OVERVIEW OF COMMON LAW REASONING AND INSTITUTIONS

COMMON LAW REASONING AND INSTITUTIONS

Key points on Criminal Law

Ø Common law is a study of historically changed and changing complex of ideas, expectations, tasks and demands. It also about the rather mysterious thing called law and how law manifest itself and is given identity and set of tasks to perform
Ø Normative issues – all the opinions people hold about how things ought to be
Ø The notion of system connotes interconnectedness, interrelatedness, coherence and consistency.
Ø The English Legal System has eluded conceptualisation and consistency.
Ø In the common law tradition, the Judge is the bearer of the system, its guardian or priest
Ø Law needs to be rendered visible so that people come to accept that law rules and not men
Ø Common law countries derived their legal systems from contract (in imperial and colonial times) with the English legal system – important questions what is the meaning of all these material and how do they interrelate.
Ø A legal instrument can be seen as instrumental (a matter of effective processes, allocating resources and settling disputes and reflection of our fundamental values (an edifice of principles and values and a statement of what society is committed to.
Ø On one hand land is seen as cohesion and on other hand as expression of human values
Ø Most common argument to reform common legal system is codification. However, codification has not been real successful, except for India
Ø A legal parable – King Rex 1, King Rex 11
Ø Legal system is a complex or operations, processes, human actions, institutions, and ideals
Ø Within the criminal justice system the more important objectives are punish wrong doers, protect society and deter others from committing crime.
Ø Corpus Juris refers to a collection of laws put in semantic order. The term usually denotes, the collection of Roman Law
Ø What makes English law so distinctive – the importance of judges and lack of importance of Academics (jurists); the idea that English laws reflect national identify; English law as a seamless web (there is always an answer); the rule of exclusion; the lack of written constitution (absolute sovereign legislature, lack of judicial review); prosecution and verdict in criminal case; An uncodified law
Ø The judges are the living oracles of the law
Ø Roman Interpretation of code of Emperor Justinian
Ø The English legal system is the origin of common law system
Ø The historical perspective -
Ø Serjeants of laws – ancient terms for senior lawyers
Ø Cognoscibility – capacity of being understood
Ø Roman Patriciate who kept the formulae of law secret
Ø Civil law sometimes called Roman law
Ø Critical Analytical thought?
Ø Distinction between common law and equity, common law and civil systems
Ø English legal system is the original common law system. The Common law of England has come out of hundreds of years of development beginning with Anglo-Saxon custom (in the period up to 1066) and the impact of the Norman rationalisation and centralisation of authority. Over the subsequent centuries it grew through complex process of recognising and rationalising the multitude of judicial decisions that judges of the central court created. In studying the common law it is important to appreciate that it is a complex historical product with a number of distinctive features
Ø Historical perspective – Law was local custom, largely unwritten and understood as a set or orally transmitted rules. As a body of rules, their contents seem to be directed as preventing bloodshed by recognising elementary rights to property and personal freedom and substituting compensation for the rigours of blood feed as revenge for injury.
Ø 1066 – Norman French Baron William defeated Saxon King Harold at the battle of Hastings and conquered England this becoming King William I(History of English Law 1923) Vol. 1 Page 79)
Ø Freehold – a title to land, which means that the owner hold the land free from encumbrances. However, theoretically the Crown still has certain rights such as its right to purchase the land under compulsory order.
Ø William developed central administration law
Ø Ubi rimedium ubu jus – no right could be recognised in the common law unless a writ existed that provide remedy for this breach)
Ø To respond to these a practice grew of partitioning the king (as fountain of justice) Counsellor dealt with petitions culminating in the creation of Court of Chancery presided over by the Lord Chancellor applying a systems of rules known as equity rather than the common law of ordinary courts
Ø The Court of Chancery was often called Court of Conscience (a man must come to equity with clean hands)
Ø In case of conflict between equity and common law, the rules of equity prevail
Ø Parliament created Judicial Acts 1873-1874 which established a unified system of courts that were charge with applying both the common and equity laws to put a stop to put an end to the division.
Ø Distinctive features – while common rules are available to plaintiffs as a right, equitable remedies are discretionary in the sense that they are subject to availability
Ø Common law is used to denote the law applied by courts as developed through the system of precedent without reference to the laws passed by parliament. Statues become the most prolific source of law in England and Whales in the late nineteen century
Ø Ronald Dwokin (Law Empires 1986) – judges evolve laws out of existing principles and constructive interpretation of existing sources
Ø Common law as a group of related legal systems
Ø Common law is flexible hence its adaptability
Ø The legal system of continental European countries exported around the world which gave rise to civil law systems. Napoleon created Code Civil which was copied round the world.
Ø Criminal law is an embodiment of power of state to punish people for actions, or failures to act, which are deemed contrary to the interest of the society as a whole or the power interest group that have assumed the legislative process; failure criminal behaviours.
Ø There close connection between Civil wrong - torts and crime.
Ø Civil is continental European family of legal systems – civil law is all laws other than criminal law (English private law)
Ø Public law is loosely referred to as constitutional and administrative law – in continental Europe set of rules only applicable to cases involving the state administration
Ø The distinction between substantive law and procedures is, in simple term, the distinction the rules applicable to the merit of a dispute (substantive law) and the rules governing the manner of resolution of a dispute (procedure)
Ø It might also be said that procedure came before substantive rights
Ø The characters of common law thought – the idea of common law as a general principles of law seems more appropriate as it captures this shifting, dynamic character
Ø Common laws reside in judicial decisions rather than rule – mode of treating legal problems rather than rule (supremacy of law, case law and hearing cause as a whole in open court), institution of trial by jury judicial empiricism; pragmatic case-by-case decision making guided by past precedents; common law unity has been attributed to its being grounded in, and logically derived from, a handful of general principles;
Ø Maxims in law are somewhat like axioms in geometry. They are principles and authorities that become part of the general custom of common law of the land and bind judges when it is argued they applied to a case.
Ø Maxims were far more important than precedents, but as legal procedures become more detailed and complex, maxim lost their forced and ceased to be of much practical significance e.g. Actore non probante reus absolvitur (when plaintiff does not prove his case the defendant is absolved);argumentum ab impossibili plurmun varlet in lege (An argument deduced in law is strongest in law); bona fides non patitur, ut bis idem exigatur (natural equity or good faith does not permit us to demand twice payment for the same thing): caveat emptor (buyers beware); cogitationis poenam nemo patitur (no one is punished for merely thinking of a crime); commondum ex injuri sun non habare debet (No man ought to derive benefit from his own wrongdoing)
Ø The Common law traditions entails a particular approach to the discovery, interpretation (where necessary) the making of law as practised on contra-distinction to the jurisprudence of countries influenced by the Roman and later European codes (such as Napoleon codes)
Ø According to the declaratory doctrine of common law, Judges do no make laws, but they are ‘the depositories of the laws, the living oracles who must decides all cases of doubt’ (…) Cotterrell 1989 P. 25
Ø Judicial decisions according to Matthew Hale writing in the seventeen century, do not make law ‘for that only the king and the parliament can do’, but are evidence of law, and though such decisions are less than a law, yet they are a greater evidence thereof than the opinion of any private persons, as such whosoever (…)’ opinion. The judge is the spokesman for the community about its laws, but a particularly authoritative spokesman
Ø The Common law is inductive and empirical in nature – proceeding in incremental way laying its rules on a case by case basis, inferring a general principle after precedents justify that interference
Ø The rule of equity has not sought to replace in modern time the doctrine of precedent and the rules of recorded discretion with unpredictable ad-hoc decision making
Ø Civil law is said to be deductive in nature because it proceed from an exhaustive codes of propositions in accordance with which all subsequent experienced must be judged
Ø Adversarial V Inquisitorial Proceedings
Ø English legal system is adversarial (accusational) and civil law system is inquisitorial
Ø In the adversarial system the parties dictate, within the constraints of traditional form and packages – such a writs, forms of action and pleadings. The success of a case therefore often rests on the ability of an advocate to manipulate proceeding and not just on the weight of evidence
Ø The system rests on these assumptions – both parties are represented, the lawyers representing each party are efficient and equally matched; the lawyers will promote their clients’ interests.
Ø English lawyers do not owe a general duty to ensure justice is done or to enable the court find the truth. Their only obligation is not to mislead the court on question of law or fact.
Ø With the exception of coroners court, the proceedings in English court does not take the form of investigation into the matter before them
Ø Inquisitional system basically entails an examining judge conducting his or her own investigation in conjunction with the police before any trial takes place
Ø The legal ‘families’ refer to the coherent similarities that group together the various legal systems in the world into distinguishable ‘traditions’ or ‘families’. Some of these derive from religion (Sharia and Thalmudic legal systems); others are associated with particular political and social ideology (common laws, civil law and roman law and the now declining socialist law). Characteristics – objective of the laws, sources of law, legal reasoning and methodology, structure of pre-court and trial proceedings
Ø Overall objective of common and civil law is to establishment of a system for the just resolution of dispute and the maintenance of social order.
Ø Characteristics of common law – concern to determine legal dispute according to their individual characteristics rather than applying general statement of legal principles; the source of law is to be found in the text of the judgement (unwritten yet written – pass down from generation to generation and compilation began in the nineteen century); it applies to all person including the state; adoption of an inductive legal reason whereby legal principles are derived from the texts of many single judgements; litigation system in which trial is distinct and the climax of litigation process; courtroom practice where many are subject to rigid and technical rule; the system is more participatory and parties control proceeding, the role of the judiciary is more restrictive than proactive; the judicial process has an inherent power to adjudicate separately from the political or executive process; the efforts and expenses of determining litigations falls largely on the parties;
Ø Characteristics of civil law – concern to determine legal dispute according to pre-determined legal principles established to maintain social order; the source of law being found in authoritative statements of basic legal principles – e.g. criminal and civil codes issued by state and propounded by legal scholars; separation of public law and private law; adoption of legal principles from whereby pre-existing general statement of legal principles are applied to specific circumstances or individual cases; no rigid separation exists between stage of trial or pre-trial in courts cases (legal proceedings are view as series of continuous meetings, hearings etc; rule relating to courtroom practice are expected to be minimal and uncomplicated; a less conspicuous role by lawyers with emphasis on written submissions rather than oral argument – the judiciary in practice play a more organisation and inquisitive role (the system is more hierarchical than participatory; the judicial possess no separate and inherent power to adjudicate; the efforts and expenses of determining litigations falls largely on the parties;
Ø The impact of European Union Law and International Law which are amalgams of principle, substance and practice of both civil and common law systems
Ø The distinction between common and civil law seem to be weakening
Ø Judicial use of legal Principle – Legal principles are now applied to the circumstance of individual case in a fashion. Such principles include (neighbourhood principle in tort law, natural justice in administrative law, implied terms in contract law, constructive trusts in property law)
Ø Common law judges have limited powers over direction or substance of cases, whereas a judge in a conventions civil law inquisitional case is expected to explore actively whatever will result in the resolution of the disputes in a continuous process of pre-trial, inquiry stages
Ø Assisted and alternative dispute resolution processes
Ø Problems with adversarial system of litigation – it may reduce the element of bias in the decision maker (more evidence and presentations); it may lead to the lawyer for the person with a fuller case to put forward fuller version of the fact than he would in inquisitorial context; more acceptable to both parties;
Ø Disadvantages – it is about winning and losing; the lawyer role is simply partisan; the evidence presented by experts may be fashion to suit certain line of argument; the judge is responsible for ensuring that proceedings are conducted fairly (sensitivity about limiting issues raises by parties; the judge is not responsible for how much evidence or arguments are put forward; the judge adjudicate question of law submitted to the court but not responsible for discovering the truth or settling disputes; its too slow; its too expensive; its too unequal; its too uncertain; its is incomprehensible to many litigants
Ø The role of courts and other decision making bodies
Ø The words of the law reports and not themselves common laws but the decision of the courts as reflected in the law reports provide authority for what the common law can be argues to be.
Ø Binding Precedent – the doctrine of stare decisis’
Ø Common law arose with the idea of Judges of English royal courts deciding cases (or in the older terminology adjudicating upon causes) and the subsequent recordings of those decisions.
Ø Oliver Wendell Holmes (former Dean of Faculty of Law, Harvard University, Legal realist) “Law is what the courts do in fact”
Ø Negotiation and adjudication
Ø Difference - the essential differences lies in the role of authorised third party who give judgement i.e. the presence of some overriding authority structure with ability to enforce judgement.
Ø In small scale social grouping judgement of one peers may be crucial and important in enforcing customary norms, public criticism, withholding of recognition, ostracism and ultimately expulsion or exiling
Ø Causa proxima, non remota spectur (only the immediate and not remote causes are to be considered) Disputes between members of different keen or network may result into wars, blood feud In small scale social grouping judgement of one peers may be crucial and important in enforcing customary norms, public criticism, withholding of recognition, ostracism and ultimately expulsion or exiling
Ø Courts are formal structures for decision-making. A narrowing of issues occurs where the court will only engage in relevant issues. A great deal of human element may not be addressable in that forum.
Ø The King’s Court (Curia Regis) was legitimated in two ways: the King could hold court as feudal lord for his tenants as the ultimate landholder; the king could exercise residuary justice inherited from the general principle of kingship which had existed in rather week form during the Anglo-Saxon period
Ø The king introduced certain from of machinery for deciding legal questions and developed centralised writ system and ensuing form of action.
Ø A writ was a command from the king, which would be enforced against the offender by punishment or imprisonment
Ø Centralisation of Royal Justice.
Ø For Blackstone law is fraught with accumulate wisdom of ages.
Ø Decision making role of courts
Ø The particular methodologies created by courts for justifying and discipline their discretion is called legal reasoning.
Ø Legal reason has a particular method or style that is quite different from the methods and logic of scientific explanation and from moral, political and economic discourse
Ø Settlement reached by negotiation between the disputants; settlement where a binding decision is given by a third party with a degree of authority adjudication
Ø Difference – third part has overriding authority and ability to enforce judgment
Ø In the early days people were judged by their status and not what their offence
Ø There is a major difference presently because parties are not likely to be deeply embedded in relationship ties and the processing of disputes have become formalized and other people are also involved as professionals
Ø Courts are formal structure for decision-making. A narrowing of issues would mean not all issues would be addressed.
Ø Six principles proposed by Pollock and Maitland (1923): the court of the king was the court to which his subject should go in default of justice elsewhere; under Henry II the writ became compulsory for all pleas relating to freehold land; when a matter relating to land was fought in the feudal court, after conquest the appropriate method of trial was judicial combat; writ of right commenced proceedings that were very technical and their technicality increased with time; pleas of the crown from their nature determined before the royal justices; although trespass played the largest part in the development of the common law, the royal courts tried other disputes if they were brought before them by writ purchased from the chancery
Ø Until the 14th century the use of Royal Court was extraordinary and not ordinary justice. Ordinary justice were done in the communal and feudal courts
Ø The most radical reforms to the division of the court occurred in 1875
Ø The 1988 civil Justice Review was the most important source of reform in modern era
Ø For the civil process the scale of changes increased with the Woolf Report, while the criminal justice system has been the subject of several reports
Ø Formality of the common law proceedings
Ø When a writ acquired a common form it become writ of course (brevium de corse) writ of debt for non-payment; writ of covenant could only be proved if the covenant is sealed. The extreme formality was done away with in the nineteen century;
Ø The structure of courts in contemporary legal system –
Ø magistrate courts (wide and varied jurisdiction involved virtually all criminal cases, the most important feature is the extensive involvement of lay person (non lawyers);
Ø county courts – there are (250 country courts in England. Courts of first instance in civil judicial process, their jurisdiction has been concurrent with the High Court hence the argument that they should be amalgamated. Claims over 50,000 will be heard in high court while limit of 25,000 in county court and 30 at both;
Ø The Royal Court – court of first instance in criminal case, jury trial is available only at the royal courts.
Ø The High Court based in London with provincial branches; merely one part of the supreme court of England
Ø Magistrate Courts - County Courts – Royal Court – High Court (Queens Bench Division – personal injury, contract and tort claims, Family Division – divorce and auxiliary matters; and Chancery Division) Court of appeal – House of Lords – Judicial Committee of Privy Council of the
Ø The courts are arranged in hierarchical framework on the basis of seniority. The higher the level of seniority the greater the court’s authority. In general there are trial court (courts of first instance, where parties appear, witnesses testify and evidence presented) there are appellate courts (where a party dissatisfied with the decision of the lower court appeals). Appellate court can only decide the question of law and its decision is based on the record made during the trial. Appellate courts do not receive new testimony or decide question of fact and in a lot of jurisdiction appellate courts only issue written opinions.
Ø A new Supreme Court for the United Kingdom – A bill for the creating was introduced to the parliament in February 2004 as final authority over devolution issues under Scotland, Northern Ireland and Whales Act of 1998 due to increasing concern over the house of lords as both legislature and judiciary;
Ø Tribunal adjudication and alternative dispute resolution
Ø Use of tribunal took root since world war II;
Ø Currently tribunal deals with over 250,000 cases annually
Ø Difference between tribunal and courts. A tribunal is established by the parliament in a manner of court to hear particular grievances or specialist matter of disputes (Administrative tribunals, industrial tribunal
Ø In Attorney General V British Broadcasting Commission (1980) 3 All ER 61 House of Lords stated that the essential difference between a tribunal and a court is that tribunal does not administer any part of the judicial power of the state. It has specific jurisdiction as allocated by Parliament and does not enjoy a broad jurisdiction defined in general terms.
Ø The chairman of most important tribunal is a lawyer and sit with at least two lay men who are experts in such area
Ø March 2003 – big shake-up of the third great pillar of the justice system, a unified tribunal service will bring together 10 tribunal covering areas including, employment, pension, immigration, criminal injuries compensation, mental health, social security benefits; tax and disability.
Ø Arbitration is today’s commercial word response to the shortfall of the traditional court system. The Arbitrator tries to effect a settlement
Ø Decision making process and the doctrine of precedents – the nature of judicial reasoning in the common laws; the constitutional role of the courts and the judiciary; the nature of a case; the role of the proposition of the law developed therein
Ø Decision making and stabilization of the law – the need for stability and certainty in law; the wish to do justice to both parties; the need not to usurp the role of the parliament; need to justify decision by reasoned argument; need to based decision on at least one of the issues raised by the parties
Ø In arriving at their determinations, courts are expected to be consistent with decisions in previous case and ensure certainty in future. decision judges are expected to performing their
Ø Status bind judges because of the doctrine of separation of power and legislative supremacy; case law is binding because of the doctrine of precedent or stare decisis (stare decisis et non quieta movere – to stand by decision and not disturb what is settled)
Ø English legal system is structured by the court hierarchy
Ø In understanding precedence it is necessary to understand the interaction of court hierarchy as well as the nature of particular earlier decision.
Ø The binding power of earlier decisions or precedents varies from those that are merely persuasive and those that are strictly binding
Ø The decision on an earlier case will only be binding on a later case if it: a) contains a statement of law; b) it forms part of ratio decidendi (ground upon which a decision was based); c) it was decided by superior court whose decision is binging; d) it does not contain any significant difference to the latter case.
Ø Obiter dictum – word said in passing or by the way
Ø Magistrate and County courts are bound by the judgment of the high courts, Court of Appeal and House of Lord; their decisions are not bounding on any court.
Ø Crown court is bound by the decision of the Court of Appeal and House of Lord. Decision taken by High Court Judges sitting in the Crown Court are generally persuasive and worthy of being used in argument.
Ø The decision of the high court is binding on all inferior courts but not on other high courts. High court is bound by the decision of the Court of appeal and the House of Lords. High court decisions are not binding on divisional courts (civil or criminal). The divisional decision of the high courts are binding on the high court judges sitting alone
Ø The court of appeal (civil division): It decision are binding upon divisional courts of the high courts, individual high court judges and the inferior courts including the employment appeal tribunals. It must follow the decision of the House of Lords (Young vs Bristol Aeroplane Co. Ltd – 1944 KB 718).
Ø The court of appeal (Criminal division): It decision are binding upon divisional courts of the high courts, individual high court judges and the inferior courts including the employment appeal tribunals. It must follow the decision of the House of Lords and its own decisions but not rigidly as in civil division because liberty of the appellant is at stake
Ø House of Lord: Since 1966 House of Lords need no longer be bound by its decision. Any house of lord decision can be overridden by Act of Parliament;
Ø Encountering Law in Common System – Conducting Legal Research and Reading the Law
Ø Legal research is the search for materials necessary for legal argument and decision making. The process involves – analyzing the facts of a problem; identifying the legal problems to be addressed; separating factual and legal problems to be resolved; finding laws that is relevant to the legal problem; conclude with applying and communicating the result of the search and analysis
Ø Look for cause of action, lawyers will be working on sets of assumptions and where to find the relevant laws to back his arguments.
Ø The lawyer will be primary interested in the law as it has worked for other. For injury the lawyer will be remedy-oriented
Ø Torts action has moral and economic purposes behind them. It is also called deterrence (giving a message to other for the consequence that will befell them if they do not exercise due care) and retribution (a form of punishment for the act done)
Ø To succeed a lawyer must establish a set of claim as to – the law accepted as valid; the facts accepted as true; how the events were interconnect and the other person owe a duty of care as recognized by the law to the plaintiff; third party was in breach of that duty; that the injury suffered was as a result of that breach
Ø Process – identify and analyse the significant facts; frame the legal issues to be researched and researched the issues
Ø Sources of English law – case law, national statute law, transnational law (EU Law, international conventions and treaties;(less recognizable sources) customs and academic commentary and interpretation
Ø Common law tradition has emphasized the community aspect of law, who those who we see as adopting a political realist view have emphasized a top down or command view of sources
Ø Blackstone in 1765 wrote ‘… it is one of the characteristics mark of English liberty that our common law depends upon custom; which carries this internal evidence of liberty along with it; that is probably introduced by the voluntary consent of the people.
Ø Is there settle way of recognizing law and identifying sources of law?
Ø Writers in legal positivism – rule of recognition, chain on validity
Ø Finding and Reading Law. Approach to dealing with case reports and understanding – the hierarchy of the courts; format of a judgment; judicial decision as a source of law; the meaning of issues material facts and ratio decidendi; the difference between civil and criminal jurisdiction of courts
Ø The legal systems draws heavily upon the past practice as a guide to solving present problems and the law report are our most important record of earlier experience.
Ø Question in working with decided cases – in what court was the case decided? Who were the parties and the remedy being sought? What were the important material facts? What were the issues? What were the arguments? What was the decision? What is the holding law on which the case is an example?
