for LIPs and judges conducting hearings with LIPs?
7. How are judges modifying the conduct of hearings to accommodate LIPs?
8. What are the main changes proposed to the civil justice system by the Civil Justice
Structure Review and the ‘Transforming our justice system’ reform summary?
6.6 Alternative dispute resolution (ADR) processes
Essential reading
¢¢ Cownie, Bradney and Burton, Chapter 11 ‘Alternative dispute resolution’ (in the
Legal system and method study pack).
¢¢ Dunnett v Railtrack plc [2002] EWCA Civ 2003.
¢¢ Halsey v Milton Keynes General NHS Trust [2004] EWCA (Civ) 576.
Further reading
¢¢ Genn, H., S. Riahi and K. Pleming ‘Regulation of dispute resolution in England
and Wales: a sceptical analysis of Government and judicial promotion of private
mediation’, Chapter 7 in F. Steffeck et al. (eds) Regulating dispute resolution:
ADR and access to justice at the crossroads. (Oxford: Hart Publishing, 2013)
[ISBN 9781849462587].
¢¢ Fiss, O.M. ‘Against settlement’ (1984) 93 Yale Law Journal 1073
http://digitalcommons.law.yale.edu/fss_papers/1215/
¢¢ Civil Justice Council ‘Interim Report on ADR and Civil Justice’ October 2017
www.judiciary.gov.uk/wp-content/uploads/2017/10/interim-report-future-role-
of-adr-in-civil-justice-20171017.pdf
The term alternative dispute resolution (ADR) is an umbrella term which is generally
applied to a range of dispute resolution methods other than court proceedings including
negotiation, mediation, conciliation, arbitration, adjudication, early neutral evaluation
and ombudsmen schemes. The most commonly used processes are arbitration,
mediation, conciliation and ombudsmen. With the exception of arbitration and
ombudsmen services, most forms of ADR are species of facilitated settlement. A critical
feature of all forms of ADR is that they are dispute resolution processes conducted in
private. Both the process and outcome of the procedures are generally confidential to
the parties (with the exception of ombudsmen decisions). Like other types of out of
court settlement, the terms of mediated agreements are not publicly known.
6.6.1 Main types of ADR processes

Arbitration This is the private, confidential determination of a dispute by an
independent third party. The arbitrator makes a decision according to law. The
arbitrator’s decision, known as an award, is legally binding and can be enforced
through the courts. An arbitration hearing may involve the use of an individual
arbitrator or a tribunal which can consist of any number of arbitrators, though some
legal systems insist on an odd number to avoid a tie. Arbitration is used in a wide range
of disputes including shipping, insurance and international commercial disputes.
Early neutral evaluation A private process in which a neutral legal professional

(often a retired judge) hears a summary of each party’s case and gives a non-binding
assessment of the merits. This can then be used as a basis for settlement or for further
negotiation.
Expert determination A private process in which an expert neutral third party is

appointed to decide the dispute. The expert’s decision is binding on the parties.
Mediation This is one of the most popular ADR processes in which a neutral third
party assists the disputing parties to reach a settlement. It is essentially a facilitated
settlement. The process is voluntary and non-binding, although any binding
agreement reached can be enforced in contract. Although in facilitative mediation
the mediator will not give a view of the strengths or weaknesses of the parties’ cases,
parties can choose to have an ‘evaluative’ mediation where the mediator gives an
assessment of the legal strength of each party’s case. Mediation is used in a wide
range of disputes including commercial disputes, family disputes, neighbour disputes
and employment disputes. Mediation is distinguished from litigation processes by
virtue of its focus on problem-solving, rather than an emphasis on strict legal rights.
Mediation is often said to be capable of producing ‘win/win’ situations rather than
the ‘win/lose’ situations characteristic of court adjudication. Mediation is said to
be better than litigation for the resolution of disputes because: it is cheaper and
quicker; it is a flexible procedure that can achieve settlement in a wide range of
disputes; it is capable of achieving creative solutions that would not be available in
court adjudication; it focuses on commercial realities of disputes rather than legal
technicalities; it can repair damaged relationships; it can reduce conflict; and it is less
stressful for parties than court procedures. Some of these claims for mediation are
discussed further below.
Conciliation This is a facilitated settlement process that is often confused with

mediation. It is, in fact, very similar, but in conciliation the third party ‘neutral’ takes
a more active role, deliberately suggesting ways in which the parties might reach
settlement. Conciliation is used very commonly in employment disputes.
Med-Arb This is a hybrid process which combines mediation and arbitration. The
parties attempt to reach a mediated settlement, but if after an agreed length of time
no settlement can be achieved, the mediator will arbitrate the dispute and give a
decision.
Ombudsmen These are independent dispute and complaint handlers who investigate
and rule on complaints from members of the public about poor administration or
service by government departments, and about public and private service delivery.
Some ombudsmen use mediation as part of their dispute resolution procedures.
Ombudsmen make a decision about complaints and can award compensation and
make recommendations about changes to public and private services. Some of the
largest private ombudsmen services are the Financial Ombudsman, the Housing
Ombudsman and the Legal Ombudsman who deals with complaints about legal
services.
6.6.2 The modern development of mediation

Although arbitration and conciliation have been used in England as alternative
techniques for the resolution of civil and commercial disputes at least since the 1950s,
significant contemporary interest in ADR and, in particular, mediation, can be traced to
the publication of the Woolf reports in 1995 and 1996. Lord Woolf heavily encouraged
the use of mediation as a means of parties resolving disputes rather than using court
processes. Lord Woolf promoted mediation because in his view it would save court
resources and because he believed that it would be cheaper for litigants than going to
court and would offer quicker results.
In the 1995 ‘Interim report’ Lord Woolf stated that the courts had an important role in
providing information about ADR and encouraging its use in appropriate cases. This
encouragement was strengthened in the 1996 ‘Final report’, which stated that:
[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.
This meant that if a litigant unreasonably refused to try ADR the judge would be able
to impose a financial penalty when the case came to trial. So, for example, a litigant
who won their case might not recover their legal costs from the losing side, even
though this is the normal rule in litigation (the losing party pays the winning party’s
legal costs). The CPR included provision for the parties or the court to ‘stay’ (interrupt)
court proceedings in order for the parties to seek to settle their dispute by ADR
(Part 26).
Following the lead provided by Lord Woolf, in the late 1990s and early 2000s, enthusiastic
judges in courts around England collaborated with mediation providers to set up court-
attached mediation schemes offering no or low-cost, time-limited mediation, held on
court premises for litigants who had already commenced court proceedings. The first
and largest of these court-based mediation schemes was established in a county court
trial centre in central London (Central London County Court) in 1996. Although the courts
administered the schemes, the mediations themselves were undertaken initially on a
pro bono basis by trained mediators. Several of these schemes continued until around
2007 and evaluation research was commissioned by the Government. Research findings
showed that although the voluntary uptake of mediation offers was very low (around
five per cent) those people who had volunteered to try mediation to settle their dispute
generally liked the process, particularly the informality of mediation and lack of legal
technicality. About two-thirds of mediations resulted in settlement and there was some
evidence that legal costs had been saved. However, research also showed that where
mediation did not result in settlement, costs and delay were increased. There was also
evidence that the mediation process depended critically on the skill of mediators, who
are unregulated, and that the process was capable of magnifying power imbalances
between the parties.
6.6.3 The common law on mediation

Despite the enthusiasm for mediation shown by some sections of the judiciary in the
late 1990s and early 2000s, the voluntary uptake of mediation and use of these court-
attached mediation schemes between 1996 and 2001 remained low. Since 2002 there
have been a number of landmark legal cases in which the senior judiciary have clarified
the approach of the courts to the role of mediation in civil and commercial disputes.
In the case of Cowl v Plymouth City Council [2001] EWCA Civ 1935 Lord Woolf held that as
a matter of law parties are required to consider ADR before starting legal proceedings,
particularly where public money is involved. This was followed more significantly by
Dunnett v Railtrack plc [2002] EWCA Civ 2003 in which the Court of Appeal held that
Railtrack’s refusal to contemplate mediation prior to the appeal (after it had been
suggested by the Court) was sufficient to deny them their legal costs. The message
of Dunnett v Railtrack was reinforced in the later case of Hurst v Leeming [2001] EWHC
1051 (Ch) in which Mr Justice Lightman held that it is for the judge to decide whether a
refusal to mediate was justified. While judges will accept valid reasons for not wanting
to proceed with ADR, such reasons must be fully justifiable if the party wishes to avoid
being penalised by the court.
In 2004 the Court of Appeal gave guidance to lower courts in the case of Halsey v Milton
Keynes General NHS Trust [2004] EWCA (Civ) 576. Lord Justice Dyson held there should
be no presumption in favour of mediation and that there needed to be a real prospect
of mediation succeeding before someone should be denied their legal costs. The
guidance in Halsey was applied in the case of Burchell v Bullard [2005] EWCA Civ 358.
The High Court decision PGF II SA v OMFS Company [2012] EWHC 83 (TCC) from the
Technology and Construction Court held that where one party fails to accept another
party’s offer to mediate, and where the court generally believes that such a mediation
would have had a reasonable prospect of success, such conduct by an obdurate party
must be taken into account by the court when it comes to exercise its discretion in
relation to costs. When this case was heard by the Court of Appeal (PGF II SA v OMFS
Company [2013] EWCA Civ 1288), the court made it clear that silence in the face of an
invitation to participate in ADR is, as a general rule, of itself unreasonable conduct
which can lead to a costs sanction; it is necessary for the parties to engage with the
ADR process. The facts in Thakkar v Patel [2017] EWCA Civ 117 were different; in this
case, the defendants did not refuse to mediate, but they delayed until eventually the
claimants lost confidence in the whole ADR process. In giving the Court of Appeal’s
judgment, Lord Justice Jackson said that ‘in a case where bilateral negotiations fail but
mediation is obviously appropriate, it behoves both parties to get on with it. If one
party frustrates the process by delaying and dragging its feet for no good reason, that
will merit a costs sanction.’
6.6.4 Government policy and mandatory mediation

Government policy since the late 1990s has favoured the promotion of mediation for
civil, commercial and family disputes. It has also encouraged the use of mediation
in employment disputes and even judicial review. The Government believes that the
widespread use of mediation would reduce expenditure on the justice system and
legal aid and that it would save legal costs for litigants. In the recent debates about
reductions in legal aid for civil and family cases, the Government has promoted
mediation as a preferable alternative to court proceedings. In a consultation paper
prior to the introduction of LASPO 2012 the Government argued that the court system
needs to ‘focus more on dispute resolution … for the majority of its users, rather than
the loftier ideals of “justice”, that cause many to pursue their cases beyond the point
that it is economic for them to do so.’ The vision for the new system is one ‘where
many more avail themselves of the opportunities provided by less costly dispute
resolution methods, such as mediation – to collaborate rather than litigate’.
The Government has been in favour of moving toward a mandatory mediation system
in which disputing parties will be required to attempt mediation before they can have
access to court services. This is an approach that has been adopted for some civil and
family cases in other jurisdictions (for example, in Australia and Canada). Despite the
fact that the definition of mediation is that of a ‘voluntary, consensual process’, many
mediation providers and judges are in favour of mandatory mediation programmes.
However, some sections of the judiciary, legal practitioners and court users are
opposed to compulsion.
Recent changes to civil and family procedures have continued the emphasis on
attempting mediation before accessing court procedures. Under CPR 26.4A, all cases
allocated to the small claims track in the county courts will now be automatically
referred to a mediation service unless the parties object. In family cases, under the
provisions of the Children and Families Act 2014, there is now a requirement for
separating parties to attend a Mandatory Information Assessment Meeting (MIAM)
before they are allowed to make certain applications to the family court, for example,
disputes over finances or child(ren) arrangements.
The question of whether ADR should be made compulsory is considered in the Civil
Justice Council’s interim report on ADR and civil justice (October 2017). The report
considers the arguments on both sides of the debate: whether mediation should be
compulsory or generally remain voluntary. Its provisional view is that requiring ADR at
the point when legal proceedings are in contemplation is too heavy-handed, although
it may be more suitable in some types of cases than others: for example, those
involving boundary disputes or clinical negligence. The Civil Justice Council takes the
view that it would be much better to have a situation in which most of the population
were comfortable with ADR and aware of its usefulness, than to have to resort to
compulsion or even encouragement.
6.6.5 Evaluation
Essential reading
¢¢ Prince, S. ‘ADR after the CPR: have ADR initiatives now assured mediation an
integral role in the civil justice system in England and Wales?’ in Dwyer, D. (ed.)
The Civil Procedure Rules ten years on. (Oxford: Oxford University Press, 2009)
[ISBN 9780199576883] (in the Legal system and method study pack).
¢¢ Menkel-Meadow, C. ‘Whose dispute is it anyway? A philosophical and

democratic defense of settlement (in some cases)’ (1994–95) 83 Geo LJ 2663
(available in LexisNexis through the Online Library).
¢¢ Grillo, T. ‘The mediation alternative: process dangers for women’ (1991) 100(6)
Yale Law Journal 1545–610 (available from several databases through the Online
Library).
The potential value of various ADR processes, and in particular mediation, as a

supplement to traditional court processes is clear. Mediation can lead to a conclusion
of a dispute quite quickly and, as compared with the cost of trial, is likely to be less
expensive for the parties. Mediation offers the opportunity for parties to engage directly
in the settlement of their dispute. However, it is also clear from mediation research that
the process may magnify power imbalances between the parties and that weaker parties
may be disadvantaged in mediation as compared with court proceedings.
There is also a question of the extent to which mediation and other ADR processes
contribute to the concept of access to justice. The Government and to some extent
the judiciary increasingly present mediation not merely as a useful alternative
or supplement to public courts, but as an equal or, indeed, preferable method of
handling disputes that increases access to justice. However, the access to justice value
of mediation has been questioned by Genn:
Policy-makers may be interested in promoting ADR in order to clear court lists, to reduce
the legal aid bill, reduce enforcement problems, reduce court expenditure on judges, or
to reduce expenditure on court administration. In which case, when it is asserted that
mediation improves ‘access to justice’, what does that mean? Does mediation contribute
to access to the courts? No, because it is specifically non-court based. Does it contribute
to substantive justice? No, because mediation requires the parties to relinquish ideas of
legal rights during mediation and focus, instead, on problem-solving … The mediator does
not make a judgement about the quality of the settlement. Success in mediation
is a settlement that the parties can live with. The outcome of mediation is not about just
settlement it is just about settlement.
(Genn, 2009, p.117)
Menkel-Meadow, on the other hand, argues that some forms of ADR and settlement
policies provide the potential of greater access to justice. She argues that not
everyone wants to deal with disputes in the same way and that if there is a variety of
dispute resolution processes available, this may offer more, rather than less, justice in
terms of the variety of processes and the variety of outcomes that may be achieved.
1. What are the key features of mediation?
2. What are the asserted benefits of mediation as compared with litigation?
3. What has research revealed about court-annexed mediation programmes?
4. What is the effect of the decision in Dunnett v Railtrack on a party who

unreasonably refuses to attempt ADR?
6.6.6 Online dispute resolution (ODR)
Essential reading
¢¢ Civil Justice Council, Online dispute resolution for low value civil claims, February 2015
www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-
Final-Web-Version1.pdf
¢¢ European Union website information about ADR/ODR

http://ec.europa.eu/consumers/solving_consumer_disputes/
non-judicial_redress/adr-odr/index_en.htm
Further reading
¢¢ ODR Supporting papers
www.judiciary.gov.uk/publication-type/odr-supporting-papers/
¢¢ In particular, Sue Prince, Policy Paper

www.judiciary.gov.uk/wp-content/uploads/2015/02/ODR-policy-paper-2014SP-
Jan2015.pdf
Online resolution of disputes could potentially include both online resolution as part
of the court system and online forms of alternative dispute resolution.
Earlier in this guide, the use of online dispute resolution as part of the court system was
discussed in the context of the Online Court. One of the main recommendations of the Civil
Courts Structure Review by Lord Justice Briggs was the introduction of an Online Court, and
this was taken up in the summary of reforms in ‘Transforming our justice system’.
ODR can also be used in the context of alternative dispute resolution. There is a new
EU Online Dispute Resolution Platform which can be used in cross-border consumer
cases. Consumers can use the online platform to submit a complaint against a trader
to be resolved by a registered ADR provider. This system of ADR was introduced into
the UK in July 2015 by the Alternative Dispute Resolution for Consumer Disputes
(Amendment) Regulations 2015 (SI 2015/1392).
6.7 Disappearing trials, privatisation of justice and the rule of law
Essential reading
uu Genn, H. ‘Why the privatisation of civil justice is a rule of law issue’ 36th FA Mann
Lecture, 2012
www.ucl.ac.uk/laws/sites/laws/files/36th-f-a-mann-lecture-19.11.12-professor-
hazel-genn.pdf
uu Menkel-Meadow, C. ‘Is the adversary system really dead? Dilemmas of legal ethics
as legal institutions and roles evolve’ (2012) 57 Current Legal Problems 85 (in Legal
system and method study pack).
uu Kritzer, H.M. ‘Disappearing trials? A comparative perspective’ (2004) 1(3) Journal
of Empirical Legal Studies 735–54, p.752 (available in HeinOnline through the
Online Library).
As mentioned earlier, a high proportion of civil and family disputes formally
commenced in the courts conclude on the basis of an out of court settlement and this
has been the pattern of civil litigation in England and other common law jurisdictions
throughout the 20th century. Over the past 20 years there has been a dramatic drop
in the number of cases proceeding to trial. This tendency has been referred to as
the phenomenon of ‘the vanishing trial’ and can be detected in many common law
jurisdictions around the world. Those cases that proceed to public trial, and even
those that involve the issue of formal legal proceedings, are now only the tiniest tip of
a large dispute pyramid (see Genn, 1999 and other legal needs studies).
Adjudication
Court proceedings
issued
Legal problems
and disputes
Settlement
Arbitration
Mediation
ENE
Expert determination
Med-Arb Concilliation
Abandoned
Figure 6.2: The civil dispute resolution pyramid

