Law-Judicial Creativity Flashcards
What was one of the old schools of thought in precedent?
In precedent, there used to be a school of though that judges did not actually ‘make’ new law; they merely discovered it. However, it is now recognised that judges do use precedent to create new law and to extend old principles. There are many areas of law which owe their existence to decisions by judges
What are areas in criminal law where judges have played a major role in developing the law?
Intention, foresight of consequences, and new crimes
How have judges developed law on intention?
For example, the Court of Appeal judges in Vickers created the rule that the intention for murder covers an intention to cause grievous bodily harm as well as an intention to kill. The judges in the House of Lords confirmed this in Cunningham
How have judges developed law on foresight of consequences?
The relationship of foresight of consequences to intention has also been formulated by judicial decisions in Moloney, Nedrick and Woolin; although in this area there was at least a statutory starting point with s8 Criminal Justice Act 1967 where Parliament provided guidance
How have judicial decisions also effectively created new crimes?
In Shaw v DPP which created the offence of conspiracy to corrupt public morals, and in R v R when it was decided that rape within marriage could be a crime
How has judicial decisions affected contract law?
Nearly all the main rules which govern the formation of contracts come from cases decided by judges. Many of the decisions were made in the nineteenth century, but they still affect the law today
What are the examples of decisions by judges in the nineteenth century that still affect contract law today?
Felthouse v Bindley on the rule that silence cannot be acceptance of an offer. Hyde v Wrench setting out that a counter offer is not an acceptance. Adams v Lindsell that where the post is a suitable method of acceptance ,the acceptance is made at the point when the letter is posted
What is another area of contract law where the rules were developed by judges?
Consideration. Examples include Thomas v Thomas on the point that consideration need not be adequate, and Re McArdle on the point that past consideration is not consideration. although many of the decisions date from the 1800s, the law has continued to develop, seen in WIlliams v Roffey where an exception was created to the basic rule that performance of an existing duty is not good consideration
What is an area of tort that has been developed by judges?
The law of negligence in the law of tort is another major area which has been developed and refined by judicial decisions. An important starting point in this area of law was the case of Donoghue v Stevenson in which the House of Lords, when recognising that a manufacturer owed a duty of care to the ‘ultimate consumer’, created what is known as the ‘neighbour test’ which has been further developed by Caparo v Dickman with the three stage test, of duty, breach and just
How have judges developed the law in negligence with case law on liability for nervous shock?
The first case in which this was accepted was Dulieu v White and Sons where nervous shock in primary victim was held to be actionable. This was extended in Hambrook v Stokes Bros when secondary victim was able to recover damages for nervous shock. Various further developments leading to whole area of law being reviewed by House of Lords in Alcock v Chief Constable of South Yorkshire. Since then there have been further refinements of the law. However, the important point is that there is no statutory law in this area, all ‘rules’ have been created by judges
What is the doctrine of precedent?
The basic doctrine means that in England and Wales the courts operate a very rigid doctrine of precedent which has the effect that every court is bound to follow any decision made by a court above it in the hierarchy; and in general, appellate courts are bound by their own past decisions
What is the most senior court in England and Wales?
It used to be the House of Lords, but this was abolished in 2009 and replaced by the Supreme Court. Lower courts still have to follow past decisions in the House of Lords, unless there is a decision by the Supreme Court overruling the House of Lords’ decision
What does the doctrine of precedent mean for judicial creativity?
Although the precedent appears very rigid and does not apparently allow the courts to create law, there are ways in which the doctrine of judicial precedent can be avoided, so allowing judges to create law
What are the four main ways in which judicial precedent can be avoided, allowing judges to create law?
The Practice Rules of the Supreme Court (and previously the House of Lord’s use of the Practice statement), the exceptions in Young’s case for the court of appeal, the extra exception for the court of appeal (criminal division), and distinguishing, which can be used by all courts
What is original precedent?
In addition to the four ways of avoiding precedent, the courts will on some occasions have to create new law when deciding a case on an area of law for which no law exists. Eg the case of Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation. Part of the decision in this case involved whether the interference with television reception by a large building was capable of constituting nuisance. There were no previous cases on this so a decision had to be made. It was decided that it was similar to interference with a view from a house and so no claim could be made as the law of nuisance had never allowed a claim for interference with a view
What is the practice statement?
From 1966 to 2009, this Practice Statement allowed the House of Lords to change the law if they believed an earlier case was wrongly decided. They had the flexibility to refuse to follow an earlier case when ‘it appears right to do so’. This phrase was very vague and gave little guidance as to when the House of Lords might overrule a previous decision. So the Law Lords had considerable scope as to when to use the Practice Statement and change the law
How does the Practice Statement apply to the Supreme Court?