Ø Cantley V Barton, High Court Hamilton AP127/90) 17 December 1990 J Anderson
Ø A case stated is a request either from a lower court or from one of the parties to a higher court to give a determination upon a point of law that the lower court felt needed the interpretation of a higher court.
Ø Morley V Police
Ø Application
Ø Brutus Vs Cozens (1972) 2 All ER 1297 HL;
Ø Law concern words. Lawyers are skilled at using words in particular ways.
Ø The Judge is at the top of legal hierarchy
Ø Applying legal discourse in criminal law
Ø Glanville Williams defined crime as: an act that is capable of being covered by criminal proceedings, having one of the typical outcomes (punishment, etc) known to follow this proceedings;
Ø A legitimate decision is regarded as one in which the judgment is arrived at through the objective assessment of the law and facts
Ø Fagan V Metropolitan Police Commissioner 3 All ER 442, Queens Bench Division
Ø Judicial Impartiality and the objectivity of Legal Reasoning
Ø A feature of the rule of law is objectivity. Judicial decision ought to be justifiable
Ø Encountering legislation and statutory interpretation
Ø Guards Dog Act 1975
Ø A person shall not use a guard dog unless an handler can control it at all times or secured so as not to be able to move about
Ø A person shall not use dog at a premise unless there is a notice at the entrance to that effect
Ø Hobson Vs Gledhill
Ø Lord Widgery CJ, Cantley, J and Peter Pain K – 12th October 1977
Ø On 17th May 1976 – James Hobson alleged that Norman Gledhill at Huddersfield used dog at his premises without an handler can control it at all times or secured so as not to be able to move about
Ø Fact of the case – the man is the owner, the three dogs were secured by 12, 12, 13 feet chain, the gate was securely locked and the dogs cannot reach the gate by at least 2 feet; there was nobody in the premises at the time;
Ø Is a handler necessary when the dog is tied?
Ø A penal statute where there is an ambiguity should be construed in favour of the citizen who may find himself subject of the penalty
Ø MAKING THE COMMON LAW C&B C 5 ENGLISH LEGAL REASONING: THE USE OF CASE LAW; H&B C3&C6; SLAPPER AND KELLY C6 pp 210-215
Ø Ration Dicendi andObiter dicturm
Ø Stare decidis (precedent)
Ø The rule in young v Bristol Aeroplane (1944) KB 718 governing court of appeal’s freedom to depart from its own previous decision
Ø The anomalous position of the Judicial Committee of the Privy Council: though the judges are the same as in the house of lords and their decisions are merely persuasive and this not strictly binding on any court
Ø The influence of law report working on the doctrine of precedent
Ø The house of lords had made of its powers, since 1966 not to follow its previous decisions
Ø ‘R V Shivpuri (1987) AC 1 – where the House overruled the decision in Anderton v Ryan (1985) 2 All ER 355
Ø Food Corp of India v Antclizo 2 All ER 355
Ø More recently in Murphy v Brentwood District Council (1990) 3 WLR 414 the House of Lords overruled the its decision in Anns v Merton London Borough Council 1978 on the ground that Ann was contrary to established principle, and overruling would restore certainty to the law
Ø THE NATURE OF CASE AND THE ISSUES OF DIVERSE READINGS
Ø Case are at the heart of the common law
Ø There are problems of uncertainty due to:
o Open texture of language
o Difficult process of identifying what exactly is the rule or principles that decided an earlier, binding decision
o The practical or pragmatic nature of legal decision making
Ø Majority decision (there is usually an odd number of judges hearing a case) often a range of lines of argument that different judges may emphasise and different tactics they can employ
Ø Earlier cases may involve various statement of law by different judges and it may be difficult to see the exact ground for the decision
Ø Judges may agree on the decision but provide conflicting reasons; with consequence that dissenting judgement may in time come to be seen as better law
Ø Sometimes when judges are agreed as to the outcome of they choose one of their member to deliver the majority judgement, while others give a single sentence of agreement
Ø STRUCTURE OF JUDICIAL OPINION
Ø A judicial opinion usually begins with a description of facts
Ø Some judges, Lord Dennings was an example, like to construct a narrative which intermixes the ‘laws’ with ‘facts’ while others demarcate the two
Ø The account often proceeds as follows:
o The procedural history
o The presentation of questions to be answered
o Rules of law and/or appropriate principles of laws. Given that these are interpretations of ratios of earlier cases or of status there is room for substantial disagreement
o The application of law to the fact
o The holding decision
o The disposition to practical direction to give effect to the courts decisions
Ø HOW ARE PREVIOUS CASES DEALTH WITH
Ø There are techniques for following the techniques for distinguishing (i.e. not following) the earlier case
Ø Following
o Emphasise the factual similarities
o Arguing that the inevitable dissimilarities are irrelevant (minimising apparent dissimilar features
o Stating the actual predicate of the precedent at a higher level of generality
o Characterising the previous case not in terms of its fact but in terms of legal principles established or underlying policy judgement
Ø In this way the lawyer tries to assure the court that if it decides in his or her favour the court is keeping faith with the earlier case
Ø Distinguishing
o Emphasise every possible difference between the two cases
o Dismissing the similarities as irrelevant
o Characterising the precedent in the narrowest possible terms. Application of facts and law are restated with considerable attention to detail, which counters attempts to read the case in more general terms and emphasises the specificity of it
o Arguing that the principle or policy decisions in the earlier case do not apply to the present case
o Alternatively in limited circumstances the lawyer may simply argue that the earlier case was bad law and needs to be overruled
o In addition the lawyer may point out that the earlier decision has been overruled by statute or by higher court.
o If explicit, an overruling case operates retrospectively
o Once overruled, the case loses its authority.
Ø THE ROLE OF RHETORIC IN A CASE
Ø Judgements must look at the past and as a result of various choices made as to:
o Relevant facts
o Admissibility of facts and issues to be considered
o Choices as to the meaning of relevant law; which is often applied
o Judges also look to the future, for they state the law for future reference
o Judgement always contains rhetoric (the art of persuasion by the use of language) for they are addressed to an audience
o To assure the parties that justice is done and they are also addressed to courts higher in the hierarchy
Ø JUDICIAL REASONING AND THE COMMON LAW
Ø Judicial Reasoning: Art or science?
Ø Many commentators – operation of judicial reasoning as an art or a craft, and certainly not some mechanical or strictly scientific process
Ø Common law described as organic in composition not mechanistic.
Ø Mechanistic metaphors tend to be employed by rationalistic critics of the common law
Ø Tucker, who wrote an American Commentaries in 1803 continue with the imagery of organic growth
Ø Common law is not concise rational whole, yet it should offer a degree of predictability to the citizens of a society to know their legal rights and obligations
Ø THE PROCESS OF MAKING COMMON LAW
Ø Classically, the term common law referred to the development of law with case law at the core of development
Ø The Common law must always interpret and reconstruct what is there already
Ø The process of making common law is almost indistinguishable from its interpretation
Ø There has been longstanding jurisprudential dispute about whether rules or principles lie at the heart of the common law
Ø Today most commentator have return to the classic view that principles are the essence of case law
Ø Judges merely ‘declare’ what the law us. Obviously Judges will sometime formulate a new principles, but this is almost always presented as an outgrowth or even clarification of a former principle, rather than a new construction
Ø Donoghue v Stevenson (1932) AC 562 of the principle of duty of care, that became the foundation of the modern law of negligence
Ø Donogue v Stevenson (1932) was not to create the duty of care but to expand it by allowing the claim to succeed independently from any contractual obligation
Ø Common law developing through the judges articulating new developments out of old principles that are only partly expressed in the cases that are argued before them as precedents
Ø In Donoghue it was held that in general one was liable for one’s action where one could foresee that failure to take care would cause harm to another
Ø Hedley Byrne v Heller (1964) AC 465 was refined in two ways
o First liability for actions included things spoken as well as things done
o Second, liability for harm included not only physical harm but also purely economic loss

Ø The human element is essential to the development of the common law
Ø THE INTERDEPENDENCY OF LAW MAKING AND LEGAL PROCESS
Ø Common law is developed in the course of deciding cases the process for its making is the process of litigation or criminal trial
Ø Legal processes abstracts ‘facts and issues; under the heading of relevancy
Ø THE REFINING OF ISSUES: THE BUILDING OF A ‘CASE’
Ø Common law had various ways of structuring or categorising the range of materials such as through a) Types or writ issued and Some form of action fulfilled similar role
Ø A famous 19th century commentator, Sir Henry Maine, once said that the ‘substantive law is secreted in the interstices of procedure’; in order word the doctrine of the law developed as a set of answers to the legal problems and issues that were allowed to be pleaded by the legal procedure adopted
Ø Since late 19th century the hold of the ‘forms of action’ has largely disappeared
Ø The decision-makers are meant to be applying appropriate (substantive) law to the facts, in so far as those facts disclose a cause for legal remedy.
Ø THE NATURE OF ADVERSARIAL PROCEEDINGS
Ø In common law the processes of the conduct of proceedings is largely in the hands of the parties
Ø As a general rules, the parties raise and rebut the issues of fact and law and the role of the court is to adjudicate these issues
Ø The issues of law that are decided by a court are those raised by the party themselves
Ø THE ROLE OF ORAL AND WRITTEN SUBMISSIONS
Ø Traditionally, in common law processes, argument on points of law were conducted by counsel orally
Ø Oral argument provides flexibility and enables issues to be refined and points to be developed in the course of exchanges between counsel and judges
Ø In long and complicated cases oral argument may go on for some day, and it is testing the memory and concentration of judges to a high degree to have them rely solely on oral submissions
Ø Some jurisdictions have tried to get counsel to submit at least written summaries of their argument in advance. This give the judges a concise and permanent summary of the arguments put by counsel
Ø The discipline of committing an argument to writing usually improves the argument
Ø DELIBERATION BY THE COURTS
Ø When argument of a case has concluded the court has two choices – 1) it may give judgement immediately (giving judgement extempore) 2) Alternatively, the court will adjourn for some time to consider its judgement
Ø Where a case is heard by an appellate court the court is usually constituted by more than one judge
Ø The normal composition of court of appeal is three and occasionally extends to five judges
Ø The normal composition of House of Lord is five and occasionally seven judges in cases thought to have unusual importance (such as Pepper v Hart (1993) AC 593) [ A landmark case in which House of Lords allowed Hansard to be constituted in order to help establish parliament’s intention in legislating on complex issue of taxation
Ø CONSULTATION BETWEEN JUDGES
Ø Where cases are heard by the appellate courts, it is open to the judges, either formally or informally, to have as much or as little consultation among themselves as they wish
Ø At one extreme the judges could adopt the practice of sitting down in conference and hammering out as far as possible the various issues – this appear to be the practice in US Supreme Court but it is generally not done in common law jurisdiction (heavy workload of many appellate judges does not allow time for this sort of consultation or if such rule is enforced it might appear to run contrary to judicial interdependence
Ø In US Supreme court the practice is to have one majority judgement (emerging from the conference with one Judge delegated to write the judgement) and if there is dissent, one dissenting judgement that would be written by another Judge.
Ø THE COMMITTEE SYSTEM
Ø The Committee system is still used by the Privy Council and dates from the time when its judgements were unanimous
Ø The Privy Council is in principle not a court but a judicial committee of the Privy Council that tendered advice to the Monarch and Advise to the Monarch has to be uniform
Ø A judge who writes a draft judgement circulates its to other judges for their comments.
Ø Where one or more of the judges are in agreement with the judgement circulated, they join the first judge in joint judgement. Alternatively they may do a separate judgement in form of I have read the judgement of Justice X, which I agree
Ø At further extreme a judgement may forced more of the judges to change their minds completely and decide the case in the opposite way to which they hitherto thought
Ø While most appellate judges are good lawyers, a few of them are regarded as outstanding. It is possible that those who are outstanding will influence the views of their brethren
Ø Similarly where a judge has a compendious knowledge and vast experience in one are of the law, fellow judges will often be influenced by that judge’s views on points in that area
Ø THE ROLE OF THE HIERACHY OF THE COURTS
Ø A substantial proportion of case law is made by appellate courts, with a considerable proportion of this being made by House of Lords
Ø In generally the quality of decision-making should benefit from the issue having been considered on a number of occasions for these reasons:
o The trial judge will usually have spent less time resolving legal issues and will be less experienced in doing so. The opportunity for legal deliberation is reduced
o Judges of appellate courts have the advantage of having before them the judgement of the court of first instance. With many written works it is easier to develop its strengths and overcoming its weaknesses
o Judges at the House of Lords have the advantages of not just the judgement at first instance, but the judgement of the Court of Appeal as well
o Counsel arguing the case also benefit from the proceedings and they have more opportunity to research and developed their argument so in this way the argument at the appellate level can get better
o Appellate judges are competent lawyers and they become more so working as appellate judges since much of their time is devoted solely to hearing and resolving legal issues
o Judges have the opportunity to develop the points by discussion among themselves
Ø THE ROLE OF LEGAL DECISION MAKING
Ø In the course of deciding a case, the courts interpret case law, statutes and delegated legislation.
Ø There are two broad choices confronting any adjudicative process:
o Courts can treat each case on its own merit. This has flexibility and simplicity but causes uncertainty
o Courts can decide case by laying down and developing principles that bind future courts. A possible problem is this can make law inflexible and unresponsive

Ø INTERACTION OF PROCESS, LEGITIMACY AND PRINCIPLES OF LAW
Ø In theory common law courts operate under two related guidelines
o Courts decide cases not on their merit but according to judicially developed propositions of laws (rules and principles). The decision in every case must rest of some principles which form part of the ratio decidendi (the reason for the decision)
o Other statements of law in the case which are not oart of the determining principles are called ‘obiter dicta’ – things said aside
o Precedent ‘stare decisis’ ‘to stand by what has been decided’
Ø RATIO DECIDENDI AND OBITER DICTA
Ø The ratio is difficult to concept because many areas of common law are plagued by uncertainty about what is the correct view of the law
Ø There is no agreed formal statement about what ratio is, or how it should be discerned in a judgement
Ø Lack of official agreement as to what the ratio actually denotes, reflects an uncertainty or a flexibility, which the concept ratio itself doe not admit in its claim to be the foundation for consistency and certainty in law
Ø Hart (1961) saw the law as a body of ‘rule’ which were identifiable by higher order ‘rule of recognition’
Ø Concept of rule is insufficient to describe the operation of the common law with its emphasis upon principles
Ø The ‘rules’ that claim to be a full statement of the law downplays the role of judicial choice in developing the law
Ø Ratio decidendi is a principle or preposition of law which decides a case, while obiter dictum is a proposition of the law stated in the case but which was not essential to the case. It is the legal residue after the ratio has been extracted
Ø Donoghue v Stevenson (1930) AC 562 was decided by 3-3 majority of the House of Lords in 1932. It is regarded as a classic or leading case, in part because laid down the foundation for the modern law of negligence
Ø Donoghue v Stevenson (1930) AC 562: The facts
Ø Ratio is usually defined as the abstraction of applied law in an interaction the ‘relevant’ fact. The ‘facts’ are first numbers and then set out in narrative form.
Ø A relatively straightforward account of the ‘facts’ as follows:
o Stevenson was a manufacturer of soft drings
o Stevenson manufactured a bottle of ginger beer, which had in it a dead snail
o The ginger bear was aerated (carbonated) in an opaque bottle, and sealed with a crown seal
o Stevenson sold the bottle of ginger beer containing the snail to a distributor who sold it to a Mr. Minchella, the owner of a case in Paisely (a town near Glasgow) this case was initially dealt with in the Scottish Court.
o Mrs Donoghue and a friend went to Mr.Minchela’s case in Paisely. The friend purchased the bottle of ginger beer, which contained the dead snail
o At the time of purchase the ginger beer was still aerated (carbonated) in the original opaque bottle, and sealed by the crown seal
o Mr. Minchela opened the bottle and poured some of the ginger beer into a glass. He gave both the glass and the bottle to the friend, who gave the glass to Mrs Donoghue. Mrs. Donogue drank some of the ginger bear from the glass. Her friend then started to pour the remainder of the ginger beer from the bottle into Donogue’s glass, when a dead snail floated out of the bottle
o Mrs. Donogue suffered shock from the sight of the snail, and contracted severe gastro-enteritis as a result of the earlier drinking the ginger beer contaminated by the remains of the dead snail.
Ø To recover damages for her shock and illness Mrs. Donoghue brought proceeding against Stevenson in negligence. Her case came on a demurrer (involves a hearing by a higher court of an issue of law only)
Ø Summary of the case
Ø M’alister (OR Donghue) Pauper -- Appelant and STEVENSON --- Respondent
Ø NEGLIGENCE – Liability of manufacturer to ultimate consumer – Article of Food – Defect likely to cause injury to health
Ø So held by Lord Atkin, Lord Thankerton and Lord Macmillan; Lord Buckmaster and Lord Tomlin dissenting
Ø George v Skivington (1986) LR 5 Ex 1 approved
Ø Dicta of Breth MR in Heaven v Pander (1883) 11 Q.B.D. 503, 509-11 considered
Ø Mullen v Barr & Co. Ltd and M.Gowan v Barr & Co. Ltd 1929 S.C 461 overruled
Ø CONSTRUCTING THE RATIO OF A CASE
Ø Goodhard (1931, 1959) a Jurist set out the methods of identifying the ratio decidendi as follows:
o The principle of case is not found in the reason given in the opinion
o The principle is not found in the rule of law set forth in the opinion
o The principle is not necessarily found by a consideration of all the ascertainable facts of the case and the judge’s decision
o The principle of is found by taking account of a) the fact treated by the judge as material, and b) his or her decision based on them
o In finding the principle, it is also necessary to establish what facts were held to be immaterial by the Judge, for the principle may depend as much on exclusion as it does in inclusion
Ø BROAD AND NARROW RATIO
Ø A narrow ration is the fact of the case
Ø The broad ratio – foresee that failure to take care will cause harm, fails to take care, duty of care is breached, harm follow as a result of the failure to take care, the person is liable for the harm
Ø Conservative approach – it may be more conservative for the courts to confine itself to the narrower ratio as this is more obviously relates to the fact of the case
Ø This principle is therefore a formula, which the fact fits
Ø Wide ratio is so all-embracing that the point that the ratio is a generalisation of law to particular material facts would have been lost
Ø Ratio decidendi was a generalisation taken from the application of law to material facts, there is an inherent problem
Ø The ratio come from a generalisation that concern only some of the facts
Ø Facts are distinguished as material or relevant fact on one hand and immaterial or irrelevant facts on the other
Ø STONE ANALYSIS
Ø Julius Stone suggested, rationes are dependent upon the level of generality of analysis.
Ø In a decided case there are a number of potential rationes decidendi thus the facts of Donoghue and Stevenson can be restated as;
o Facts as to the agent of harm
o Fact as to the vehicle of harm
o Fact as to the defendant’s identity
o Fact as to the potential danger from vehicle of harm
o Fact as to injury to plaintiff
o Fact as to the plaintiff’s relation to vehicle of harm
o Fact as to discoverability of agent of harm
o Fact as to time of litigation
Ø Stone argued that ratio was a part of a ‘category of indeterminate reference’ which he called legal category of indeterminate or concealed multiple reference – Radical indeterminacy
Ø It would be better to see finding ratio as a technique or process of abstraction (and perhaps rational reconstruction of decision)
Ø Cross 1991 argues that it is impossible to device formulae for determining the ratio decidendi of a case but this does not mean it is impossible to give tolerably accurate description of what lawyers mean when they use the expression
Ø RATIO DECIDENDI IN LATER CASEWS
Ø American Jurist Karl Llewellyn (1961, p. 118) put it: precedents constantly ‘reweigh, realign, recolour themselves’
Ø Holland and Webb, Chapter 6 How precedent operates
Ø GRANT v AUSTRALIAN KNITTING MILLS
Ø Lord Grant
Ø It is essential in English law that the duty should be established: the mere fact that a man is injured by another’s act give itself no cause of action: if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right: if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists.
Ø In that sense the maker may be said to control the thing until is it used. But that again is an artificial use, because, in the natural sense of the word, the makers parted with all control when they sold the article and divested themselves of the possession and property
Ø The principle of Donoghue’s case can only be applied where the defect is hidden and unknown to the consumer
Ø Lord Atkin – Things operating externally, such as ‘an ointment, a soap, a cleaning fluid or cleaning powder.
Ø Zander M (1999) Chapter 7; Smith, Bailey & Gunn, Chapter 7; Judicial Precedent
Ø STATUTORY INTERPRETATION IN THE ENGLISH LEGAL SYSTEM
Ø The largest transnational influence upon the English legal system has resulted from the United Kingdom joining the European Community/European Union. Under the European Communities Act (ECA) 1972 any United Kingdom enactment has effect subject to existing enforceable community rights
Ø Interpretation of Statutes as sources of law and their application in court processes
Ø Statutes are fundamental sources of law. In contrast to case law, the statute is both the source and the statement of the law
Ø Problems of drafting Statutes
Ø In rationalising the offence of burglary under the Theft Act 1968, a person is guilty of burglary when he or she enters a ‘building’ as a trespasser, in order to commit theft or certain other offences.
Ø The word ‘building’ has subsequently been interpreted by the courts at various times as being a houseboat, a caravan and even a large commercial refrigerator in addition to houses, warehouses factories or shop
Ø F. A. R. Bennion (1990) has identified a number of factors that may cause doubt in interpreting a statutory provision
o Ellipsis: the drafter refraining from using certain words that be regards as implied automatically
o Broad terms with wide meaning are often use (e.g. vehicle clearly covers motor cars, buses, motor cycles)
o The meaning of statutory expression may change over time – e.g. does family include common law spouse, does father refers to biological or the social father
o Deliberate uncertainty. Drafters may deliberate use ambiguous word e.g. where provision is politically contentious
o Unforseeable development
o Inadequate use of words
o Printing errors and drafting errors

Ø APPROACHES TO INTERPRETATION
Ø The general methods of statutory interpretation are not regulated by parliament, but have been developed by the Judges
Ø The Interpretation Act 1978 does not provide notes for interpretation but simply provides standard definitions of common provision
Ø In the name of judicial independence and keeping faith to the law alone, many judges have preferred strictly literal approach and have denied the need to consider policy matters
Ø In Pepper (Inspector of Taxes) v Hart (1993) AC 591 the House of Lords departed from the long established practice that prohibited reference to Hansard (the record of debates in Parliament). This practice is referred to as the exclusionary rule in chapter 2
Ø THE RISE OF STATUTE LAW
Ø In early times there were few statutes. The bulk of the law was case law and statutes were of secondary importance
Ø From the Tudor period onwards the parliament became more and more independent and the practice of law making by statute increase
Ø Statutes did not become an important source of law until the beginning of the nineteen century
Ø At present time, although there is a great deal of legislation, statutes still form a comparatively small part of the law as a whole
Ø Since the late 18the Century the doctrine of parliamentary supremacy has been accepted
Ø The idea of Parliament as an absolutely sovereign legislature relies upon two understandings:
o That no parliament can bind a future parliament or be bound by previous one
o That no Judge can condemn a law and refuse to apply it on the ground that it is incompatible with the constitution or the fundamental principles of the common law. That would be a usurpation of the legislative function by the Judiciary.