While it is possible that this trend is the result of the increasing cost of litigation which
was discussed earlier in this chapter, it has also been suggested that the reduction in
trials is a reflection of a shift away from the public courts and into the wide range of
private dispute resolution processes. In fact, it seems that the public courts now have
to compete with private dispute resolution providers for business.
3000
2500
2000
1500
1000
500
0
1974 1978 1982 1986 1990 1994 1998 2002 2007 2011
Figure 6.3: Trials in the Queen’s Bench Division of the High Court 1974–2011
Genn (2013) has argued that the privatisation of civil justice may have implications
for the collective interest in the justice system and more broadly on the community.
She has argued that there are rule of law implications concerning the value of public
adjudication, the potential loss of precedent in common law systems, and the
unknown consequences of the unregulated processes and substantive outcomes of
private dispute resolution.
Menkel-Meadow takes a different view. Labelling those who worry about the
privatisation of civil justice as ‘litigation romantics’ she suggests that ‘demise of the
adversary system of trial’ is a ‘continuing evolutionary development of our Anglo-
American legal system.’ She suggests that societies are in a transition similar to the
transition from trial by ordeal to trial by judge and jury:
We are now in a time of transition away from trial by the ‘ordeal’ of court, though it may
not be quite clear that we are moving uniformly (or some would argue, returning) toward
‘private’ trials or other legal events for the resolution of our disputes with each other.
I want to lay a more positive cast on the evolutionary story – that the phenomenon of
the ‘vanishing trial’ is not necessarily bad. If litigants and their lawyers are choosing other
processes, we must examine why and observe, if we can, the evolutionary picture of why
we are moving to new roles and new institutions and what values these new roles and
institutions might serve.
(Menkel-Meadow, 2012, p.87)
However, it is clear that increasing privatisation will lead to fewer precedents and the
potential erosion of the common law. High rates of settlement and diversion of cases
to arbitration and mediation are likely to have a particular impact; for example, in
commercial law, leading to a loss of guidance and ‘thinning out’ of the common law.
Finally, widespread settlement means the compromise of legal rights and the
loss of ‘justice’ performed in public. As has been mentioned in earlier chapters,
the requirements of openness, knowledge and accessibility are fundamental
characteristics of the rule of law. Legal rules should be known and applied in public. In
privatising the resolution of civil and family disputes we may be undermining critical
rule of law protections.
1. What are the suggested causes of the reduction in the number of civil trials?
2. What is meant by the ‘privatisation of justice’?
3. In what ways could privatisation of dispute resolution be seen as socially

beneficial?
4. In what ways could privatisation of dispute resolution be seen as socially

harmful?

How do you account for the increase in litigants in person in courts in England and
Wales and what measures are being discussed to meet the challenges that they
pose to the administration of justice?

This question potentially raises a wide range of issues:
1. Who are litigants in person?
2. Has there been an increase?
3. Why has there been an increase?
4. What challenges do LIPs pose to the administration of justice?
5. What measures are being discussed to meet those challenges?
6. How effective are the measures likely to be?
1. Who are litigants in person?
Give a definition – people appearing in courts and tribunals without representation

from a barrister, solicitor or other competent representative. They may not have
had any legal advice at all (CJC report 2011).
2. Has there been an increase?
Evidence from a range of sources suggests there has been an increase. The greatest
increase has been in family cases, but there has also been an increase in civil courts
and in tribunals (quote LCJ saying that the rise in LIPs is one of the 10 greatest
challenges facing the justice system; the Modernising Family Justice report; the
President of Family Division’s speech; the National Audit Office report on LASPO
quoting statistics).
3. Why has there been an increase?
There have always been some LIPs. But the current increase is attributed to
changes to legal aid introduced by LASPO. Give a brief account of the categories of
case excluded from the scope of legal aid (i.e. welfare cases (benefits, employment,
education, non-asylum immigration, etc.) and private family law cases
(arrangements over children and property)). Quote CJC report, judicial speeches,
Justice Committee Report and other reports on impact of LASPO.
4. What challenges do LIPs pose to the administration of justice?
The context is adversarial procedures, assumption of representation and passive

judges, complexity of law and court procedure. LIPs have difficulty advocating (CJC
2011 report; Modernising Family Justice report and other sources; evidence of MR
to Justice Committee Inquiry on LASPO 2014; NAO 2014 report) so may lose their
case and justice is not done. Judges have difficulty managing without assistance
from lawyers (Judicial Working Group report; recent cases when judges have
complained, e.g. Lady Justice Black; Lord Justice Ward; Lord Justice Ryder, Mole v
Hunter). This adds to their workload and makes it difficult to find facts.
5. What measures are being discussed to meet those challenges?
A holistic approach (CJC 2011). Provide early advice through self-help toolkits,
information booklets, volunteers at court. Simplify procedures. Judges to adopt
more inquisitorial approach in court (Judicial Working Group; Ryder LJ and family
cases: Re C, Re D). Training of judges to include dealing with LIPs and how to adopt
inquisitorial approach. Allow wider range of people to advocate (LSCP report,
McKenzie friends); student pro bono work; Personal Support Unit.
6. Conclusion: How effective are measures likely to be?
Growth of LIPs found in many common law jurisdictions. Global phenomenon

largely attributed to reduction in public funding of legal services (post-global
financial crisis austerity measures). Presents serious problems in terms of access
to justice. Can self-representing parties obtain justice? The measures proposed
are likely to help, particularly if there is collaboration between volunteer
organisations, students, etc. Role of unqualified advocates (McKenzie friends)
raises issues in terms of quality control, but in the absence of any more public
funding there may be no alternative.
Notes
7 The criminal justice system
Contents
7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
7.2 What is the criminal justice ‘system’? . . . . . . . . . . . . . . . . . . 149
7.3 What is the criminal justice system for? . . . . . . . . . . . . . . . . . 149
7.4 The investigation of crime: the police and their powers . . . . . . . . 155
7.5 The prosecution of crime: the Crown Prosecution Service . . . . . . . . 158
7.6 The adjudication of crime: courts, judges and juries . . . . . . . . . . 164
7.7 Jury decision-making in criminal trials . . . . . . . . . . . . . . . . . 167
7.8 Jury decision-making: independence and impartiality . . . . . . . . . 171
7.9 Appeals and correcting miscarriages of justice . . . . . . . . . . . . . 181

Learning outcomes
uu describe the purposes of the criminal justice system
uu outline the key institutions of the criminal justice system and their functions
uu explain the characteristics of due process and crime control models of criminal
justice systems
uu understand the requirements of a fair trial in Article 6 of the ECHR
uu describe the powers of the police to stop and search and arrest suspects and the
procedural limits on those powers
uu explain how the Crown Prosecution Service exercises its discretion in the
prosecutorial process
uu explain the function of the jury in criminal trials
uu assess the fairness of jury decision-making
uu explain the role of the Criminal Cases Review Commission in relation to
miscarriages of justice.
Essential reading
¢¢ Sanders, A., R. Young and M. Burton Criminal justice. (Oxford: Oxford University
Press, 2010) fourth edition [ISBN 9780199541317] Chapter 1 ‘The aims and values
of “criminal justice”’ (in the Legal system and method study pack).
Legal system and method 7 The criminal justice system page 149
7.1 Introduction
It is not always easy to define the boundary between civil and criminal law, or to justify
why some behaviour is regarded as ‘criminal’ and thus subject to criminal penalties
and why some behaviour is merely subject to civil penalties. The kinds of socially
undesirable behaviour that come to be defined as criminal vary between societies and
over time. It is beyond the scope of this course to consider these issues. Instead the
focus of this chapter is on the machinery for processing those suspected or accused of
offences that have been defined as criminal and an evaluation of the functioning and
fairness of some of the key institutions and processes of the English criminal justice
system.
What is referred to as the ‘system’ of criminal justice is a collection of organisations,

agencies and processes with responsibility for preventing, detecting, prosecuting and
punishing criminal behaviour. This chapter provides an introduction to:
uu the purpose of the criminal justice system
uu the main agencies and institutions for investigating, prosecuting and adjudicating
on crime
uu principles of fair trials and the requirements of Article 6 of the European

Convention on Human Rights.
7.2 What is the criminal justice ‘system’?

When we talk of the criminal justice system we are referring not only to the
substantive criminal law, but also to the institutional structures for the prevention,
detection and investigation of crime, as well as the processes for prosecuting and
adjudicating on criminal behaviour. The criminal justice ‘system’ can be described
as a series of interlocking and interdependent processes which are triggered by the
report or discovery of an alleged offence. At each stage in the criminal justice process
different agencies and personnel are involved and the activities of each are, at least in
part, influenced by what has gone before and what might come afterwards. Sanders,
Young and Burton (2010) describe the criminal justice system as ‘a complex social
institution which regulates potential, alleged and actual criminal activity within limits
designed to protect people from wrongful treatment and wrongful conviction.’
7.3 What is the criminal justice system for?
Essential reading
¢¢ The Right Honourable Lord Justice Auld ‘Review of the Criminal Courts of
England and Wales’ September 2001, Chapter 1
http://webarchive.nationalarchives.gov.uk/20090215031151/http://www.
criminal-courts-review.org.uk/index.htm
The Auld Review of the criminal courts in 2001 identified two main aims of the criminal
justice system. First, the reduction of crime, fear of crime and its social and economic
costs; and second the dispensing of justice fairly and efficiently so that public
confidence in the law and criminal justice system would be maintained.
The aims and objectives of the criminal justice system as recently expressed by the
Government are:
to deliver justice for all, by convicting and punishing the guilty and helping them to stop
offending, while protecting the innocent … for detecting crime and bringing it to justice;
and carrying out the orders of court, such as collecting fines, and supervising community
and custodial punishment.
(CJS Online, 2010)

The jobs of the criminal justice system include:
uu preventing and deterring behaviour defined as ‘criminal’
uu detecting and investigating crime
uu gathering evidence about criminal activity
uu arresting, charging and prosecuting offenders
uu punishing those found guilty of criminal behaviour.
The key organisations involved in the recording, detection, investigation and

prosecution of crime are:
uu the police – responsible for apprehending suspected offenders, investigating

crime, collecting evidence and charging offenders
uu the Crown Prosecution Service – responsible for the conduct of prosecution
uu courts, judges and juries – responsible for trying defendants accused of criminal
offences
uu the Criminal Cases Review Commission – responsible for dealing with miscarriages
of justice.
7.3.1 An adversarial system

The English criminal justice system operates on the basis of adversarial procedures
(search for proof) found in common law jurisdictions (such as USA, Canada, Australia)
as opposed to inquisitorial procedures (search for truth) found in civil law jurisdictions
(such as France and Germany). The adversarial nature of English criminal process
influences how investigations are conducted and evidence collected and the nature
of the trial. Some key differences between adversarial and inquisitorial criminal
proceedings are:
Responsibility for gathering evidence for trial

In adversarial proceedings, responsibility for gathering evidence rests with the parties
– police and defence – and the evidence is evaluated at trial by a neutral judge and/
or jury. In inquisitorial proceedings, criminal investigation is typically overseen by
either an ‘independent’ prosecutor or an examining magistrate (in France termed
a ‘juge d’instruction’). The prosecutor or examining magistrate can seek particular
evidence; direct lines of inquiry favourable to either prosecution or defence; interview
complainants, witnesses and suspects; and ultimately determine whether there is
sufficient evidence to take a case to trial.
The trial process

In adversarial trials the parties determine the witnesses they call and the nature of the
evidence they give, and the opposing party has the right to cross-examine. The court’s
role is confined to overseeing the process by which evidence is given (to ensure that
it is within the rules) and then weighing up that evidence to determine whether there
is ‘reasonable doubt’. There are strict rules to prevent the admission of evidence that
may prejudice or mislead the fact finder (see later discussion of s.78 of the Police and
Criminal Evidence Act 1984 (PACE)). In inquisitorial proceedings, the conduct of the
trial is largely in the hands of the court. The trial judge determines what witnesses
to call and the order in which they are to be heard, and conducts the questioning.
Adversarial cross-examination is not used to test evidence. There are fewer rules of
evidence and more information available to the court at the outset. So, for example,
the offender’s criminal history may be read to the court before the trial begins.
7.3.2 Criminal justice and the rule of law

One of the most important differences between the civil justice system and the
criminal justice system is the fact that in criminal justice the prosecution of cases is
almost always brought by the state against an individual citizen or organisation. The
state has theoretically unlimited resources to mount and proceed with a prosecution,
so the fairness of proceedings is of critical importance. While it would never be
Crimes recorded
by the police
Police arrest
suspect
No further Formal caution/informal Charge or

action warning summons suspect
CPS receive papers from the

police for prosecuting
CPS proceed CPS discontinue case

with charge No court action
Magistrates’ court
hearing
Indictable only Triable-either-way Summary

offences offences offences
Magistrates decline jurisdiction

Crown Court Summary trial at
or defendant elects
trial Magistrates’ court
Crown Court trial
Found not guilty − Found not guilty −

case ends case ends
Found
guilty Found
guilty
Sentence
Discharge Community sentence
Monetary penalty Other
Custody
Figure 7.1: Diagram of the criminal justice process

possible to redress the imbalance of power and resources between an individual and
the state, the protections provided to those accused of criminal offences are designed
to allow the accused an adequate opportunity of defending themselves so that the
process meets appropriate standards of fairness.
The World Justice Project (WJP), which assesses the extent to which countries meet
rule of law standards (discussed in Chapter 1), regards a just and fair criminal justice
system as essential to the rule of law. The WJP argues that an effective criminal
justice system is a key aspect of the rule of law because it is the ‘conventional
mechanism’ to redress grievances and punish individuals for offences against society.
The WJP specifies that an ‘effective’ criminal justice system is one that is capable
of investigating and adjudicating criminal offences successfully and in a timely
manner, through a system that is impartial and non-discriminatory, and that is free
of corruption and improper government influence, all while ensuring that the rights
of both victims and the accused are effectively protected. According to the WJP, the
hallmarks of a well-functioning criminal justice system are:
uu effective criminal investigation
uu timely and effective criminal adjudication
uu due process of law and rights of the accused
uu impartiality
uu freedom from corruption
uu freedom from improper government influence.
7.3.3 A framework for evaluating criminal justice systems