When the Supreme Court replaced the House of Lords in 2009, the Practice Direction was considered ot be part of the establish jurisprudence relating to appeals. This meant it was transferred to the Supreme Court under s40 of the Constitutional Reform Act 2005. In Austin v Mayor and Burgesses of the London Borough of Southwark which was about tenancy law, the Supreme court confirmed that the practice statement applied to them so they could overrule a previous decision ‘when it was right to do so’ however they decided not to use it in that case
When was the practice statement first used in criminal law?
In Shivpuri which overruled the decision in Anderton v Ryan on attempts to do the impossible. An interesting feature of that decision was the case of Anderton had been decided less than a year before
When was the practice statement used in criminal law after the case of Shivpuri?
After this the Practice Statement was used several times in criminal cases. Eg it was used in Howe which overruled DPP v Lynch on whether the defence of duress was available to a secondary party to murder (i.e. a defendant who helped but did not actually do the killing). It was also used in Gemmell and Richards to overrule Caldwell on the meaning of recklessness. This had the effects of abolishing the inclusion of objective recklessness in the mens rea for criminal damage. Instead liability for criminal damage can only be based on intention to cause the damage or subjective recklessness, i.e. realising there is a risk the damage will be caused and deciding to take that risk
How has the practice statement been used in contract law?
The practice statement showed that the house of lords was reluctant to overrule decisions in the law of contract. The statement said “…they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property and fiscal arrangements have been entered into…”, so it isn’t surprising that there were not any mainstream contact cases in which the practice statement was used. However, a case which arose from breach of contract where the practice statement was used was Miliangos v George
What happened in Miliangos v George?
The lords overruled the earlier case of Havana Railways on the point that damages could only be awarded in sterling and not in other currencies. In Milliangos the lords recognised that currency exchange rates were no longer as stable as they used to be and that damages could be awarded in the currency used in the contract terms
How has the practice statement been used in tort?
The first major use of it was in British Railways Board v Herrington, involving law on duty of care owed to child trespasser, and overruled earlier case of Addie v Dumbreck which decided an occupier of land would only owe duty of care for injuries to child trespasser if they had been caused deliberately or recklessly. In Herrington the lords held social and physical conditions changed since 1929 and so should the law. Another major use was in Murphy v Brentwood district council when house of lords overruled decisions in Anns v Merton London Borough regarding the test for negligence in law of tort
How can the court of appeal go against it’s own previous decisions?
The court of appeal is normally bound by its own previous decisions. This rule comes from the case of Young v Bristol Aeroplane Co Ltd. However, the case does allow for three exceptions where the court of appeal need not follow its own past decisions
What are the three Young exceptions?
- there are conflicting decisions in past court of appeal cases, the court can choose which one it will follow and which one it will reject. 2. there is a decision of the Supreme Court or House of Lords which effectively overrules a court of appeal decision; the court of appeal must follow the decision of the supreme court or house of lords. 3. the decision was made per incuriam, i.e. carelessly or by mistake because a relevant act of parliament or other regulation has not been considered by the court
According to the Young exceptions, how much flexibility does the court of appeal have to change or create law?
The first two exceptions do not give any power to change or create law. It is only the last exception that gives a very small degree of flexibility to correct errors. However, this exceptions is not often used, but it was used in Kakhit v Carty when the Court of Appeal refused to follow decisions made in 1982 and 1988 because a relevant provision of the Rent Act 1977 had not been considered
How can the court of appeal (criminal division) change/create law
The criminal division, as well as using the exceptions from Young’s case, can also refuse to follow a past decision of its own if the law has been ‘misapplied or misunderstood’. This exception was recognised in Gould. In Spencer it was said that there should not in general be any difference in the way that precedent was followed in the criminal division and in the civil division of the court of appeal. However, it had to be remembered that ‘we may be dealing with the liberty of the subject and if a departure from authority is necessary in the interests of justice to an appellant, then this court should not shrink from so acting’. This is not often used but it does exists and gives the division power to alter law when necessary
What is distinguishing?
A method which can be used by a judge to avoid following a past decision which he would otherwise have to follow. It means that the judge finds that the material facts of the case he is deciding are sufficiently different for him to draw a distinction between the present case and the previous precedent. He is not then bound by the previous case. This way of avoiding precedent can be used by a judge at any level of court
How has distinguishing been used in criminal cases?
It has been used in the law on duress. In Sharp it was held duress was not available as a defence where defendant joined criminal gang which carried out robberies. Shepherd, in which defendant joined gang of shoplifters, was distinguished from Sharp. A distinction was drawn between joining a gang known to use violence and a gang which took part in non-violent criminal activity, so Shepherd could use defence of duress when he was threatened into continuing to steal