Ø The Judiciary will not simply apply statutes. They have adopted methods of relating to statutes that have preserved the power of the judiciary as the oracle of the law
Ø APPROACHES TO STATUTORY INTERPRETATION
Ø There is a large discretion in how to interpret, and as a result is there such a radical choice that the result of chaos of interpreting. Or can we make sense of the situation through some process of rational reconstruction of what happens in practice?
Ø Bennion’s statutory Interpretation (1997) ‘Alas there is no golden rule. Nor is there mischief rule, or a literal rule, or any other cure-all rule. Instead there are thousand and one interpretative criteria. Fortunately. Not all these present themselves in any one case; but those that do yield factors that the interpreter must figuratively weigh and balance
Ø A PROCESS MODEL OF UNDERSTANDING THE INTERPRETATION OF STATUTES
Ø A process model incorporates the constitutional position with an understanding of how certain ‘rules of interpretation’ can be rationally connected
Ø The Basic Rules
o There are no limited upon the power of Parliament to make law
o Judges must always give effect to the intention of the parliament
o Interpretation should start with the presumption that one should apply to ordinary, ‘literal’ meaning of the words of Parliament has used
Ø Solutions to the problems
o Look for the ‘spirit of the Act’
o Read words ‘in context’
o Use as wide context as need be
Ø There may be dangers in these solutions e.g
o There may be disagreement as the ‘spirit of the Act’
o Widening the context may solve some problems, but may also raise new ones on their place
o The judge is in danger of acting as a legislator, using Parliament’s words only as a starting point
o Parliament complains that Judges are sabotaging its legislation by failing to use the literal meaning of its words
Ø Approaches to Statutory interpretation in English Law: and Outline
Ø The Literal, Golden and Mischief Rule have been identified as the rules of statutory interpretation
Ø A general purposive approach us also operative – each rule originated in different stage of legal history and these are not really ‘rules’ but approaches to interpretation
Ø The ‘classic’ modern account of the role of these ‘rules’ was given in 1938 by J. Willis in an article entitled ‘Statutory Interpretation in a nutshell (16 Can Bar Rev 1)
Ø Most recently Sir Rupert Cross has suggested that the English approach involves a progressive analysis rather than a choice among alternative rules. The Judge first consider the ordinary meaning of words in general context of statute then moves in to consider other possibilities where ordinary meanings leads to absurd result. This is known as the unified contextual approach and is supported by dicta in the House of Lord decisions
Ø In case of doubt or difficulty judges often say it is necessary to discover the ‘intention of the parliament’ (this is the purposive approach)
Ø THE LITERAL RULE
Ø The literal rule states that the words used in statute must be given their plain, ordinary or literal meaning.
Ø The literal rule encourages precision in drafting and likely to produce result closest to the meaning intended by Parliament
Ø It avoids the danger of statutes being effectively re-written by judges
Ø CRITICISMS OF THE LITERAL RULE
Ø Judges have excessively emphasised the literal meaning of statutory provisions without giving due weight to their meaning in wider context
Ø The literal rule is the most clearly restrictive of the ‘rules’ it is in a sense conservative
Ø It is also a kind of professional politics reflecting the historical desire of the judges to defend common law against encroachment
Ø 1982 Lord Esher said in R v the Judge of the City of London Court (19892) 1 QB 273 that if the words a statutes were clear, they must be followed even if the result is not sensible, and even if it is absurd and unjust
Ø Sometimes it clearly seems that the judges want to show that Parliament creates stupidities in the law when it over legislates. Thus in 1884 Lord Bramnwell said that if Parliament created such absurdities then it was the job of the Parliament to alter the words and not the courts
Ø In Whitelely v Chappel (1868) 1 WLR 565 - statute made it an offence for anyone during election to impersonate another person who was entitled to vote. The defendant impersonated a dead person and the the court found him not guilty since it used the narrow literal rule because a dead person was not entitled to vote.
Ø Griffith v Secretary of State for Environment (1983) 2 WLR 172) The legislation gave six weeks to appeal against Secretary of State’s refusal to grant planning permission. The plaintiff had not been informed of that decision. The House of Lords held that the corrected date was the moment a civil servant had date-stamped the decision even though the letter was never sent, and the plaintiff did not know of the decision
Ø The Literal Rules implies that it must be applied even if the result is absurd, the judge dislike the statute and interpretation may inflict hardship on those affecte
Ø R v Maginnis (1987) 1 All ER 907
Ø The defendant who friend left drugs in his car was convicted of unlawful possession of a controlled drug with intent to supply it to another.
Ø In order to arrive at proper meanings of words in a statute the judge may look at dictionaries, the definition section of the Act (if any) and previous cases decided on the meaning of similar words
Ø Today it is more useful that ‘the meaning of words used in any act must be found by reading the whole of the Act in question
Ø THE GOLDEN RULE
Ø Sometimes you may find the golden rule expressed as Lord Wensleydale’s golden rule
Ø The words of Parke B (who became Lord Wensleydale) in the case of Becke v Smith (1836) 2 M&W 191 are often quoted: It is a very useful rule in the construction of statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further
Ø This interpretation was expressively adopted in the case of Mattison v Hart *1854) 15 CB 357
Ø The literal approach should be followed until it produces absurdity
Ø In the USA it is often presented ad the first of the rules
Ø The controversial aspect of the rule is the unresolved questions – whether it could only apply where words were ambiguous or whether it could only apply where meaning were clear but absurd.
Ø There are other problems with absurd such as does it mean inconsistent with other provisions in the same act or absurd for other reason
Ø The 1969 Law Commission said that the rule provides no clear means to text absurdity and did not favour it
Ø THE MISCHIEF RULE
Ø Opinion of the Barons who decided Heydon’s Case (1584) 3Co Rep 7a:
o What was the common law before the making of the act
o What was the mischief and defect for which the common law did not provide
o What remedy the parliament has resolved and appointed to cure the disease of the commonwealth
o True reason for the remedy – The office of the judge is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add forces and life to the cure and remedy according to the true makers of the Act, pro bono publico
Ø The rule is rule is the oldest of the rules dating from a time when the judges had much influence over the contents of the act and where the position of the parliament was not as powerful as it is today.
Ø The mischief rule does not allow the court to re-write the Act.
Ø Smith v Hughes (1960) 2 All ER 859; a prostitute taping the window soliciting for customer was not contravening Street Offences Act 1959
Ø In 1969 the Law Commission commented on the Mischief Rule as follows - … a somewhat more satisfactory approach to the interpretation of statutes, (but) it is somewhat outdated in its approach, because it assumes that statute is a subsidiary or supplement to the common law, whereas in modern conditions many statutes mark a fresh point of departure
Ø THE RULES IN THEIR HISTORICAL CINTEXT
Ø For most of the 20th century the Literal Rule has been most widely used
Ø The first step legal reasoning is to identify the relevant rule or principle that is applicable to the factual situation
Ø The cultural background of a system is an important factor influencing the readiness of judges as to decide the applicability of rules of interpretation
Ø The English legal system has not had either an extensive codification project nor seen a written constitution
Ø Those common law systems where a written constitution is enacted such as the United States, particularly strategies for constitutional interpretation are often develop which, albeit somewhat different in purpose do influence approach to normal legislature
Ø In both civil and common law system where there is a written constitution, there is a tendency to enact statutes that establish only general principles of law and delegate to various agencies the authority to adopt more specific regulations consistent with those more fundamental statues
Ø Justification for choice – Always argue that legislation out to be applied just as is its written down
Ø Adherence to literal approach is often justified on the grounds of the separation of powers and democractic expectation
Ø EVIDENCE BEYOND THE STATUTE
Ø The Common law favours textualism, or the idea that the law is to be found by analysing legal text (either reports of previous case or the appropriate legislation)
Ø The traditional approach meant that courts were openly suspicious of arguments that they ascertain the meaning of the statutory words through using extrinsic source)
Ø Extrinsic sources is a basic tension inherent in legal reasoning in this areas.
Ø Seaford Courts Estates Ltd v Asher (1950) Denning had argued that: ‘We sit here to find out the intention of Ministers and of Parliament and carry it out, we do this better by filling in the gaps and making sense if the enactment than by opening it up to destructive critism
Ø Viscount Simmonds said This appears to me a naked usurpation of the legislative function under the thin guise of interpretation. If a gap is discovered, the remedy lies in amending the act
Ø The following may be considered as the material that should be referred to:
o Whole context of the Act
o Text of any delegated legislation under the authority of the act of the parliament
o Judicial precedents directly binding upon the text to be applied or other relevant parts of the same statute
o Treaties binding in the UK by virtue of enabling act
Ø Example of persuasive authority
o Historical background – Chandler v DPP (1964) AC at p. 791
o Lord Reid invoked the historical conditions of the passing of the Official Secret Acts, 1911 to support his interpretation of the Act. Usually only legal sources are permissible and not textbooks
o Government publications – Reports of various law reform committees including Royal Commissions, proceedings of other parliamentary committees (since 1975), explanatory memoranda to bills since (1988) and since Pepper v Hart (1993) limited recourse to Hansard
Ø United Kingdom has had an Interpretation Act since 1889 the more recent version enacted in 1978
Ø The Interpretation Act provide more guidance for judges
Ø The two attempts by Lord Scarman in 1980 to put legislature through Parliament in order to provide the courts with a wider range of aids to interpret statutes both failed
Ø UNIFIED CONTEXTUAL APPROACH
Ø In his leading short work on statutory interpretation Sir Rupert Cross (1976) third edition set out the following procedures Judges should follow:
o The Judge must give effect to the (grammatical and) ordinary or where appropriate the technical meaning of words in the general context of the statutes
o If the judge considers the application of words in their ordinary sense would produce a result which is contrary to the purpose of the status, he may apply them in any secondary meaning which they are capable of bearing
o The judge may read up words which he considers to be necessary implied but he has a limited power to add, to alter or ignore statutory words in order to prevent a provision from being unintelligible or absurd or totally unreasonable, unworkable, and so totally irreconcilable with the rest of the state
o In apply the above rules the judge may resort to certain aids to construction and presumptions
o The Judge must interpret a status as to give effect directly applicable European law

Ø This approach may be seen as combination of purposive approach to interpretation and changing constitutional position in light of the UK’s entry into the EU and the advent of Human Rights Act.
Ø PURPOSIVE APPROACH
Ø The purposive 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.
Ø There is no need to wait for absurdity before the judge begins to operate in this way and no need to consider existing common law
Ø A clear statement on this approach comes from Denning LJ in Seaford Court Estates Ltd v Asher (1950) 2 All ER 1236 (see 6.3.1. above). Lord Denning’s Approach was severely criticised: Viscount Simmonds in Magor & St Mellons RDC v Newport Corporation (1952) AC 189 said in Denning LJ’s views are naked usurpation of the legislative function.
Ø In 1980 Lord Scarman said in a lecture that ‘on-one’ would dare to choose the literal rather than a purposive construction’ of a statute
Ø Although judges frequently refer to the concept of purposive statutory construction, this approach should be used carefully and in any case will often produce the same result as literal interpretation
Ø Mandla v Dowell Lee: A case study of differing interpretations
Ø Courts were sharply divided on the application of statute, the Race Act. In Mandla v Dowell Lee, the Court of Appeal and House of Lords differed markedly not only of the interpretation of the ‘ethnic’ in the context of Sikhs in Britain but in their attitude to the legislation and to the activities of the Commission for Racial Equality
Ø THE IMPACT OF MEMBERSHIP OF THE EUROPEAN UNION H&W C10 ‘European Legal Method’
Ø The accession of the United Kingdom to the European Communities Act 1972 has radically altered the standing of parliamentary sovereignty
Ø All UK legislation must be interpreted to avoid conflict with European Law
Ø If there is irreducible conflict European Union law must prevail
Ø The first judge to face up to this was Lord Denning in H.P. Bulmer Ltd v J Bollinger SA (1974) 3 WLR 202 he argued that the literal approach was inadequate when dealing with the Treaty or Rome since the statute was so broadly worded
Ø The treaty of Rome was meant to be clarified by Secondary legislation
Ø English judges need to more readily adopt the interpretative strategies more common in the other civil law countries of Europe, namely looking at the purpose and principle of such legislation
Ø In Buchanan & Co Ltd v Babco Forwarding and Shipping UK Ltd (1977) QB 208 Lord Denning specifically pointed out that the European Court of Justice used a ‘schematic’ or ‘teleological’ system of interpretation, looking at the design or purpose of the legislation and quite readily filling in any gaps
Ø Many writers claim to discern increased evidence of a purposive approach in the English legal system of interpretation, but some are more circumspect
Ø INTERPRETATION AND HUMAN RIGHTS ACT 1998 SLAPPER AND KELLY C1 pp 22-58; S&B&G C9 pp 536-541
Ø S3(1), the court may not disapply legislation. The court may merely issue a ‘declaration of incompatibility’ which gives rise to a power to take remedial action
Ø Will this blur boundary between interpretation and amendment of status
Ø R&A (Complainant’s sexual history) sub nom R v Y
Ø Sexual offence: Complainant’s Sexual History) [2001] 2 WLR 1546 – House of Lords held that Youth Justice and Criminal Evidence Act 1999 s.41 should be interpreted so that it is compatible with article 6(1) Right to Fair Trial) even though a literal interpretation would indicate that complainants must be protected in court from questions concerning their sexual history when they alleged rape
Ø According to s.4(6) does not affect the validity of the provision that must continue to be applied unless and until it is applied by parliament. The case then must be decided according to the meaning of the words under the traditional rules of interpretation law Cust be to 6) – bit of a nose
Ø JUDGES www.dca.gov,uk, Malleson (2003) C16, SLAPPER AND KELLY C6 234-237, Berlins M and C Dyer the Law Machine (London: Penguin, 2000) pp 60-65
Ø In the 1970s there were around 300 judges in England and Whales by 2002 the figure has grown to over 3,500 of which approximately one third are practicing lawyers who sit as part-time judges
Ø Almost all full-time judges are appointed after a period of part-time service
Ø Before 2004 Judiciary was headed by Lord Chancellor, who was also speaker of the House of Lords (Legislative) and a Cabinet member (government).
Ø In 2004 Constitution Reform Bill was introduced which established the Lord Chief Justice as the Head of Judiciary and proposed the abolition of the office or Lord Chancellor.
Ø Lord Chief Justice is also the head of the Court of Appeal Criminal Division. Under the provision of the reform he is most senior sitting judge and now the Head of the Court of Appeal (Criminal Division – Head of Criminal Justice). Other most senior Judges are Master of Rolls (Head of civil division of the Court of Appeal and Head civil justice); the President of the Family Division (Head of Family Division of the High Court and from 2004 Head of Family Justice)
Ø Until 2004 Chancellor was known as the Vice Chancellor but has been re-titled in anticipation of the office of the Lord Chancellor
Ø OVERVIEW OF THE DIFFERENT RANKS OF JUDGES
Ø Supreme Court Judges – The Law Lords will be removed from the House of Lord and reformed into and Independent Supreme Court. They will begin operation in 2009. The Supreme Court judges will perform the same functions as the appellate committee of the House of Lords and they will continue to the appointed from the Appeal Court though occasionally from among leading academics and practicing lawyers
Ø The court will continue to hear both civil and criminal appeals
Ø Lords and Ladies Justice of Appeal
Ø They are usually appointed from the High Court
Ø The hear both civil and criminal appeals
Ø Civil division sits in panel of twos or threes while criminal division sits in threes. Usually made up of 1 Lord Justice with two high court judges or with one high court judge and one circuit judge
Ø High Court Judges
Ø Appointed from the rank of Recorders or Deputy High Court Judges or occasionally from Circuit Bench
Ø The are appointed to one of the three divisions of the High Court (Queen’s Bench, Family and Chancery) regularly travel round the country hearing the most important civil and criminal cases
Ø Deputy High Court Judges
Ø These Judges are also senior practising lawyers who sit as part time High Court Judges
Ø They do not have security of tenure and are appointed when the workload of the court requires more temporary judges
Ø Circuit Judges
Ø Usually appointed from among Recorder or District Judges
Ø They hear middle ranking and more serious criminal cases in the crown court and civil cases in the county court.
Ø District Judges
Ø They are usually appointed from Deputy District Judges and most district Judges are former solicitor the High Court
Ø They handle the bulk of less serious judicial work in the county court
Ø They carried a wide range of different work such as family cases, breaches of contract and negligence claims
Ø District Judges (Magistrates’ Courts)
Ø These are professional magistrates who are lawyers *unlike magistrates who are lay people)
Ø They sit in the magistrate courts hearing mostly the more serious criminal cases dealt with there
Ø Recorders
Ø These are part-time judges. They are practicing lawyers (barristers or solicitors) who sits as judges for approximately 20 days per year. They hear both criminal and civil cases sitting in the crown court and county court
Ø The judiciary in England and Whales is organised in a clear hierarchy of ranks with relatively low levels of specialisation.
Ø Most judges hear both criminal and civil cases at first instance and at appeal
Ø Throughout the system, there is a heavy reliance on the use of part time judges, many of whom go on to be appointed to full time posts.
Ø JUDGESS FUNCTIONS, MALLESON, C16 pp 215-228, SLAPPER AND KELLY pp 219-234, BERLINS AND DYER pp 74-82
Ø Dispute settlement
Ø In criminal cases, fact-finding is carried out by lay magistrates and juries. Professional Judges sit in the Crown court with a jury to decide questions of law and procedure, costs and sentencing
Ø Since most defendants either pleaded guilty or are found guilty, sentencing is a major function of a criminal judge
Ø Sentencing in England and Wales in contrast to that of other jurisdiction such as many US States offers a wider measure of judicial discretion
Ø Case Management
Ø Previously judges usually come to court knowing very little about were expected to fulfil a limited ‘referee’ role leaving much of the management of the case to lawyers
Ø Following the Woolf Judges spent much of their time actively managing cases before and during trial
Ø They must read the papers before the trial and participate in decisions about matters such as which expert witnesses are to be called
Ø Training
Ø The growth of case management, the introduction of the Human Right Act 1998 and the expansion in the range of sentencing options have increased the need for more training for judges
Ø This was initially resisted on the ground that it was a potential threat to their independence
Ø The establishment of the Judicial Studies Board in 1979 changed this perception and now judges generally welcome all training they can get
Ø Extra-Judicial Activities
Ø Many senior judges will be involved in decisions about staffing resources and deciding which cases will be heard by judges and when
Ø Almost all judges will be involved in the consultation process for the appointment of judicial office, dealing with media, advising on the use of information technology in courts, consulting with court user groups, receiving and giving judicial training, delivering lectures and speeches, writing journal articles, and giving evidence to or hearing government inquiries
Ø Judicial Review
Ø Over the last 40 years, judges have developed the law of judicial review which gives them the power to quash decisions that are illegal because they go beyond the decision-makers powers or have arrived at through an unfair or irregular procedure
Ø Read Berlins and Dyer pp 81-82
Ø APPLYING CASE LAW, Malleson pp 71-82; SLAPPER AND KELLY pp 210-215
Ø In England and Wales the law is drawn from two main sources – previous cases and statutes passed by parliament
Ø As common law system, the decision in the past play a central role
Ø It is only cases decided in the higher courts which are binding and must usually be followed in subsequent cases. The higher the court the more authority its decision have
Ø The House of Lords/Supreme Court as the highest court bind all courts below it and its decision are therefore the most important source of case law
Ø The first question judges must ask themselves is whether the facts of the present case are sufficiently similar to the earlier case
Ø If there are materially different facts, the court will distinguished the case from the earlier one and apply a different rule
Ø One significant effect of the binding precedent is to give a greater role to the top courts
Ø Since 1966 the top court, the House of Lords/Supreme courts, is no longer always bound by its previous decisions and will occasional expressly depart from them
Ø INTERPRETING STATUS Malleson pp 61-69; SLAPPER AND KELLY pp 191-210
Ø The literal rule, golden rule and mischief rule are guidelines developed by the courts to help the judges approach the task of statutory interpretation. Increasingly, judges apply a purposive (purposeful) which requires them to look for the underlying intention of Parliament in passing the statute.
Ø THE EFFECT OF HUMAN RIGHTS ACT 1998 - Malleson pp 66-69 SLAPPER AND KELLY pp 23-41
Ø The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK Law
Ø One of the most significant features of its provisions, but which has received relatively little attention is its impact on the system of precedent.
Ø Under s.2 when deciding on questions under the convention, courts must ‘take into account’ the case law of the European Court on Human Rights
Ø They are therefore explicitly not bound by those decisions, but are under duty to consider them. However, under s.6 it is unlawful for the courts (as public authorities) to act in a way which is incompatible with the convention
Ø Under s.3 of the Act the courts are obliged to interpret the legislation ‘in so far as it is possible’ in a way which is compatible with the European Convention on Human Rights
Ø Even if the Parliament intention in passing the Act was clear, the courts must try to interpret the Act a way which is compatible with the Convention, regardless of the intention of the Parliament
Ø This new obligation has changed the approach of courts in some important recent cases.
Ø JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY
Ø Malleson pp 220-223; SLAPPER AND KELLY pp 11-121
Ø Judicial independence is a principle intended to ensure the impartiality of the judges.