Not only do societies differ in their approach to the kinds of behaviour defined as
criminal, but they differ in the way that alleged crimes are investigated, how offenders
are prosecuted, and who decides matters of guilt or innocence. There are differences
in structures, responsibility for different stages of systems and in the underlying
values and objectives of the system. All societies are keen to deter the commission of
crime, but societies vary in the priority that they give on the one hand to controlling
crime and on the other to ensuring that those accused of crimes are treated fairly.
In comparing criminal justice systems around the world and evaluating justice
systems of any particular jurisdiction over time, scholars have found it helpful to use
frameworks for evaluation. So if we are interested in the quality of justice delivered by
a criminal justice system we can measure and compare according to certain criteria.
How do criminal justice systems balance the objectives of crime control, the rights of
the accused, and the rights of victims?
7.3.4 ‘Crime control’ and ‘due process’ models of criminal justice systems
Essential reading
¢¢ Packer, H.L. (1968) ‘Two models of the criminal process’, reprinted from The
limits of the criminal sanction, with the permission of the publishers, Stanford
University Press
www.hhs.csus.edu/Homepages/CJ/BikleB/Packer%20-%20Two%20Models%20
of%20the%20Criminal%20Process.doc
In 1968 the US scholar Herbert L. Packer famously developed two models (or ideal
types) to describe the characteristics of criminal justice systems and the values that
underpinned those systems. He labelled the models ‘crime control’ and ‘due process’.
Although Packer developed these models almost 50 years ago, they remain helpful
as an analytic device for evaluating the approach and fairness of criminal justice
processes. Although no criminal justice systems conform precisely to either of these
models, the models are useful for directing attention toward the tendencies of
different legal systems.
In his book The limits of the criminal sanction (1968) Packer argues that the values that
underpin his crime control model reflect the view that the repression of criminal
conduct is by far the most important function to be performed by the criminal
process. Criminal justice systems that prioritise the repression of crime will tend to
be characterised by fast and efficient processing of suspects and rapid determination
of guilt. To operate successfully this sort of criminal justice system must produce high
rates of apprehension and conviction of suspected offenders. The police will have wide
powers to apprehend offenders and investigate crime. There is likely to be a premium
on speed and on finality by limiting the opportunities for challenge to procedures or
appeals against decisions. Packer argues that the process must not be ‘cluttered with
ceremonious rituals that do not advance the progress of a case …’ In these ‘assembly
line’ systems, the police make rapid assumptions about guilt. Once the police have
filtered out cases at an early stage, the processes that follow make it difficult for the
accused to dislodge that assumption of guilt.
In contrast, systems that prioritise due process values – Packer’s due process model of
criminal process – tend to be characterised by procedural protections for the accused
and many opportunities to challenge procedures and decisions. Thus complex rules
of evidence, use of juries and the right to remain silent under police questioning
or in court, are regarded as important due process protections for the accused.
Packer argues that if the crime control model resembles an assembly line, ‘the Due
Process Model looks very much like an obstacle course. Each of its successive stages
is designed to present formidable impediments to carrying the accused any further
along in the process …’ While the crime control model places heavy reliance on the
investigative skills of the police and prosecutors, the due process model stresses the
possibility of error in the collection of evidence, in the memories of witnesses and the
fact that confessions can be coerced. Due process values include mistrust of the police
in adjudicating guilt or innocence; the right to legal advice and representation; finding
of ‘legal’ guilt through formal and elaborate court procedures; exclusion of evidence
obtained through improper means; a presumption of innocence; a heavy burden of
proof on the prosecution; and an acknowledgement that ‘factually guilty’ people may
ultimately be acquitted if there is insufficient evidence of guilt.
Both the crime control and due process models of criminal process recognise the
scope for error. In criminal justice systems dominated by crime control values the
predominant risk is that innocent people will be wrongly convicted. In criminal justice
systems dominated by due process values the predominant risk is that guilty people
will be wrongly acquitted. Either error results in a miscarriage of justice, but societies
differ in the risk of error that they prefer to take. William Blackstone wrote in 1769
in his Commentaries on the laws of England that ‘the law holds that it is better that
ten guilty persons escape, than that one innocent suffer.’ This view, characteristic of
thinking about the English criminal justice system, is a matter of belief or opinion, not
fact. Other societies might take a different stance on the balance between due process
and crime control principles.
The balance within the English criminal justice system has, in modern times, tended to
favour due process protections and the passing of the Human Rights Act (HRA) in 1998
has, to some extent, reinforced this approach. However, in recent years politicians
have placed increasing emphasis on the need to control crime and this has been
particularly evident in relation to terrorist offences. There has been a willingness to
extend the powers of the police so that they have more opportunity to detain and
question suspected terrorists and engage in electronic surveillance activity. As we
have seen in earlier chapters, the desire of government to prevent and punish terrorist
activity has led to challenges under human rights legislation. Articles of the ECHR
which are relevant to the suppression of both ordinary crime and terrorist activity are:
the right to a fair trial (Article 6); freedom from arbitrary detention (Article 5); freedom
from inhuman and degrading treatment (Article 3); and the right to privacy (Article 8).
Crime control Due process
Protections for accused
Values: WHERE SHOULD Values:

Deterrence THE BALANCE BE? Protect innocent
Punishment Jury
Speed Rules of evidence
Powerful police Legal representation
Presumption of guilt Presumption of
innocence
Standard of proof
Right to silence
HRA Art 6
Figure 7.2: Models of criminal justice vary between societies and over time
7.3.5 Due process in criminal proceedings: Article 6 of the ECHR
Essential reading
¢¢ European Court of Human Rights ‘Guide on Article 6 right to a fair trial (criminal
limb)’ 2014
www.echr.coe.int/Documents/Guide_Art_6_criminal_ENG.pdf
As we discussed in earlier chapters, under the rule of law both citizens and the state
are subject to the law. The requirements of due process are that laws should be
known, individuals should know the nature of the case against them, they should be
given an opportunity to defend themselves, and decisions should be reached by an
objective and impartial decision maker. English common law and rules of criminal
procedure have traditionally been directed at securing a fair trial. So, for example,
under s.78 of PACE (see later discussion), courts have a wide discretion to exclude
prosecution evidence that has been unfairly obtained. Since the state and its agencies
are bound by the law, if the state was permitted to use evidence that had been
obtained through illegal or unfair means they would not be complying with basic rule
of law principles.
Article 6 of the ECHR supplements English common law and statutory fair trial
protections. Article 6 guarantees a clear and ‘positive’ right to a fair trial and sets out
key criteria, without which the requirements of a fair trial are not met; for example,
the presumption of innocence, the principle against self-incrimination, the right to an
independent and impartial tribunal and the right to legal advice and representation
in order to mount an effective defence. The content of Article 6 and special protection
for criminal, as opposed to civil, proceedings are set out in full below:
Article 6 – Right to a fair hearing
(1) In the determination of … any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the interests of juveniles
or the protection of the private life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the

nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as
witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.
As we will see in the following sections, a number of challenges to English prosecution and
trial procedures under Article 6 have been considered by the European Court of Human
Rights and the UK Supreme Court/House of Lords. Some challenges have succeeded while
others have confirmed that existing procedures comply with the fair trial requirements of
Article 6.
1. What are the objectives of the criminal justice system?
2. Who is responsible for gathering evidence in adversarial proceedings and in

inquisitorial proceedings?
3. Which key organisations and agencies are involved in the criminal justice system?
4. What features would you expect to see in a criminal justice system that emphasises
crime control objectives?
5. List three features of criminal justice systems that emphasise due process
protections.
6. Which Articles of the ECHR are relevant to the investigation and prosecution of crime?
7.4 The investigation of crime: the police and their powers
Essential reading
¢¢ Malleson, K. and R. Moules The legal system. (Oxford: Oxford University Press, 2010)
fourth edition [ISBN 9780199560189] Chapter 11 ‘Police powers’ (in the Legal system
and method study pack).
The principal responsibilities of the police are broadly to prevent crime, to detect and
apprehend offenders when crimes have been committed and to investigate crime and
collect evidence. In carrying out these functions the police have a wide measure of
discretion in the exercise of powers to stop, search, arrest and detain suspects. In rule of law
and due process terms these powers are very important and it is critical for the fairness of
the criminal justice system that the police act both within their legal powers and that they
exercise those powers fairly.
The powers of the police are set out in the Police and Criminal Evidence Act 1984 (PACE).
This Act codified pre-existing common law and statutory provisions. The provisions of the
Act cover powers to stop and search in the street; powers of arrest; powers of search and
seizure; detention and questioning of suspects; and the use of evidence at trial. The Act is
accompanied by eight Codes of Practice (see s.66) that guide how the powers under the
Act should be exercised. Breaches of the powers under the Act will mean that the police
have broken the law and they may be liable to civil or even criminal proceedings. Breaches
of the Codes of Practice are not regarded as unlawful, but evidence obtained by the police
in breach of the Codes of Practice may mean that the evidence will be excluded at trial
because it will be deemed not to have been obtained fairly. Section 78 of PACE provides that
a court may refuse to allow evidence presented to the court if it appears that, having regard
to all the circumstances, the admission of the evidence would have such an adverse effect
on the fairness of the proceedings that the court ought not to admit it.
7.4.1 Stop and search
Essential reading
¢¢ Malleson, K. and R. Moules The legal system. (Oxford: Oxford University Press,
2010) fourth edition [ISBN 9780199560189] Chapter 11 ‘Police powers’ (in the
Legal system and method study pack).
¢¢ Miller, J. ‘Profiling populations available for stops and searches’ Police Research
Series Paper 131, Home Office, 2000 www.westmidlands-pcc.gov.uk/media/238047/
prs131_profiling_populations_available_for_stops_and_searches.pdf
¢¢ Equality and Human Rights Commission ‘Stop and think: a critical review
of the use of stop and search powers in England and Wales’ 2010, updated
April 2014 www.equalityhumanrights.com/en/publication-download/
stop-and-think-critical-review-use-stop-and-search-powers-england-and-wales
Further reading
¢¢ Home Office, Revised PACE Code A (Stop and Search)
file/414195/2015_Code_A_web-19-03-15.pdf
The police have relatively wide powers to stop and search people in public places. The
power to stop and search is very useful for the police in attempting to prevent crime
from occurring or to apprehend people who may have been involved in committing
crime. Under s.1 of PACE the police have the power to search ‘any person or vehicle
… for stolen or prohibited articles’. The officer must have reasonable grounds for
suspecting that the person has these articles in their possession.
In order to ensure fairness in how this power is exercised, Code A provides that the
power should be used fairly, responsibly, with respect for people being searched and
without unlawful discrimination.
Historically, there has been concern that the police have disproportionately
stopped and searched black and minority ethnic citizens and that this is a reflection
of ‘institutional racism’ within the police. In 2010 the Equality and Human Rights
Commission published a study of stop and search which concluded that a black person
was at least six times as likely to be stopped and searched by the police in England
and Wales as a white person. In the view of the Commission a significant cause of the
disproportionate number of black and minority ethnic people being stopped and
searched by the police was racism among the police. The Commission argued that stop
and search powers were being used in a discriminatory and unlawful way. On the other
hand, research by the Home Office in 2000 (Miller) suggests that in certain areas the
people most likely to be out and about on the streets at night are disproportionately
young black men and that they are therefore at greater risk of being stopped and
searched. Whatever the explanation for disproportionate stops and searches of
black and minority ethnic citizens, a public perception that certain groups are being
targeted for stop and search creates the impression of unfairness and may undermine
public confidence in, and support for, the police – especially among minority groups.
To address these concerns, police forces around the country have been introducing
measures to increase the fairness of the way in which stop and search powers are
being used and have developed criteria for the exercise of powers under s.1 of PACE,
known as ‘PLAN B’:
uu Proportionality: it must be fair and achieve a balance between the needs of society
and the rights of the individual.
uu Legality: it must be conducted correctly according to the relevant legislation.
uu Accountability: it must be recorded.
uu Necessity: any infringement of rights must be justifiable ‘in a democratic society’.
uu Best: the decision to stop and search must be made against the best information
reasonably available at the time.
On 19 March 2015 the Revised Code A (Stop and Search) came into force. A main
objective of the Revised Code A is to clarify what constitutes ‘reasonable grounds for
suspicion’, the legal basis upon which police officers carry out the vast majority of
stops.
7.4.2 Arrest and detention
Essential reading
¢¢ European Convention on Human Rights
www.echr.coe.int/Documents/Convention_ENG.pdf
An arrest occurs when legal authority is used to deprive a person of their liberty – even
for a short time. In the case of Spicer v Holt (1977), Lord Dilhorne stated that ‘Whether
or not a person has been arrested depends not upon the legality of the arrest, but on
whether he has been deprived of his liberty to go where he pleases.’ The police cannot
detain a person against their will short of arresting them. A person is either free to
leave or under arrest. The case of R v Lemsatef [1977] 2 All ER 835 establishes that the
police cannot require someone to assist with their enquiries against their will without
arresting them. In that case Lawton LJ said:
It must be clearly understood that neither customs officers nor police officers have any
right to detain somebody for the purposes of getting them to help with their inquiries.
An arrest is a fundamental infringement of the right to liberty and the power to arrest
must be exercised lawfully. Article 5 of the ECHR provides that:
Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed by
law:
….
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so.
The power of the police to arrest is governed by s.24 of PACE as amended by the
Serious Organised Crime and Police Act 2005. The power now covers all offences.
Under s.24 of PACE the police may arrest:
uu anyone who is about to commit an offence
uu anyone who is in the act of committing an offence
uu anyone whom the police officer has reasonable grounds for suspecting to be about
to commit an offence
uu anyone whom the police officer has reasonable grounds for suspecting to be
committing an offence.
A police officer exercising this power must tell the person that they are under
arrest (s.28(1)) and the reason for the arrest. Precise words do not have to be used
(Abbassy v Metropolitan Police Commissioner [1990] 1 WLR 385; Taylor v Chief Constable
of Thames Valley Police [2004] EWCA Civ 858), but the arrest may be unlawful if these
requirements are not met.
A lawful arrest thus requires two elements:
uu a person’s involvement or suspected involvement or attempted involvement in the

commission of a criminal offence, and
uu reasonable grounds for believing that the person’s arrest is necessary.
Code G of PACE makes clear that both elements must be satisfied and that it can never
be necessary to arrest a person unless there are reasonable grounds to suspect them
of committing an offence.
In McCann v Crown Prosecution Service [2016] Crim LR 59 the mistaken belief of a police
officer that protestors were blocking a public highway, when in fact the road was
a private road, did not render the arrest unlawful. Applying s.24(6) of PACE and the
requirement of ‘reasonable grounds for suspecting that an arrestable offence had
been committed’, the Court held that ‘there is no reason why similar principles should
not apply to the directions of the officer in the phase immediately preceding arrest’
[30]. Accordingly:
… it was not necessary for the officer to have had the correct offence in mind at the time
the direction to move was given. It was sufficient for the officer to have taken steps which
reasonably appeared to her to be necessary for preventing crime. The fact that the officer
in fact had an offence of which the appellant was not guilty in mind did not prevent her
from taking steps which in the circumstances, as she believed them to be, reasonably
appeared to her to be necessary for preventing crime.
Once a person has been arrested, the person should be taken directly to a police
station and brought before the ‘custody officer’ whose role is to supervise the
detention process. Most importantly this involves ensuring that there is a reason
for them to remain in custody and to decide whether there is sufficient evidence
to charge them (a ‘charge’ is a written accusation that the person has committed
a crime). If there is insufficient evidence to charge a person they must be released
unless the custody officer believes it is necessary for them to remain in detention –
usually to secure more evidence by questioning.
There are strict limits on the amount of time a person can be detained in custody
without charge. For most offences a person can be detained for up to 36 hours without
charge. If the police want to detain a person beyond that time, they can apply to
magistrates for a warrant (formal authorisation) for further detention. The maximum
period a person arrested under PACE can be detained without charge is 96 hours.
However, under the Terrorism Act 2006, a person can be detained for up to 14 days.
Once a person has been charged they should be released unless there is a reason to
detain them, for example, that they will not provide their name and address or there
is a need to protect the suspect or others, or there is a reasonable belief that they will
not attend court.
1. What is the difference between a breach of a PACE provision and a breach of a
PACE code?
2. Is discrimination in the exercise of stop and search powers unlawful or unfair or

both?
3. What are the requirements for a lawful arrest under s.24 of PACE?
4. What procedures must the police follow when arresting a suspect under s.24 of
PACE?
5. What must the police do immediately after arrest?
6. After arrest by the police, for how long can a person be detained without
charge?
7.5 The prosecution of crime: the Crown Prosecution Service
Essential reading
¢¢ Crown Prosecution website: www.cps.gov.uk/index.html
¢¢ Crown Prosecution Service ‘The Code for Crown Prosecutors’ January 2013
www.cps.gov.uk/sites/default/files/documents/publications/code_2013_
accessible_english.pdf
Further reading
¢¢ Thirty years of the CPS – Law Society Gazette article by Alison Saunders DPP,
October 2016
www.lawgazette.co.uk/comment-and-opinion/thirty-years-of-the-cps/5058333.
article
Even though a suspected offender may have been charged with a criminal offence it
is not inevitable that they will be prosecuted through the criminal justice process.
As Lord Hope said in the case of Purdy [2009] UKHL at para.44: ‘It has long been
recognised that a prosecution does not follow automatically whenever an offence is
believed to have been committed.’
In an adversarial system, it is important, before a prosecution is proceeded with, that

the prosecuting authority has reasonable confidence that it will be able to secure
a conviction. This means that there must be sufficient, reliable evidence of good
quality, that has been fairly obtained, for the prosecution to prove beyond reasonable
doubt that the defendant is guilty. Unless there is a reasonable prospect of securing
a conviction it would be unfair to put a defendant through the trauma of a criminal
prosecution and it would be a waste of public funds. But in addition to this, there is
the question of whether it is in the public interest for a prosecution to proceed. The
decision whether or not to prosecute a case following a criminal charge lies with the
prosecuting authority.
Before 1986 prosecutions in England and Wales were undertaken by the police.
However, in the early 1980s there was unease about inconsistency in police practice
in proceeding with prosecutions and also a concern that having been involved in the
investigation of crime, the police were not in the best position to take a dispassionate
and objective view of the quality of evidence available and the prospects of conviction.
The perception was that too many cases were being proceeded with on the basis of
weak evidence leading to judge-ordered acquittals. Since the burden of proof in a
criminal trial is on the prosecution, if at the end of the prosecution’s case the judge
feels that the evidence is too weak for a jury to convict, then the judge may order an
acquittal. This was confirmed in the case of R v Galbraith [1981] 1 WLR 1039 where it was
held that:
Where the judge comes to the conclusion that the prosecution evidence, taken at its
highest, is such that a jury properly directed could not properly convict upon it, it is his
duty, upon a submission being made, to stop the case.
Since 1986 the main responsibility for prosecuting criminal offences lies with the
independent Crown Prosecution Service (CPS). The CPS was established in 1986 under
the Prosecution of Offences Act 1985. Section 3(2) states that the function of the CPS is
to take over criminal proceedings from the police (and other agencies) and proceed,
where it is deemed appropriate, with the prosecution in court.
7.5.1 Prosecutorial discretion and the CPS Code