Ø The following arrangements are designed to ensure the judicial independence in England and Whales is protected
o Security of tenure
o – full time judges are appointed until the age of 70. Judges in High Court and above can only be dismissed by the Queen after both Houses of Parliament have voted for removal. This has never happened.
o Before 2004 judges below the High Court could be removed by the Lord Chancellor on the ground of incapacity and misbehaviour.
o Under the Constitutional Reform Bill, the responsibility for disciplining and removing judges is now shared between Lord Chief Justice and Secretary of State for Constitutional Affairs. These powers appear to have been restricted to conduct which amount to criminal behaviour, having been used only once in recent times, against a circuit judge caught smuggling whisky and cigarettes
o Part-time judges do not enjoy the same security of tenure Lord Chief Justice and Secretary of State for Constitutional Affairs will together be responsible for removing part-time judges
o Security of Salary
o Salary levels for full-time judges are set by the government, by statute the salary of judges cannot be removed
o In practice salary are high in comparison with most salaries but lower than a successful solicitor or barrister might expect to earn
o Lawyers are often willing to take a pay cut on being appointed to the bench in return for secure post, high statues, interesting work and very generous pension

Ø THREATS TO JUDICIAL INDEPENDENCE
Ø Judges have expressed concern in the past that the collective independence of judges has been threatened by cost-cutting measures introduced by government which, they claim undermines the ability of the courts to function fairly and effectively and thus undermine the independence of judges
Ø Judges have also expressed concern about distorted and unfavourable coverage by the media
Ø The Constitutional Reform Bill charges the Secretary of State for Constitutional Affairs to defend Judges’ independence and ensure that they have the necessary support to enable them exercise their functions
Ø Read Starr v Procurator Fiscal 2000 JC 208, 2000 SLT 42’ Lord Chancellor’s Annual Report 1999-200 at http:// www.lcd.gov.uk/judicialja_arep200/index.htm
Ø ACCOUNTABILITY
Ø The media coverage of judges’ decisions raises the problem of judicial accountability
Ø Judges are not held accountable in the same way as politicians, through elections instead they are accountable in the sense that their decisions are taken in public, are reported and can be appealed against to a higher court
Ø Judges claim that this makes them one of the most highly scrutinised and public accountable bodies
Ø Demands are growing for judges to engage in debate and to respond more directly to public criticism
Ø Slapper and Kelly pp 256-7 rules relating Judicial immunity from civil or criminal action and arguments for a reform of this rule
Ø JUDICAL APPOINTMENTS PROCESS Malleson pp 229-244; www.dca.gov.uk/judicial/judgesfr.html#part3 ; Slapper and Kelly 238-248; Berlins and Dyer pp 65-73
Ø England and Wales does not have what is called ‘career judiciary’ as is found in other European Countries. Judges are appointed from among successful lawyers in practice
Ø Before 2004 Judges of the Court of Appeal and above were chosen by the Queen on recommendation of the Prime Minister, acting on the advice of the Lord Chancellor
Ø For High Court Judges and below the Prime Minister played no role, the Queen was advised by the Lord Chancellor directly
Ø They system worked well when the judiciary was very small
Ø In 2001, a limited judicial appointment commission was established in response to the concern about lack of independence and transparency as the system grew
Ø The Commission has power to advise on the appointment process, review individual cases but not to play a part in the appointment decisions themselves
Ø In 2004 government introduced Constitutional Reform Bill which will establish a completely new system in which judges will be appointed by an independent judicial appointment commission
Ø Approximately 900 full time Judges are appointed annually making it a major administrative process
Ø All ranks below the Court of Appeal are now advertised and candidates required to complete application form (high court judges can still be made by ‘invitation rather than application)
Ø Candidates must fulfil eligibility requirements of certain period of judicial office
Ø Opinion of judges and senior lawyers are sought regarding the suitability of applicants
Ø The consultation process is the hear of the system and no candidate will be appointed without a significant body of support among the consultees
Ø The process was described by critics as a ‘secret sounding system’ i.e. measuring the depth of water to see whether it was safe for a ship to procedd
Ø ACCOUNTABILITY
Ø The appointment of Judges by a Politician , the Lord Chancellor traditionally provided an element of accountability in the system by maintaining the link between the Judiciary and elected representatives. Argument weakened by the fact the Lord Chancellor was not elected
Ø In most parliamentary systems, the selection function is carried out by Minister of Justice who is also an elected members of the legislature and so is directly accountable for his or her decisions
Ø The appointment of Supreme Court Judges are likely to attract more interest in future
Ø Parliamentary confirmation, whereby judges appear before a parliamentary committee after appointment is a way of increasing openness, legitimacy and accountability
Ø Critics are of the view that the proposal would expose the appointment process to an increase in ideological bias, inappropriate politicisation as in the USA
Ø OPENESS
Ø Various means of public accountability can only be effective if the system itself is open to scrutiny
Ø In 1980 in response to criticism of lack of transparency, the Lord Chancellor Department introduced a number of changes designed to open up the process
Ø In 1998 the department began to produce an annual report explaining the priorities and goals and process and setting out figures for applicants and appointments for all the ranks. The new judicial appointment commission will continue the process
Ø There is still criticism of the lack of openness in the consultation process
Ø MAKE-UP OF THE JUDICIARY
Ø Criticism of the composition of the judiciary is commonly hears.
Ø Of particular concern is the fact that very few women, black lawyers and solicitors are appointed to the higher ranks.
Ø The official response is that those from non-traditional background will ‘trickle up’ onto the bench as they move up in the legal profession
Ø Critics said those from the non-traditional background do not move up at the same speed or in same career patterns, as those from the traditional background
Ø They pointed out at cultural and structural barriers in form of the tradition of appointing to the senior judiciary exclusively from the bar and within the bar from among QC practicing mostly in small number of elite chambers
Ø THE USE OF JUDICIAL APPOINTMENTS COMMISSION IN OTHER SYSTEMS
Ø Canada, the US, Ireland, South Africa, Israel and many continental European Jurisdiction have judicial appointment commissions. Scotland has one since 2002 and Northern Ireland is in the process of setting up a similar body
Ø Memberships range from five to 23 drawn from Judges, lawyers, members of the legislature, the executive, law people and academics.
Ø In most case the final decision still rests with the Minister who makes the selection from list of qualified candidates provided by the commission
Ø In general commissions have reputation for improving openness and instituting a culture of transparency
Ø Evidence also suggests that judges appointed by the commission are as competent as those selected by the executive alone while also contributing to appointment of a more diverse bench
Ø In the US an Northern Ireland it has been claimed that they are unacceptably politicised
Ø The commission in England and Wales will consist of six lay people, two lawyers, five judges a tribunal members and a magistrate. It will be chaired by one of the six lay members.
Ø It will recommend the name of one candidate to the Secretary of State or Constitutional Affairs, who can accept or reject and asked for a new name giving reason
Ø Once the name is accepted, it will be sent through the Minister to the Queen for approval. In practice the Queen ‘rubber stamp; the decision of her Ministers.
Ø Appointment of Court of Appeal Judges will still go to the Prime Minister for approval, though he or she will not be expected to exercise discretion in the process
Ø The system for appointing judges of Supreme Court will be rather different. A small commission of five, made up of two senior judges and a member of each of the three commissions from the UK will recommend between two and five names to the Secretary of State who will choose one name
Ø The tension between independence and accountability is an ongoing, probably insoluble and arguably, healthy future of a judicial appointment process in a liberal democracy
Ø THE CRIMINAL JUSTICE PROCESS SLAPPER AND KELLY C9-10; CROWNIE AND BRADNEY, CS 11-16
Ø THE NATURE OF CRIMINAL JUSTICE PROCESS – SLAPPER AND KELLY C9 pp 383-394
Ø On the most banal level of analysis, criminal law provides a medium through which to express conceptions of right and wrong, to regulate behaviour in ‘pro-social’ ways and to clearly state what is considered so anti-social or harmful that is punished with the rigours of state sponsored punishment.
Ø The Criminal law often called penal law in other countries following the Roman law tradition provides sanctions against those who breaks the rules. It is clearly the site of state backed power.
Ø PERSPECTIVE OF THE CRIMINAL JUSTICE PROCESS
Ø From the Marxist perspective the criminal law is bound up with the defence of private property, the support of the (increasingly internationalist) capital order, and with the enforcement of social norms that re actually a distortion of the reality of social relations.
Ø Ideology obscures and much as it captures a truth
Ø Marxist tells us that this distortion and the criminal law defends a radically unjust social order
Ø From the broadly social democratic and liberal perspective the criminal law is linked with key social policy objectives, such as maintenance of law and order and preservation of peace, the security of individual, and the protection of property; increasingly the protection of human rights and individual freedoms
Ø Criminal law is a multi-layered arena of social activity that contains many conflicts and competing policies
Ø The paradox of criminal law is the application of force (violence) and deprivation of liberty (imprisonment) in the name of containing force and fraud and defending liberty
Ø A constant dilemma is how to achieve a proper balance between the provisions of the criminal law and the preservation of liberty and the freedom of the individual.
Ø AGENCIES OF THE CRIMINAL JUSTICE SYSTEM
Ø The criminal justice system is that branch of the English legal system in which the criminal law is administered and they include: The police service, the Crown Prosecution Service; Serious Fraud Office, Inland Revenue and the Health and Safety Executive; Magistrates’ Court; the Crown Court; the Appeal Court; Criminal Cases Review Commission; the Prison Service; the National Probation Service for England and Wales, Criminal Defence Services; criminal Injuries Compensation Board for victim and other victim and witness care services
Ø COST AND REFORM
Ø By 2002 the Justice system consumes around £12 billion a year (or £200 for each man, woman and child)
Ø Over half £7.5b goes on policing, followed by Prison service (£1.8 b), Criminal legal aid (£0.9 b) and Probation Services (£0.5 b)
Ø A Royal Commission on Criminal Procedure reported in 1981; a further Royal Commission on Justice reported in 1993
Ø Nearly every year there is new legislation on some aspect of the Criminal Justice System
Ø Some argued that the system is loaded in favour of those accused of criminal activity and against the interest of the society at large
Ø Others pointed to serious miscarriage of justice and the need to protect the individual from wrongful involvement in the Criminal Justice system
Ø Cynicism about criminal justice abounds. The complaints system lacks credibility. Police rule-breaking is no regarded as deviant. The police discipline ‘toe rags’ without judicial authority or oversight. Lawyers treat their clients with disdain. Suspects are not a sub-set of the wider criminal population; rather, criminals are a sub-set of the wider (official) suspect population. How closely this relates to the ;actual guilty’ population remain a matter for speculation, but any close relationship could well be coincidental. For we suggest….. – Sanders and Young (In Oxford Handbook of Criminology (2002) P. 1067);
Ø CRIMINAL JUSTCE: PERSPECTIVE AND THEORIES
Ø From criminology literature, a number of model of the Criminal Justice System may be identified as follows:
o The due process model (created by the American Commentator Herbert Packer in a famous article in which he contrasted the model with crime control model, The primary social goal is justice, emphasis on fairness and procedural due process. The model stresses the process of evidence gathering and dealing with suspects that are need to protect accused against error and restrain the exercise of arbitrary power
o Crime control model – the primary social goal is the control of crime and punishment of offenders. The focus is on ensuring police are able to obtain convictions in the courts.
o A medical model – offending is seen a deviant behaviour that is a symptom of underlying illness or pathology and emphasis is placed on rehabilitating the offender, giving decisions makers the discretion to achieve this
o The restorative justice model – emphasis is on getting the offender to recognise his or her responsibility on committing the offence and to make amends to the victim
o Bureaucratic model – management of crimes and suspects/offender is emphasised, and the efficient processing of offender through the system is the key goal
o A status passage model – emphasis on the denunciation, degradation and shamming of the offenders, reflecting society’s view of the offender
o A power model – emphasis on the maintenance of a particular social/class order, which reinforces the values of certain classes over others
o Social integration and exclusion model – criminal justice sytems act to differentiate a suspect population that its socially exclude, while allowing the rest to feel satisfied with the operation of the system and blame the excluded
Ø MISCARRIAGE OF JUSTICE
Ø The problem of miscarriage of justice came into focus with three great IRA cases, the Guidford Four, the Maguire Seven and the Birmingham
Ø In all these cases the defendant had their convictions quashed by the court of appeal
Ø The government set up the Royal Commission on criminal justice on the day the Birmingham six free
Ø May inquiry was in independent judicial inquiry into the circumstances surrounding the wrongful conviction of the Guildford four
Ø Runciman Commission 1993 and Criminal Case Review Commission in 1997
Ø Andrew Ashworth in 1998, 2000 argued that legal rules are often regarded as the primary means of preventing errors, but the miscarriages cases show that many errors, deliberate or accidental , have taken place despite the existence of legal rules and powers that were meant to cover the processes.
Ø There is need for crime control model of policing, which almost sees certain miscarriages of justice as an in-built feature of effective policing
Ø There is also need for a broader shift in the structure and shape of British society, which has moved from a model of relative homogeneity and inclusivity to multi-cultural pluralism.
Ø THE CONFLICT BETWEEN CRIME CONTROL AND DUE PROCESS IN THE MISCARRIAGE OF JUSTICE CASES
Ø In Guildford Four the four defendants had been convicted in 19976 of murder by causing an explosion in public house (pub) in Guildford. Appeal turned down
Ø The test on police documents undermined the evidence of police officers that the crucial interviews were recorded contemporaneously, since the hand-written notes had been evidently written after the typed records of the interviews
Ø In the case of Maguire Seven, the defendants, most of the who were members of the Maguire Family had been convicted in 1976 of an offence of possessing explosive substances that was linked by the prosecution of bombings in London and Guildford
Ø The conviction were quashed in 1992 on the ground that the prosecution had failed to reveal to the defence certain scientific evidence which amounted to material irregularity
Ø Scientific evidence left open the possibility that the traces of nitro-glycerine (NG) found on the defendant and in their house came from an innocent, which rendered the verdicts unsafe and unsatisfactory
Ø The defendant had spent some 13 years in prison and one of them had died there.
Ø The Birmingham six were convicted in 1975 of murder by causing explosion in a public in Birmingham
Ø The defendant had maintained from the outset that they were beaten and that the so called confessions were false
Ø Electrostatic analysis (ESDA) that the alleged interview could not have been written contemporaneously
Ø Forensic Science Services findings that the traces of NG could have come from innocent contamination or even smoking had not been disclosed to the defence or the trial court.
Ø The crown prosecution recommended prosecution but the judge stayed prosecution on ground that the publicity would make a fair trial impossible
Ø In M62 bombing, Judith Ward was convicted in 1974 of murder and causing explosion. She did not appeal
Ø In 1992 CA quashed her conviction on the ground that it was not disclosed that the result of the tests were favourable to her and there were other failure of disclosure by the DPP, the police and prosecution counsel
Ø The defendant has a form of personality disorder which rendered her confession unreliable. Ward had been in prison for 18 years
Ø Tottenham Three, the defendant convicted in 1986 of murder of a police officer during disturbances at Broadwater Farm estate in Tottenham
Ø In 1991 CA quashed her conviction on the ground that it ESDA test revealed that the notes of the interview shoed that some parts of the alleged records had been written at different times
Ø not disclosed that the result of the tests were favourable to her and there were other failure of disclosure by the DPP, the police and prosecution counsel
Ø Cardiff Three were convicted in 1990 of murder of Cardiff prostitute
Ø CA quashed their conviction on the ground that the tenure and length of police interview were so long that they should be excluded from evidence.
Ø Common features in the cases appeared to be pre-trial concoction of evidence by forensic scientists, non-disclosure of evidence by forensic scientist and non-disclosure by the prosecution of evidence that would be helpful to the defence, oppressive conduct by police during questioning, with or without actual violence
Ø These faults have implications for the rules on confessions and the control on police investigations, and for the ethics of the police, forensic scientist and prosecution lawyers
Ø CONFESSIONS
Ø Suspects in Confait, an earlier famous miscarriage of justice case (1972), which had resulted in a Royal Commission on Criminal Procedure, the Philips Report), confessed to a crime that they did not commit.
Ø There are also problems with confession evidence in the Guildford Four, the Birmingham Six and the Tottenham Three
Ø The suspects were in detention isolated, the police have considerable power over suspects, they are able to control the surrounding and reward co-operation. Questioning can be repetitive and forceful: it need not stop because the suspect remains silent or denies the offence
Ø It has been argued by psychologist that almost anyone will make a false confession if subjected to enough pressure
Ø Gudjonsson and Mackeith (1988) presented a number of case studies where Police questioning did not involve threats of violence and draw the conclusion that false confessions are not confined to the mentally handicapped or the mentally ill.
Ø THE ROLE OF PACE AND THE CODES OF PRACTICE
Ø It has been argues that while pace regulates the context in which questioning takes place, it is silent about the manner on which questioning should be carried out
Ø FORENSIC SCIENCE
Ø Commentator have pointed out that flawed forensic science played a major role in a number of miscarriage of justice case
Ø Once juries are faced with conflicts over forensic science evidence, juries face obvious problem because they are not in a good position to choose between conflicting claims of expert witness
Ø Forensic science evidence will always cause problem and it is important for the defendants to have access to expert who are able to challenge forensic science evidence used by the prosecution
Ø There are now several institutions staff by experienced forensic experts, which exists primarily to undertake forensic science work for defendants
Ø DISCLOSURE
Ø To gain tactical advantage Prosecution are often tempted to choose not to disclose evidence that undermine their case
Ø Because of the adversarial procedure, non-disclosure will probably always be a problem in the criminal justice system
Ø Criminal Procedure and Investigation Act 1996 actually reduces the amount of information which must be disclosed to the defence by the prosecution, and campaigning groups such as JUSTICE have argued that this itself may lead to miscarriage of justice
Ø A new code of practice under the Act clarifies the obligations of Police Officers as regards the recording and disclosure of material relevant for their investigation
Ø POST-TRIAL FAULTS
Ø Most common post-trial faults lay in the slow and cumbersome procedures for referring cases to the CA, and the court’s reluctance to overturn jury verdict especially of such a decision would suggest that the Police had not told the truth
Ø If CA is too ready to overturn jury verdicts it may by implication cast doubt on the general ability of juries to make good decisions
Ø The CA is often criticised for being too reluctant to acknowledge that a miscarriage of justice has taken place
Ø Smith, Bailey & Gunn wrote (2002 pp 1257-1304): an acquittal by a Jury in a criminal case is regarded as sacrosanct. The Prosecutor has no right of appeal, no matter how perverse the verdict of the Jury. However persons convicted of an offence on indictment may appeal to the Court of Appeal Criminal Division (Criminal Appeals Act 1968)
Ø Ashworth writes that in England there is a strong tradition that appeals against the decision of magistrates and judges should be open to the defence and not the prosecution, because prosecution appeal is tantamount to placing the defendant in double jeopardy.
Ø For the defendant there is no need to wait for an appeals procedure; evidence can be challenged at trial.
Ø PROVISIONS OF THE CRIMINAL APPEALS ACT 1968) - Smith, Bailey & Gunn wrote (2002 pp 1257-1304)
Ø Appeal from the Crown Court to the Court of Appeal -Criminal Appeals Act 1968 s.1(2)(a), s.1(2)(b) – the court will not generally hear fresh evidence
Ø Evidence - Criminal Appeals Act 1968 s.23(1) and s.23(2) – the court can order the production of any evidence, exhibit or other thing connected with the proceedings, order examination of any witness, who would have been compellable whether she was called or not; and hear evidence from a non compellable witness
Ø The discretion under s.23(1) is available under a wide range of circumstances than s.23(2)
Ø CA in R v Lattimore (1975) 62 Cr App R 53 said this does not mean that the conditions limiting discretion under s.23(2) were to limited 23(1).
Ø R v Ditch (1969) 53 CR App R 627; R v Foster (1985) QB 115; R v Swain (1986) Crim LR 480
Ø The Criminal Appeals Act 1995 amends the powers of the CA to hear fresh evidence but the commentators suggest that it is too early to assess the impact of these changes
Ø DISPOSITION OF APPEALS
Ø Criminal Appeals Act 1968 s.2(1) – CA shall allow an Appeal against conviction if they think the verdict of the jury should be set aside as unsafe or unsatisfactory; on the ground of wrong decision of any question of law or material irregularity in the course of trial
Ø The can dismiss the appeal of they consider that not miscarriage of justice has actually occurred
Ø For interpretation of 2(1) (a) see Widgery LJ in R v Cooper (1969) 1 QB 267, on the issue of ‘lurking doubt’
Ø WHERE FRESH EVIDENE IS ADMITTED
Ø See Stafford v DPP (1974) AC 878
Ø Viscount Dihhorne said the court was not bound to ask in a case where new evidence was admitted whether that evidence might have led to the jury returning a verdict of not guilty
Ø Criminal Appeals Act 1995 provides that – CA can allows appeal and quash convictions; it may order a re-trial if it that is required in the interest of justice; it can also apply the proviso, that although the ground of appeal was correct there was no substantial miscarriage of justice
Ø If CA reject appeal it may be possible if there is point of law of general public importance at stake to appeal to the House of Lords
Ø If there is mistake as to fact, this will not be an option and it may be possible to refer the case back to CA. The power of referral was in the hand of Home Secretary. Criminal Appeals Act 1968 s.1(2)(a), s.1(2)(b)
Ø To avoid interference with the independence of judiciary the Secretary of State would only intervene in cases where evidence is presented by the petitioner which was not available to the courts who dealt with the case
Ø The present system leaves room for a large degree of unstructured discretion to the judges who decide one application. A considerable proportion of applications refused by s single judge to on the granted by the full court. A single judge should have a duty to give detailed reasons for a refusal
Ø FAMOUS CASES
Ø Birmingham 6 – a court more willing to overturn jury verdicts would have accepted that the substantial doubt thrown on the scientific evidence rendered the verdicts unsafe
Ø The court was looking for alternative explanations of the evidence rather than accepting the flaws in the scientific evidence automatically rendered the verdicts unsafe.
Ø EXTERNAL TENSIONS: INSTITUTIONAL RACISM
Ø Research by D. J. Smith on race, crime and criminal justices suggest s that black people (Afro-Caribbeans and black Asians) are about six times as likely to be in prison as white people or South Asians.
Ø They tend to be target of proactive law enforcement
Ø There is some evidence of bias at various stages; in the targeting police enforcement; in decisions to prosecute juveniles and in sentencing by the Crown Court
Ø There is observational evidence to show that police attitudes do discriminate against non-white racial and ethnic groups
Ø Police officer tended to assume that black people commit crime and a large proportion of offenders were described by their victim as black
Ø The number of suspect who were subsequently arrested and charged did not vary between ethnics groups
Ø Increased feeling of hostility against the police by black communities in London
Ø The media and social pressure to obtain convictions place the system under strain
Ø THE ROYAL COMMISSION ON CRIMINAL JUSTICE
Ø The ROYAL COMMISSION ON CRIMINAL JUSTICE was set up by the Home Secretary on the day the Birmingham six were release and was chaired by Lord Runciman. The terms of reference included examining the effectiveness of the Criminal Justice System in relation to – securing the conviction of the guilty, acquitting the innocence; efficient use of resources
Ø The report was published in 1993 contained a total of 352 recommendations
Ø Recommendation giving priority to acquittal of the innocent
o The right to silence was retained but jury and magistrates are allowed to draw adverse inference by refusal to answer question
o Continuous video recording if custody office and passages and stairway to cells, research to consider video-recording of police interviews with suspects, not accepted primarily because of costs
o New Forensic Science Advisory Council to monitor effectiveness of forensic science laboratories; equal access to defence and prosecution was not implemented
o Criminal case review commission led to the introduction of Criminal Appeals Act 1995
Ø Recommendations giving Priority to the conviction of the guilty
o Uncorroborated confession evidence could still be used for conviction so long the trial judge warned the jury the risks of doing so
o Disclosure of evidence by prosecution – No requirement to give full disclosure only those the prosecution considered relevant to the case
o Disclosure of evidence by defence – obliged to disclose the substance of their case in advance of the trial to avoid ‘ambush’ defences. The prosecution may invite the jury to draw adverse inference from undisclosed evidence. The only exceptions are alibis and expert witness.
Ø Criminal Procedure and Investigations Act 1996 was passed to address some of these problems – Police have a duty to reveal any prosecution material which in the opinion of the prosecution might undermine his case.
Ø This is not a full disclosure and question arise about its compatibility with Article 6 of the European Convention on Human Rights - requirements of a fair trial and specifically the concept of ‘equality of arms’
Ø Defence disclosure - question arise about its compatibility with Article 6 (2) of the European Convention on Human Rights - the presumption of innocence
Ø Recommendations that give priority to Cost Efficiency of the System
Ø Institutionalising plea bargaining
Ø Restricted access to jury trials
Ø The Stephen Lawrence Case and the MacPherson Report
Ø Stephen Lawrence was stabbed while waiting at a bus stop in south London. The failure of the legal system to bring his killers to justice raised question about miscarriage of justice
Ø In 1997 a judicial inquiry was set up under Sir William Macpherson and it published its report in 1999.
Ø It accused the Metropolitan Police of ‘institutional racism’
Ø Made recommendations on balance due process and crime control
Ø The most radical recommendation is to end the ancient principle of double jeopardy whereby a person cannot be tried more than once for the same offence or substantially the same crime. McPherson recommended that the CA should have power to permit a new prosecution after acquittal where ‘fresh and viable’ evidence is presented
Ø Facing the ethical question
Ø Michael Zander in the State of Justice (2000) noted that previously the Court of Appeal had the power to quash a verdict if it was unsafe and unsatisfactory, but the revised formula in 1995 Criminal Appeal Act s.2 now provides for the verdict to be quashed if it is found to be merely ‘unsafe
Ø He was of the view that the “Court of Appeal must be free to express its repugnance for especially objectionable conduct of the police or other prosecution agencies.
Ø He also believes that the integrity of the criminal Justice system is a higher objective than the conviction of any individual
Ø THE JURY: THE CURRENT ROLE AND SYMBOLIC VALUE SLAPPER AND KELLY C10 pp 500-509; Zander (2003) Chapter 5: Kadiri, S. Chapter 8 (study pack)
Ø Introduction to Juries
Ø As enshrined in US constitution most criminal cases is first considered by a grand jury with between 12 and 23 members which determine whether there is a sufficient evidence to prosecute or not
Ø The Jury sitting on the trial proper is called a petit (or petty) jury
Ø Counsel for the parties may challenge the array for principal cause, i.e. some grounds such as relationship to a party that requires dismissal of a member of the venire; challenges to the favour i.e. to suspicion of unfitness on which the judges rule; and a limited number of the challenges
Ø At the close of the evidence and after the summations of counsel the judge instructs the jury concerning the verdict
Ø The value of juries in civil trial is disputed both in the US and the UK
Ø Opponents of juries argue that they are ineffective, irrational and cause delay;
Ø Proponents argue that juries bring community standard to bear, can moderate the effects of harsh laws, and are a protection against incompetent judges
Ø The use of juries are declining for various reasons, common law countries have a clear symbolic regard for the jury and show great care in the selections of jurors
Ø RHETORIC, REALITY AND THE DESIRE FOR REFORM
Ø The British government has been charged with attempting to remove the right to jury trial by its various attempts to decrease the defendant’s right to determine the mode of trial.
Ø Criminal Justice (Mode of Trial) Bill No. 1 1999, Criminal Justice (Mode of Trial) Bill No. 2 1999 attempted to removed the need for accused to consented to be tried formally but were not passed.
Ø Criminal Justice Bill 2002 increase magistrates sentencing powers so that fewer cases need to go to the crown court while and Criminal Justice Act 2003 also amended the Juries Act 1974 by abolishing certain categories of ineligibility (excluding mental disorder), and excusal of right. The bar on judges, clergy etc is lifted. MPs, etc are no longer entitled to refuse to serve
Ø The only limitation now is disqualified and mentally disordered individuals; no-one is excused as of right
Ø S.43 made provision for applications by the prosecution for certain fraud cases to be conducted without jury
Ø s.44 where the is danger of jury tampering; lengthy cases, etc
Ø THE HISTORICAL PERSPECTIVE
Ø According to historian Maitland, the jury began as a body of neighbour summoned by some public officer to give upon oath a true answer to some question
Ø It was a procedure that was brought to England by William Normandy after the conquest of 1066
Ø It was adapted from the procedure used from the provinces conquered from the Carolingian Kings
Ø It began as a royal prerogative or procedure
Ø The crown took considerable power in conquered England and the Norman and Angevin kings used the powers to construct a central government and a common law
Ø Until relatively recently in England (and still in the USA) there was a distinction between a grand jury, or a jury of presentment which worked whether there really had been an offence or a case to answer, and a trial jury, which decided the guilt or innocence of the accused or whether facts of the suite had been proved.
Ø The Jury of presentment
Ø The earliest recorded juries were employed to discovered the present facts in answer to enquiries addressed to them by Royal officials
Ø It began regular use at the Assize of Clarendon in 1166
Ø The Jury of presentment was responsible for presenting to court persons whom it suspected of crime
Ø This was done by its own knowledge, endorsing evidence brought before it as a ‘true bill’ or by ignoring the bill
Ø There were a number of famous instances where the jury prevented the powerful from bringing malicious and unfounded accusation.
Ø In the days before parliament and active press to advertise grievance, the grand jury was useful in calling attention to infringements of the laws by officials and to abuse in the administration of the government
Ø The practice was closely connected with the influence of the grand jury upon local government and it changed and ultimately became redundant as local government developed
Ø In the middle ages down to the 17th century the whole system of local government in theory centred on the presentments of juries
Ø This medieval ordering of the business of local government was gradually superseded during the 17th century
Ø THE CRIMINAL TRIAL, DISTINCTION BETWEEN GRAND JURY (PRESENTEMENT) AND PETTY JURY (TRIAL JURY)
Ø The Assizes of Clarendon and Northampton provided that 12 legales hominess from every locality (i.e. 12 representatives from grouping of a ‘hundred’ local people) must report about crime they knew or had heard
Ø As the organisation of local meetings changed, the sheriff was directed to summon 24 persons from body of the county generally and this may be one of the reason why grand jury ceased to make presentment based upon representation, but heard event
Ø The duty of this jury of presentment was to originally to bring criminal cases to the judges’ notice and it did not adjudicate in the matter
Ø According to Roger D. Groot (“The early Thirteen-Century Criminal Trial’ in Cockburn and Green (eds) 1988, extracts pp 6-7
Ø The suspect could be either confessed or be manifestly guilty, in all other cases were the accused denied, proof would be by ordeal e.g. Judgement of water. If the accused came clean from the ordeal he was required to leave the country
Ø Jury was method of preventing the indiscriminate prosecution and the grand jury only presented cases triable on indictment, if no prima facie case is made out the justices dismiss the charge
Ø PETTY JURY
Ø The petty jury does not present the reputation of criminality but decides in fact whether the accused is guilty of the offence alleged
Ø It originated through the abolition of the ordeal as a mode of proof after the Lateran Council of 1215
Ø After the abolition of trial by battle in certain cases of ‘private prosecution’ between important persons
Ø At first judges like Pateshull and Raleigh were inclined to compelled the accused to go to trial by jury, but later this give place to an alternative – either such trial or the peine forte et dure a form of torture legalised b 3 Edw 1,
Ø The object of the torture was to compel the prisoner to submit to the common law trial by jury
Ø As late as 1658 a prisoner was pressed to death. The advantage gained was the he died without be convicted and so avoided forfeiture
Ø In 1772 the peine forte et dure was replaced by a plea of guilty and in 1927 this was again replaced by a provision that if the prisoner remains a mute a plea of not guilty shall be entered
Ø In 1351 it was enacted that no person who had been on jury of presentment shall also serve on the petty jury in cases of felony or trespass
Ø THE CONTROL OF JURIES
Ø Writ called attaint - 24 juries summon to say whether 12 juried lied. If the 24 said so the 12 jury would be punished. The severity of the penalties may have led to it failing into disuse.
Ø Star Chamber (Administrative Court) took it upon itself the task of controlling the jury and punishing those who seemed to make wrongful decisions or act improperly with fine and imprisonment. The Star Chamber was abolished in 1641
Ø Before then Judges had arrogated to themselves the power of dealing out fines and imprisonment to jurors who gave perverse verdicts
Ø In 1670 the practice of judges was held to be illegal in Bushell’s case and since that date juries are controlled by the power vested in the Judge to discharge a jury which disagrees and by the power of the in an appellate court to grant a new trial where the verdict is against the weight of evidence.
Ø OPERATION OF THE JURY IN CRIMINAL TRIALS IN THE SEVENTEENTH AND EIGHTEEEN CENTURY
Ø Scholars are not united in their opinions on whether the jury was the light that shows that freedom lives or was it of symbolic value but little real protection of liberties
Ø J. M. Beatie (London Juries in the 1690s; in Cockburn and Green (eds) (1988), extract p. 24
o Trial by jury emerged as the principal defence of English liberties. The grand jury that refused to indict the earl of Shafrebury and the trial jury of twelve citizens who acquired seven bishops were to be celebrated as saviours who had prevented the establishment of tyrannical government and had confirmed the jury as the ‘sacred bulkwark of the nation’…… The jury was also seen as protecting ordinary individuals from arbitrary power and from malicious and unfounded charges, and as supporting a form of trial that gave English subjects a much fairer hearing when they were brought before a criminal court than the subject of less happy regimes across the Channel. It was also crucial to the defence of the most basic and fundamental of English liberties. The role of the jury was seen as being unfairly limited and restricted, as in trials for seditious libel
Ø Marxist Douglas Hay view the property qualification as a tactic to ensure that the juries the radically unjust criminal law
Ø The property requirement meant that the jurors were not representative of the people generally (in addition they were all men_
Ø It was argued that jurors would feel sympathetic towards certain types of accused but be distanced from the masses of the people brought to trial
Ø The principal of the juries continued to be the selection of prisoners whose execution would provide an appropriate and therefore deterrent example
Ø LANGHEIN: THE OLD BAILY PAPERS
Ø A single jury was empanelled to hear a large number of cases – typically there were only two 12-man juries for the whole sessions
Ø The session lasted several days and processed 50-100 felony cases
Ø In December 1678 for instance there was two-day session and between them and two juries returned verdicts in cases involving no less than 36 accused
Ø A mid-eighteen century assize judge would preside over more felony trials in a day or so more than a modern judge would see in a whole year
Ø It was common for the cases to be tried and decided in batches
Ø In December 1678 Middlesex jury dealt with 21 cases but deliberated only three times, the first batch consisted of 7 cases, second of eight cases, and last of six cases.
Ø The jurors were usually veteran of earlier sessions
Ø Trials took place at amazing speed. Most cases were not-guilty pleases but they were disposed of in short order. Typically a jury heard 12-20 cases in a day
Ø The trial looked very different from today because without lawyers, there was no opening and closing speech, no examination or cross-examination of witnesses and no motions on points of evidence. Questioning of witnesses was done by the judge himself or by the accused
Ø The judge played a far more directing role that would be permissible today
Ø It is difficult to characterise the jury as functioning autonomously – the judges often serves in effect as examiner in chief of both the witness and the accused and exercised wholly unrestricted power to comment on the merit of the case
Ø Sometimes if the judge did not think the evidence for one side or other was sufficient, he would stop the trial and tell the party to get the evidence for the point in question and start again. Today, double jeopardy prevents the prosecution from stopping a case that is going badly and starting afresh
Ø There is evidence in the report of some instances of exchanges between the judges and the jury as the case was processing
Ø In some instances the judge rejected a verdict, probed the jury’s reasoning, argued with the jury, gave further instructions, and told it to go away to deliberate afresh
Ø Hearsay evidence seemed to be admitted quite commonly
Ø Evidence of previous convictions was frequently considered by the jury as part of the evidence
Ø The law of evidence with its modern exclusionary rules, developed not in order to control the judges but as part of the rise of the lawyer as a participant in the criminal process
Ø The rise of lawyers cost the judges their commanding role and thereby made the jury more dangerous, since the judge could not control it so well.
Ø THE ARRIVAL OF LAWYERS
Ø The rule that the accused could not have a lawyer started to break down in about 1730s
Ø Prior to this the trial judge was supposed to serves as defence counsel; the requirement of high degree of proof was regarded as safeguard; and the accused knew more about the case than anyone else could not therefore be properly served by an intermediary
Ø Lawyers were allowed for misdemeanour case though not normally for felonies
Ø Lawyers were also permitted if there was point of law to argue
Ø The accused lacked the safeguards both of the inquisitorial and of the adversarial systems
Ø Professor Malcolm Feeley
Ø Conducted a study of b3,500 cases at the Old Bailey from 1687 to 1912
Ø He found out that in the 1830s trials accounted for no less than 95% of all adjudications. Typically the defendants were not represented by lawyers. When the accused or somebody in his or her behalf take the stand, more often than not they did not offer a spirited defence, but offered perfunctory excuses or defences, plea for mercy or in case of witnesses, offered testimony as to good character or mitigating factors
Ø Early 19th century trial more closely resemble the modern sentence hearing or plea bargaining process than it does full-fledged modern jury trial (Feely, 1997)
Ø ESTABLISHING THE RULE OF LAW
Ø V. A. G. Garell (The Hanging Tree: Execution and the English People, 1770 -1868) Tells of judges who sometimes were a combination of drunkards and sexual predators who abuse suspects and any persons who speak up to them, who visit the houses of those who wish to organise petitions of mercy
Ø The criminal law at that time clearly defended the interests of the property owners and was responsive of the interests of the statute-makers in a parliament elected only by the people with property
Ø Jury deliberations were casual to a high degree allowing judges to draw ‘crafty distinctions and ensnaring eloquence’ to ‘throw dust in the eyes and confound the sense of a well-meaning jury’, determining the outcome with little difficulty
Ø Judges bullied juries with directions which ‘were brief’ but pointed and leading, if not coercive’
Ø They ignore jury recommendations to mercy when it suited them
Ø Many radicals praised the jury, but some did not.
Ø GROWING INDEPENDENCE OF JURIES
Ø Bushel’s case in 1670 gave freedom from judicial coercion and this was doubted except in trials for seditious libel, but this was remedied by Fox’s Libel act of 1972
Ø Its important standing after its victories over ministerial diktat in the 1780s deepened its self esteem, while increasingly systematic presentation of trial evidence facilitated independent decision making too.
Ø 18th century Essex juries were more experienced in law than hitherto, and more independent.
Ø By the 1820s Beatie notes a ‘mental shift’ in the acknowledgement of jury independence
Ø Philip’ Golden Rules for Jurymen (1820) exhorted jurors to give benefit of doubt to the accused and stand up against judges
Ø Juries’ undervaluing of stolen goods to avoid a capital sentence had a longer history than reformers knew or admitted in the 1810s
Ø Very occasionally a lone juror would refuse to accept the foreman’s insistence that he defendant was guilty and force long discussions
Ø Some even joined petitions for mercy when a person was convicted and sentenced to hang, but these were usually unsuccessful
Ø This was long way from the period when Court of Appeal would quash convictions because a trial judge had been wrong to allow evidence of interviews because these were oppressive and the confession obtained was unreliable (as in R v Miller and others (1992)
Ø Further reading Sanders, A. and R Young ‘From suspects to Trial, The Oxford Handbook of Criminology (Oxford: Oxford University Press, 2002) ISBN 019924377); Zander M. The State of Justice (London Sweet & Maxwell, 2000) ISBN 0421729805) Chapter 3: ‘Criminal Justice’
Ø HUMAN RIGHTS AND THE COMMON LAW TRADITION – Fenwick, H. and G Philipson Text, Cases and Materials on Public Law and Human Rights (London: Cavendish, 2003) (ISBN 1859416551)
Ø Constitution of the United States and the Bill of Rights
Ø The constitution of the United States ratified in 1789, provides the nations with a source of supreme and fundamental law. The American constitution comes out of revolution and war of independence
Ø American constitution represents a new beginning, a radical break with a colonial past. It is rooted in a philosophy of limited government.
Ø These political an cultural factors influence the way the law is articulated
Ø The first 10 amendments known collectively as the Bills of Right were approved by the Congress in the same year as ratification
Ø In contrast to the English Bill of Rights of 1689, which said little about what would now be considered to be Human Rights, the US Bill of Rights catalogues a list of rights and freedoms
Ø Amendment one to 10 addressed; Freedom of speech, religion, peaceful assembly; Right to keep and bear arms; protection from quarrelling troops; protection from unreasonable search and seizure; due process, double jeopardy, self-incrimination, takings; Trail by jury and other rights of the accused; civil trial by jury; prohibition of excessive bail; cruel punishment; declaration that other rights not listed may be protected; residual power to the sates and the people
Ø Articles 1-3 vested legislative powers in the senate and house of representatives, executive power in the President of the US and Judicial power in one supreme court and inferior courts as established by congress
Ø Marbury v Madison 1 Cranch 137 (1803) Chief Justice Marshall shall declared that ‘a law repugnant to the constitution is void’. This was a particularly creative understanding of the role of the Supreme Court as this power was not explicitly provided by the constitution
Ø English courts do not have the power to hold Acts of Parliament to be unconstitutional. Judicial review does not hold Acts of Parliament to be unconstitutional – it is merely a way of determining whether bodies empowered by Parliament are operating within those powers
Ø Civil Rights Act 1875 prohibited discrimination by private citizen. In the civil right cases 109 US 3 (1883) these provisions were held to be unconstitutional, because the congress has exceeded its law-making power
Ø The general rule is that constitutional rights are not protected against the action of private person unless these actions are infected with state action or national government action. This is a complex issue that has generated a great deal of litigation and commentary
Ø The courts defeated legislation by using the constitution to protect private citizens who were seeking to discriminate in ‘private contexts’ (for example, landlords refusing to let property to people on the grounds of race
Ø Common law can be irrefutably linked to political struggles for social justice
Ø THE CHARTER OF RIGHTS AND FREEDOMS IN CANADA (1982)
Ø The Canadian Charter of Rights and Freedoms guarantees the rights and freedom set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
Ø Part 1 Section 1 guarantees the rights and freedom subject to reasonable limits
Ø ‘opt out’ provisions in section 33 preserves the sovereignty of parliament of the legislature of a providence
Ø The preservation of Parliamentary sovereignty is a clear point of similarity between the Human Rights Act (HRA) and the Charter unlike the American position
Ø HRA applies only to public authorities
Ø One essential comparison between HRA and the Canadian Charter is the emphasis of the latter on the ‘multicultural heritage of Canadians’ (section 27)
Ø THE BILL OF RIGHTS OF SOUTH AFRICA (1996)
Ø Constitution of South Africa adopted in 1996 is a document that reflects the political struggle that brought an end to apartheid.
Ø The South African Bill of Rights is contained in Chapter 2 of the constitution; there are however limitation in s.36
Ø The bill of right is read alongside s.167 which empowers the courts to strike down legislation, or overturn executive acts which are incompatible with the rights articulated in the Constitution
Ø Common law and other inheritances from the British Political traditions have feed into the both the problems and solutions in South African politics
Ø THE LEGAL AND POLITICAL BACKGROUND OF THE HUMAN RIGHT ACTS 1998 Wadham et all Blackstone’s Guide to Human Rights Acts 1998 (Oxford Clarendon Press) Third Edition (ISBN 0199254532) pp 1-19 and 117-215
Ø THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Ø The background to the Convention lies in the Political drive to achieve greater co-operation between European nations
Ø The Council of Europe became one of the major sponsors of an international Human Rights Convention
Ø The European Convention for the Protection of Human Right (ECHR) was signed in Rome in 1950
Ø The Convention guaranteed right to life, freedom from torture, freedom from arbitrary arrest, right to fair trial, right to privacy, freedom of religion, freedom of expression and freedom of assembly and association
Ø The exclusion of social and economic rights has been criticised
Ø The convention provided for an international court, and a Commission to consider the complaints and decide whether or not a to remit them to the court
Ø The Convention allowed a nation to decide whether it would accept the jurisdiction of the Court
Ø ECHR made sovereign states responsible to an international court
Ø Although British lawyers were central to the drafting of the convention, and the UK was the first nation to ratify in 1951, the convention was not made part of the domestic law: it was thought that the common law provided adequate protection for rights and liberties
Ø THE DOMESTIC POLITICAL CONTEXT: BRINGING RIGHTS HOME
Ø .Rights Brought Home’
Ø The Human Rights Act resulted from a change in government and the belief that the relief that the protection of rights under existing constitutional arrangements was not satisfactory following the removal of John Major’s Conservative government by the Labour Party in 1997
Ø It was argued that contentious legislature such as Public Order Act of 1986 and the Criminal Justice and Public Order Act of 1994 significantly restricted the liberty to assembly to assembly and associate
Ø Kaye v Robertson (199) FSR 62 did not affirmatively decide that there was a right of privacy in English law, Bingham LJ said ‘This case nonetheless highlight, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens.
Ø There was an increasing anxiety that the protection of human rights in the UK was not up to international standard. This was evidence by the number of cases that had been brought against the UK under Convention
Ø There were two ways in which an alleged breach of the convention could be considered by the ECHR as follows:
o Another signatory of the Treaty could complain of an abuse of the Convention – complaint brought against UK by Greece concerning the activities of the British security forces in Cyprus alleging breaches of Article 3 and 5. Although UK was not found guilty political pressure led to repeal of laws that were though possibly to be in breach of Convention rights.
o Individual could bring complaints before the ECHR alleging that their Convention rights had been infringed by the state
Ø DEROGATIONS AND RESERVATIONS
Ø The Convention allows the government to derogate from Articles of the convention in time of war or other emergency which threatens the life of a nature
Ø Prior to the enactment of HRA the United Kingdom had already derogated from Article 5 (3) to preserve the power of the Secretary of State to extend periods of detention under the Prevention of Terrorism (Temporary Provisions) Act 1984
Ø The law also allow a state to enter a reservation when a law that is already in force is not in line with the convention provision
Ø The UK has a reservation in respect of Article 2 of the First Protocol – the right to education and duty of state to respect the philosophical and religious convictions of parents in the provision of education and teaching. The reservation accept the right only so far as it is not incompatible with efficient teaching and avoids excessive expenditure of public fund
Ø THE LAW PRIOR TO THE HUMAN RIGHTS ACT – THE TRADITIONAL DEFENCE OF RIGHTS AND LIBERTIES. SLAPPER AND KELLY pp 14-22, Bailey, Harris and Ormerod pp. 1-82
Ø The traditional defence of rights and liberties
Ø Herbeus Corpus and the action for false imprisonment.