CPS prosecutors have considerable discretion about whether or not to prosecute. They
must decide in each individual case whether or not to proceed with a prosecution.
In reaching their decision they must follow the guidance in the CPS Code for Crown
Prosecutors. There are two stages:
i. the evidential stage; followed by
ii. the public interest stage.
The evidential stage

Prosecutors must be satisfied that there is sufficient evidence to provide a realistic
prospect of conviction against each suspect on each charge. They must consider what
the defence case may be, and how it is likely to affect the prospects of conviction.
A case which does not pass the evidential stage must not proceed, no matter how
serious or sensitive it may be. When deciding whether there is sufficient evidence to
prosecute, prosecutors must ask themselves:
uu Can the evidence be used in court? Is there any question over the admissibility of
evidence?
uu Is the evidence reliable?
uu Is the evidence credible?
The public interest stage

In every case where there is sufficient evidence to justify a prosecution, prosecutors
must go on to consider whether a prosecution is required in the public interest. The
factors that are taken into account in making this judgment are:
uu How serious is the offence committed?
uu What is the level of culpability of the suspect?
uu What are the circumstances of and the harm caused to the victim?
uu Was the suspect under the age of 18 at the time of the offence?
uu What is the impact on the community?
uu Is prosecution a proportionate response?
7.5.2 How does the CPS assess the public interest? The case of assisted
suicide
Essential reading
¢¢ Director of Public Prosecutions ‘Policy for prosecutors in respect of cases
of encouraging or assisting suicide’ February 2010, updated October
2014, Crown Prosecution Service www.cps.gov.uk/legal-guidance/
suicide-policy-prosecutors-respect-cases-encouraging-or-assisting-suicide
¢¢ R (on the application of Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345.
¢¢ R v Gilderdale 2010 (Unreported)

www.telegraph.co.uk/news/uknews/crime/7072403/Mother-Kay-Gilderdale-
found-not-guilty-of-murder-attempt-on-ME-sufferer-daughter.html
¢¢ Keir Starmer QC ‘Prosecuting in the public interest: CPS guidelines from assisted
suicide to social media’ LAG Annual Lecture, December 2013
http://new.lag.org.uk/media/145594/lag_annual_lecture_2013_transcript.pdf
¢¢ R (on the application of Nicklinson) (AP) v Ministry of Justice [2014] UKSC 38.
¢¢ R (on the application of Conway) v Secretary of State for Justice [2017] EWHC 2447
(Admin).
There has been considerable public debate in recent years about whether people
suffering from incurable diseases who wish to die, can legally be assisted by a relative
or friend to end their own life. English law (in common with many other jurisdictions)
provides that an individual may legally end their own life but under s.2(1) of the
Suicide Act 1961 it is an offence to ‘aid, abet, council or procure the suicide of another.’
This has been amended in the Coroners and Justice Act 2009, s.59, so that a person can
be prosecuted for committing ‘acts capable of encouraging or assisting the suicide or
attempted suicide of another person’. In recent years there has been a series of legal
cases in several jurisdictions around the world, challenging the law and seeking to
achieve a change in the law so that assisting a person to die will not lead to criminal
prosecution. In England the Director of Public Prosecutions (DPP) has discretion to
decide whether and when prosecution of such cases is in the public interest under
s.2(4) of the Suicide Act 1961 which provides that ‘no proceedings shall be instituted …
except by or with the consent of the Director of Public Prosecutions.’
The last ever judgment given by the House of Lords, prior to the establishment of the
UK Supreme Court, was the ruling in the case of R (Purdy) v DPP [2009] UKHL 45. Debbie
Purdy suffered from incurable and progressive multiple sclerosis. She wanted her
husband to help her to travel to the Dignitas clinic in Zurich to end her life, but she was
concerned that if he did so he might be prosecuted after her death. She felt that a literal
interpretation of the wording of the Act might lead to prosecution and she therefore
brought a case against the DPP seeking clarification about whether her husband
would be prosecuted. Purdy argued that the lack of transparency in the application
of prosecutorial policy infringed her right to respect for private life under Article 8
of the ECHR (Purdy, para.11). The House of Lords agreed that lack of clarity about how
the DPP exercised his discretion infringed Article 8 and they said that the DPP should
issue guidance that would help people to know the circumstances that would lead to
someone being prosecuted for helping someone to end their life. Lord Hope emphasised
the conflict in public opinion on this issue, the need to only prosecute when it is in the
public interest, and the need for consistency in the exercise of the DPP’s discretion:
Consistency of practice is especially important here. The issue is without doubt both
sensitive and controversial. Many people view legally assisted suicide as an appalling
concept which undermines the fundamental human right to life itself. On the other hand
there are those, like Ms Purdy, who firmly believe that the right to life includes the right to
end one’s own life when one can still do so with dignity. Crown prosecutors to whom the
decision-taking function is delegated need to be given the clearest possible instructions
as to the factors which they must have regard to when they are performing it. The
police, who exercise an important discretion as to whether or not to bring a case to the
attention of the Crown prosecutors, need guidance also if they are to avoid the criticism
that their decision-taking is arbitrary. Important too is the general policy of the law that
the Attorney General and the Director only intervene to direct a prosecution when they
consider it in the public interest to do so.
(para.46)
In January 2010 Kay Gilderdale was prosecuted for the attempted murder of her
daughter Lynn, who had been suffering from a long-term illness, but the jury found
Kay not guilty of attempted murder. Following her acquittal there was considerable
criticism of the CPS for proceeding with the prosecution for attempted murder,
particularly since Gilderdale had already pleaded guilty to the lesser offence of aiding
and abetting her daughter’s suicide.
In February 2010, the CPS published a new policy on prosecution for assisted suicide.
The policy sets out 16 public interest factors that would tend in favour of prosecution
(para.43) and five public interest factors that would tend to favour against prosecution
(para.45). The policy was broadly welcomed as a response to the Purdy case. In a
speech in December 2013 the outgoing DPP, Sir Keir Starmer, explained how the guide
had worked:
[T]he thrust of the final guidelines is reasonably clear … broadly speaking if the victim
has a clear and settled intent to commit suicide and if the suspect is wholly motivated
by compassion and has not persuaded the victim to commit suicide, the likelihood of a
prosecution is low. The guidelines, as I say, have been in force since February 2010 and
contrary to views expressed by a number of people they work very well in practice.
(LAG Annual Lecture 2013)
A landmark case which raised similar issues is the case of Nicklinson (discussed
in Chapter 3), which was heard by the UK Supreme Court (R (on the application of
Nicklinson) v Ministry of Justice [2014] UKSC 38). Mr Nicklinson suffered a stroke in
June 2005 which caused ‘locked-in’ syndrome (complete paralysis but his mind was
working perfectly). His condition was not life threatening and he had a reasonable
expectation of living for years afterwards. In 2007 he decided to end his own life but
he would only have been able to do so by refusing all food and liquids. He wanted a
doctor to end his life, but could not request that assistance while the doctor was likely
to face a charge of murder or assisted suicide. Having failed to persuade the courts in
various legal actions, Mr Nicklinson died of pneumonia in August 2012 after refusing
nutrition, fluids and medical treatment. His wife continued the case and was joined by
Mr Lamb (a man paralysed in an accident). Another case heard at the same time was
that of AM (also referred to as ‘Martin’) who was unable to speak and virtually unable
to move. He found his life intolerable and had made up his mind that he wanted to
die. Because of his disability, he was unable to do so without assistance and was wholly
reliant on his professional carers. Martin argued that:
1. the DPP’s ‘Policy for prosecutors in respect of cases of encouraging or assisting
suicide’ was an unjustified interference with his Article 8 right under the ECHR
because the consequences of the policy for the people whose assistance Martin
sought were insufficiently certain; and
2. the policy disproportionately interferes with his Article 8 right because it

discourages the assistance Martin sought.
The DPP argued that the CPS policy is sufficiently clear and that it is not possible to
guarantee that certain persons would not be prosecuted for assisting or encouraging
someone to commit suicide. To do so would, allegedly, cross ‘the line of constitutional
propriety’.
As discussed in Chapter 3, the Supreme Court gave judgment in June 2014. Dismissing
the appeal a majority of 7 to 2 Justices held that they did not have jurisdiction to
change the law on assisted suicide. They also unanimously held that the DPP’s
guidance on assisted suicide was lawful. The case was then taken to the European
Court of Human Rights, which declared the cases to be inadmissible, and therefore
declined to consider the merits of the cases: Nicklinson and Lamb v UK [2015] ECHR 709.
Parliament has recently debated assisted suicide. The Assisted Dying (No. 2) Bill
2015–16 was a Private Member’s Bill which failed to pass its second reading debate on
11 September 2015. The summary of the Bill states that it is ‘A Bill to enable competent
adults who are terminally ill to choose to be provided with medically supervised
assistance to end their own life; and for connected purposes.’ After fierce debate in the
House of Commons, the Bill was defeated by 330 to 118 votes.
The courts were again faced with the question of assisted suicide in R (on the
application of Conway) v Secretary of State for Justice [2017] EWHC 2447 (Admin). Mr
Conway, a sufferer from motor neurone disease (a terminal condition), sought a
declaration that the blanket ban on assisted suicide in s.2 of the Suicide Act was
incompatible with his Article 8 rights. The Divisional Court held that s.2 of the Suicide
Act could be justified under Article 8(2) of ECHR. Furthermore, after the Nicklinson
decision, Parliament had debated the issue of assisted suicide, and had decided not to
change the law. Therefore, according to Lord Justice Sales, ‘in those circumstances, we
consider that there are powerful constitutional reasons why Parliament’s assessment
of the necessity of maintaining section 2 in place should be respected by this court’ (at
para.108). In January 2018, Mr Conway was granted permission to appeal to the Court
of Appeal; however, at the time of writing, this appeal has yet to be heard.
7.5.3 Discontinuance of proceedings

The responsibility for continuing with or terminating proceedings lies entirely with
the CPS. If the prosecutor considers the proceedings should not continue, the case
will be terminated at the earliest possible opportunity. Cases are kept constantly
under review and if circumstances change a decision may be made to discontinue
proceedings. This may be because there is insufficient evidence. Decisions to
discontinue are often highly controversial and may cause distress and dissatisfaction
to the victim.
7.5.4 Evaluation of the CPS
Essential reading
¢¢ Government White Paper ‘Justice for all’ 2002, Chapter 3. Available in the Online
Library, through the UK Parliamentary Papers (ProQuest) database.
The CPS has been subject to criticism at different times in its history. Initially, it was
thought to be underfunded and not able to attract lawyers of the highest quality. It
was criticised for prosecuting weak cases and failing to secure convictions in strong
cases.
In 1998, a report into the CPS carried out by Lord Justice Glidewell (‘The review of
the Crown Prosecution Service’) raised concerns about the functioning of the CPS.
The report found that about 12 per cent of cases were discontinued. It identified
serious tension between the police and the CPS, with a tendency for each party to
blame the other if a case failed. To overcome these difficulties the Glidewell report
recommended that CPS personnel should work in partnership with the police, sharing
responsibility for putting together and managing case files to ensure that adequate
evidence was available to support prosecution. Despite these recommendations,
criticisms of the CPS continued.
In 2002 the Government’s ‘Justice for all’ White Paper criticised the CPS record on
prosecutions. They said that the CPS had to discontinue 13 per cent of all cases passed
to it by the police because of lack of evidence and witnesses being unwilling or
unable to give evidence. The Government estimated that over £80 million was being
wasted each year as a result of adjournment of cases in court, as well as delays and
‘cracked’ trials at the magistrates’ courts and the Crown Court. (‘Cracked trials’ are
those where the defendant pleads guilty to the charge on the day of the trial after
time and trouble has been spent gathering the evidence necessary to mount a full
trial.) In the Government’s view these shortcomings were largely due to inadequate
preparation for trial. There was also criticism of inadequacies of the files that had been
compiled by the police leading to a breakdown in trials and justice not being done.
The recommendations included giving the CPS more responsibility for determining
the charge in cases and a package of reforms to improve case preparation and ensure
closer working between the police and the CPS, including through co-location. It was
believed that this would lead to better prepared cases with fewer discontinued and
better conviction rates. Following the Justice for all White Paper, the Criminal Justice
Act 2003 gave the CPS greater involvement in the decision to prosecute and the choice
of the charge.
The evidence in the CPS Annual Report for 2015–16 suggests that in recent years the
record of the CPS has improved.
In the overview of its performance, the CPS notes its 530,199 convictions, 83.1 per
cent of all cases. Although there is a continuing fall in the overall number of cases
prosecuted, there has been an increase in case types which are ‘often evidentially
complex with a heavy reliance on often vulnerable victims and witnesses’, such as
increases in terrorism cases associated with Iraq and Syria; a rise in child sexual abuse
cases following the Savile Inquiry; growth in other sexual and domestic violence
offences; and increased fraud, much of which now involves digital technology. In its
evaluation of statistical data collated in the past three years, some key points were
made:
uu The number of defendants prosecuted by the CPS in magistrates’ courts fell by 4.5
per cent during the year. A number of factors may affect this figure, including lower
levels of recorded crime, the number of arrests, the number of offenders cautioned
by the police or dealt with by way of a fixed penalty notice, and the impact of the
early involvement of prosecutors (p.62).
uu The rate of discontinuance rose slightly to 10.3 per cent in the three-year period
ending March 2016. Convictions rose from 82.5 per cent in 2005–06 to 83.8 per cent
in 2015–16 (p.64).
uu The number of defendants prosecuted decreased by 1.8 per cent during 2015–16.
The central Casework Divisions handled 6,588 appeals against conviction and/or
sentence or extradition (p.65).
uu Convictions rose from 76.4 per cent in 2005–06 to 79.2 per cent during 2015–16.
During 2015–16, a total of 2,668 defendants pleaded guilty to some charges, and
were either convicted or acquitted after trial of other charges. To avoid double
counting, and to ensure consistency with figures for previous years, the outcome
for these defendants is shown as a guilty plea (p.66).
(www.cps.gov.uk/publications/docs/annual_report_2015_16.pdf)
1. What were thought to be the disadvantages of the police having responsibility
for the conduct of prosecutions prior to 1986?
2. What are the main factors that the CPS takes into account in deciding whether
or not to proceed with a prosecution?
3. Why does it matter if there is a high rate of acquittals at criminal trials?
4. What are the factors that the CPS takes into account in deciding whether it is in
the public interest to prosecute someone for assisting another to end their life?
7.6 The adjudication of crime: courts, judges and juries
Essential reading
¢¢ Ward, R. and A. Akhtar Walker & Walker’s English legal system. (Oxford: Oxford
University Press, 2010) 11th edition [ISBN 9780199588107] Chapter 17 ‘The
criminal justice system’ (in the Legal system and method study pack).
7.6.1 Classification of crime and courts