Ø The rights which have been afforded are for most part negative rights to be protected from interference from others rather than positive rights to behave in certain way
Ø The rights which have emerged from common law can always be modified by parliament, which is pervasive and continually adapts existing rights and remedies and provides new one.
Ø THE HUMAN RIGHT ACT 1998 – An Overview – Wadham et al (2003) pp 57-87
Ø INTERPRETATION PROVISIONS
Ø S.2(1) states that a court or tribunal must take into account a number of sources of European Law, and Human Rights Law. These are
o Judgement, decision, declaration or advisory opinion of the European Court of Human Rights
o Opinion of the Commission given in a report adopted under Article 31 of the Convention
o Certain decisions of the Commission in Articles 26 and 27 of the Convention
o Decisions of the Committee of Ministers taken under Article 46of the Convention
Ø The end of the section specifies that the legal sources can be drawn upon ‘whenever made or given’ and so could pre-date the HRA’
Ø It also gives the court the discretion to determine whether or not the authorities are relevant to the proceedings in question
Ø Incompatibility does not affect the validity or continuing operation of any provision, or the validity or continued operation of incompatible subordinate legislation, if the primary legislation from which it is derived prevents the removal of the incompatibility
Ø DECLARATION OF INCOMPATIBILITY
Ø S.4(2) states that when a court finds that a provisions is incompatible with a Convention right, it may make a declaration of that incompatibility
Ø S.4(5) give the power to declare incompatibility to House of Lords, the Judicial Committee of the Privy Council; the Courts-Martial Appeal Court; In Scotland, the High Court of Justiciary sitting otherwise that as a trial court or the Court of Session; In England and Wales or Northern Ireland, the High Court or the Court of Appeal
Ø S.4(6) a declaration of incompatibility under this section affects neither the validity, continuing operation nor the enforcement of the provisions in respect of which it is given and secondly the declaration is not binding on the parties to the proceeding to which it is made
Ø S.10(1) state that if a provision of the legislation has been declared incompatible; and if certain conditions are satisfied with reference to the fact that there will not be an appeal against the incompatibility, then a minister may, under s.10(2) make such an order that the incompatibility will be removed. The HRA thus leaves the sovereignty of the Parliament in place
Ø Since 2000 there have been eight declarations relating to various areas of law; mental health, immigration, taxation, offences against the person, sentencing, and embryology
Ø Bellinger v Bellinger, s.11( C) Matrimonial Cause Act 1973 was declared incompatible with Article 8 and 12. The government responded with the Gender Recognition Bill
Ø PUBLIC AUTHORITIES
Ø S.6(1) specifies that it is unlawful for a public authority to act in a way which is incompatible with a Convention right with an exception that s.6)1 does not apply to an act of a Public Authority
Ø S.6(2) the authority could not have acted differently because of primary legislation
Ø S.6(3) define public authority as including a court or tribunal, any person, certain of whose functions are of public nature
Ø Definition of a public authority does not include either House of Parliament or a person exercising functions in connection with the proceedings in Parliament
Ø HUMAN RIGHTS ACT JURISPRUDENCE – Wadham et al (2003) pp 76-80
Ø Issues relating to definition of public authority
Ø Poplar v Donoghue (2001) 4 All ER, 604, CA – The defendant moved into a local authority flat, pending a decision as to whether she was intentionally homeless and was seeking a declaration of incompatibility alleging breach of Article 8 of the ECHR
Ø That a body performs an activity which otherwise a public body would be a duty to perform, cannot mean such performance is necessarily a public function
Ø The renting out of accommodation can certainly be of private nature. See R v Manhattan House School, ex parte R (2002) LGR 255
Ø Costello Roberts v United Kingdom (1993) 19 EHRR 112. A seven year old boy receiving corporate punishment from the headmaster of an independent school. The European court made it clear that the state cannot absolve itself of its convention obligation by delegating the fulfilment of such obligations to private bodies or individuals. The responsibility would be that of the local authority and not that of the private school
Ø Leonard Cheshire (2002) 2 All ER 936 – the court concluded that the Charity was not acting as a public authority
Ø Decision in Poplar and Leonard Cheshire thus removed certain bodies removed from the jurisdiction of the Act
Ø The Act was primarily aimed at government agencies
Ø The decision limit the effectiveness of the Act from human rights perspective
Ø The due process requirements under the Act will not apply to private bodies
Ø VERTICAL AND HORIZONTAL EFFECT – WADHAM et al (2003) pp 69-73
Ø The ministerial statement made it clear that the Bill is aimed entirely at public authorities and not at private individuals
Ø S.6(3) makes the courts ‘public authority’ which must act in accordance with the convention in all cases, even in litigation between private individual
Ø The Act must be described as indirectly rather than directly enforceable against private person
Ø Wilson v First County Trust (2003) HRLR 33 – Mrs Wilson who took a loan from pawnbroker refused to pay on the argument that the agreement was not enenforceable as it does not contain all the prescribed terms contrary to the Consumer Credit Act of 1974
Ø The county court held that the agreement was enforceable; the court of appeal reversed the decision on the ground that s.4 of the HRA the 1974 Ac was incompatible with Art 6(1) of the ECHR. The house of lord allowed the appeal
Ø The HL allowed the appeal because the courts are public authorities and therefore bound by the HRA. The courts cannot act illegally as they are bound by the act of parliament
Ø The more the legislation concerned matters of broad social policy, the less ready a court would be to intervene
Ø If the legislature had attached insufficient important to a person’s Convention right’. It is conceivable that this may mean enforcing the HRA in disputes between private individuals
Ø Wadham et al. (2003) have argued that the courts have a duty to develop the common law in line with Convention rights by virtue of s.6(3)
Ø Venables and Thompson v Newsgroup Newspapers (2001) 2 WLR 1038 supports this argument. Two children were convicted of murder of another child and they won the continuation of injunctions preventing newspapers from publishing information about them
Ø The court argued that it could protect confidential information in ‘exceptional cases where it was strictly necessary’
Ø Courts will utilise the HRA in disputes between private parties only in exceptional circumstances and where there are significant human right issues
Ø Douglas v Hello (2001) QB 96. The court showed that it was willing to protect the privacy of celebrities against journalists using particularly intrusive method of photography
Ø Court felt that it was now necessary to develop a ‘positive institutional obligation to respect privacy. Some even argued that Douglas will lead to the development of a new tort of invasion of privacy
Ø See Marcic v Thamse Water (2002) EWCA Civ 64
Ø Aston Cantlow and Wilcote with Billesley Parochial Church Council v Wallbank (2004) 1 AC 564 – the case concerned ecclesiastical law, and an obligation to repair the chancel of a church that was an obligation of the ownership of particular property close to the church. The house of lord affirmed that the Parochial Church Council exercised both public functions and non-public functions and were not public authorities in respect of acts of a private nature
Ø RETROSPECTIVE EFFECT OF THE ACT
Ø S.7 state that a person alleging incompatibility with the Convention rights may bring proceedings under the Act
Ø S.22(4) clarify s.7 that a private individual cannot rely on retrospective effect of the Act but if a local authority is instigating the action, then a person may rely on the argument that the public authority had acted incompatibly with the Convention, even if it means that the act took place before Human Rights Act became law.
Ø This interpretation was given in Wilson v First Country Trust Ltd No. 2 (2001) EWCA Civ 633 – House of Lord s.22(4) achieves by enabling s.7(1)(b) to be given effect retrospectively
Ø Wainwright v Home Office (2002) QB 1334 held that acts of courts or tribunal which took place before 2 October 200 were not affected by 22(4) provided that the acts were required by primary legislation and were made according to the meaning given to the legislation at that time
Ø The obligation cannot be applied to invalidate a decision which was good at the time, if it involves changing retrospectively he meaning that the court or tribunal had previously given to that legislation
Ø In wainwright it was held that HRA cannot be relied upon retrospectively by introducing a right to privacy to make unlawful conduct was lawful at the time when it took place
Ø There are also presumptions against retrospective operation and interference with vest interests
Ø The underlying ration for those presumptions were identified by Staughton LJ in Secretary of State for Social Security v Tunnicliffe. In this case the house of Lord had to decide whether or nor the failure to conduct a further investigation into the killing of an alleged terrorists was in breach of Human Rights Act. The court observed that the Act as a whole is not retrospective and that section 22(4) in an exception to this general rule
Ø Wilson pointed out that agreement made before Human Rights Act came into force will often generate obligations requiring performance after 2 October 2000
Ø The court agreed that in relation to unlawful killing if it occurred before the Act came into force , s6(1) does not apply
Ø There is a distinction between Convention rights and rights under the Human Rights Act. There are still some Convention Rights that are not part of the domestic law. Example
Ø R (on the application of Richards) v Secretary of State for the Home Department (2004) EWHC 93
Ø Article 5(5) victims shall have an enforceable right to compensation, so in the case a convention right applied, even though section 6 of the HRA did not apply
Ø Campbell v South Northamptonshire DC (2004) EWCA Civ 409 – a case that concern the interpretation of various social welfare regulations, the court refused to give retrospective effect to Articles 9 and 14
Ø When considering retrospective effect of the Act it is important to consider each case on its facts
Ø DUE PROCESS AND HUMAN RIGHTS – Clayton, R and H. Tomlinson Fair Trial Rights (Oxford University Press 2001) (ISBN 0199246343)
Ø Due Process and Fair Trial Rights
Ø The principles in ‘due process’ and the ‘rule of law’ are fundamental to the protection of human rights. Such rights can only be protected if the citizen has recourse to the courts and tribunals which are independent of the state which resolve dispose disputes in accordance with fair procedures.
Ø Clayton and Tomlinson go on to show that the idea of due process is part of the Anglo-American legal world; 6th amendment, article 10 of Universal Declaration of Human Rights; There are other rights in the Seventh Protocol to the Universal Declaration (which has been ratified by the UK) i.e. right of appeal in criminal matters, the right to compensation for wrongful convictions, the right not to be tried or punished twice for the same offence
Ø FAIR TRIAL RIGHTS IN THE ENGLISH LAW Clayton, R and H. Tomlinson Fair Trial Rights pp 73-125
Ø English law provided no explicit general statements of rights in relation to the conduct of the legal process
Ø The due process is more related to American Judicial language, there is evidence for due process within English laws
Ø Clause 39 of the Magna Carta which refers to lawful judgement and the law of the land and the term due process does occur in a statute in 1354
Ø Edward Coke said there are due process ideas in the Bill of Rights of 1689
Ø There is a common law understanding of due process - nobody can be a judge in their own case and let the other side be heard
Ø Should the rules of natural justice include: advance disclosure of evidence, public oral hearing, legal representation, cross examination of witness and reasoned judgement
Ø To what extend to which Woolf reforms contain due process ideas and principles
Ø THE LAW UNDER THE EUROPEAN CONVENTION – SLAPPER AND KELLY C1 pp 25-26
Ø In order for the guarantees under Articles 6 to apply, there must be right, obligations or charge at stake and the proceedings must involve its determination.
Ø Thus Articles 6 does not apply to proceedings subsequent to convictions (see Golder v UK (1975) 1 EHRR 524
Ø To benefit from Article 6, the applicant must have an arguable right under domestic law
Ø Article 6(1) does not guarantee any particular substantive content for civil rights and obligations in national law, but provides only procedural guarantees for the determination of tenable rights.
Ø Although Articles 6(1) cannot be used to create a substantive civil right, it may apply in cases where domestic law contains immunities or procedural bars that limit the possibility of bringing potential claims to court.
Ø Implied Article 6 rights can be restricted in furtherance of a legitimate aim and where the measures taken are necessary for the achievement of this aim are proportionate
Ø Five questions to be asked when considering whether a public body has violated Article 6
o Is the body engaged in the determination of civil rights and obligations or a criminal charge?
o In the case of a criminal charge has there been any breach of the minimum guarantees in Articles 6(2) and 6(3)
o Has there been an infringement on express right to an independent and impartial tribunal, a hearing within reasonable time, public hearing
o Has there been an apparent infringement of the applicable implied fair trial rights. If so, was the infringement for a legitimate aim, necessary and proportionate
o Has the applicant waived the right in question?
Ø THE DEVELOPMENT OF ARTICLE 6 JURISPRUDENCE
Ø ECHR Cases
Ø H v Belgium (1987) 10 EHRR 339 – H was a Belgian citizen who had been struck off the roll of the Antwerp Bar. H had tried unsuccessfully to be reinstated. The court held that there had been a breach of Article 6 by the tribunal that had considered H’s re-admission. The decision was based on two grounds: no right to challenge the tribunal’s decision and the decision was not adequately reason.
Ø James v United Kingdom (1986) 8 EHRR 123 – The applicants were trustees of the Duke of Westminster who complained about the fact that the Tenants had made use of the Leasehold Reform Act 1967 to buy the properties from the estate and that the compulsory transfer and the prices received amounted to a breach of their article rights.
Ø The Court held that there had been no breach. Why? Article 6 does not guarantee any particular content for ‘civil rights and obligations’ in the substantive law of contracting state; and the applicant had unimpeded access to a tribunal competent to determine the issue
Ø Responses of the English Courts
Ø Fayed v United Kingdom (1994) 18 EHRR 393 - The Court rule that a fair balance had to be struck between the demands of the general interest of the community and requirements of the protection of the individual’s fundamental rights. It is not always easy to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law.
Ø Osman v United Kingdom (2000) 29 EHRR 245 - The appellant alleged the UK government had deprived them a right of action in negligence against the Police. The ECHR found that the appellants had been deprived of the right access to the court.
Ø ECHR argued that Article 6(1) embodies the ‘right to a court’ of which the right of access to institute proceedings before a court in civil matters, is one aspect
Ø The right is however subject to limitations, since the right to access by its very nature calls for regulation by the State. The final decision as the observance of the Convention rests with the Court. Limitation will only be compatible with Article 6(1) if it satisfies a legitimate aim, and if there is a reasonable relationship of proportionality between the means employed and the aim sought
Ø Sadler v General Medical Council (2004) HRLR 8 - The appellant was a surgeon suspended from the job in NHS Hospital by a disciplinary board. The Privy Council asserted that a practitioner whose professional performance is called into question is entitled to hearing by tribunal free from actual or apparent bias.
Ø The practitioner is also entitled to such further protection, which requires either that the decision-making body constitute an independent and impartial tribunal or if not, that its processes be subject to control by an appellate body with full jurisdiction to reverse its decision
Ø Art 6 did not allowed court to override national law
Ø What does the court mean by distinguishing between procedural and substantive rights?
Ø ARTICLE 6 AND CRIMINAL PROCEDURE - CLARK D, BEVAN AND LIDSTONE: The Investigation of Crime – A guide to he Law of Criminal Investigation (London: Butterworths, 2004 ISBN 0406957428) pp 12-26
Ø The issue of fair trial rights has come before the Privy Council in the case Clark (Procurator Fiscal) v Kelly (2003) UKPC D1). The Case concerned the extent to which the right to fair hearing was coherent with practice of Scottish District Courts, equivalent of magistrates’ courts in England and Wales.
Ø Looking at Lord Hope’s judgement shows how the judges are developing a jurisprudence of due process by reference to diverse legal sources.’
Ø The magistrate is not legally qualified but he is advised by court clerk who is legally qualified.
Ø The accused was contending that legal decisions were effectively taken by the clerk to the court, and that the clerk was not sufficiently independent, as he lack security of tenure. He also contented that legal advise given in private infringe on right to a public hearing under the relevant article of the Convention.
Ø The clerk is not strictly a member of the court: he cannot make rulings, and he cannot be held responsible for the decision of the court. But he is a qualified professional who is inculcated into an ethical code.
Ø There is a right of appeal from the District Court to the High Court of Judiciary – the procedure allow a review of a point of law, or an allegation that there has been a miscarriage of justice
Ø Albert and Le Compte v Belgium (1993) 5 EHRR 533 ECHR holds that either the judicial bodies under consideration must comply with Article 6(1) or if thet do not comply, then they are subject to a review by a body that does comply with the relevant article
Ø Bryan v United Kingdom (1995) 21 EHRR and Grand Chamber in Kingsley v United Kingdom (2002) 35 EHRR 177 – It would be necessary to provide the same level of scrutiny to a body making low level decisions.
Ø If the test is applied to Scottish Courts there are appropriate mechanisms that allow the superior court to review the decisions made by the inferior court
Ø ARTICLE 6 AND THE JURY
Ø Rojas v Berllaque (2004) HRLR 7
Ø Judicial Committee of the Privy Council
Ø Rojas v Berllaque was a case from Gibraltar heard by the Privy Council. The appellant was woman who objected to being tried by an all-male jury. The Privy Council allowed the appeal and asserted that since juries are chosen at random from jury lists, a non-discriminatory method of compilation of those lists was an essential ingredient of a fair trial by jury
Ø R v Mirza (2004) HRLR - Mirza was convicted of indecent assault. He appealed against the conviction based on a letter that had been written by one of the jurors which alleged that the verdict was subject to racial prejudice. The court also heard appeal from two other persons convicted for wounding offence based on letter received by crown court after the verdict but before sentencing.
Ø The Court of Appeal dismissed both the appeals holding that it was bound by R v Qureshi (2001) EWCA Crim 1807 (2002) 1 WLR 518 which had stated that the rule of Secrecy of Jury Deliberations after verdict.
Ø The CA however remit an important question of law to the House of Lord for determination: Were the common law rules that prohibit jury deliberations being admitted as evidence, in breach of Article 6 if that evidence suggested that the jury was not impartial
Ø The House of Lords ruled that attempt to soften the rule to serve the interests of those who claimed that they were unfairly treated should be resisted, if jurors were to continue to perform their vital function of safeguarding the liberty of every individual.
Ø The common law exception to the rule relation to situation where the jury was alleged to be affected by ‘extraneous influences i.e. declined to deliberate at all but decided the case by other means such as drawing lot or by toss of a coin, the court would intervene as such behaviour by the jury would amount to a complete repudiation by the jury of their only function which as the juror oath out it, was to give a true verdict according to the evidence
Ø R v Isidore Jack Lyons, Anthony Keith Parnes (2003) HRLR 6 – House of Lords has to determine whether the admission of answers given to Department of Trade and Industry (DTI) inspectors, who were acting under statutory powers could be cited as evidence and relied upon by the prosecution at trial. Did this amount to violation of Art. 6 and thus make the applicants’ convictions unsafe?
Ø The admission of the evidence by the Judge was held by the European Court of Human Rights to infringe the appellants’ right to fair trial under Art.6.
Ø The Court dismissed the application and held that that:
o The question of whether appellants’ convictions were unsafe was a matte of English law. The intention of parliament prevailed over whatever obligations may arise from the ECHR and the judgements of European Court of Human Rights
o While a judgement of the European Court of Human Rights may be binding on the United Kingdom, it was not directly binding on the domestic courts
Ø Article 6 is having a significant impact on criminal procedure in various jurisdictions
Ø THE PROBLEMATIC DISTINCTION BETWEEN SUBSTANTIVE AND PROCEDURAL RIGHTS
Ø Article 6 rights relates to procedure
Ø Difficulty can be experienced by the courts in determining the precise nature of a procedural right and a substantive right
Ø Mathew v Ministry of Defence (2004) HRLR 2 – The claimant served in the Royal Navy and claimed to have contracted asbestosis in the course of his duties.
Ø The Ministry of Defence obtained a certificate under the Crown Proceedings Act 1947 that the Crown was not liable to the claimant.
Ø On trial of preliminary issues it was held that relevant section of the 1947 Act was not compatible with Article 6.
Ø The Crown successfully appealed and the claimant then appealed to the House of Lord
Ø The House of Lords dismissed the appeal on the ground that as the 1974 Act did not provide a procedural bar it fell outside Article 6. It went on to argue that the claimant had not substantive right to sue the Crown in tort. If he had to civil right then Article 6 could not apply.
Ø Mathews show that claimant’s substantive rights in domestic law is nonetheless the first essential step towards deciding whether he can utilise Article 6 to his advantage.
Ø It is thus possible to argue that the right was not procedural, but substantive to avoid article 6.
Ø This approach was successfully used in Re Deep Vein Thrombosis and Air Travel Group Litigation (2002) EWHC 2825; Wilson v First County Trust Ltd (2003) UKHL 40 c.f., Masterman-Lister v Brutton and Co. (2002) EWCA Civ 1889There is the difficulty of the THE Mirza was convicted of indecent assault. He appealed against the conviction based on a letter that had been written by one of the jurors which alleged that the verdict was subject to racial prejudice. The court also heard appeal from two other persons convicted for wounding offence based on letter received by crown court after the verdict but before sentencing.
Ø The Courts also stressed that the rationale which underlay the common law rule had been accepted by the European Court of Human Rights. The ECH
Ø THE IMPACT OF PINOCHET SLAPPER AND KELLY pp 229-234
Ø R v Bow Street Stipendary Magistrate and others, ex parte Pinochet Ugarte No. 1
Ø One of the most interesting areas in which we can study the impact of Article 6 on the common law is the question of judicial bias.
Ø General Augusto Pinochet Ugarte a former ruler of from 1973-1990 who came to power through coup d’etat. After handing over he came a Senator for life and was given immunity
Ø Pinochet entered UK in 1999 for medical treatment and warrant of arrest was issued by a British Court under the Extradition Act of 1989 for extradition to Spain to answer charges of for human right abuses, etc
Ø Pinochet claimed immunity under State Immunity Act 1998, for Head of State and ‘act of state’ immunity
Ø The House of Lords held that a claim of immunity is only applicable for acts performed by former head of state in the exercise of his function while act of torture and hostage did not qualify as such function. The act of state immunity did not also apply
Ø R v Bow Street Stipendary Magistrate and others, ex parte Pinochet Ugarte No. 2 (1999) 1 All ER 577
Ø Amnesty International was granted leave to intervene in the proceedings before the House of Lords before the House of Lord restored the warrant
Ø Pinochet then discovered that one of the law lords in the majority was a director and Chair of Amnesty International Charity Limited (AICL) and petitioned the house to set aside the order.