Most crimes are dealt with at first instance by the magistrates’ court or the Crown
Courts (refer back to material in Chapter 2 on court structure). Criminal offences are
classified into three categories:
1. Summary offences These are the least serious offences and are always tried in the
magistrates’ court. They include most driving offences, minor assault and minor
criminal damage.
2. Triable-either-way offences These are intermediate crimes and include a wide

variety of offences, such as theft and assault causing actual bodily harm. These
cases can be tried in either the magistrates’ court or the Crown Court.
3. Indictable offences These are the most serious crimes and include murder,
manslaughter and rape. All indictable offences must be tried at the Crown Court.
Until recently there would be a preliminary hearing in the magistrates’ court
(committal proceedings), but the Government has gradually abolished committal
hearings in order to speed up the justice system.
7.6.2 The criminal trial and case management

The purpose of a criminal trial in adversarial proceedings is to ensure that guilty people
are convicted and innocent people are acquitted by procedures that are demonstrably
fair and seen to be so by the accused, the victim and society at large. The former
Lord Chief Justice, Lord Woolf, has argued that ‘the presumption of innocence and a
robust adversarial process are essential features of English legal tradition and of the
defendant’s right to a fair trial’ (quoted in Ward and Akhtar, 2010, p.581). However, in his
review of the criminal courts, published in 2001, Sir Robin Auld argued that although
procedural fairness was an essential feature of English criminal trials it was necessary
to achieve a balance between fairness to the defendant, efficiency in proceedings and
responsibility to victims and the wider community. He said:
Procedural fairness has always been a feature of our law. Its articulation as such by our
recent adoption of Article 6 adds little of substance to the tradition, though it may
generate much litigation on its application in individual circumstances. My main concern
here is with the notion of ‘balance’. In determining the provision of courts, manner of trial
and the search for fair, speedy and otherwise efficient procedures, it should be
remembered that they are not there just to protect defendants. They also serve the
community. And the criminal process is not a game. It is a search for truth according to
law, albeit by an adversarial process in which the prosecution must prove guilt to a heavy
standard.
(para.12)
The criminal justice system is expensive to operate and there is an additional
responsibility on those involved in criminal proceedings to work efficiently and
not waste public funds. Criminal courts in recent years have come under increasing
pressure from the Government to increase the efficiency with which they deal with
criminal cases and reduce public expenditure on the courts. Successive governments
have also wanted to shift the balance somewhat away from due process protection
in order to ensure that factually guilty people are not wrongly acquitted. The
Government White Paper, Justice for all, published in 2002, argued that there was a
need to redress the balance in the criminal justice system ‘in favour of the victim’.
This was followed by the Criminal Justice Act 2003 which altered rules of evidence
and introduced changes to trial procedures that removed some of the due process
protections in favour of defendants.
In 2005 new Criminal Procedure Rules (CrPR) came into force intended to improve the
efficiency of criminal trials. The Rules, which apply to both summary trials and trials
on indictment, introduced a new ‘overriding objective’ equivalent to the ‘overriding
objective’ in the Civil Procedure Rules discussed in the previous chapter. Rule 1.2
imposes a duty on all participants in the case to prepare and conduct the case in
accordance with the overriding objective which is that ‘criminal cases be dealt with
justly.’ Rule 1.2 sets out the requirements of dealing with cases justly as follows:
1.2 Dealing with a criminal case justly includes –
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the
European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them
informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when bail and
sentence are considered; and
(g) dealing with the case in ways that take into account the gravity of the offence
alleged, the complexity of what is in issue, the severity of the consequences for the
defendant and others affected, and the needs of other cases.
Review of efficiency of criminal justice and further developments

In February 2014 in the context of Government reductions in public spending, Lord
Justice Leveson was asked to carry out a review of the efficiency of the criminal justice
system. The report was published in January 2015: www.judiciary.gov.uk/wp-content/
uploads/2015/01/review-of-efficiency-in-criminal-proceedings-20151.pdf. The approach
of the review was to find ways of encouraging better communication between the
agencies and parties involved in criminal justice, and maximising the opportunities to
improve effectiveness and efficiency with the use of modern IT.
The Report recommends:
uu more use of technology to allow ‘remote hearings’
uu ‘tighter case management’ by judges, including, in appropriate cases, the provision

of timetables for evidence and speeches
uu more ‘high-quality equipment’ in courts to ensure footage from police body-worn

cameras can be shown
uu ‘flexible opening hours’ in magistrates’ courts to accommodate those who cannot
attend during normal working hours
uu contracts requiring ‘greater efficiency’ from those who deliver prisoners to courts,
to avoid delays.
In March 2015, the government published a response to the Report, welcoming

its recommendations, accepting them all in principle, and indicating that the
government would start to take many recommendations forward in a short timescale.
See https://www.gov.uk/government/uploads/system/uploads/attachment_data/
file/411854/response-to-leveson-review.pdf
The criminal justice system also formed part of the subject matter of the recent
‘Transforming our justice system’ summary of reforms, which was discussed
earlier in this guide in the context of civil justice reforms. The summary of reforms
included aligning the criminal courts so that they work more closely together, and
making it easier to transfer cases between the Crown Court and magistrates’ courts;
streamlining processes and removing unnecessary court appearances; enabling online
convictions and fixed fees. See https://consult.justice.gov.uk/digital-communications/
transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf
However, a recent report from the National Audit Office argues that the current
government reform programmes will not be sufficient to drive out inefficiency in the
criminal justice system (www.nao.org.uk/wp-content/uploads/2016/03/Efficiency-in-
the-criminal-justice-system.pdf). In terms of the performance of the criminal justice
system, the report found that:
uu Delays are getting worse against a backdrop of continuing financial pressure.
uu There have been some improvements in the management of cases since 2010–11.
But two-thirds of cases still do not progress as planned, creating unnecessary costs.
uu Trials that collapse or are delayed create costs for all the participants, including the
CPS, witnesses and the courts.
uu Delays and collapsed trials also damage the public’s confidence in the system.
Giving evidence in court as a witness or victim can be a difficult and stressful
process. The uncertainty caused by delays and collapsed trials exacerbates this.
7.6.3 Magistrates’ courts

Magistrates’ courts are local courts that have jurisdiction over the trial of summary
offences and either way offences. Offenders accused of a summary offence are not
entitled to trial by jury. The case will be heard by a panel of three Justices of the Peace
(JPs) who are lay magistrates or a single district judge (magistrates’ court). JPs do not
usually have legal qualifications. They sit part-time and are unpaid. District judges
are legally qualified and paid. Magistrates’ courts deal with about 97 per cent of all
criminal cases. In the magistrates’ courts the magistrates or JPs will decide whether
the defendant is guilty or not guilty and impose sentence. Magistrates have limited
sentencing powers and can only impose a maximum prison sentence of 12 months for
a single offence (increased from six months by the Criminal Justice Act 2003). Where
the defendant is charged with a triable either way offence and pleads not guilty, there
will be an allocation hearing in the magistrates’ court to determine whether the case
should be dealt with in the magistrates’ court or in the Crown Court before a judge and
jury. A defendant charged with a triable-either-way offence may elect for the case to be
dealt with in the Crown Court by a judge and jury (see later section on the jury).
7.6.4 Crown Courts

The Crown Court sits in court centres around England and Wales. The key judges of
the Crown Court are High Court judges, circuit judges and recorders. The Crown Court
has jurisdiction to hear all trials on indictment for offences wherever they have been
committed and the judges have unlimited sentencing powers. The distinguishing
feature of the Crown Court is the use of the jury as part of the trial process. In Crown
Court proceedings the role of the judge is to manage the trial, ensure that only
evidence fairly obtained is heard by the jury, direct the jury on the evidence, sum up
the evidence and then impose a sentence on the defendant if they are found guilty.
The role of the jury is to listen to the evidence and to decide whether the defendant is
guilty or not guilty – referred to as returning a verdict. The jury does not play any part
in determining the punishment of offenders who have been found guilty. The judge
must accept the verdict of the jury, whether or not they agree with the verdict, and the
jury are not required to give reasons for their verdict. Once the verdict has been given
the jury is discharged. Under ss.44 to 50 of the Criminal Justice Act 2003 there are
some circumstances in which a judge in the Crown Court can deal with an indictable
offence. These are discussed in the next section.
1. In which court are ‘triable-either-way’ offences dealt with?
2. What factors contribute to courts dealing with cases ‘justly’ under Criminal
Procedure Rule 1.2?
3. What proportion of criminal cases are dealt with in the Crown Court?
4. What is the maximum term of imprisonment that a magistrate can impose?
7.7 Jury decision-making in criminal trials
Essential reading
¢¢ Lord Devlin ‘Trial by jury’ Hamlyn Lectures, Eighth Series, Stevens & Son, 1956
http://socialsciences.exeter.ac.uk/media/universityofexeter/
schoolofhumanitiesandsocialsciences/law/pdfs/Trial_by_Jury.pdf
¢¢ Thomas, C. ‘Diversity and fairness in the jury system’ Ministry of Justice Research
Series 2/07, June 2007
http://4wardeveruk.org/wp-content/uploads/2009/08/p.Diversity-Fairness-in-
the-Jury-System.pdf
Further reading
¢¢ Ward, R. and A. Akhtar Walker & Walker’s English legal system. (Oxford: Oxford
University Press, 2010) 11th edition [ISBN 9780199588107] Chapter 10 ‘Juries’.
7.7.1 History
A jury is a group of citizens drawn at random from the population to hear criminal or
civil cases and to decide, on the basis of the evidence heard, whether the defendant
is guilty or not guilty (criminal trial) or liable (civil trial). The jury’s decision is called
‘the verdict’. The usual number of jurors is 12 although there are some adjustments
to this for certain kinds of proceedings (see later). The fundamental purpose of the
use of juries is to increase lay participation in the justice system, thus enhancing the
impartiality of the system and public confidence in its fairness.
The use of juries to give verdicts at trials is a feature of common law systems, although
their use varies from jurisdiction to jurisdiction. In the USA the ‘right’ to jury trial
is regarded as an important constitutional protection while in other common law
jurisdictions its use is more limited and regarded more as a privilege than a right.
Civil law jurisdictions rarely use juries in the same way, but it is relatively common
for judges in civil law jurisdictions to sit with lay assessors in order to increase the
impartiality of judicial decision-making and to increase public confidence in the
fairness of the justice system. There is evidence that the use of juries in this way is
increasing in other jurisdictions. Japan in 2008 introduced lay assessors for serious
criminal trials.
As we saw in Chapter 1, use of the jury in the English common law system has a long
history. While the use of ordinary citizens to decide the fate of individuals charged
with criminal offences goes back more than 2,000 years to ancient Athens and Rome,
the foundation of the modern jury originated in England. During the 13th century
juries were used routinely in criminal cases following the ending of trial by ordeal and
the right under Magna Carta in 1215 of a person to be tried by ‘the lawful judgment of
his peers’. Although originally the role of a juror was to provide local knowledge and
information about the crime rather than decide on guilt or innocence, by the 15th
century the use of juries had changed and they had evolved into decision-makers or
deciders of fact.
7.7.2 Underpinning philosophy

The use of juries allows members of society, rather than the government or
professional judiciary, to decide whether a person has committed an alleged crime
– the idea of judgment by peers. It is thought that the use of juries performs a social
as well as a judicial function. The judicial function is to determine, solely on the basis
of the evidence heard, whether the defendant is guilty or not guilty. The broader
social function of juries – which are independent of interference by government,
the judiciary or anyone else – is to increase public confidence in the fairness of the
criminal justice system, to provide an independent buffer between the citizen and the
state, and to provide protection against laws regarded as oppressive. To this extent,
the jury has been regarded as a democratic institution which supports the rule of law.
In his Hamlyn Lectures in 1956 on the subject of ‘Trial by jury’ the distinguished judge,
Lord Devlin, argued that the jury represents protection against tyranny:
The first object of any tyrant in Whitehall would be to make Parliament utterly subservient
to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to
leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is
more than an instrument of justice and more than one wheel of the constitution: it is the
lamp that shows that freedom lives.
(p.164)
In the USA, the constitutional right to trial by jury was well-explained by Justice Byron
White of the US Supreme Court in the case of Duncan v Louisiana in 1968 as follows:
A right to jury trial is granted to criminal defendants in order to prevent oppression by

the Government … Providing an accused with the right to be tried by a jury of his peers
gave him an inestimable safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge. Beyond this, the jury trial provisions
in the Federal and State Constitutions reflect a fundamental decision about the exercise
of official power – a reluctance to entrust plenary powers over the life and liberty of the
citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our
State and Federal Governments in other respects, found expression in the criminal law in
this insistence upon community participation in the determination of guilt or innocence.
(p.156)
Although a requirement for trial by jury is not one of the essential elements of a fair
trial under Article 6 of the ECHR, there are some who think that the right to jury trial
ought to be included in Article 6. On the other hand, there are critics of the jury who
point out that the jury does not always operate fairly and there have been a number
of cases in which the European Court of Human Rights has ruled that aspects of
jury selection and behaviour have breached the requirements of impartiality and
independence under Article 6. Sanders et al. (2010) argue that it would be wrong to
assume that juries always operate in accordance with due process principles. ‘It is
necessary to question whether juries in practice set aside their prejudices, seek hard
evidence of guilt, and apply the appropriate standard of proof’ (p.593). Some of these
issues, and the extent to which jury behaviour always meets the requirements of
independence and impartiality, are discussed in the following sections.
7.7.3 When and how much are juries used in the justice system?
Criminal trials Juries are used in the Crown Court for criminal trials on indictment.
A panel of 12 jurors will be used. Trials on indictment in the Crown Court represent
only around three per cent of all criminal trials – the vast majority being dealt with
in the magistrates’ courts. In practice, even in the three per cent of criminal cases
dealt with in the Crown Court the majority of defendants plead guilty at trial. Thus,
juries are used in only around one per cent of all criminal cases. Despite the small
proportion of criminal cases in which juries are used, criminal jury trials have very high
public significance because these are the most serious, and often the most complex
criminal cases dealt with in the criminal justice system. Media attention to serious
criminal trials is generally quite intense and jury verdicts are often the subject of press
comment and, sometimes, criticism.
Civil trials Juries may be used in the High Court Queen’s Bench Division for cases
concerning defamation, false imprisonment or malicious prosecution by the police
(this is governed by the Senior Courts Act 1981 which gives a ‘qualified right’ to jury
trial in these cases). In these cases panels of 12 jurors will be used. Juries may also
occasionally be used in the same kinds of cases heard in the County Court, in which
case a panel of eight jurors will be used. The use of juries in civil trials has been
reducing steadily since the 19th century and currently juries are used only rarely.
Coroners’ courts Juries may be used to investigate the cause of sudden deaths
in prison, in police custody or as a result of police action. They are also used to
investigate certain industrial and other accidents. When a jury is used in coroners’
inquests a panel of between seven and 11 jurors is used.
Although juries are used for only a minority of criminal cases in the Crown Court and
hardly at all in civil cases, debate about juries arouses strong feelings. As Thomas
(2007) remarks:
One of the most remarkable aspects of the jury system in England and Wales is that while
juries now decide only a small fraction of all criminal cases and almost no civil cases, the
right to trial by jury continues to be a highly charged subject. Most discussion of jury
policy generates public attention, and virtually every proposal to restrict trial by jury in the
last half century has provoked widespread and often impassioned opposition.
(p.2)
7.7.4 Function and independence of the jury

The role of the modern jury is to decide matters of fact and the decision of the
jury cannot be criticised or penalised by the judge if he or she disagrees with their
decision. This principle was established in the 17th century in Bushell’s Case (1670)
Vaughn 135. The case concerned the right of Quakers (a religious group) to preach in
public expressing views that were contrary to those of the Church of England. The trial
of the preachers, William Penn and William Mead, was highly publicised and closely
watched by the public, the government and the monarchy. During the trial the judge
urged the jury to return guilty verdicts. Despite this, the jury returned verdicts of
not guilty. At that time, jurors could be fined and imprisoned if it was decided that
they had returned an ‘erroneous’ verdict. Believing the jurors were wrong in refusing
to convict Penn and Mead, the trial judge ordered that the jurors should be fined
and imprisoned until they paid off their fines. Although the jurors were eventually
released, one juror, Edward Bushell, appealed against being imprisoned. The Court of
Common Pleas ruled that jurors cannot be punished for their decisions. The Court’s
ruling stated that jurors must be free from coercion to decide a case independent
from any intimidation or pressure from the government or the court. This principle
continues today and guarantees the power and freedom to acquit individuals wrongly
prosecuted by the government.
7.7.5 Majority verdicts

Until 1967 juries were required to deliver unanimous verdicts. This requirement meant
that juries would often be kept together for long periods and a single person could
prevent the jury from returning a verdict (see the film ‘12 Angry Men’). If the jury was
incapable of reaching a unanimous verdict they would have to be discharged and a
retrial ordered. Since 1967 it has been possible for juries to return a majority decision.
The jury must first deliberate for at least two hours and if by then they have not
reached a verdict, the judge can call them back into the courtroom and direct that he
or she can now accept a majority verdict. Where there is a full jury of 12, the verdict can
be 10:2 or 11:1. If for any reason (say ill health) the jury has fallen below 12, then a jury
of 11 can return a 10:1 verdict or with 10 jurors 9:1. If the jury is nine or less the verdict
must be unanimous.
The purpose of introducing majority verdicts was to avoid a situation in which a single
member of a jury could be intimidated or bribed to return a particular decision.
However, interference with the jury continues to be a concern and measures have
been introduced to deal with this in the Criminal Justice Act 2003 (discussed later in
this chapter). Only about one in five convictions by juries are by a majority verdict
(Thomas, 2010).
7.7.6 Qualifications and eligibility for jury service

Prior to 1972 a citizen had to be a property owner to qualify for jury service. This meant
that women and young people were underrepresented on juries because they were
less likely to own property than older men. However, the Juries Act 1974 now governs
basic eligibility for jury service which requires only that a person is aged between 18
and 75 years of age (raised from 70 in 2016), is registered to vote on the government
electoral register and has been ordinarily resident in the UK for at least five years since
their 13th birthday.
People who are ‘disqualified’ under the Juries Act 1974 (as amended) may not serve
as a juror. Certain criminal convictions will disqualify members of the public from
becoming a juror either for a period of some years or permanently if imprisoned for a
lengthy sentence.
A judge has the ability to discharge a person from jury service if he or she believes
that they lack the capacity to cope with the information needed for the trial. This
may occur if the person cannot sufficiently understand English, or there may be some
disability that will make the person unsuitable to sit as a juror.
7.7.7 How are juries selected?

The principle of jury selection is that juries should be a representative group of
peers. Juries are selected at random from the electoral register by the Jury Central
Summoning Bureau. The principle of random selection is thought to be the simplest
way of achieving a broadly representative jury. The jury that will hear a particular case
will be chosen by a court official and taken to the courtroom to enter an oath. Those
selected will not know which trial they will serve on until they have been sworn in. This
method is used to make sure jurors have no prejudgements regarding the case.
7.7.8 Excusal from jury service and justice system professionals as jurors
Essential reading
¢¢ Coen, M. ‘“With cat-like tread”: jury trial and the European Court of Human
Rights’ (2014) 14 Human Rights Law Review 107–31 (available in LexisNexis
¢¢ Spencer, J.R. ‘Police officers on juries’ (2012) 71 Cambridge Law Journal 254–57
(available in Westlaw through the Online Library).
¢¢ R v Abdroikof, R v Green and R v Williamson [2007] UKHL 37, [2007] 1 WLR 2679.
Before April 2004, certain professionals, including doctors, members of the legal
profession, police and judiciary, were either automatically excused from jury service if
they did not want to serve or were ineligible to serve as jurors. The Criminal Justice Act
2003 abolished this exception and now all eligible citizens are expected to undertake
jury service unless it would cause personal difficulties, in which case they may ask
to be ‘excused’ or for their jury service to be postponed to a later date. It is up to the
discretion of the court whether or not to grant excusal.
The effect of the change in the law means that serving judges can be summoned to
attend as jurors. In June 2004, only two months after the rules on jury service had been
altered by the Criminal Justice Act 2003, a Court of Appeal judge was summoned for
jury service. To deal with this novel situation the Lord Chief Justice issued guidance on
judges serving as jurors. He said that a judge serves on a jury as part of their duty as
a private citizen and that judges would only be excused from jury service in extreme
circumstances. It is for the individual judge sitting as a juror to decide whether or not
they disclose the fact that they are a judge to the other members of the jury. How
often judges sitting as jurors do reveal that they are judges and what the effect of this
might be on jury deliberations is not known.
However, the issue of the extent to which certain professionals might create the
appearance of bias in a jury was considered by the House of Lords in the cases of R v
Abdroikof, R v Green and R v Williamson [2007] UKHL 37, [2007] 1 WLR 2679 which involved
a police officer or prosecutor serving as a jury member. A majority of the House of Lords
held that the mere fact that one of the members of the jury was a police officer did not
of itself make a trial unfair, but where a police officer on the jury had worked in the same
station as a police officer giving evidence for the prosecution in the trial, then there was
the risk of bias. The test to be applied in such cases was ‘whether the fair-minded and
informed observer, having considered the facts, would conclude that there was a real
possibility that the tribunal was biased’. The majority also held that the presence of a
juror who was a local Crown Prosecutor in the Crown Prosecution Service meant that
justice was clearly not being seen to be done. Lord Bingham stated: ‘It is, in my opinion,
clear that justice is not seen to be done if one discharging the very important neutral role
of juror is a full-time, salaried, long-serving employee of the prosecutor.’
In Hanif v UK (2012), where police evidence was in dispute, the ECtHR ruled that there was
a risk of bias when a police officer on the jury knew one of the police witnesses who was
giving contested evidence. Accordingly, there had been a violation of Article 6(1).
7.8 Jury decision-making: independence and impartiality
7.8.1 Reasons and secrecy
Essential reading
¢¢ The Honourable Lord Reed ‘The confidentiality of jury deliberations’ (2003) 37:1
The Law Teacher 1–17 (in the Legal system and method study pack).
¢¢ Law Commission ‘Contempt of court’ Consultation Paper No 209, November

2012, especially Chapters 1 and Chapter 4
www.lawcom.gov.uk/wp-content/uploads/2015/03/cp209_contempt_of_court.pdf
¢¢ Law Commission ‘Contempt of court (1): juror misconduct and internet

publications’ December 2013, Chapter 4
file/274266/0860.pdf
¢¢ Coen, M. ‘“With cat-like tread”: jury trial and the European Court of Human
Rights’ (2014) 14 Human Rights Law Review 107–31 (available in LexisNexis
¢¢ Taxquet v Belgium (2012) 54 EHRR 26.
¢¢ R v Mirza [2004] UKHL 2, [2004] AC 1118.
¢¢ AG v Scotcher [2005] UKHL 36, [2005] 1 WLR 1867.

Further reading
¢¢ Criminal Practice Directions Amendment No. 4 [2015] EWCA Crim 1253.
While there is a general rule that courts should give reasons for their decisions, this is
not the case for juries who are not required to give reasons for their verdicts. As Lord
Devlin noted in his Hamlyn Lectures on the Jury in 1956:
Judges give their reasons, either so as to satisfy the parties or because they themselves
want to justify their judgments. Even arbitrators detail their findings of fact. The jury just
says yes or no. Indeed, it is not allowed to expand upon that and its reasons may not be
inquired into. It is the oracle deprived of the right of being ambiguous. The jury was in its
origin as oracular as the ordeal: neither was conceived in reason: the verdict, no more than
the result of the ordeal, was open to rational criticism. This immunity has been largely
retained and is still an essential characteristic of the system.
(p.14)
Not only are juries not required to give reasons for their decisions, but it is an offence
to obtain or disclose such information. The Criminal Justice and Courts Act 2015 adds a
new s.20D into the Juries Act 1974, and this provides that:
(1) It is an offence for a person intentionally—
(a) to disclose information about statements made, opinions expressed, arguments

advanced or votes cast by members of a jury in the course of their deliberations in
proceedings before a court, or
(b) to solicit or obtain such information,
subject to the exceptions in sections 20E to 20G.
This replaces, in respect of England and Wales, the previous law under s.8(1) of the
Contempt of Court Act 1981, which prohibits anyone from enquiring into the reasons
for the jury’s verdict. This provision now applies only to Scotland and Northern Ireland.
These reforms are discussed in more detail later in this chapter.
The confidentiality of jury deliberations and their failure to give reasons for their
decisions has been challenged in the ECtHR. Is the failure to give reasons compatible
with the right to a fair trial under Article 6 of the ECHR? The ECtHR has held that the
duty to give reasons for a judicial decision does not apply to juries and that the current
system in England and Wales is compliant with Article 6 of the ECHR. This was recently
confirmed in the important case of Taxquet v Belgium (2012) 54 EHRR 26 where the
Grand Chamber of the ECtHR held that:
the Convention does not require jurors to give reasons for their decision and that Article
6 does not preclude a defendant from being tried by a lay jury even where reasons are not
given for the verdict.
This is provided that the other safeguards, such as that the jury are properly directed,
are observed.
As far as jury secrecy is concerned, there have been several cases in which the House of
Lords considered whether evidence about jury deliberations could be used on appeal.
The case of R v Mirza [2004] UKHL 2 concerned a Pakistani defendant who had come to
the UK in 1988. During his trial for indecent assault he had an interpreter to help him.
The jury sent notes to counsel asking why the defendant needed an interpreter. The
defendant was convicted on a 10:2 majority. Six days after the jury verdict, one juror
wrote to the defendant’s counsel alleging that from the start of the trial there had been
a ‘theory’ in the jury room that the use of an interpreter was a ‘ploy’ and that the jury
had been influenced by race prejudice. The defendant appealed against conviction
and the Court of Appeal had to decide whether it could consider evidence from a juror
about what was discussed in the jury room that would demonstrate bias on the part
of the jury. The Court of Appeal held that it was bound by the common law rule that
it could not breach the secrecy of the jury room, but it certified two questions of law
to be considered by the House of Lords. The questions for the House of Lords were:
first, whether the common law prohibition on the admission of evidence of the jury’s
deliberations should prevail even if the Court of Appeal is presented with a statement
from a juror suggesting jury bias in breach of Article 6 of the ECHR; and second, whether
s.8 of the Contempt of Court Act 1981 is compatible with Article 6 to the extent that it
prohibits the admission of such evidence of bias? A majority of the House of Lords held
that the common law rule should prevail and that s.8 of the Contempt of Court Act 1981
was not incompatible with Article 6. Lord Hope said:
[T]he law … recognises that confidentiality is essential to the proper functioning of

the jury process, that there is merit in finality and that jurors must be protected from
harassment. These requirements too are directed to the essential object of maintaining
public confidence in this mode of trial. So the general rule is that, after the verdict has
been returned, evidence as to things said by jurors during their deliberations in private is
inadmissible.
In the later case of AG v Scotcher [2005] UKHL 36, [2005] 1 WLR 1867 a juror (Keith
Scotcher) was found guilty of contempt of court as a result of disclosing information
about jury deliberations. Following a trial in which two brothers were convicted,
Scotcher wrote to the defendants’ mother to urge her to consider an appeal. His letter
disclosed statements, opinions, arguments and votes of the members of the jury in
the course of their deliberations, and did so with the intention of proving that there
had been a miscarriage of justice. Scotcher then appealed against his conviction for
contempt on the ground that the disclosure was to prevent a miscarriage of justice
and that s.8(1) of the Contempt of Court Act, which prohibits jurors from revealing
information about jury deliberations, was incompatible with Article 10 of the ECHR
(freedom of expression). This argument was rejected by the House of Lords and the
appeal was dismissed. The Court held that Scotcher could have brought his concerns
to the court, but instead he had disclosed them, after the verdict, to a third party.
Reform
The impact of modern media and technologies on the behaviours of jurors
underpinned the findings of the 2013 Law Commission Report into juror misconduct
and internet publications.
The report recommended inter alia that the introduction of a new statutory offence
of sworn jurors in a case deliberately searching for extraneous information related to
the case [1.21], measures to discourage and prevent jurors from undertaking research
and disclosing their deliberations [1.22] and the introduction of a specific statutory
defence to the breach of s.8 of the Contempt Act 1981, confidentiality of the jury’s
deliberations, if disclosures are made in the genuine belief that they are necessary to
uncover miscarriages of justice [1.23].
In the wake of the Law Commission’s recommendations, a variety of reforms were

introduced to broadly address the impact of new technologies and individual juror’s
conduct relating to the access and disclosure of information as related to jury service
which would be in contempt of the court. The reform included the repeal of s.8 of the
Contempt of Court Act in England and Wales.
Misconduct of jurors – new offences

As part of legislative reform implemented by the Criminal Justice and Courts Act 2015,
effective as of 13 April 2015, a new statutory power has also been created giving judges
the power to order jurors to surrender electronic devices (s.69).
Furthermore, a range of new indictable offences (offences 20A–20G) which amount

to contempt of court were inserted into the Juries Act 1974. The maximum penalty is
two years’ imprisonment and/or a fine. The misconduct as related to these offences
is, broadly speaking, considered under the aspect of intentional wrongdoings which
would be considered contempt of court. The specific offences introduced by the new
legislation address: research by jurors (s.71, offence 20A); sharing research with jurors
(s.72, offence 20B); jurors engaging in other prohibited content (s.73, offence 20C);
and disclosing jury’s deliberations (s.74, offence 20D). The types of research prohibited
include information on anyone involved in the case (e.g. the parties, the witness, the
legal team and the court staff) and information on substantive law, procedural law and
law of evidence. The types of ‘other prohibited conduct’ relate to jurors intentionally
trying the case on information other than that provided during the trial.
Disclosure of information and the ‘interests of justice’ defence