Ø It is ‘of fundamental importance that justice should be not only be done’ but should manifestly and undoubtedly be seen to be done (R v Sussex Justices ex. P. McCarthy (19124) 1 KB 256
Ø Lord Browne-Wilkinson’s Advice ‘ The central principle was that the House of Lord, as the ultimate court of appeal, had the power to correct any injustice committed by any earlier order of the House, this jurisdiction remains unfettered as there was no statutory limitation, and can be evidence by the case Cassell v Broome (1972) 2 All ER 849
Ø The House will re-open a case where, through no fault of the party in question, he or she has been subjected to unfair procedure. The essential notion is unfair procedure and not wrong decision.
Ø In Pinochet chase it was a case of apparent bias and not actual bias
Ø A judge would be automatically disqualified if (Dimes v Proprietors of the Grand Junction Canal (1852) 3 House of Lords Cas 79)
o He is a party to the action or has an interest
o He is not a party to the dispute and does not have financial interest but has some connection with the issue at stake that may make for suspicion that he is not impartial
o A judge must not be compromised by any direct or indirect interest in the action
Ø In Pinochet case Lord Hoffman because he has no financial interest, but because he was a director of the company which control one of the parties to the case it was decided that the principle should be extended to non pecuniary interest and judicial impartiality would be maintained if he was indeed disqualified from the case.
Ø The impartiality of the judge be above suspicion (R v Gough (1993) 2 All ER 724, so settled was the case that no court in the UK has challenged it.
Ø Justice must not only be done, but it must be seen to have been done
Ø The broad principle is ‘the judge must bring to bear ‘an unbiased and impartial mind’ and he must be seen to be impartial.
Ø POST-PINOCHET AUTHORITIES
Ø Locabail (UK) Ltd v Bayfield Properties Ltd and another, Locabai (UK) Ltd and another v Waldorf Investment Corp and other, Timmins v Gormley, Williams v HM Inspector of Taxes and other, R V Bristol Betting and Gaming Licencing Committee; O’Gallaghan (2000) 1 All ER 65
Ø Where it is alleged that there is a real danger or possibility of bias, it might be necessary to apply the real danger of bias test
Ø Members of the bar appointed for judicial function are to provide information on their past of continuing professional or personal association which may impair their judicial impartiality. Solicitor could avoid this by conducting a conflict search before embarking on the trial
Ø A judge must recuse himself from a case before any objection is made if the circumstances give rise to automatic disqualification or he feels personally embarrassed in hearing the case. If it was during the trial the judge must disclose to the parties in advance of the hearing
Ø Objection cannot he based on judge’s religion, sexual orientation, age, class, social and educational, service or employment background, membership of social, sporting or charitable bodies, Masonic association, previous judicial decision, extra curricular activities
Ø Real danger may arise if there is a personal animosity between the judge and any member of the public involved in the case; rejected an individual credibility in an outspoken manner as to throw doubt in his ability to a approach the person’s evidence with an open mind on a later occasion
Ø If the judge has expressed view in the course of hearing in an unbalanced term that cast doubt on his ability to bring an objective judgement to bear on the case
Ø It is sufficient to disclose what he know and if in the course of hearing he learns additional facts, he must also disclose those fact
Ø ARTICLE T AND JUDICIAL BIAS
Ø Porter v Magill (2002) 2 AC 359 establishes the new test for bias
Ø Lord Hope discussed the impact of Article 6 and the Strasbourg Jurisprudence and looked at a passage in Re. Medicaments and Related Classes of Goods (No. 2) (2001) I WLR 700 (also known as Director-General of Fair Trading v Proprietary Association of Great Britain)
Ø The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased.
Ø It must ask whether those circumstances would lead a a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same that the tribunal was biased,
Ø Whether a fair minded and informed observer having considered the fact would conclude that there was a real possibility that the tribunal was biased,
Ø The test was further elaborate in Jones v DAS Legal Expenses Insurance Co. Ltd & Ors (2003) WL 21554681 – Appeal from an employment tribunal that presided over a sex-discrimination case. The appeal was based on the fact that the Chairwoman of the Tribunal was married to a barrister who chambers work for DAS, the Company that employed the appellant. The appeal was dismissed
Ø How did Porter v Magill (2002) 2 AC 359 changed the test for bias?
Ø THE CIVIL PROCESS
Ø Civil Procedures is the law concerning civil litigation, we term the overall process of civil litigation the ‘civil justice process’
Ø Criminal justice system pits the state and its agencies against the citizen while the civil justice system essentially involves different individuals, companies or groups of individual using the legal system as a forum for seeking redress and/or resolving their disputes
Ø The government is involved in the process to avoid leaving justice for the powerful
Ø While the Department for constitutional affairs has taken on the role of organising and reviewing the civil justice system, it wants the system to be self-financing by levying of fees on its users.
Ø It would be a mistake to adopt court-centred notion of civil justice or down-play the issues of social justice and democratic access to the resolution of disputes
Ø The biggest attempt to reform the process has been carried out as result of the measures introduced following the report made by Lord Woolf. Many of the measures that he recommended have been carried out and examination questions are likely to ask you to analyse their impact.
Ø THE PRINCIPLE OF CIVIL PROCEDURE AND THE PROCESS OF ACTION
Ø Neil Andrews (1994) suggested that if a visitor from another planet spent months studying the English civil procedure, he would obseve
§ The remoteness of law and lawyers who take litigation out of the hands of the parties
§ The dominance of lawyers and marginal importance of the courts – court does not become involved unless one party request
§ Technicality of the procedure
§ Each side almost tries to bankrupt the other by employ costly procedures
§ Slow pace of progress in litigation
§ High cost
§ The professionalism of the judge
Ø The process seems to assume equality of resources on both sides
Ø The cost of funding civil actions at public expense and the cost of providing judges and court time for large number of cases has concerned successive Lord Chancellors
Ø Practitioners have complained about the delay that exist within the system
Ø The complaints lead to the establishment of the Civil Justice Review in 1985
Ø In its report the review identified delay, cost, complexity and access to justice ; the disadvantages of adversarial procedure and the tradition of orality
Ø Review of the procedures lead to Courts and Legal Services Act 1990
Ø THREE BROAD ROLES FOR LITIGATION IN THE CIVIL JUSTICE SYSTEM
Ø Rule-making formulation and explanation of guiding legal principles and authoritative interpretation of legislation
Ø Determination – the authoritative determination of disputes by adjudication
Ø Dispute resolution – the resolution of disputes between parties by dispute resolution process that include adjudication
Ø WHAT IS THE REALITY OF THE PROCES
Ø Crownie and Bradney and Zander make clear that majority of the civil disputes commenced within the court systems are not determined by adjudication within a hearing. Majority of civil actions are resolved on the basis of compromise and out of court settlement
Ø In 1998-99 2 million cases were started in County court, but there were only around 120,000 trials another 100,000 small claim arbitrations (following the new civil procedure rules
Ø The court will grind to a halt if every case commenced were to proceed to trial, but the question is whether the practice of settling out of court necessarily results in just outcomes for the litigants
Ø THE COURTS: ROLE AND IMAGE
Ø Courts provide a medium through which law is created, explained and applied
Ø FIVE BASIC OBJECTIVES OF THE CIVIL JUSTICE SYSTEM
Ø The Process Should be Just
Ø Achieving justice is generally considered a fundamental objective of the adjudication and dispute resolution
Ø Consistent application of legal rules to a dispute may result in just adjudication whereas direct and full participation by the parties may be essential to just mediation.
Ø The Process should be accessible
Ø Appropriate dispute resolution process exist and are accessible
Ø Barriers to participation such as cost are reduced or serve channel parties into more appropriate forms of dispute resolution
Ø Parties and their advisers understand the process, their roles and reasons for outcome
Ø The Process Should be Efficient
Ø Appropriate public funding of courts and DRp
Ø Reduce litigation cost and avoid repetitive or unnecessary activities in case preparation and presentation
Ø Need to consider interest of other parties waiting to make use of the court
Ø The Process should be timely
Ø Minimising the delay between commencement of proceeding and hearing of dispute
Ø Time taken to resolve dispute once the resolution process has commenced
Ø Time which parties, legal representatives, witnesses, judicial officers and others must devote to the process
Ø The Process Should be Effective
Ø Encourage compliance with the outcome of the process
Ø At the conclusion, there should be no need to result to another forum r process in order to finalise the dispute
Ø The process should promote certainty in the law
Ø The objectives may conflict with one another e.g. allowing parties the opportunity to present their case and participate in the process may compromise both efficiency and timeliness of the process.
Ø Having a process that is not understandable or effective may dissuade people from making claims in the first place
Ø Others are of the opinion that the society is too litigious, that people are turning to the law, instead of working out their personal problems informally
Ø THE STREAMING OF DISPUTES
Ø The criteria for determining the appropriate courts include:
o Amount in disputes
o The subject matter of the dispute – social situation, legal characterisation of the issues to be decided
o Relief being sought
o Geographical location; and
o Type of parties
Ø The need for more principled criteria for classifying disputes becomes critical if policy decisions are to be made, for example
o Restrict access to the courts to certain types of business
o Divert disputes away from courts and into other dispute resolution forums
o Divert cases within courts away from court-based adjudication and into forms of court-connected Alternative Dispute Resolution (ADR)
Ø Some of the factors that may affect decisions on streaming include:
o Nature of dispute, area of law or social practice
o Factual complexity, expert advice etc
o Legal complexity – authority of precedents
o Nature of litigants – singer or multu-party, government, corporations, non-profit organisation, legal representation etc.
o Parties legal advisers and experience
o Stage of dispute resolution process
o Dispute resolution options available in terms of cost and accessibility
o Objectives of the parties
o Relationship between parties and whether relationship is continuing
Ø ADR may provide satisfactory alternative to formal proceedings in a large number of cases
Ø UNDERSTANDING THE PROCESS: A VEIW FROM 1987
Ø The first in-depth picture of the process by which lawyers and insurance companies pursue their claims and settle disputes was provided by research conducted by Hazel Genn and published in 1987
Ø Genn emphasised that the business of courts represent only a small fraction of the legal and para-legal activities that surround resolution of civil disputes
Ø Claimants have varied backgrounds and histories, no experience of personal injury litigation; and il-informed expectation of the outcome of the actions
Ø Conversely, defendants have common characteristics, endless experience of personal litigation and clear expectation of the outcome of claims.
Ø Glenn refuted the assumption that settlement was cheaper, quicker and less stressful for the parties
Ø We often have a context between a ‘repeat player’ with large resources in terms of finance and access to expertise, against a ‘one-shotter’ with few of these resources at his disposal.
Ø Although legal aid offer some assistance to ‘one shotter’ the game is loaded in favour of the repeat player
Ø Genn explains that while in the united states civil litigation is characterised by all cards on the table, the English system fosters ‘trial by ambush’. In England the procedural rules enable evidence to be concealed for longer
Ø THE WOLF REPORT: ‘ACCESS TO JUSTICE’
Ø In recent years the most radical changes to the civil process stems from Lord Woof’s Civil Justice Review Commissioned in 1994
Ø His review gave an Interim Report in 1995 ‘Access to Justice’ which contained 124 recommendations and a final report in July 1996 with 303 recommendation (accompanied by a white paper) ‘Striking the balance – the future of legal Aid in England and Wales’
Ø Lord Woolf claimed that the civil justice had become excessively, slow, complex and expensive, costs and become disproportionate to the issues involved in litigation, there was undue complexity of law and court procedure, uncertainty about how much time and money would be required; and unfairness
Ø Lord Woolf sought to:
o Encourage parties to explore alternatives to the resolution of a dispute by a court
o Introduce a single set of rules governing proceedings in the High Court and the County Courts
o Enable a shorted timetable for cases to reach court and for the length of trials
o More case management by judges
Ø Cases would be allocated to one of three tracks, in accordance with their financial value and complexity as follows:
o An extended small claim jurisdiction for all cases up to £3,000 and later raised to £5,000, except personal injury case)
o A new fact track with limited procedures, tight but realistic timetables and fixed costs, for all personal injury cases up to £10,000 and other cases between £5,000 and £15,000
o A new multi-track with appropriate judicial case management and timetables set and monitored by the court for cases over £10,000 and later raised to £15,000) and cases below that value which are sufficiently complex
Ø The report proposed partnership of judicial and administrative responsibility for civil justice
Ø Lord Woof’s final report included detailed proposal on
o Fast track procedure
o Fast track costs
o Costs
o Pre-action protocols
o Offers to settle
o Medical negligence
o Housing
o Multi-law actions
o Judicial review

Ø Lord Woolf claimed that if the recommendations are implemented, the changes would create a new landscape for English civil justice with the following features:
o Litigation to be avoided where possible
§ People to be encouraged to use ADR whenever possible and court action as a last resort
§ Pre-action protocol will allow parties to obtain information
§ Information on sources of ADR to be provided at all civil courts
§ Legal aid funding to be available for pre-litigation resolution and ADR
§ Before commencing litigation, both parties should be able to make offers to settle disputes
o Litigation to be less adversarial and more c-operative
§ Expectation of openness and co-operation between parties from onset supported by pre-litigation protocols on disclosure and expert evidence
§ Court is to encourage the use of ADR at case management conferences and pre-trial reviews
§ The duty of expert witness to the court should be emphasised. Single experts, instructed by both parties are to be used whenever possible
o Litigation to be less complex
§ Single set of rules for the High Court and County Courts
§ All proceedings to be commenced by a claim in the same way in any court
§ The claim and defence documents not to be technical but should make clear and real issues between parties
§ Unified code for appeals to the high court against decisions of other bodies
o Timescale of Litigation to be shorter and more certain
§ All cases to progress to trial on a timetable set and monitored by the court
§ On the fast track there should be fixed timetable, normally of no more than 30 weeks
§ The Court to apply strict sanctions to parties who do not comply with procedures and timetable
§ Appeal from case management decisions to be kept to the minimum and to be dealt with speed and efficiency
§ The court should determine the length of the trial and what is to happen at the trial
o The cost of Litigation to be more affordable, more predictable, and more proportionate to the value and complexity of individual cases
§ There should be fixed cost for fast-track cases
§ Estimates of cost of multi-tracks to be published by the court and agreed by the parties and approved by the court
§ There should be a special streamline’ track for lower-value or less complex multi-track cases, where the procedure is as simple as possible, with appropriate budgets for cost
§ The court should issue guidelines cost for classes of litigation where the procedure is uncompromised and predictable (final report)
§ There should be a new test for the taxation of costs to further the overriding objective
o Parties of Limited financial means to be able to conduct litigation on a more equal footing
§ Procedural judges should take account of parties financial circumstances in allocating cases to the appropriate track
§ Limited procedures and tight timetables on the fast track and judicial case management on multi-track to make it more difficult for wealthier parties to gain a tactical advantage over their opponents by additional expenditure
§ When deciding procedure and where parties are equal the court should be entitled to order for a more elaborate procedure where the parties agreed
§ The new approach to be support by more effective sanction including orders for cost in a fixed sum which are to be paid immediately
o Line of judicial and administrative responsibility for the civil justice system to be clear
§ The Vice Chancellor, as head of civil justice to have overall responsibility for the civil justice
§ The presiding judges on each circuit will exercise their responsibility for civil work in conjunction with the two chancery judges who will also oversee the business and merchantile lists
§ A nominated circuit judge will be responsible for the effective organisation of each civil trial centre and its satellite courts
§ The new administrative structures will establish a partnership between judiciary and the Court Service
o The structure of the courts and the deployment of judges to be re-designed to meet the needs of litigants
§ Heavier and more complex cases to be concentrated at trial centres with adequate resources to deal with them
§ The court should use information technology (IT) to monitor the progress of litigation and there should be video and telephone conferencing facilities
§ Trial to take place on the date assigned.
o Judges to be deployed effectively so that they can manage litigation in accordance with the new rules and protocol
§ Judges to be given training to encourage specialisation
§ Judges to have the administrative and technological support they need to manage cases effectively
§ Cases to be dealt with by the part of the system which is most appropriate
o The Civil Justice System to be more responsive to the needs of litigants
§ Courts to provide advise and assistance to litigants through court-based or duty advice assistance schemes
§ Courts to provide more information to litigants through leaflets, video, telephone helplines and information
§ Court staff to provide information and help litigants on how to progress their cases
§ There should be ongoing monitoring and research on litigant’s needs
§
Ø RESPONSES TO LORD WOOLF’S PROPOSALS
Ø Lord Woolf’s proposals met with a great deal of acceptance and some criticism
Ø Professor Zander mounted a campaign against them
Ø Professor Zander argued that there the problem with the system were due to deeply in-built features of English legal culture and very nature of the task of going to court. There was no research on what was wrong with the system before the recommendations
Ø The Labour Government asked Sir Peter Middleton to review the proposed reform and he reported in September 1997 which largely endorsed the recommendations.
Ø Hazel Genn
o The Lord Chancellor Department appears to be committed to policies which involve making litigants bear more of the costs of court services, control of what lawyers charge, and encouraging a shift away from the courts and towards the cluster of private activities that come under the umbrella of ADR
o The new role envisaged for the state involves the regulation of markets rather than the direct provision of services
o What and whom is the civil justice system for? What social function does it serve? Why does the state accept responsibility for providing means of adjudicating civil disputes and right claims
Ø A NEW SYSTEM
Ø The Civil Procedure Act 1997 laid out the new terrain
Ø Section 1 provided for one set of practice rules for the court of appeal, high court and county courts
Ø Section 2 provided for a civil court rule committee to include people with experience in and knowledge of consumer affairs and lay advice
Ø Section 6 establish a civil justice council comprising the Master of the Rolls (who in 1999 was Lord Woolf), judges, lawyers, consumer/lay advice and litigant representatives, to keep the civil justice under review and advice the Lord Chancellor and suggest research
Ø Civil Procedure Rules 1998 produced one simplified set of rules for the high courts and county courts.
Ø The rules were accompanied by over 50 practice directions.
Ø The rules were drafted in plain English, introduced judicial case management, were in line with Woolf’s recommendations, processed cased depending on their value, complexity and importance
Ø A central point was a pre-action protocol for cases which set standards and timetable for cases, require proper exchange of information, sought to make it easier to make realistic assessment of the case, encourage out-of-court settlement, enable judges to apply sanctions if the rules were breached
Ø A key tactic was the promotion of offers to settle
Ø THE 1998 RULES AND THE NEW REGIME
Ø The rules enable the court to deal with a case justly by
o Ensuring parties are on equal footing
o Saving expense
o Dealing with the case in a way which is proportionate – money involved, importance, complexity, financial position of parties
o Ensuring that it is dealt with expeditiously and fairly
o Allotting to it an appropriate share of the court resources
Ø The CA has held that there is no need to refer to Article 6 of the ECHR because of the court’s obligations to the rules to deal with cases justly (Daniels v Walker)
Ø THE OPERATION OF SMALL CLAIMS PROCEDURES
Ø In county courts relatively minor amount are heard informally
Ø The small claim procedure is described as a form of arbitration – proceedings are held in private and the arbitrator can adopt any method of proceeding which he considers convenient
Ø It is not economical to employ lawyers
Ø Civil Justice reviews show that over 80% of the plaintiffs were happy with the small claims procedure but half of the unrepresented litigants thought the judge did not in fact assist then in presenting the case
Ø ASSESSMENT OF THE NEW SYSTEM
Ø Assessment are work in progress
Ø David Gladwell (LCD) www.lcd.gov.uk/civil/emerge.
Ø The new law journal 2003, Zander stated that majority of those concerned with the civil litigation business seem to believe that the Woolf reforms are working quite well, even those who have concerns are mainly, on balance, positive. As benefits listed include the following:
o A less adversarial culture is developing confounding the view of pessimists
o Pre-action protocols appear to be working to promote earlier settlement and probably more settlement
o Pre-action protocols allows cases to be settled with more information
o The possibility of part 36 seems to be helping to achieve earlier and perhaps more settlement
o The use of single experts is working better that critics feared
o The fact that parties can be ordered to pay the cost of interlocutory applications right away has resulted in fewer interlocutory applications
Ø The concerns include:
o The fall in the number of cases issues (not directly attributable to Woolf reforms)
o Costs – cost has actually increasing due to front loading
o Delay – No sizeable decrease in delay average waiting time in the high court in 2001 was 173 week compared to 164 in 2000, 174 in 1999 and 178 in 1998.
o Inconsistent decisions – discretion has lead to increase in non-appellable but inconsistent decisions e.g. assessment of costs, sanctions generally, timetable targets, use and number of experts, case management decisions, pre-action disclosure, and security for costs
o Unjust application of sanctions – judges differ as to how rigorously they will apply the rules and sanction for breach of rules
o Courts appear to be under-resource with respect to IT
Ø He concluded that on the balance, the disadvantages outweigh the advantages
Ø THE POLITICAL ECONOMY OF JUSTICE – SLAPPER AND KELLY CHAPTER 12: The Funding of Legal Services; Goriely T. Rushcliffe fifty years on: The Changing Role of Civil legal aid within the Welfare State: Journal of the Law and Society 21 1994, 546-556
Ø LEGAL AID AND LEGAL SERVICES: OVERVIEW AND HISTORY OF THE PROBLEM
Ø The Legal Aid Scheme was set up after the World War too by the Legal Aid and Advice Act 1949
Ø The administration of legal aid was in the hands of the law society from 1949-1989 unlike the NHS (a state body)
Ø INHERENCT PROBLEMS OF THE SYSTEM
Ø The recent history of legal aid in Britain is a story of failure as the system became increasingly expensive to run while catering for fewer and fewer people
Ø In 1950 80% of the population were covered by the legal aid provision, but by 1998 the figure has fallen to less than 40%
Ø In 1970s the scope of eligibility was expanded driven largely by the need to provide legal resources for divorce proceedings
Ø Later economic recession meant less government funding and at the same time pressure on the system from social problems caused by unemployment
Ø Critical period was the Thatcher and Major Conservative Administration with the policy of cutting public spending and looking towards ‘the market’ to provide solutions
Ø The legal aid doubled to £1.4 billion over a four year period to 1995
Ø Various Lord Chancellors embarked on reforms which included changing of the payment system, eligibility criteria revised and control moved from the Law Society to the Legal Aid Board (LAB) (Legal Aid Act 1988)
Ø When Labour Party came to power in 1997 it continue with the endeavour to control legal aid expenditure
Ø In 1993 standard fees (fixing tariff for certain kind of work) for criminal legal aid in the magistrate courts were introduced and practice of franchising (block contracting) initiated
Ø Inspite of the changes cost continued to rise and fewer people were becoming ineligible. Increase in expenditure was not accompanied by increase in value for money
Ø In 1996 Lord Mackat ‘capped’ the legal aid budget. Regional authorities of the LAB were given a lump sum and once the money is spent no more was made available
Ø Complex cases fell outside the scope of the standard fees and were still paid under the traditional system of calculating the bill after the event
Ø It was thought that this offered lawyers inappropriate financial incentives which meant that funds were not being used effectively
Ø In 1996-96, 42% of legal aid spending in the crown court was just of 1% of the cases
Ø Some though lawyers were playing the system, seeking un-necessary adjournments, and delaying guilty pleas.