Sections 20D, 20E, 20F and 20G to the Juries Act 1974 make it an offence for a person
intentionally to disclose information about statements made, opinions expressed,
arguments advanced or votes cast by members of a jury in the course of their
deliberations in proceedings before a court, or to solicit or obtain such information.
However, the new provisions provide for possible defences when the disclosure may
be in the interests of justice ranging from ‘initial exceptions’ (s.74, offence 20E) to
‘further exceptions’ (s.74, offence 20F) and ‘exceptions to soliciting disclosures for
obtaining information’ (s.74, offence 20G). The provisions therefore create exceptions
so that a juror with real concerns about specific issues affecting the fairness of the
deliberation process, such as the commission of offences or contempt, can make
disclosures in certain situations.
1. Does Article 6 of the ECHR require the use of juries for a fair trial?
2. Does Article 6 of the ECHR require juries to give reasons for their decisions?
3. What principle was established in Bushell’s Case?
4. Why is jury confidentiality thought to be important?
5. Is it a contempt of court for a juror to tell a judge during the course of a trial
about discussions in the jury room?
6. Is it contempt of court for a juror to tell someone else about discussions in the
jury room during the trial?
7. Why was the juror in Scotcher found guilty of contempt of court?
7.8.2 Race and jury fairness
Essential reading
¢¢ Daly, G. and Pattenden, R. ‘Racial bias and the English criminal trial’ (2005) 64(3)
Cambridge Law Journal 678–710 (available in Westlaw through the Online Library).
¢¢ ‘Royal Commission on Criminal Justice Report’ 1993, Chapter 8 ‘Jury selection’,

pp.131–33
file/271971/2263.pdf
¢¢ Thomas, C. ‘Are juries fair?’ Ministry of Justice Research Series 1/10, February 2010
www.justice.gov.uk/downloads/publications/research-and-analysis/moj-
research/are-juries-fair-research.pdf
¢¢ Thomas, C. ‘Ethnicity and fairness of jury trials in England and Wales 2006–2014’
(2017)
http://discovery.ucl.ac.uk/10024639/1/Thomas_CherylThomas%20revised%20
article.pdf
¢¢ R v Ford [1989] 3 All ER 445.
¢¢ R v Smith [2003] EWCA Crim 283.
¢¢ Sander v UK [2000] ECHR 194.
There have been longstanding concerns that juries are not representative of society to
the extent that they do not properly represent the race and ethnic diversity of British
society. This is particularly important given the number of black or minority ethnic
defendants processed through the criminal courts. Public confidence in the fairness of
the criminal justice system is thought to be weakened if judges and jurors, as well as a
high proportion of barristers and solicitors, are overwhelmingly white.
In the 1980s there were several attempts by judges to create multi-racial juries
(R v Binns (1982) Crim LR 522, R v Thomas (1989) 88 Cr App R 370). However, the leading
case of R v Ford [1989] 3 All ER 445 established that judges were under no obligation
to empanel a multi-racial jury. In this case, involving a black defendant, the trial judge
refused to empanel a multi-racial jury and the accused was convicted of reckless
driving. He appealed against his conviction on the ground that the all-white jury was
not an impartial jury. On his appeal Lord Lane CJ gave judgment intending it to provide
clear guidance to judges in the future. Lord Lane held that:
uu A fair jury is a randomly selected jury. It is the responsibility of the Lord Chancellor
and not the trial judge to see that the jury is chosen randomly.
uu There is no principle of law or practice that a jury should be racially balanced.
Lord Lane concluded that:
however well-intentioned the judge’s motive might be, the judge has no power to
influence the composition of the jury and that it is wrong for him to attempt to do so. If it
should ever become desirable that the principle of random selection should be altered,
that will have to be done by way of statute and cannot be done by any judicial decision.
The issue of multi-racial juries was considered by the Royal Commission on Criminal
Justice in 1993 (the Runciman Commission). The Commission recommended that in
exceptional cases the prosecution or defence should be able to insist that up to three
members of the jury are from ethnic minorities and that at least one is from the same
ethnic minority as the accused or victim. However, these recommendations were not
implemented by the Government.
The review of Criminal Courts conducted by Lord Justice Auld in 2001 also considered
the issue of multi-racial juries and recommended that where race was an issue in an
offence it should be possible to select up to two ethnic minority jurors. Again, this
recommendation was not implemented by the Government.
In 2002 the Labour Government published its proposed policy for significant changes
to aspects of the criminal justice process designed to shift the balance in criminal trials
to make it easier to secure convictions of the guilty. The White Paper entitled ‘Justice for
all’ (2002) discussed Lord Justice Auld’s recommendations regarding the possibility of
empanelling multi-racial juries. The Government was opposed to the recommendations
for several practical reasons. In their view, selecting multi-racial juries would:
uu undermine the fundamental principle of random selection and would not achieve
a representative jury
uu place selected minority ethnic jurors in a difficult position
uu generate tensions and divisions in the jury room
uu place undue weight on the views of specially selected jurors
uu place new burden on the court to determine which cases should attract an ethnic
minority quota (para.7.29).
When the Government introduced its reforms to the criminal justice system in the
Criminal Justice Act 2003 there was no provision for multi-racial juries to be empanelled.
After the implementation of the HRA 1998, the issue was raised again in the case of
R v Smith [2003] EWCA Crim 283 in which a black defendant who had been involved in
a fight in a night club was convicted by an all-white jury. On appeal against conviction
to the Court of Appeal the defence lawyers argued that the decision in Ford (1989)
was incompatible with Article 6 of the ECHR. The defence asked the Court of Appeal to
declare s.1 of the Juries Act 1974 to be incompatible with the 1998 Act, but the Court of
Appeal rejected this argument. The Court held:
We do not accept that it was unfair for the appellant to be tried by an all-white jury or that
the fair-minded and informed observer would regard it as unfair. We do not accept that,
on the facts of this case, the trial could only be fair if members of the defendant’s race
were present on the jury. It was not a case where consideration of the evidence required
knowledge of the traditions or social circumstances of a particular racial group. The
situation was an all too common one, violence late at night outside a club, and a randomly
selected jury was entirely capable of trying the issues fairly and impartially.
The case of R v Smith (2003) confirms that the right to a fair trial has not been
interpreted as a right to alter the random selection of jurors to ensure a racial mix.
On the other hand, in the case of Sander v UK [2000] ECHR 194 it was held that a fair
trial requires an impartial tribunal and therefore the composition of the jury could
be contested if their impartiality was in doubt. In this case Kudlip Sander, a British
national of Asian origin born in the UK, was convicted of fraud. At the trial, one of the
jurors sent a note to the trial judge expressing fears that other members of the jury,
who had made openly racist remarks and jokes, were not impartial. The judge read
out the note in open court to the jury, and told them that they should ensure that
they were impartial. The next day the jury found Sander guilty and sent the judge a
collective letter, signed by all the jurors including the original complainant, refuting
the allegations and denying any racial bias. The defendant then appealed against the
conviction – in effect claiming that a ‘racist jury’ had tried him and arguing that the
trial judge was wrong not to have dismissed the jury. The Court of Appeal rejected
this appeal, but the case was eventually heard by the ECtHR. The ECtHR held that the
allegations in the first note were capable of causing the applicant, and any objective
observer, legitimate doubts as to the impartiality of the jury, which neither the
letter nor the direction of the jury by the judge could have dispelled. As a result, by a
majority of four votes to three, it was held that there had been a violation of Article 6
of the ECHR – the right to a fair hearing.
Recent research evidence suggests that juries are more racially representative of the
population than previously thought and that on the whole their decision-making is
fair. In a study of jury summoning Cheryl Thomas (2007) concluded that much current
thinking on juries is based on myth not reality. She found that:
uu there was no underrepresentation of black, Asian, and minority ethnic (BAME)

groups called for jury service, and that
uu there was no significant difference between ethnic minorities and white majority
in willingness to serve as jurors or in support for the jury system in general.
In a subsequent research study, Thomas (2010) analysed a large database of jury

verdicts and used experimental techniques with real juries giving verdicts on different
reconstructions of a real trial to assess whether or not all-white juries discriminated against
BAME defendants. Thomas found that the verdicts of all-white juries did not discriminate
against BAME defendants. She found that all-white juries were equally likely to convict
white or BAME defendants. She also found that there was no evidence of stereotyping that
would lead jurors to see BAME defendants as being more likely to commit particular types
of offence. Thomas concluded that there was no need to empanel racially mixed juries on
grounds of fairness, but she warned that this does not deal with the appearance of fairness
to BAME defendants who are tried by an all-white jury.
Other findings of the 2010 research were that:
uu juries overall appear efficient and effective
uu once a jury is sworn it reaches a verdict by deliberation on 89 per cent of all

charges (judges direct jury verdicts on 11 per cent of charges)
uu once juries deliberate they reach verdicts on virtually all charges (only 0.6 per cent
of all verdicts are hung juries)
uu juries convict on almost two-thirds (64 per cent) of all charges presented to them.
This research was updated in 2017 to inform the findings of the Lammy review into the
treatment of, and outcomes for, BAME individuals in the criminal justice system. The
2017 study analysed over 390,000 jury decisions between 2006 and 2014. As with the
2010 study, it found that jury conviction rates are very similar across different ethnic
groups. The report concludes that the research ‘reinforces and helps to confirm one
of the most important conclusions of the 2010 study: that unlike all other stages in
the criminal justice process in England and Wales, the one stage where members of
BAME groups appear not to be treated disproportionately is when a jury, made up of
members of the public, reaches a verdict by deliberation.’
1. What guidance was given in R v Ford [1989] about the responsibility of the court
for summoning multi-racial juries?
2. Why did the Government in 2002 oppose the empanelling of multi-racial juries
in the ‘Justice for all’ White Paper?
3. Does Article 6 of the ECHR require that in the trial of a black defendant there
should be a racially mixed jury?
4. What does Cheryl Thomas’s research say about all-white juries and the
appearance of fairness in criminal trials?
7.8.3 Jury fairness and the internet
Essential reading
¢¢ Law Commission ‘Contempt of court (1): juror misconduct and internet
publications’ 2013, especially Chapter 4
file/274266/0860.pdf
¢¢ Thomas, C. ‘Avoiding the perfect storm of juror contempt’ (2013) Criminal Law
Review 483 (available in Westlaw through the Online Library).
¢¢ AG v Dallas [2012] EWHC 156 (Admin).
¢¢ AG v Davey and AG v Beard [2013] EWHC 2317 (Admin), [2013] All ER (D) 391.
Contempt of court
The law on contempt of court is designed to ensure that courts are unbiased,
that their authority is respected and that public confidence in the legal system is
maintained. As the Law Commission in a report on contempt explained:
Litigants – and the public – must have confidence that the court’s decision will be based
only on the evidence which was seen and tested by all parties. The law of contempt of
court also aims to ensure that no-one can undermine the functions of the court, either by
depriving the court of the ability fairly to decide the case or by hindering the enforcement
of the court’s judgment.
Article 6 of the ECHR requires that the tribunal trying a case be independent and
impartial. It covers the ‘right to be tried according to the evidence properly placed
before a court, and on that evidence alone’ and not on material which is reported in
the media or elsewhere. Although there has always been a risk that jurors might be
influenced by information outside of evidence at trial – for example, in newspapers
– the development of the internet has had a profound impact on a juror’s ability and
opportunity to obtain or to communicate extraneous information related to their trial.
The modern problem of the use of the internet is illustrated in the case of AG v Dallas
[2012] EWHC 156 (Admin). A woman juror, Theodora Dallas, was given a six-month prison
sentence for contempt of court after it emerged that during the course of the trial
she had carried out internet research on the defendant (Medlock) who was accused
of a violent crime involving torture of the victim. During her internet research on the
defendant Theodora Dallas discovered that he had previously been convicted of a rape
involving violence. In his directions to the jury at the end of the trial, the judge reminded
them that they were only to act on the evidence that they had heard during the trial and
not to speculate or guess about what other evidence there might have been. However,
during jury deliberation Dallas mentioned what she had found out on the internet about
the defendant’s previous conviction. The jury could not reach a decision on the first day
and before they reconvened the next day another juror reported to a court official that
Dallas had found out information about past convictions on the internet. The judge was
informed and he discharged the jury warning that there might be a police investigation.
The defendant was retried, subsequently convicted and sentenced to an 11-year
extended sentence. During Theodora Dallas’s trial the Lord Chief Justice explained how
internet research interfered with due process. He said:
By [disobeying the judge’s order not to look on the internet] she did not merely risk
prejudice to the due administration of justice, but she caused prejudice to it. This was
because she had sought to arm and had armed herself with information of possible
relevance to the trial which, although not adduced in evidence, might have played its
part in her verdict. The moment when she disclosed any of that information to her fellow
jurors she further prejudiced the administration of justice. In the result, the jury was
rightly discharged from returning a verdict and a new trial was ordered. The unfortunate
complainant had to give evidence of his ordeal on a second occasion. The time of the
other members of the jury was wasted, and the public was put to additional unnecessary
expense. The damage to the administration of justice is obvious.
(para.38)
In imposing a custodial sentence on Dallas, the Lord Chief Justice took the opportunity
to underline the danger to the integrity of the trial process presented by jurors making
improper use of the internet to learn things about the defendant that have not been
used in evidence at trial and which could unfairly influence their decision. He said:
Misuse of the internet by a juror is always a most serious irregularity, and an effective
custodial sentence is virtually inevitable. The objective of such a sentence is to ensure that
the integrity of the process of trial by jury is sustained.
The Dallas case was followed by two further cases AG v Davey and AG v Beard [2013]
EWHC 2317 (Admin), [2013] All ER (D) 391. In a combined judgment the High Court
found the jurors to be in contempt of court. Davey had researched the defendant
on the internet while serving as a juror, and in a different trial Beard had ‘Tweeted’
information about the case while serving as a juror in a case concerning a paedophile.
In the judgment on the cases the Court held that while judges try and warn jurors not
to use the internet or social networking sites for any purpose in relation to the case,
judges do not use consistent language and jurors do not seem to be clear in their
understanding of what is permitted and what is prohibited. Research by Professor
Cheryl Thomas (2013) has found that 23 per cent of jurors questioned were confused
about the rule on internet use; 62 per cent of jurors questioned had not heard of
recent prosecutions of jurors for misconduct and up to 7 per cent of jurors admitted to
having used the internet to look for information which may be prohibited.
In Solicitor General v Stoddart [2017] EWHC 1361 (QB), a juror who admitted that he had
conducted internet research into the background of a defendant during a burglary
trial, which caused the conviction to be quashed, received a four-month prison
sentence (suspended for 12 months). The jury had watched a DVD which contained
a specific warning to jurors against conducting internet research, and had also seen
warning notices in the jury room, and received a warning from the judge not to carry
out such research. Despite this, Mr Stoddart, one of the jurors, sought information
about the defendant’s prior convictions by carrying out internet research. In the
sentencing proceedings for contempt of court, Sir Brian Leveson noted that:
The integrity of the criminal justice system requires all who participate within it to
observe the highest standards of behaviour and so to ensure open, transparent and
obvious compliance with all that due process requires. Should circumstances arise in
which the public could no longer have confidence that the performance of any part of
the system, our mechanisms for resolving the determination of guilt of those accused of
crime will collapse … Breach of these requirements, therefore, is and must be taken very
seriously. (paras 1–2).
Strengthening the law on juror misconduct