Ø Sir Peter Middleton’s Review of the Civil Justice was presented to the Lord Chancellor in September 1997 – over 7 years the cost of civil and family aid has tripled to £671 million, average cost has grown from £1,442 to £2,684 – 53% above inflation. The numbers of acts help funded in1996/97 fell by about 39,000. The taxpayers and paying more and getting less. That cannot be right and it cannot continue
Ø THE LEGAL AID SCHEME
Ø Legal Advice and Assistance (Green Form Scheme) – Two hours of advise on any legal problem; this excluded court work. At the beginning of the 1990 there were a million cases a years
Ø Assistance by way of representation (ABWOR) – ABWOR allowed representation in courts. It applied to domestic proceedings in magistrates’ court, representation in relation to mental health tribunal, representation under PACE and certain child care proceedings.
Ø Civil Legal Aid – This aid covered work involved in bringing or defending a civil case in court. Under Legal Aid Act of 1988 (s.15(2) a grant of legal aid depended on both a merit test and a means test
Ø Merit Test – First part assess the claimant’s chances of success; second part was based on the criteria of a reasonable solicitor advising a reasonable client (spending his means on the case)
Ø Mean Test – those of very low income, or with no disposable capital who would be entitled to free legal aid; those who are eligible to legal aid bit had to pay a contribution and those wealthy enough to fall outside eligibility altogether
Ø CRIMINAL LEGAL AID – In general, criminal legal aid applied to defendants after they had been charged; legal aid would be granted by a court after an application was made either to the magistrate court or the crown court
Ø The Court has discretion, the test being whether it was desirable in the interest of justice that the aid should be given (LAA 21(2). Consideration include to avoid denial of liberty and complexity of the case and whether the application is financially eligible
Ø Legal aid is obligatory for an accused on trial for murder in the Crown Court 21(3)(a)
Ø A duty solicitors scheme set up in Magistrates Courts and Police station was non-means tested and non-contributory. This is free and was set up to cover the requirements of PACE
Ø There were also duty solicitor schemes in police stations and magistrate courts. This is run by local solicitors on rota basis, the scheme is also free and provide legal assistance to those without representation
Ø Recap - civil legal aid problems were not just rising costs, but decreasing group of people who were eligible. Many people of modest incomes fell outside these criteria. They were thus effectively prevented from using the courts because they were too expensive. There were also concerns at the inflexibility of the system. It was difficult to target resources on priority areas. There were areas of unmet need. Ideas for reform focused on the framework for determining lawyers’ rates of pay, which was seen to be inflexible. Standard fees were seen as an improvement, as they allow more government control over expenditure on legal services.
Ø REFORM OF LEGAL AID: SOLUTIONS TO THE FUNDING PROBLEM – SLAPPER AND KELLY CHAPTER 12 pp 580-613
Ø Conditional fees in civil litigation – Conditions fees or ‘no-win-no-fee’ arranged is a form of risk sharing. If lawyer loses the case, the client does not pay. If the case is won, the lawyer can be re-compensated through success fees, which is work out as a percentage of his costs. The maximum fee was set at 100% of the lawyer’s normal fee for the work undertaken
Ø A lawyer is unlikely to take on a case that only has a low chance of being successful. Weaker case would not be funded
Ø Conditional fees encourage lawyers to manager their work efficiently
Ø They were first introduced by s.58 of the Court and Legal Services Act 1990.
Ø The range of cases covered was extended in 1995. It can now apply to proceedings involving personal injury, insolvency and cases before the European Commission and European Court of Human Rights.
Ø In 1995 the Law Society issued a code of guidance which suggested voluntary limit of 25% of any damages that could be taken as success fee
Ø The law society also arranged a scheme of insurance for their client against meeting their opponents’ costs in personal injury cases
Ø LEGAL EXPENSES INSURANCE
Ø Before the event Insurance (BEI) – General form of insurance against legal cost that may occur, often part of broader insurance policy or as stand alone. Compared to AEI, BEI is cheap and flexible.
Ø After the Event Insurance (AEI) - covers the insured person against the risks of losing a court case. It works alongside conditional fee arrangement and provide cover if the insured person is unsuccessful in the litigation and has to pay the costs of the opposing party.
Ø The premium can be high and compared to BEI it is more complex to administer, there is also problem if the costs exceed the insured limit.
Ø O’Hare and Hill (2001) predicted that there will be increasing demand for BEI in England and Wales
Ø Compared with Germany - 20,000 more practicing lawyers in Germany than England and Wales; BEI funded 337,000 cases in E&W with a fee revenue of £105 million, while in Germany it funded 3 million cases generating £800 million in fees. There was no equivalent of legal aid scheme then operating in Germany
Ø MIDDLETON REVIEW
Ø Middleton review proposed a central body to become more active in the delivery of legal services
Ø Lawyers and other providers will only be able to work under the scheme when they have a contract with or a grant from the Legal Services Commission (LSC) s.13.3.1.
Ø Why – all contracts would have less bureaucracy than case by case consideration
Ø Competition will bring better value
Ø Greater sensitivity to regional variations in price and demand
Ø Contract could contain incentives to do certain kind of work, and to allow some of risk of litigation to be borne by the solicitor’s firms rather than their clients
Ø CRITICISMS OF CONDITIONAL FEES AND LEGAL EXPENSES INSURANCE
Ø Legal Aid Group had pointed out problems with the lack of regulation of companies who manage the claims
Ø Research suggest that the services of these intermediaries are relatively costly to clients and yet yield less in terms of settlement levels, even though they take on a relatively low-risk caseload
Ø The main contribution of referral agent is one of which, they are able to advertise widely and encourage large number of claimants to enter Conditional Fee Arrangements (CFAs)
Ø LAG has argue that the insurance companies are driven by profit, rather than interest of their clients
Ø The failure of two insurance companies (Claim Direct and The Accident Group) suggests there is need for government intervention
Ø Legal Expenses Insurance has been part of household insurance policy in Sweden since 1960s and the withdrawal of state funded aid was felt less acutely
Ø 97% of the country have this form of insurance but disadvantaged groups do not
Ø It has been suggested that it encourages litigation rather than settlement
Ø LAG suggests that LEI might naturally overtake CFAs as the preferred means of funding for many civil claims in this jurisdiction,
Ø ACCESS TO JUSTICE ACT 1999 – SLAPPER AND KELLY C12 pp 580-610
Ø Community Legal Service – The Legal Service Commission (LSC) was created under Access to Justice Act 1999 to establish, maintain and develop a Community Legal Service (CLS launched 1 April, 2001) and Criminal Defence Service (CDS)
Ø The LSC replaced the Legal Aid Board (LAB)
Ø CLS fund is said to rest on certain key foundational ideas:
o A planning system - this will allocate resources by reference to national and regional priorities, ensuring that these resources are available in areas of greatest importance and need
o Contracting – Contracts will allow the system to be more sensitive to needs ‘on the ground’ – greater value for money and way if monitoring standard
o A new funding assessment – s.8 of the Act. The assessment determine which cases will be funded. It revises the merit test
Ø CRIMININAL DEFENCE SERVICE
Ø The old criminal legal aid scheme is replaced by CDS
Ø CDS is separate from CLS because they are both located in different parts of the justice sytem
Ø The CDS covers representation in court and advise and assistance for suspect being questioned by the Police
Ø The administration of CDS will focus on quality and value for money
Ø CONTRACTING
Ø Most publicly-funded CDSs will be by provided by lawyers in private practice under contracts
Ø The contract will cover full range of CDS from advice at the police station, to representation in magistrate courts and if necessary crown court
Ø One advantage of the system is that it would eliminate fragmentation that characterises the old legal aid scheme
Ø If the case do require the services of a specialist advocate in the Crown Court, this would be provided under a separate contract
Ø SALARY DEFENDERS
Ø CDS should be able to employ lawyers directly as salaried defenders. Evidence from other countries suggest that properly funded salaried defenders can be more cost-effective and provide a better service than lawyers in private practice
Ø The government believes in the longer term, the best approach will prove to be a mixed system, combination of both private and staff lawyers
Ø The cost of salaried services will provide a benchmark, which the CDS can use to assess whether the prices charged by private lawyers are reasonable
Ø THE FUNDING CODE
Ø The funding code is the set of rules used to decide which individual cases are to be funded by the Legal Services Commission as part of the Community Legal Services. It replaces the ‘merit test’ for civil legal aid. The criteria define what services the commission will fund, ranging from basis legal service advice to representation in court proceedings. Different criteria are set for different type of case according to the Lord Chancellor’s priorities
Ø FUNDING CIVIL LITIGATION AND ADVICE
Ø Levels of Service – Legal help, help at court, approved family help, legal representation, support funding, family mediation.
Ø How the Funding codes defines the levels of services
o Help at court – authorises help and advocacy for a client in relation to a particular hearing, but does not cover a lawyer acting formally
o Legal representation – cover representation for a party extending to litigation and advocacy – investigative help and full representation which covers proceeding so far as disclosure and full representation, which means a grant of legal representation other than investigative help
o Support funding – grant which authorises the same level of legal representation, but which is limited to partial funding of proceedings which are otherwise being pursued privately, under or with a view to conditional fee agreement
o Investigative support – means support which is limited to investigation of the strength of the proposed claim with a view to a conditional fee agreement
o Litigation support – mean grant of support funding other than investigative support. It covers partial funding of high cost litigation proceedings under a conditional fee arrangement
o Approved Family Help – grant which authorises help in relation to a family dispute including assistance in resolving that dispute through negotiation or otherwise
o Help with Mediation – approve family help limited to advice to a client in support of family mediation, held in drawing up any agreement reach in mediation and where appropriate help in confirming such agreement in a court order and related conveyancing work.
o General Family Help – approved family held other than help with mediation
o Family Mediation – grant which authorising mediation of family disputes, including assessing whether mediation appears suitable to the dispute and the parties and all the circumstances
o Emergency representation – a special procedure by which legal representation may be provided prior to full assessment of means in cases of urgency. It does not have criteria. This work will be carried out under contract for which separate application to the commission is not required at the onset of each case. Majority of controlled work will be authorised under the Commission’s General Civil Contract, unlike legal aid no certificates are issued for controlled work
o Licensed Work, Individual case contracts, Other grants or contract work
Ø MERITS, COST AND DAMAGES
Ø Prospects of success - The likelihood of the client obtaining a successful outcome in the proceedings, assuming the were determined at trial or other final hearing
Ø Categories - very good 80% and above, Good 60%-80%, Moderate 50%-60%; Borderline – difficult dispute of fact, law or expert evidence it is difficult to say prospect is better than 50%; Poor less than 50% likely to fail; unclear means cannot be placed into any of the categories further investigations required.
Ø Unclear – funding may only take the form of investigative help. This also apply to support funding
Ø In general sense, the prospect of success could be said to be unclear in almost every case – only limited information. Cases should only be put in unclear categories only if there are specific steps which need to be taken
Ø Clinical negligence case are best example of unclear cass
Ø COST-BENEFIT CRITERIA
Ø Criteria for full representation include three separate cost benefit tests – Quantifiable claims (specific strict damages-to-costs rations); Unquantifiable (whether benefits justify the likely cost) Public interest (likely benefits of the proceedings must justify the likely cost)
Ø FUNDING CRIMINAL LITIGATOON
Ø The old system of criminal legal aid came to an end in April 2001 and was replaced by Criminal Defence Service (CDS) administered by the Legal Services Commission
Ø In May 2001 the Commission began to employ defence lawyers called public defenders. The Public Defender Service runs parallel to solicitors in private practice
Ø In Israel the office of the public defender contracts with private practitioners In England and Scotland, Public defenders offices are small salaried experimental groups of lawyers employed by the Scottish Legal Aid Board and the Legal Services Commission. In San Francisco, the public defender is elected by the people. In New South Wales, the post is a prestigious one concerned only with higher level advocacy. In many US states and in the US federally, it generally means an independent organisation that employs salaried criminal practitioners.
Ø According to Roger Smith there are three main ways in which criminal legal aid can be provided – private practitioners employed on cases-by-case basis often know by the US phrase ‘Judicare’; salaried practitioners employed by the legal aid authority/commission, often referred to as ‘in-house counsel’ and practitioners employed by an independent legal organisation, often called a Public Defender office, which may or may not double as funding agency, known as the staff model
Ø Three levels of advice under criminal legal aids are:
o Advice and assistance – intended to allow those with moderate means to obtain a solicitor’s help (general advice, letter writing, taking part in negotiations, obtaining an opinion of a barrister and preparing case in writing. It does not cover representation in court. To qualify income at £91 per week and disposable capital set at £1,000 or less
o Advocacy Assistance – covers both cost of solicitor, preparing case and initial representation in certain proceedings in the magistrate and the crown court. There is merit test for advocacy assistance. But there is no means test, except for prison work
o Representation – is available if a person has been charged with a criminal offence. This covers both cost of solicitor, preparing case and representation in court. Representation by a Barrister in a crown court would also be covered. Representation is applied for by the lawyer and application considered by the court. Details of income and savings may be relevant if it is in a crown court case. A person can qualify if he is represented by a Solicitor contracted with the commission or the court decides that representation is in the interest of justice
o Court duty Solicitor Scheme – relates to criminal case that are being heard in a magistrate court. Solicitor will give free advise and representation for a first appearance. There is no means test for the Court Duty Solicitor Scheme
o Police Station Advice and Assistance – A person qualifies if he or she is being questioned by the police for an offence irrespective of whether he has been arrested or not. There is no means test for the Police Station Advice and Assistance.

Ø CRIMINAL CONTRACTS
Ø There has been misgivings that the new contract will mean that there are simply not enough criminal defence lawyers, quality control and standards and adequate supervision by a new body
Ø The predominant model remained that of lawyers in private practice and general reluctance to move towards the model of salary providers of legal services
Ø Recruitment and training of new case workers in an expensive business and under capitalised legal aid firms operating on small margins find it difficult to expand, even when they know the demand is there
Ø Experiments such as law centres remained largely peripheral
Ø In Canadian province of Nova Scotia, legal services are provided by staff lawyers working from legal aid offices
Ø Mackay argues that present structure of legal services effectively limits the real possibilities of reform. The model of provision from private firms is likely to retain its hold and it is hard to see how this could be transformed. Salaried services can be deployed in ways that private practice cannot. It could have effect in social welfare and not-for-profit sectors. Charities and advice agencies can become providers of legal services
Ø PLANNING
Ø The issue of funding is one of the central planks of the reforms. LAG has argued that the old legal aid system did not allow the effective planning of legal services
Ø Studies show that there has been a reduction in the legally aided civil litigation and it is difficult to determine reasons for this reduction. It may be partly due to the increased use of conditional fees, research also suggests that premium are set too high for those with low incomes
Ø Community Legal Services Partnerships (CLSP) begun in April 2000 aimed at allowing grassroots inputs into planning and provision of legal services.
Ø CLSP bring together local authorities, charities, local lawyers and advice groups, identify legal needs at local level and communicate this to the Regional Legal Services Committees. The commission activities are expenses. It is estimated that the planning initiatives cost £2.8 million. It is also problematic that there is no independent body to assess the activities of the commission
Ø STANDARDS
Ø The whole trusts of LSC’s approach to quality is based on management system. The franchise, and now contract standard, Legal Aid Franchise Quality Standard (LAFQAS) is based on the industry model of Total Quality Management. LAFQAS approach has brought some welcome improvements in the running of firms and a change in the management culture of legal practices, its shortcoming are becoming increasingly apparent (Mackay 2001
Ø LAFQAS are limited because they cannot be used to assess whether correct advice was given or the correct legal strategy pursued. This can be evidenced from the fact that certain immigration firm were awarded contract, but showed themselves incapable of doing the work to the correct standard
Ø LSC should not be in the position where it assess quality and award contract to avoid potential conflicts of interest between the two roles
Ø There is a strong arguments for the development of an independent legal aid inspectorate to oversee this area. The role of the inspectorate would include encourage the development of quality standards for legal work, oversee the administration of legal aid and monitor access to justice (Mackay)
Ø LEGAL AID, COSTS AND ACCESS TO JUSTICE A HUMAN RIGHT
Ø Articles 5 and 6(1) affirm a right of access to courts, but this right can be qualified by the state
Ø Civil rights means a private right, but public right such as nationality would fall outside the scope of the Article
Ø Jurisprudence of European Courts of Human Rights in Airey v Ireland (1979) 2 EHRR 305. The court distinguished between criminal and civil case. In civil case, there was not a full right to legal aid as there was in the criminal area
Ø Qualified legal aid for civil cases, effective access to the courts
Ø Murno v UK No. 10594/83, 52 DR 158 (1987) – Defamation did not carry an entitlement to legal aid
Ø Winer v UK No, 11564/85 45DR 158 (1987) it was held legitimate to exclude certain categories of legal proceedings altogether from legal aid by reference to financial criteria and inherent riskiness
Ø In Osman (1998) r, BHRRC 294 it was suggested that there would have been a breach of Article 6 had legal aid not be awarded
Ø Fayed v UK (1994) 1 18EHRR 393 – suggest that it would be legitimate to refuse legal aid where there are limited resources
Ø Zamir v UK (1983) 40 DR 42 – there can also be an established right to legal assistance when the party has insufficient means. An illegal immigrant facing deportation
Ø BROADER ISSUES IN THE PROVISION OF LEGAL AIDS
Ø LAG is critical of LSC because it is not a transparent body and lack of scrutiny of its activities by an outside body
Ø Issue of conflict of interests – awarding contracts, fixing prices and monitoring performance. Need of oversee body, Public Defender Service should be administers by a body at arm’s length from the commission
Ø Advice should be provided by an independent third party
Ø THE CO-ORDINATION OF AGENCIES
Ø Need to think creatively about a complex issue such as coordinated field of assistance and representation by participants in the scheme
Ø Because of the decrease in provision of services some people do not have choice. The number of solicitors’ firm providing specialist services has dropped, but this is offset by a rise of service providers in the not-for-profit sector which now account for 80% of total supplier base. www.nao.org.uk
Ø These bodies concentrate on providing held and there is a shortfall in the provision of representation in court
Ø COMMUNITU LEGAL SERVICE (CLS) PIONEER PARTNERSHIP
Ø There is a problem of uneven distribution of legal services. Moorehead report (Moorehead R. Pioneers In Practice: Community Legal Service Project 2002
Ø Services have grown in an ad hoc, unplanned and uncoordinated manner, dependent on discretionary funding from local authorities, charities and central government
Ø THE ROLE OF NOT-FOR-PROFIT SECTOR AND ALTERNTIVE METHODS OF FUNDING
Ø LAG raised some of these points – it is not necessary that the case that all legal service have to be funded by LSC; draws attention to local advice centres and bodies that have been drawing fund from local authorities and charitable trusts; applauded policy objectives of setting up a comprehensive network of Community Legal Service Partnership (CLSPs)
Ø How might savings be made in the legal aid budget
Ø One possibility is the creation of separate criminal defence fund –compulsory contribution from the financial sector and utilised in cases where people from that sector come into contact with the criminal courts.
Ø It is the high cost criminal cases which are so demanding of finacila resources
Ø Not-for-profit sector can offer something to the provision of legal services – research on possible
Ø Law centres could interface with advice centres to cover those areas of social welfare aw that are being excluded from the advise portfolios of solicitors firms
Ø Moving away from reliance on private practice should be accompanied by a programme for the expansion of law centres and not-for-profit services
Ø Legal aid firms should make use of government proposal to set up community interest companies (CISs) – new companies designed for social enterprises that want to use their profit and assets for public good
Ø LAG recommended replacement of the traditional ‘piece-rate system of payment by a mode of funded case workers. Quality control could be provided by peer review rather than intrusive and expensive bureaucracy
Ø THE ROLE OF PUBLIC DEFENDERS
Ø NEWS FROM NOWHERE – COMPARATIVE PERSPECTIVES OF LEGAL AID
Ø US has organised legal aid provision round salaried lawyers and public defenders, UK has tended to based it provision on the model of lawyers in private practice
Ø While US and UK spent about $2.5 and £32 respective on legal aid, developing countries like South Africa and Nigeria spend about US$0.50 and 0.002 per person
Ø Constitution in South Africa provides right to counsel
Ø Policy makers moved from a system modelled on lawyers in private practice to a model of salaried lawyers.
Ø In the 70s one of the most effective systems of funding existed on Quebec, restrictions of funding meant that by the 1990s it was longer such a beacon
Ø In Australia states such as New South Wales and Victoria also had generously funded systems that are now much reduced
Ø The Dutch created regional aid boards in 1994
Ø Quebec has the Commission des Services Juridiques
Ø Both Holland and Ontario
Ø In Bangladesh lawyers provided low cost services as professional duty
Ø Access to Justice Act 1999 specifies that the personnel of the commission must include those with knowledge of the work of the courts, consumer affairs and social conditions
Ø Comparative study of legal aid system draws attention to generic political problems, it also confirms certain themes within our consideration of legal aid provision
Ø There is widespread support for law centres and law clinics
Ø These communities centre funded by grants and managed by boards can for the most part be managed efficiently and effectively and con responds to the needs of local communities
Ø Legal aid could be thought of right, the key will be how government will be able to accord legal aid and right access to courts, the policy importance that they demand, while maintaining control of public spending.

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Ø nemo judex in causa sua – you cannot be a judge in which they have an interest
Ø Animal Welfare Act 2007 will impose duty of care on all pet owners. The penalty for breaking the Act include fines up to £20,000 and imprisonment.
Ø Under Equity Legislation 2003 it is illegal to discriminate against people because of their sexual orientation.
Ø Safeguarding Vulnerable Groups Act 2008 requires hobby club to conduct criminal records bureau checks on all coaches and volunteers of face a fine of £5000
Ø www.bbc.co.uk/lifestyle