As a result of concern about jury misuse of the internet and cases such as Dallas (see
above) the Criminal Justice and Courts Act 2015 creates four new criminal offences of
juror misconduct. These have already been discussed in this chapter.
In a possible future development of the law, the Attorney General issued a Call for
Evidence in September 2017 (available at www.gov.uk/government/uploads/system/
uploads/attachment_data/file/645032/Call_for_Evidence__Final_.pdf) to evaluate if
there is a risk to the administration of justice in criminal trials from the use of social
media and, if so, whether the risk is increasing. This followed a murder trial which
was halted after the judge decided that prejudicial comments online meant that the
defendants could not have a fair trial. The judge concluded that it would have been
impossible for jurors to deliver a verdict based on the evidence heard in court alone.
The aim of the Call for Evidence is to collect evidence to establish the level of risk of
social media, and whether any risk identified can be adequately managed using the
tools currently available. The evidence submitted will inform a consideration of what
changes, if any, are needed to strike a balance between the rights of the individual
to express their views via social media and the protection of fairness in criminal
proceedings.
7.8.4 Non-jury trials
Essential reading
¢¢ Crown Prosecution Service ‘Non-jury trials’
www.cps.gov.uk/legal/l_to_o/non_jury_trials/
¢¢ J, S, M v R [2010] EWCA Crim 1755.
Although the commitment to trial by jury for serious criminal cases remains very
strong and continues to be regarded as a critical element in the criminal justice
system by the judiciary, the legal profession and many members of the public, the
Criminal Justice Act 2003 contained provision for trials to be conducted in the Crown
Court by a judge alone without a jury in special circumstances where it is thought that
there are serious disadvantages to the use of a jury; for example, where the jury is in
danger of being threatened or bribed by the defendant (‘jury tampering’). Section 44
of the Criminal Justice Act 2003 came into force on 24 July 2006, and provides for non-
jury trial in cases where there is danger of ‘jury tampering’ or where jury tampering
has taken place.
The term ‘jury tampering’ covers situations in which there is a danger that the
independence of the jury could be compromised as a result of one or more jurors
being intimidated or bribed, or otherwise interfered with. Non-jury trials were used in
Northern Ireland in the 1970s during an extended period of civil conflict when there
were fears of jury intimidation (‘Diplock Courts’). Aside from that experience, serious
crimes have been tried by juries in English courts for over 400 years and there is
considerable concern about the use of non-jury trials.
For an application under s.44 to be granted, the court must be satisfied that there
is evidence of a real and present danger that jury tampering would take place. In
addition, the court must also be satisfied that the danger of jury tampering is so
substantial, notwithstanding any steps that could reasonably be taken to prevent it, as
to make it necessary in the interests of justice for the trial to be conducted without a
jury. Subsection (6) sets out examples of what might constitute evidence of a real and
present danger of jury tampering, which include: a case where the trial is a retrial and
the jury in the previous trial was discharged because jury tampering had taken place; a
case where jury tampering has taken place in previous criminal proceedings involving
the defendant or any of the defendants; a case where there has been intimidation, or
attempted intimidation, of any person who is likely to be a witness in the trial.
The non-jury trial provisions of the Criminal Justice Act 2003 were not used until
February 2010. Peter Blake, John Twomey, Barry Hibberd and Glen Cameron were tried
for a violent £1.75 million armed robbery at Heathrow Airport in 2004. The decision to
allow the non-jury trial was taken by the Court of Appeal in 2009 after an investigation
by the police found that ‘approaches’ had been made to two members of the jury in
the third trial of the men. The Court decided that a serious attempt at jury tampering
had taken place. The Court of Appeal also held that there was a real and present
danger that jury tampering would recur if there were a further jury trial. In deciding to
order a non-jury trial, the Court of Appeal noted that the alternative of providing the
jury with round-the-clock protection would still leave their families vulnerable and
that such protection would cost £6 million as opposed to the £1.6 million for a judge-
only trial.
In the case of J, S, M v R [2010] EWCA Crim 1755 the Court of Appeal held that non-jury
trials would only be permitted in ‘extreme’ cases; for example, where the protection
necessary for jurors would be unreasonably intrusive, such as 24-hour police
protection. Giving the lead judgment in the case, the Lord Chief Justice emphasised
that:
The trial of a serious criminal offence without a jury … remains and must remain the
decision of last resort, only to be ordered when the court is sure (not that it entertains
doubts, suspicions or reservations) that the statutory conditions are fulfilled.
In the case of KS v R [2010] EWCA Crim 1756, the Court of Appeal rejected the need for
a non-jury trial on the ground that the provision of limited protection for a juror was
proportionate to the threat of jury tampering.
In R v McManaman [2016] EWCA Crim 3, [2016] 1 WLR 1096 the Court of Appeal dismissed
the appeal of the decision of a trial judge in a rape case to discharge a jury based on
the judge’s finding that jury tampering had arisen when a third party, an associate of
the defendant, approached a juror though a social media website.
In application of s.46(3)(a) of the CJA 2003 and R v Twomey [2010] 1 WLR 630, the Court
of Appeal confirmed the very high threshold for the need for a non-jury trial, and
outlined the task of the judge who had to balance ‘the need for a decision in relation
to the status of the trial in the interests of all concerned together with the importance
of expedition if the trial is to be continued as against the state of the evidence in
relation to tampering that has so far been obtained by the police and the likelihood of
additional inquiries producing further material evidence’ [20].
7.8.5 Conclusion
Essential reading
¢¢ Roberts, J.V. and M. Hough ‘Public opinion and the jury: an international
literature review’ Ministry of Justice Research Series 1/09, February 2009
www.icpr.org.uk/media/10381/Juries%20MOJ%20report.pdf
It is clear that the courts take a very restrictive approach in deciding whether to permit
a non-jury trial in the Crown Court. This reflects the view that while juries may be
imperfect decision makers they perform an important function in the criminal justice
system which continues to be much valued by justice system professionals and the
public. An international review of public opinion on the use of juries in criminal trials
by Roberts and Hough (2009) found that there were high levels of public confidence
in juries over time. The right to trial by jury is seen as one of the most important rights
in a democratic society and the public valued the right to jury trial more highly than
the right to protest against government, time limits on detention before charge and
the right to privacy. The public were generally opposed to restricting jury trials despite
high costs and were confident that juries were representative of the public. There was
a generally positive attitude toward undertaking jury service.
1. In what circumstances would juror misuse of the internet interfere with due
process in criminal trials?
2. What has research shown about jurors’ understanding of what they can and
cannot look at on the internet?
3. What has the Law Commission recommended to deal with jury misuse of the
internet?
4. In what circumstances can a trial be held in the Crown Court without a jury?
5. What kinds of factors might interfere with jurors’ impartiality?

7.9 Appeals and correcting miscarriages of justice
Further reading
¢¢ ‘Royal Commission on Criminal Justice Report’ 1993, Chapter 10 ‘Court of Appeal’
file/271971/2263.pdf
The ease with which decisions in criminal cases can be challenged in appellate courts
is an important criterion for measuring the quality of a criminal justice system. The
appeal process is important for the correction of mistakes to avoid injustice to citizens
who may be deprived of their liberty. The appeals process also reinforces due process
principles and procedures by quashing decisions that have been reached unfairly. This
safeguards the integrity of the criminal justice system as a whole. Finally, as discussed
in Chapter 2 in relation to the operation of precedent, the appeal process is important
for promoting consistency within the common law system and offers the judiciary the
opportunity to develop clear legal rules.
Both the defence and prosecution in criminal trials have opportunities to appeal
against conviction and sentence. Cases heard initially in the magistrate’s court will be
appealed to the Crown Court. Cases heard initially in the Crown Court will be appealed
to the Court of Appeal and there may then be a further appeal to the Supreme Court.
Once all normal appeal routes have been exhausted and either the prosecution or the
defence maintains that an injustice has been done, this is defined as a miscarriage
of justice and special procedures exist to review these miscarriages of justice. A
miscarriage of justice occurs either when it is alleged that an innocent person has
been wrongly convicted or when it is alleged that a guilty person has been wrongly
acquitted.
7.9.1 Prosecution appeals against wrongful acquittal or sentence

Section 36 of the Criminal Justice Act 1972: the Attorney General’s reference
Following an acquittal on indictment, the Attorney General can make a reference
to the Court of Appeal on a point of law in order to clear up doubtful points on the
criminal law. Such a reference has no effect on the acquitted defendant even if the
Court of Appeal finds that the law had been wrongly applied in the case and the
defendant wrongly acquitted.
Section 36 of the Criminal Justice Act 1988: the Attorney General’s reference of
unduly lenient sentences The prosecution cannot appeal to the Court of Appeal
against the sentence imposed on the defendant, but under this section the Attorney
General can refer the sentence of a person in a proceeding in the Crown Court if it
appears that the sentence has been unduly lenient. The Court of Appeal can then
increase the sentence if they think it is justified.
Sections 75 and 76 of the Criminal Justice Act 2003: prosecution appeal against
acquittal In limited circumstances it is now possible for a retrial to take place despite
an earlier acquittal. This may occur if there is new and compelling (reliable, substantial
and highly probative) evidence of the acquitted person’s guilt; and it is in the public
interest that there should be a retrial.
7.9.2 Defence appeals against wrongful conviction

Convictions in the magistrate’s court are appealed to the Crown Court where there
will be a complete re-hearing of the case. Convictions in the Crown Court are appealed
to the Court of Appeal (Criminal Division). Under the Criminal Appeal Act 1968 all
defendants convicted in the Crown Court who want to appeal against conviction and/
or sentence must apply for permission to appeal from the Court of Appeal.
A further appeal may be possible to the UK Supreme Court, but only if the Court of
Appeal certifies that the case involves a point of law of general public importance and it
appears that the point is one which ought to be considered by the Supreme Court, and
either the Court of Appeal or the Supreme Court gives leave for the appeal to proceed.
Under the provisions of the Criminal Appeal Act 1968 as amended, the Court of Appeal
shall allow an appeal against conviction if it feels that the conviction is unsafe, and in
all other cases the appeal must be dismissed.
7.9.3 The Criminal Cases Review Commission
Essential reading
¢¢ ‘Royal Commission on Criminal Justice Report’ 1993, Chapter 11 ‘Corrections of
miscarriages of justice’
file/271971/2263.pdf
¢¢ Naughton, M. and G. Tan ‘Innocence Network UK (INUK) Symposium on the

Reform of the Criminal Cases Review Commission (CCRC) Report’ 2013
www.innocencenetwork.org.uk/wp-content/uploads/2013/01/CCRC-Symposium-
Report.pdf
¢¢ Website of the Criminal Cases Review Commission

https://ccrc.gov.uk/
Until 31 March 1997 the Home Secretary dealt with applications by people claiming to
be victims of miscarriages of justice, and he had the power to refer such cases back to
the Court of Appeal for re-consideration. Following growing public concern about a
succession of high profile miscarriages of justice in the 1980s, the Royal Commission
on Criminal Justice was set up in 1991. The Royal Commission was given the task of
examining the effectiveness of the criminal justice system in securing the conviction
of the guilty and the acquittal of the innocent.
The Royal Commission was of the view that the power of the Home Secretary to
review allegations of miscarriages of justice was incompatible with the principle of the
separation of powers between the courts and the executive. It was not appropriate
for a politician to be making decisions about whether miscarriages of justice should
be investigated given his responsibility for law and order and for the police (p.182).
The Commission’s report was presented to Parliament in July 1993 and recommended
(Chapter 11) the establishment of an independent body to:
uu consider suspected miscarriages of justice
uu arrange for the investigation where appropriate
uu refer cases to the Court of Appeal where matters needed further consideration.
The Criminal Appeal Act 1995 was subsequently passed, enabling the establishment
of the Criminal Cases Review Commission (CCRC). The role of the CCRC is to review and
investigate cases of suspected wrongful convictions and/or sentence in England and
Wales. Under s.13 of the Criminal Appeal Act 1995 the CCRC should refer cases back for
reconsideration whenever it feels that there is a ‘real possibility’ that the conviction,
verdict, finding or sentence will not be upheld. This requires that there is an argument
or evidence that was not raised during the trial. In May 2016 the Criminal Cases Review
Commission (Information) Act 2016 was passed. This short Act, which began as a
Private Member’s Bill introduced by William Wragg MP, gives the CCRC further powers
to obtain information for the purposes of its investigations. The CCRC now has the
same power to obtain information from private bodies as from public bodies.
References by the CCRC take effect as if they were appeals by the convicted person and,
once the reference has been made, the CCRC has no further involvement. The CCRC may
investigate cases of its own accord, or individuals may ask the Commission to investigate
but, in either event, normal rights of appeal must ordinarily have been exhausted before
the Commission can intervene (although failure to do this is not an absolute bar).
The CCRC’s decision makers are publicly appointed Commissioners, and they are
supported by senior managers, legal and investigations advisers, casework and
administrative staff. Investigations are mainly carried out by CCRC staff but it can
require others, such as the police, to carry out investigations on its behalf.
In its annual report 2016/17, the CCRC reported that it received 1,397 applications,
similar to the 1,480 applications received in 2015/16. (The report can be found at
https://s3-eu-west-2.amazonaws.com/ccrc-prod-storage-1jdn5d1f6iq1l/uploads/2017/01/
CCRC-Annual-Report-and-Accounts-2015-16-HC244-Web-Accessible-v0.2-2.pdf)
In 2016/17 the CCRC referred 12 cases to the appeal courts. This means that it referred
0.77 per cent of the 1,563 cases concluded in the year, and this is the CCRC’s lowest
ever annual total of referrals. In the previous year the referral rate was 1.8 per cent; in
2013/14, 2.7 per cent, and in 2014/15 it was 2.2 per cent. The CCRC’s long-term referral
rate stands at 3.30 per cent. The CCRC does not consider that the unusually low
percentage of referrals this year is because of a long-term reduction in the number of
miscarriages of justice or its ability to detect and refer them, but is instead explained
by the fact that this year all referrals have involved single individuals rather than
groups of miscarriages of justice involving multiple co-defendants and/or a particular
theme.
In the 28 cases where appeals had been heard by the appeal courts in 2016/17 following
referral by the CCRC, 12 convictions had been quashed, 15 appeals were dismissed and
another was abandoned by the appellant. Of the cases referred to the appeal courts
and heard by them, between 50–70 per cent are allowed. This suggests that the CCRC is
cautious about the number of cases that it refers back for appeal. However, in 2016/17,
only 46 per cent of CCRC referrals succeeded on appeal.
A review of the CCRC’s effectiveness as the only gateway back to the Court of Appeal
for convicted persons who have failed in their first appeal was published by the
Innocence Network UK in February 2013 (www.innocencenetwork.org.uk/wp-content/
uploads/2013/01/CCRC-Symposium-Report.pdf). In particular, the report argued
that the ‘real possibility’ test under s.13 of the Criminal Appeal Act 1995 enshrines
a relationship of deference to the Court of Appeal, which prevents the CCRC from
referring potentially genuine wrongful convictions of applicants who may be innocent
if it is thought that the Court of Appeal may conclude that the case lacks legal merit.
The report argued that this severely compromises the CCRC’s independence and
hinders its ability to assist applicants who may be innocent. The report recommended
that the ‘real possibility’ test under s.13 of the Criminal Appeal Act 1995 should be
replaced with a different test that allows the CCRC more independence both in its
review of alleged wrongful convictions, and in its consideration on whether to refer a
case back to the Court of Appeal.
In 2014 the House of Commons Justice Committee established a special inquiry into the
work of the Criminal Cases Review Commission. The final report was published in March
2015: www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/850/85002.htm
Key questions for the Inquiry were:
uu whether the CCRC has fulfilled the expectations and remit
uu whether the CCRC has sufficient statutory powers and resources to investigate
cases and for the wider role of promoting confidence in the criminal justice
system.
The broad conclusion of the Inquiry was that the CCRC is performing reasonably
well, but that it should do more to increase understanding of its work. The Justice
Committee also recommended that the CCRC should be given the resources and
powers it requires to perform its job effectively. The Committee said of the CCRC that ‘it
remains as important and as necessary a body as ever.’
1. What is the definition of a miscarriage of justice?
2. What opportunities does the prosecution have to appeal against acquittal and
sentence?
3. What opportunities does the defence have to appeal against acquittal and
sentence?
4. When will the Court of Appeal quash a conviction?
5. Why did the Royal Commission on Criminal Justice recommend the

establishment of an independent body to investigate alleged miscarriages of
justice?
6. Under what circumstances will the Criminal Cases Review Commission refer a
case to the Court of Appeal?
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Legal system and

uu Professor Dame Hazel Genn, Faculty of Laws, University College London.

The 2016 update to the guide was prepared by:

The 2018 update to the guide was prepared by:

uu Charlotte Crilly LLM, MA (Oxon), Teaching Fellow, University of London.

Published by: University of London

1 Introduction to law and the legal system . . . . . . . . . . . . . . . . 11

2 The courts and their work . . . . . . . . . . . . . . . . . . . . . . . . 35

3 The doctrine of judicial precedent . . . . . . . . . . . . . . . . . . . 45

6 The civil justice system, access to justice and ADR . . . . . . . . . . . 117

7 The criminal justice system . . . . . . . . . . . . . . . . . . . . . . . 147

Courses on which this module is offered

Notional study time

MODULE PURPOSE AND OVERVIEW

LEARNING OUTCOMES: KNOWLEDGE

5. Understand judicial approaches to statutory interpretation and the influence of

LEARNING OUTCOMES: SKILLS

7. Apply the techniques of legal reasoning covering precedent and statutory

11. Locate legal sources;

12. Demonstrate understanding of legal terminology;

13. Understand the principles of good academic practice.

BENCHMARK FOR LEARNING OUTCOMES

(d) The doctrine of precedent and the principles of statutory interpretation.

(e) Judicial reasoning in relation to (i) cases, and (ii) statutes.

LEARNING AND TEACHING

The Laws Virtual Learning Environment

uu a complete version of the module guides;

uu online audio presentations;

uu past examination papers and reports;

uu Computer Marked Assessments – multiple choice questions with feedback

The Online Library

uu the professional legal databases LexisLibrary and Westlaw;

uu cases and up-to-date statutes;

uu key academic law journals;

uu links to important websites.

Summative assessment includes:

1. A case note submitted prior to formal examination.

uu Part A of the examination is a compulsory set of questions based on the case

uu Part B requires students to answer two essay questions out of six;

uu Part C is a set of compulsory questions on a statute that has been previously

Purpose and content of the module guide . . . . . . . . . . . . . . . . . 3

Textbook and other reading material . . . . . . . . . . . . . . . . . . . 4

Essential information for the new law student . . . . . . . . . . . . . . . 5

Citation of legal cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Law Reports series . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Glossary of key judicial offices in the English legal system . . . . . . . . . 9

Introduction to Legal system and method

This module is different from other law subjects

Purpose and content of the module guide

1.2 Conduct legal research using primary and secondary resources

1.5 Explain the basic structures of civil and criminal justice

1.7 Explain the key concepts of Legal Aid.

Textbook and other reading material

Substantial legal system texts providing detailed material on module topics:

¢¢ Partington, M. Introduction to the English legal system 2018–2019. (Oxford: Oxford

Website of the UK Parliament

Other websites that may be useful

Essential information for the new law student

Citation of legal cases

Davis v Johnson [1979] 2 WLR 553

Name of Name of Volume First page

Figure1: Example of case citation from Weekly Law Reports

Square and round brackets in case citation

Private family case: P v BW [2004] Fam 22.